Allahabad High Court
State Of U.P. vs Abdul Haleem on 23 November, 2020
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 10 Case :- U/S 378 CR.P.C. No. - 1 of 2020 Applicant :- State of U.P. Opposite Party :- Abdul Haleem Counsel for Applicant :- Govt. Advocate Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Mohd. Faiz Alam Khan,J.
1. Heard Shri Hari Shankar Bajpai, learned Additional Government Advocate and perused the record of the trial Court.
2. By means of instant application the State has prayed for grant of leave under Section 378(3) Cr.P.C. to file appeal against the impugned judgment and order dated 16.9.2019 passed by Additional Sessions Judge/ Special Judge (E.C. Act), Pratapgarh, in Session Trial No. 12/2013 ''State Vs. Abdul Haleem' arising out of Case Crime No. 283 of 2012, under Sections 364, 302, 201 IPC, Police Station Lalganj, District Pratapgarh, whereby accused person/ respondent was acquitted from the charges under Sections 364, 302, 201 IPC.
The prosecution story as unfolds from the record of the subordinate court is that on 3.8.2012 a written application was given by informant- Nizamuddin to S.H.O. Police Station Lalganj, Pratapgarh, stating therein that his son Istishamuddin @ Shebu aged about 15 years had gone towards the Chemar Saraiya on 02.8.2012 at about 12.00 noon and thereafter he is missing. His cell phone is also switched off.
3. On 11.8.2012, one Zahiruddin of village Telyahi Police Station Lalganj, District Pratapgarh submitted a written application at Police Station Lalganj, District Pratapgarh stating therein that his nephew Istishamuddin @ Shebu was missing from 02.8.2012 and a missing report was also lodged. He had got an information in the morning that an unidentified dead body had been found buried in the Jungle and the same is required to be dug so the same could be identified.
On the basis of the above information the dead body was dug out and was identified as that of Istishamuddin @ Shebu. Postmortem on the dead body was performed by Dr. Prabhakar on 11.8.2012 at 4.00 P.M. at District Hospital Pratapgarh. At the time of postmortem the dead body was found covered with soil and peeling of skin was present. Hair, nails and teeth were loose. Brain was found liquidated and orbits were empty. One rope encircling the neck of the deceased was also found.
4. On internal examination, hyoid bone was found fractured and other internal organs were found decomposed. Cause of death was found 'asphyxia' as a result of ante-mortem strangulation. Viscera and Tibia bone of the deceased were preserved.
5. On 16.8.2012 respondent- Abdul Haleem and Shadab son of Niyazuddin were arrested by police and they allegedly confessed their guilt before the arresting Police Officer and on their pointing out mobile phone of the deceased and one ''spade' which was allegedly used in burying the deceased was recovered. A mobile phone was also recovered from the possession of the respondent- Abdul Haleem which was allegedly used in making a call to the deceased.
6. The Investigating Officer after investigation submitted a charge sheet against the respondent- Abdul Haleem and Mohd. Shadab under Sections 364, 302 and 201 IPC. Co-accused Mohd. Shadab was declared juvenile and his file was separated and sent to the Juvenile Justice Board Pratapgarh while charges under Sections 364, 302, 201 IPC were framed against the respondent- Abdul Haleem.
7. The prosecution in support of his case, apart from documentary evidence, relied on following prosecution witnesses:-
P.W.1- Nizamuddin, P.W.2- Zahiruddin, P.W.3- Mahboob Ali, P.W.4- Prabhakar Ram, P.W.5- Niyazuddin, P.W.6- Mohd. Saleem, P.W.7- Govind Jaiswal, P.W.8- Sub Inspector- Vinay Kumar Singh, P.W.9- Kunwar Bahadur Singh, P.W.10- Ramlal and P.W.11- Ramji Upadhyaya.
8. The trial court after taking into consideration the oral and documentary evidence found that prosecution has miserably failed to prove this case beyond reasonable doubt and therefore acquitted the respondent.
Aggrieved by the judgment and order of the trial court the State Counsel has filed this application and Appeal requesting for grant of leave to appeal.
9. Learned AGA while pressing the application for grant of leave submits that the court below has committed material illegality in appreciating the evidence available on record and has passed a judgment of acquittal in utter disregard to the principle of appreciation of evidence with regard to the cases based on circumstantial evidence.
10. It is further submitted that court below has failed to take into consideration that the deceased was called by respondent by making a telephonic call and since then he got missing and his dead body was found buried in the jungle and therefore the prosecution in all probability, has proved that the crime has been committed by the respondent. It is further submitted that the trial court has also failed in taking into consideration the recovery of mobile phone of deceased and 'spade' use in burying the deceased and has wrongly accorded acquittal and that the State be granted leave to file appeal to challenge the order of acquittal passed by the court below.
11. Having heard learned AGA and having perused the record as well as the judgment of the trial court, we find that the State has preferred appeal against order of acquittal with an application to grant leave to appeal.
The question as to how the application for grant of leave to appeal made under Section 378(3) of the Code should be decided by the High Court and what are the parameters which this Court should keep in mind remains no more 'res integra '. This Issue has been examined and settled by the Hon'ble the Apex Court in cases of Sanwat Singh and others v. State of Rajasthan, AIR 1961SC715, Ajmer Singh v. State of Punjab, 1953 SCR 418, Sadhu Saran Singh Vs. State of Uttar Pradesh and Others, 2016 CrL. J. 1908 and State of Maharashtra vs. Sujay Mangesh Poyarekar, MANU/SC/8073/2008.
12. From the above mentioned decisions some general principles which may emerge are that the appellate court is having full power to review or re- appreciate or reconsider the evidence upon which the order/ judgment of acquittal has been based and there is no limitation, restriction on exercise of such power by the appellate court and that the appellate court may reach at it's own conclusion on the same set of evidence, both on question of facts as well as on law. However, it is to be kept in mind that in case of acquittal, the presumption of innocence which was initially with the accused persons gets fortified, reaffirmed and strengthened. The golden principle which runs through the web of criminal jurisprudence is that if two reasonable and logical conclusions can be derived on the basis of evidence on record, the appellate court should not normally disturb the finding of the trial court. But simultaneously it is also to be kept in mind that the benefit of only a reasonable doubt can be given to accused persons in a criminal trial. The accused persons cannot claim the benefit of each and every doubt. To get the benefit of doubt the same has to pass the test of reasonableness and a reasonable doubt is a doubt which emerges out of the evidence itself.
13. Instant case is based on circumstantial evidence, as there is no witness, who claims to have seen the commission of offence.
The law with regard to appreciation of circumstantial evidence has also been settled by Honble Supreme Court in cases of Hanumant v. State of Madhya Pradesh MANU/SC/0037/1952,Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR, 1984 SC 1622, Jaharlal Das v. State of Orissa, MANU/SC/0586/1991 : (1991) 3SCC 27 and Varkey Joseph v. State of Kerala, MANU/SC/0295/1993. The settled legal position of law pertaining to cases based on circumstantial evidence can be summarized in following terms:
1. The circumstances relied upon by the prosecution which lead to an inference to the guilt of the accused must be proved beyond doubt;
2. The circumstances should unerringly point towards the guilt of the accused;
3. The circumstances should be linked together in such a manner that the cumulative effect of the chain formed by joining the links is so complete that it leads to only one conclusion i.e. the guilt of the accused;
4. That there should be no probability of the crime having been committed by a person other than the Accused.
14. In instant case the circumstances which were placed against the Accused/respondent were as under:-
(I) Respondent made a telephonic call to the deceased and asked him to join his company and thereafter the deceased was done to death.
(ii) Respondent- Abdul Haleem and co-accused Mohd. Shadab were seen coming out of the jungle where the dead body of the deceased was later on found.
(iii) Respondent- Abdul Haleem made extra judicial confession before P.W.5- Niyazuddin and confessed his guilt.
(iv) On the pointing out of respondent- Abdul Haleem, one spade (Fawda) allegedly used in the incident and the mobile phone of the deceased was recovered from near the place of occurrence.
15. So far as the first circumstance is concerned, prosecution witness-1 Nizamuddin has stated in his examination-in-chief that his son departed from his house in the noon informing that he is going to the house of his sister as he had received a phone call from Abdul Haleem. However, when missing report with regard to the deceased was lodged by the above witness- Nizamuddin this important circumstance was not stated by him that deceased on the fateful day was called by respondent- Abdul Haleem and he actually went to the house of Abdul Haleem on his invitation. Even in the application dated 11.8.2012 given by P.W.2- Zahiruddin in Police Station Lalganj, this fact was not mentioned that the deceased was called by respondent- Abdul Haleem. On the basis of above material contradictions subordinate court has arrived at a conclusion that there is a grave doubt in the proposition that the deceased was ever called by respondent- Abdul Haleem.
16. Perusal of the record would further reveal that though the Investigating Officer has collected the call details of the mobile phone of the deceased but no mention has been made in the case diary as to how he got the call details. The trial court has also noticed the statement of P.W.10- Ramlal, who, in his cross examination, has stated that he could not ascertain as to in whose name Mobile No. 9956576191 was issued and he also did not get the call details of this phone number. In this backdrop the trial Court was of the view that the fact that deceased was called from this mobile phone was not established and the Investigating Officer has not investigated the crime with care and caution.
17. With regard to circumstance no.2, it was only P.W.3 Mahboob Ali, who stated to have seen the respondent- Abdul Haleem and Mohd. Shadab on 2.8.2012 at about 4.00 P.M. emerging from the jungle wherein dead body of the deceased was later on found. However, in his cross examination he stated that he had informed the police on the same day (9.8.2012) that he saw respondent and Mohd. Shadab emerging from the jungle. The trial court has also cited the evidence of P.W.1- Nizamuddin wherein he has stated in his cross examination that on 3.8.2012 at about 10.00 A.M. he was informed by witness Mateen and Mahboob that the deceased was going with respondent- Abdul Haleem towards the jungle. Having regard to the contradictions which emerged in the evidence of P.W.3- Mahboob Ali and P.W.1- Nizamuddin, the trial court came to the conclusion that the prosecution has failed to prove the fact that the deceased was last seen with respondent on the day of occurrence.
18. So far as the circumstance with regard to making extra judicial confession by the respondent- Abdul Haleem in front of P.W.5- Niyzauddin is concerned, the trial court has disbelieved the testimony of P.W.5- Niyazuddin on the basis that this witness did not try to inform the informant( who is his brother-in-law) with regard to the extra judicial confession allegedly made by respondent- Abdul Haleem before him. It is also stated by him that extra judicial confession was made to him by the respondent- Abdul Haleem on the same day when the deceased was done to death and he did not try to apprehend the respondent and he ultimately informed his sister and brother-in-law (father of the deceased) on the next day and thereafter dead body of the deceased was recovered from the jungle.
The trial court also disbelieved the evidence of these witnesses on the ground that he has stated to have informed the Investigating Officer on the same day about the confession made by respondent but there is no mention of this fact in the missing report lodged in connection with the deceased and this fact has also not been contained in the application given by P.W.2-Zahiruddin on 11.8.2012 in Police Station Lalganj, District Pratapgarh.
19. The trial court is also of the view that recovery of a mobile phone of the deceased and ''spade', allegedly used in commission of crime, could not be proved. As the recovery has been shown to have been effected in an open place and there is no independent witness of the same and therefore the trial court was further of the view that circumstances relied on by the prosecution, have not been established beyond reasonable doubt.
20. We have very carefully perused the evidence of prosecution witnesses in the back ground of settled principles for appreciation of circumstantial evidence and what we find is that cumulative effect of the evidence given by all these factual witnesses before the trial Court has certainly failed to achieve the satisfaction which may be termed as proof beyond reasonable doubt. Needless to say that the instant case was based purely on circumstantial evidence, as nobody had seen the respondents committing murder of deceased and it was the duty of the prosecution to prove all the circumstances from which an inference of guilt of respondent could be drawn and to establish that, all circumstances are proved and are of a definite tendency and that they unerringly point only towards the guilt of the accused person and these circumstances, if taken cumulatively, are forming a chain so complete that there is no escape from the conclusion that in all probability the crime has been committed by the respondent only and by none else and is also incapable of explanation of any other hypothesis than the guilt of the respondent.
21. Therefore keeping in view the aforesaid facts and circumstances, in our considered view, the trial court was justified in recording a finding of acquittal as the prosecution failed to prove its case beyond all reasonable doubt on the touchstone of the settled principles pertaining of appreciation of evidence with regard to cases based on circumstantial evidence. The evidence presented before the trial Court is certainly not of such character whereby any other hypothesis is not possible. The judgment of the court below can not be termed either perverse or not based on evidence.
22. A criminal trial proceeds with the presumption of innocence of the accused person(s) and this presumption of innocence stands fortified with the acquittal of the accused persons. So, very strong and cogent reasons must exist for interfering in the judgment of acquittal. In view the above factual and legal position, we are of considered opinion that the prosecution has miserably failed to prove its case beyond reasonable doubt and it cannot be said that the view taken by the Trial Judge is perverse or unreasonable. Per contra, the view taken by the trial Court is a possible view and the judgment of the trial court cannot be said to be not based on material on record or illegal or illogical or improbable. Accordingly, no interference in the judgment of the trial Court is called for.
Thus, the prayer for grant of leave to appeal is hereby rejected.
Since application for grant of leave to appeal has been rejected, the memorandum of appeal also does not survive. Consequently, the appeal is also dismissed.
(Mohd. Faiz Alam Khan, J.) (Devendra Kumar Upadhyaya, J.)
Order Date :- 23.11.2020
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