Allahabad High Court
State Of Up vs Israr S/O Raees And 03 Others on 5 August, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 42 Case :- GOVERNMENT APPEAL No. - 334 of 2022 Appellant :- State of U.P. Respondent :- Israr S/O Raees And 03 Others Counsel for Appellant :- Shiv Kumar Pal Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Budhwar,J.
(Per: Hon. Vikas Budhwar,J.)
1. This is an appeal under Section 378(3) of Code of Criminal Procedure (hereinafter referred to as ''CrPC') filed against the judgment and order dated 25.2.2022 passed by Additional District & Sessions Judge/ Fast Track Court No.2, Jyotiba Phule Nagar (Amroha) in Session Trial/1700263/2014, State Vs. Israr and others arising out of Case Crime No. 278 of 2012, under Section 364 IPC, P.S. Amroha City, District Amroha, whereby accused-respondents have acquitted.
2. Briefly stated facts shorn off unnecessary details that the complainant Musharraf son of Ashraf, resident of village Nanak Nagli, P.S. Kaanth, Moradabad had submitted a written report on 31.8.2012 to S.P. Amroha with an allegation that he is the resident of village Nanak Nagli, P.S. Kaanth, Moradabad and his son Nusrat aged about 27 years is living for the past 9 years in Amroha in locality Qureshi in the house of one Shoeb as a tenant and his son had married twice as the name of the first wife is Asma and the second wife is Nazmeen. Nusrat being his son about 11 years ago had married Nazmeen daughter of Afsar Khan being in love with her and in the said connection, family members of Nazmeen were furiated and they bore enmity with his son. About 8 months ago the complainant son Nusrat was abducted and the accused being Kalam son of Qayyum resident of Sultanpur, Sujauddin, Akram, Rustam sons of Afsar Khan, Alauddin son of Akhtar Khan and Mushahid son of Sher Khan resident of village Nanak Nagli, P.S. Kaanth, Moradabad were instrumental in committing said offence and his son was recovered by the joint operation of police of Hasanpur and Gajraula.
3. As per the prosecution theory, on 29.8.2012 at 3:00 in the noon, the son of the complainant being Nusrat was accompanied with his both the wives and his children was present in the locality Qureshi, then the accused Israr made a call in the mobile phone of his son. The mobile number of Nusrat is stated to be 9917816875 and 9927874914. After receiving the said call which is stated to be made by Israr resident of village Kaserua, the complainant's son apprised his wives that he has been called by Israr resident of village Kaserua. It is further alleged that despite the fact that the complainant's son had proceeded on receiving the call of accused Israr, but when he did not return, then calls were made, however, it was noticed that both the mobile numbers were switched off and even after repeated search, his whereabouts were not traced and thus suspicion occurred that on account of love marriage so solemnized between his son and Nazmeen, the same became the ground of commission of the offence. Further allegation has been made that the complainant proceeded to the Police Station Amroha City, however, no action, whatsoever has been taken and thus he has submitted the written report that FIR be lodged.
4. Consequent to the submission of written report on 31.8.2012 at 19:15 hours, FIR was lodged in the concerned police station against the accused Kalam, Israr, Sujauddin, Akram, Rustam, Alauddin and Mushahid under Section 364 IPC. One Pramod Kumar Sharma was nominated as the Investigating Officer along with Inspector K.P. Singh. It has also come on record that the Investigating Officer proceeded to conduct investigation while preparing the site-plan and when the dead body of the deceased was shown to be found near river Ganga, then inquest report was also prepared. Statements under Section 161 CrPC was also undertaken and charge sheet was submitted by the Investigating Officer against the accused Israr. Nanhe, Gayasuddin, Mushahid, Akram and Kalam under Section 364 IPC. It has further come on record that during investigation, Gayasuddin @ Pappu had died. The case was committed to the Sessions, charges were read over to the accused Israr, Nanhey, Mushahid, Akram and Kalam on 10.11.2016. The accused pleaded innocence and claimed to be tried. However, subsequently, accused Kalam died and thus now criminal proceeding was sought to be initiated against the accused, who are four in number.
5. Learned trial court by virtue of judgment and order under challenge has acquitted the accused.
6. Challenging the same, now the State is before this Court.
7. In order bring home the charges, the prosecution has examined the following witnesses:
PW-1. Musharraf, PW-2. Mohd. Naeem PW-3. Rajab Ali PW-4. Ompal Singh PW-5. Nazmeen PW-6. S.I. Retired Pramod Kumar Sharma PW-7. HC152 Vikas Sharma, PW-8. Retd. Inspector K.P. Singh Bhati PW-9. Asma
8. This Court is oblivious of the fact that present proceedings is emanating from the judgement and order of acquittal. To put it otherwise, the present appeal has been filed by the first informant whereby he seeks judicial intervention for reversing the judgement of acquittal into conviction. The Hon'ble Apex Court in the line of the decisions right from the very inception has been consistently mandating that in the proceedings challenging the judgement of acquittal, appellate courts should be slow in interfering as double presumption of innocence is tagged with the accused and until and unless the order so passed by the trial court is perverse or straight away points towards a wrong direction emanating complete miscarriage of justice and further misreading of the evidence and there are substantive and compelling grounds for setting aside the judgement of acquittal. The courts should, normally and in routine manner, not interfere particularly when the view taken by the learned trial Court is plausible and possible view. Needless to point out, even the appellate Courts should be slow in interfering where another view is possible.
9. The Hon'ble Apex Court in the case of Jafarudheen and others vs. State of Kerala, 2022 LiveLaw (SC) 403, has observed as under:-
"25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters. Precedents: Mohan @Srinivas @Seena @Tailor Seena v. State of Karnataka, [2021 SCC OnLine SC 1233] as hereunder: -
"20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.
21. Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity.
22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark.
23. This court, time and again has laid down the law on the scope of inquiry by an Appellate court while dealing with an appeal against acquittal under Section 378 CrPC. We do not wish to multiply the aforesaid principle except placing reliance on a recent decision of this court in Anwar Ali v. State of Himanchal Pradesh, (2020) 10 SCC 166:
14.2. When can the findings of fact recorded by a court be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under : (Babu case [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri ) 1179]) "20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/ inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn. [Rajinder Kumar Kindra v. Delhi Admn., (1984) 4 SCC 635 : 1985 SCC ( L&S ) 131], Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [Excise & Taxation Officer-cum- Assessing Authority v. Gopi Nath & Sons, 1992 Supp (2) SCC 312], Triveni Rubber & Plastics v. CCE [Triveni Rubber & Plastics v. CCE, 1994 Supp (3) SCC 665], Gaya Din v. Hanuman Prasad [Gaya Din v. Hanuman Prasad, (2001) 1 SCC 501], Aruvelu [Arulvelu v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] and Gamini Bala Koteswara Rao v. State of A.P. [Gamini Bala Koteswara Rao v. State of A.P., (2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372] )"
It is further observed, after following the decision of this Court in Kuldeep Singh v. Commr. of Police [Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10 : 1999 SCC (L&S) 429], that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.
14.3. In the recent decision of Vijay Mohan Singh [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 : (2019) 2 SCC (Cri) 586], this Court again had an occasion to consider the scope of Section 378 CrPC and the interference by the High Court [State of Karnataka v. Vijay Mohan Singh, 2013 SCC OnLine Kar 10732] in an appeal against acquittal. This Court considered a catena of decisions of this Court right from 1952 onwards. In para 31, it is observed and held as under:
"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai [Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SCC 228 : 1978 SCC (Cri) 108]. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under:
''10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case.' 31.1. In Sambasivan [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320], the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under:
''8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Doshi case [Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 : 1996 SCC (Cri) 972] viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a wellconsidered judgment duly meeting all the contentions raised before it. But then will this noncompliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case.' 31.2. In K. Ramakrishnan Unnithan [K. Ramakrishnan Unnithan v. State of Kerala, (1999) 3 SCC 309: 1999 SCC (Cri ) 410] , after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.
31.3. In Atley [Atley v. State of U.P., AIR 1955 SC 807 : 1955 Cri LJ 1653] , in para 5, this Court observed and held as under :
''5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.
It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State [Surajpal Singh v. State, 1951 SCC 1207 : AIR 1952 SC 52]; Wilayat Khan v. State of U.P. [Wilayat Khan v. State of U.P., 1951 SCC 898 : AIR 1953 SC 122]) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.' 31.4. In K. Gopal Reddy [K. Gopal Reddy v. State of A.P., (1979) 1 SCC 355 : 1979 SCC (Cri) 305], this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."
N. Vijayakumar v. State of T.N., [(2021) 3 SCC 687] as hereunder: -
"20. Mainly it is contended by Shri Nagamuthu, learned Senior Counsel appearing for the appellant that the view taken by the trial court is a "possible view", having regard to the evidence on record. It is submitted that the trial court has recorded cogent and valid reasons in support of its findings for acquittal. Under Section 378 CrPC, no differentiation is made between an appeal against acquittal and the appeal against conviction. By considering the long line of earlier cases this Court in the judgment in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC ( Cri) 325 has laid down the general principles regarding the powers of the appellate Court while dealing with an appeal against an order of acquittal. Para 42 of the judgment which is relevant reads as under: (SCC p. 432) "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
21. Further in the judgment in Murugesan [Murugesan v. State, (2012) 10 SCC 383: (2013) 1 SCC (Cri) 69] relied on by the learned Senior Counsel for the appellant, this Court has considered the powers of the High Court in an appeal against acquittal recorded by the trial court. In the said judgment, it is categorically held by this Court that only in cases where conclusion recorded by the trial court is not a possible view, then only the High Court can interfere and reverse the acquittal to that of conviction. In the said judgment, distinction from that of "possible view" to "erroneous view" or "wrong view" is explained. In clear terms, this Court has held that if the view taken by the trial court is a "possible view", the High Court not to reverse the acquittal to that of the conviction.
xxx xxx xxx
23. Further, in Hakeem Khan v. State of M.P., (2017) 5 SCC 719 : (2017) 2 SCC ( Cri) 653 this court has considered the powers of the appellate court for interference in cases where acquittal is recorded by the trial court. In the said judgment it is held that if the "possible view" of the trial court is not agreeable for the High Court, even then such "possible view" recorded by the trial court cannot be interdicted. It is further held that so long as the view of the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, verdict of the trial court cannot be interdicted and the High Court cannot supplant over the view of the trial court. Para 9 of the judgment reads as under: (SCC pp. 722-23) "9. Having heard the learned counsel for the parties, we are of the view that the trial court's judgment is more than just a possible view for arriving at the conclusion of acquittal, and that it would not be safe to convict seventeen persons accused of the crime of murder i.e. under Section 302 read with Section 149 of the Penal Code. The most important reason of the trial court, as has been stated above, was that, given the time of 6.30 p.m. to 7.00 p.m. of a winter evening, it would be dark, and, therefore, identification of seventeen persons would be extremely difficult. This reason, coupled with the fact that the only independent witness turned hostile, and two other eyewitnesses who were independent were not examined, would certainly create a large hole in the prosecution story. Apart from this, the very fact that there were injuries on three of the accused party, two of them being deep injuries in the skull, would lead to the conclusion that nothing was premeditated and there was, in all probability, a scuffle that led to injuries on both sides. While the learned counsel for the respondent may be right in stating that the trial court went overboard in stating that the complainant party was the aggressor, but the trial court's ultimate conclusion leading to an acquittal is certainly a possible view on the facts of this case. This is coupled with the fact that the presence of the kingpin Sarpanch is itself doubtful in view of the fact that he attended the Court at some distance and arrived by bus after the incident took place."
24. By applying the abovesaid principles and the evidence on record in the case on hand, we are of the considered view that having regard to material contradictions which we have already noticed above and also as referred to in the trial court judgment, it can be said that acquittal is a "possible view". By applying the ratio as laid down by this Court in the judgments which are stated supra, even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged. From the evidence, it is clear that when the Inspecting Officer and other witnesses who are examined on behalf of the prosecution, went to the office of the appellant-accused, the appellant was not there in the office and office was open and people were moving out and in from the office of the appellant. It is also clear from the evidence of PWs 3, 5 and 11 that the currency and cellphone were taken out from the drawer of the table by the appellant at their instance. There is also no reason, when the tainted notes and the cellphone were given to the appellant at 5.45 p.m. no recordings were made and the appellant was not tested by PW 11 till 7.00 p.m."
10. Bearing in mind the proposition of law so culled out by Hon'ble Apex Court, now the present case is to be addressed.
11. Heard Sri Kailash Prasad Pathak, the learned A.G.A.
12. Learned A.G.A, has argued that the judgment and order passed by the Trial Court acquitting the accused is superficial and besides being perverse inasmuch as there was ample evidence available on record so as to convict the accused as not only the prosecution witnesses had supported the prosecution theory, but there were other factors available not only showing motive, but clearly linking the accused with respect to commission of crime.
13. In nutshell, learned A.G.A, has argued that the judgment of acquittal has proceeded towards wrong direction, as learned Trial Court has misread the evidence, which pointedly marked the accused of commission of crime.
14. In order to delve into the issue in question, the testimony of the prosecution witnesses is to be at least noticed.
15. PW-1 Musharraf claims himself to be the first informant and according to him, he is father of the deceased being his son lives with his both the wives and children as the tenant in the house of Shoeb in locality Qureshi and his son Nusrat has apprised his wife Asma that he had received a call and that's why he proceeded and when he did not come back to his house, then the calls were made on the mobile phone of the deceased, then it was revealed that mobile phone was switched off. According to him, he knows the accused, as they are his relatives and resident of the same village and he had promptly gone to lodge FIR, but it was not lodged, but the same was lodged after two days.
16. As PW-2, Mohd. Naeem appeared in the witness box and according to him he does not know the deceased Nusrat nor he knows the accused and on the fateful day on 29.8.2012, he was in his house and he had not seen Nusrat being accompanied with the accused.
17. PW-3, Rajab Ali also entered into the witness box and according to him, he knows the accused Gayasuddin @ Pappu, Israr and Nanhey, as their agricultural farm is adjoining his agricultural farm. According to him, the accused are residents of village Kaserua. He has further deposed that on 30.8.2012, he had not seen the accused Gayasuddin @ Pappu, Israr, Nanhey along with any other person.
18. As PW-4 Ompal Singh appeared as prosecution witness. He has come up with the stand that on 30.8.2012, he had not seen deceased with the accused Gayasuddin @ Pappu, Nanhey, Israr, residents of Kaserua.
19. One Nazmeen appeared as PW-5. She claims to be the wife of the deceased and marriage to him 9 years ago being the second wife and the first wife of the deceased was Asma and she along with her and three children had stayed with the deceased husband in a rented room. According to her statement, her husband Nusrat without informing her had gone away. When he did not come back and she did not receive any phone call and she had not seen Israr and Gayasuddin @ Pappu.
20. As PW-6 S.I. Pramod Kumar Sharma appeared in the witness box and according to him on 2.11.2012, he was posted as Station Incharge, Kotwali City, Amroha and he has taken the investigation from the stage which was left by his predecessor Mrityunjai Singh consequent to his transfer. He in his statement has further deposed that Nusrat was of a criminal character and was a history-sheeter and against him, several criminal cases were going on. He has further deposed that he had not taken the possession of the vehicle which was used in the crime and he has also not sketched the place of occurrence from the highway while preparing the site-plan. He has further deposed that consequent to the investigation, so conducted by him, he did not find the dead body of the deceased, nor any incriminating articles were recovered.
21. PW-7 Head Constable 152 Vikas Sharma has deposed that on 31.8.2012, he was posted as Head Clerk and at 9:15 hours, he had lodged FIR and thus he sought to prove the FIR.
22. As PW-8, Retd. Inspector K.P. Singh Bhati claims himself to be the Investigating Officer so entrusted with the duty, consequent to the direction issued by I.G. Zone, Bareilly.
23. As PW-9, Asma appeared as a prosecution witness and according to her statement, she had been the Pradhan of village Nanak Nagli. She further stated that one Roshan Ara who happens to be the wife of Sujauddin also contested the Pradhan election and on account of the election rivalry, the crime has been committed. She has further deposed that Nusrat had two wives, one being PW-9 and when the deceased husband stayed in Amroha, then he married Nazmeen, who happens to be the real sister of Sujauddin and this was the rivalry, which bore in the mind of Sujauddin. She has further deposed that earlier also, the deceased became missing and he was abducted by the accused Israr, Pappu, Sujauddin, Akram, Alauddin and Kalam.
24. PW-9 has further deposed that on 29.8.2012 Israr had called her husband and he had told her that he is going on the basis of call of Israr, and thereafter, no phone whatsoever was received and her husband went missing.
25. Undisputedly, the incident relates to 29.8.2012, wherein as per the prosecution case, the deceased received a phone call from Israr and he proceeded to meet Israr and went missing and when phone call was made, then the mobile was found to be switched off. Admittedly, the FIR has been lodged on 31.8.2012 at 19:15 hours after a period of two days. An explanation has been sought to be offered by the prosecution that the delay occasioned on account of the fact that the deceased went missing and after waiting for a phone call, and when the same was not received and after making repeated search when the whereabouts of the deceased was not traced, then the FIR was lodged.
26. The learned Trial Court has taken pains to examine the FIR in question, wherein it was found that the word ''applicant' and certain other conspicuous words have been used, even in fact it is PW-1 Musharraf, who happens to be the witness, who claims to be the first informant, he in his cross examination has stated that he had got typed the FIR in the District Court Amroha and the person, who had typed the FIR did not read the same and he without reading the contents of the FIR he had put thumb impression over the same. He has further admitted that the contents of the FIR were narrated by the person, who was typing the same. Even in fact, PW-7 Head Constable 152 Vikas Sharma has himself deposed in his cross-examination that the PW-1 had not put any signature or thumb impression of PW-1 in the FIR and in the written report, there were various over-writings, which depicted that the same was tailored in such a manner so as to make a case. He has further deposed that the said written report had been scribed by some person of Mohalla Qureshi, Amroha. Not only the delay in lodging the FIR assumes significance, but the statement of PW's- 1 to 7 also creates a cloud regarding the fact that whether the said incident occurred or not, particularly when PW's 1 and 7 in their statement had admitted that the FIR was being written/ typed by somebody else and on their direction, the facts were narrated and without seeing the same and listening to the facts so mentioned therein signatures and thumb impressions were made by the PW-1/ Musharraf (first informant).
27. The Hon'ble Apex Court on the question of delay in lodging the FIR and its impact upon the prosecution theory has observed in the case of (1973) 3 SCC 114 Apren Joseph Alias Current Kunjukunju and others Vs. The State of Kerala wherein para 11 following was mandated:
11. Now first information report is a report relating to the commission of an offence given to the police and recorded by it under Section 154, Cr. P. C. As observed by the Privy Council in K. E. v. Khwaja, the receipt and recording of information report by the police is not a condition precedent to the setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by an eye witness. First information report under Section 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant's evidence in court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time and opportunity to embellish or before the informant's memory fades. Undue unreasonable delay in lodging the F. I. R., therefore, inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. In our opinion, no duration of time in the abstract can be fixed as reasonable for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case. Mere delay in lodging the first information report with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case.
28. In the case of Tara Singh and others Vs. State of Punjab 1991 Supp (1) SCC 536, the Hon'ble Apex Court in paragraph 4 has observed as under:-
4. It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case.
29. Yet, in the case of P. Rajagopal and others Vs. State of Tamil Nadu (2019) 5 SCC 403, the Hon'ble Apex Court in paragraph 12 has held as under:-
"12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty-bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely."
30. Further in the case of Dilawar Singh vs. State of Delhi reported in (2007) 12 SCC 641 in paragraph 9, 10 and 11, the Hon'ble Apex Court has observed as under: -
"9. In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case.
10. In Thulia Kali v. The State of Tamil Nadu (AIR 1973 SC 501), it was held that the delay in lodging the first information report quite often results in embellishment as a result of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation.
11. In Ram Jag and others v. The State of U.P. (AIR 1974 SC 606) the position was explained that whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay can be condoned if the witnesses have no motive for implicating the accused and/or when plausible explanation is offered for the same. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness or authenticity of the version of the prosecution."
31. Keeping aside the aspect of the delay and its impact on the prosecution case, an additional aspect is to be noticed that barring the statement of PW-9 Asma, all the prosecution witnesses have turned hostile and denuded themselves from supporting the prosecution case.
32. So far as PW-1 is concerned, he though happens to be the father of the deceased, however, as discussed earlier, he has admitted in his deposition that he had got the FIR typed in the District Court and he without reading and listening to the contents of the FIR had put his thumb impression and the said fact stands corroborated with the statement of HCP152 Vikas Sharma. So far as PW-2 Mohd. Naeem is concerned, he though was presented as a prosecution witness, but he denies knowing Nusrat and the accused and on the fateful day on 29.8.2012, he was in his house and he did not see the conditions and he claims that he has not given any statement under Section 161 of CrPC.
33. Similarly, PW-3 Rajab Ali also turned hostile while coming up with the stands that he has not given any statement as stated by the prosecution under Section 161 CrPC and he has not seen the accused with the deceased on 30.8.2012, near brick-kiln.
34. PW-4 also became hostile and according to him, he has not seen the accused with the deceased on 30.8.2012 and he claims not to give any statement under Section 161 CrPC.
35. PW-5 Nazmeen also turned hostile being wife of the deceased while coming up with the stand that the accused on the fateful day had gone out of the house without apprising her and he did not return and she also denied the fact that any phone call came on the mobile of the deceased and according to her statement, her maternal family members were happy with her love marriage with the deceased.
36. PW-6, who happens to be S.I. Pramod Kumar Sharma had come up with the stand that the deceased was a history sheeter having criminal history and he has further admitted that in the site-plan, the place of occurrence and the highway has not been sketched and the dead body of the deceased was not recovered nor any incriminating articles were found.
37. PW-7 Head Constable 152 Vikas Sharma though has proved the lodging of the FIR, but as discussed above, according to him, the written complaint was prepared by some persons of mohalla Qureshi and there were over-writings and cuttings.
38. PW-8, S.I. K.P. Singh Bhati had deposed that he is not aware as to which place, he had searched the deceased and according to him, there was no witness, who came in support of the prosecution theory and the deceased was a history sheeter and criminal cases were going on against him in Delhi, Haryana, Uttar Pradesh and Uttarakhand.
39. Thus PW's 1 to 8 have not supported the prosecution theory as sought to be suggested by PW-9. In fact, PW-9 seeks to support the prosecution theory. Though conviction can be made on the basis of the deposition of a solitary witness provided the same is reliable and constantly points towards the crime taking into account the other factors in that regard.
40. PW-9 claims herself to be the wife of the deceased. However, there are major contradictions in her testimony, which discredits her testimony, as on one hand in her examination, PW-9 has come up with the stand that Nazmeen is the real sister of Sujauddin. However, in her cross-examination, she comes up with a stand that Nazmeen is not a real sister of Sujauddin, but cousin sister, though father was the same, but she was born out of her second mother. So much so PW-9 Asma in her examination-in-chief has come up with the stand that she had gone to the house of Sujauddin, Ashraf, Rustam, Mushahid and Israr in order to find the whereabouts of her husband, however her husband could not be traced, but in her cross-examination, she had stated that she had not gone to the house of Sujauddin, Akram, Rustam, Kalam and Israr. Apart from the same, on 29.8.2012 according to her, the deceased husband received a phone call from Israr and he had apprised that he is going to Israr's place, but there is no recital about the fact as to at what time, the deceased husband received the phone call. In her cross-examination, on being specifically asked, she had stated that on the date of the occurrence, her deceased husband had gone outside the house in the morning without taking the breakfast.
41. Conversely, in the FIR, the time of leaving house in question has been shown to be 3:00 in the noon. The said fact stands corroborated with CD-1 at page 7 of the Case Diary. Additionally in the statement under Section 161 CrPC, PW-9 Asma has further stated that her husband left the house at 3:00 in the noon which itself shows that it is highly improbable that the person, who leaves the house at 3:00 in noon, would have either taken meals being breakfast or lunch. Thus there is clear contradiction in the statement of PW-9.
42. Inconsistency in the statement of PW-9 gets further highlighted from the fact that in her examination in chief, PW-9 had stated that her hsuband had apprised that he had received the phone call of Israr and Israr had called him however in her cross-examination, an improvement was sought to be made to the extent that Israr was sitting with Sujauddin, Akram, Rustam, Mushahid, Kalam and Alauddin and as all they were sitting together so they had called the deceased. Additionally in the cross-examination, a further improvement was made that Israr, Rustam, Akram, Sujauddin, Alauddin, Mushahid, Kalam and Gayasuddin @ Pappu were calling and that is why her husband had gone, as the said facts were apprised by the deceased. PW-9 in her cross-examination, has further stated that in connection with certain settlement her husband was being called. Meaning thereby, that at every stage, improvements were sought to be made.
43. Another additional aspect also needs to be examined is with regard to the fact that the entire prosecution theory hinges upon phone call so sought to be made from the mobile phone of Israr to the deceased. Though at the time of submission of the charge sheet, reference has been made to the call details being CDR, however, the same was not proved before the learned Trial Court as neither any evidence was led, nor the same was made part and partial of the same.
44. Even in fact, the law in this regard is very clear that a certificate under Section 65-B (4) of the Evidence Act is necessary as in absence of the same, the call details cannot be said to be proved. The said aspect of the matter has already been taken note by the Hon'ble Apex Court in the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others, (2020) 7 SCC 1, which is observed in paragraphs no. 47, 51, 52 and 61 as under:-
"47. However, caveat must be entered here. The facts of the present case show that despite all efforts made by the respondents, both through the High Court and otherwise, to get the requisite certificate under Section 65-B(4) of the Evidence Act from the authorities concerned, yet the authorities concerned wilfully refused, on some pretext or the other, to give such certificate. In a fact-circumstance where the requisite certificate has been applied for from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the court for its production under the provisions aforementioned of the Evidence Act, CPC or CrPC. Once such application is made to the court, and the court then orders or directs that the requisite certificate be produced by a person to whom it sends a summons to produce such certificate, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate. Two Latin maxims become important at this stage. The first is lex non cogit ad impossibilia i.e. the law does not demand the impossible, and impotentia excusat legem i.e. when there is a disability that makes it impossible to obey the law, the alleged disobedience of the law is excused. This was well put by this Court in Presidential Poll, In re, (1974) 2 SCC 33, as follows: (SCC pp. 49-50, paras 14-15) "14. If the completion of election before the expiration of the term is not possible because of the death of the prospective candidate it is apparent that the election has commenced before the expiration of the term but completion before the expiration of the term is rendered impossible by an act beyond the control of human agency. The necessity for completing the election before the expiration of the term is enjoined by the Constitution in public and State interest to see that the governance of the country is not paralysed by non-compliance with the provision that there shall be a President of India.
15. The impossibility of the completion of the election to fill the vacancy in the office of the President before the expiration of the term of office in the case of death of a candidate as may appear from Section 7 of the 1952 Act does not rob Article 62(1) of its mandatory character. The maxim of law impotentia excusat legem is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. 'Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him.' Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance with the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom's Legal Maxims, 10th Edn. at pp. 162-63 and Craies on Statute Law, 6th Edn. at p. 268.)"
It is important to note that the provision in question in Presidential Poll, In re24 was also mandatory, which could not be satisfied owing to an act of God, in the facts of that case.
.....
51. On an application of the aforesaid maxims to the present case, it a is clear that though Section 65-B(4) is mandatory, yet, on the facts of this case, the respondents, having done everything possible to obtain the necessary certificate, which was to be given by a third party over whom the respondents had no control, must be relieved of the mandatory obligation contained in the said sub-section.
52. We may hasten to add that Section 65-B does not speak of the stage at which such certificate must be furnished to the Court. In Anvar P.V.2, this Court did observe that such certificate must accompany the electronic record when the same is produced in evidence. We may only add that this is so in cases where such certificate could be procured by the person seeking to rely upon an electronic record. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the person concerned, the Judge conducting the trial must summon the person/ persons referred to in Section 65-B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC.
......
61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V.2, and incorrectly "clarified" a in Shafhi Mohammad³. Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor40, which has been followed in a number of the judgments of this Court, can also be applied. Section 65-B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65-B(4) otiose."
45. Recently Hon'ble Apex Court in Criminal Appeal No.1307 of 2019 Ravinder Singh @ Kaku Vs. State of Punjab decided on 4.5.2022 had followed the judgement in the case of Arjun Panditrao Khotkar (Supra) and paragraph 21 has held as under:-
"21. In light of the above, the electronic evidence produced before the High Court should have been in accordance with the statute and should have complied with the certification requirement, for it to be admissible in the court of law. As rightly stated above, Oral evidence in the place of such certificate, as is the case in the present matter, cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law".
46. Nonetheless, the motive which is being sought to be assigned for commission of alleged crime is relatable to the love marriage so sought to be solemnized as well as election rivalry also could not be proved by the prosecution as the past for commission of crime. Moreover, so far as the allegations so sought to be leveled against the accused Sujauddin and others is concerned relatable to abduction of his husband on earlier occasion and the recovery at the instance of the joint operation of the police of Police Station Gajraula and Police Station Hasanpur is concerned, PW-8 Inspector K.P. Singh Bhati in his cross examination has stated that in the said case final report has been submitted.
47. Apart from the same, another factor, which also needs to be gone into is relatable to the fact as to who had seen the commission of the offence in the light of the last seen theory.
48. PW-2, Mohd. Naeem, PW-3 Rajab Ali and PW-4 Om Pal Singh in their statement have come up with the stand that they have not seen the deceased with the accused. Meaning thereby, the theory of last seen also stands exploded.
49. Moreover, it has come on record that the deceased was a history sheeter having a criminal background and he was found in fact instrumental in preparing forged papers. The said fact has been admitted by the father of the deceased PW-1 Musharraf and PW-5 Nazmeen, even PW-6 being I.O. Pramod Kumar Sharma has also deposed that the deceased was having criminal background and so much so PW-8 I.O. K.P. Singh Bhati has also come up with the said stand.
50. The said factors itself indicate towards a possibility that he was having enmity with others or he himself got him concealed in such a manner so as to avoid the onslaught, which might be inflicted upon him with relation to the criminal cases being lodged and pending against him in the State of Delhi, Uttar Pradesh, Uttarakhand etc.
51. Recovery aspect also needs to be noticed that PW-6 being the I.O. Pramod Kumar Sharma in his cross-examination has stated that he had not taken the vehicle in question in his possession and the body, which is sought to be shown to be recovered was not marked in the site plan vis-a-vis the location of the highway and further due to waves which were witnessed in the river, the same obstructed in tracing out the dead body of the deceased and further to put nail on the coffin of the conviction PW-8 being K.P. Singh Bhati in his cross-examination has shown his ignorance, as to which were the places, whereat the dead body of the deceased was sought to be searched. The said fact itself shows that there had been a defective investigation at the instance of the Investigating Officer.
52. Cumulatively analyzing, the present case from the four-corners of law, it is apparent that barring PW-9, none of the prosecution witnesses supported the prosecution theory and in view of vast contradictions and inconsistency in the statements of PW-9, same also discredits testimony of PW-9 also. In case, the prosecution theory is stretched as an elastic, then the same can be put as the case of circumstantial evidence. However, the prosecution is under obligation to prove the same in such a manner that it is only the accused, who have committed the crime beyond doubt and nobody else.
53. The Apex Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116, has observed as under: -
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra (1973) 2 SCC 793, where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
54. Moreover, without burdening the judgment, this Court also notices the judgment in the case of Bodhraj vs. State of J&K reported in (2002) 8 SCC 45, wherein in paragraph 9 and 10, the following was observed by the Hon'ble Apex Court: -
"9. Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence. the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other persons. (See Hukam Singh v. State of Rajasthan, AIR (1977) SC 1063), Eradu and Ors. v. State of Hyderabad, AIR (1956) SC 316, Earabhadrappa v. State of Karnataka, AIR (1983) SC 446, State of U.P. v. Sukhbasi and Ors., AIR (1985) SC 1224, Balwinder Singh v. State of Punjab, AIR (1987) SC 350, Ashok Kumar Chatterjee v. State of MP AIR (1989) SC 1890. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR (1954) SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt."
55. Recently in the Special Leave Petition (Crl) No. 1156 of 2021, The State of Odisha vs. Banabihari Mohapatra and Another decided on 12.2.2021, the Hon'ble Apex Court in paragraphs 35, 36 and 37 has observed as under: -
"35. Before a case against an accused can be said to be fully established on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must fully be established and the facts so established should be consistent only with the hypothesis of guilt of the accused. There has to be a chain of evidence so complete, as not to leave any reasonable doubt for any conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the Accused.
36. In Shanti Devi v. State of Rajasthan reported in (2012) 12 SCC 158, this Court held that the principles for conviction of the accused based on circumstantial evidence are:
"10.1. The circumstances from which an inference of guilt is sought to be proved must be cogently or firmly established.
10.2. The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused.
10.3. The circumstances taken cumulatively must form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else. 10.4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
37. Keeping the above test in mind, we have no iota of doubt that the Trial Court rightly acquitted the Accused Respondents. There is a strong possibility that the accused, who was as per the opinion of the doctor who performed the autopsy, intoxicated with alcohol, might have accidentally touched a live electrical wire, may be while he was asleep. The impugned judgment of the High Court dismissing the appeal on the ground of delay does not call for interference under Article 136 of the Constitution of India."
56. The story of last seen also gets demolished as discussed above, as PW-2 Mohd. Naeem, PW-3 Rajab Ali and PW-4 Om Pal Singh have come up with the stand that though they claimed to be prosecution witnesses, but they have not seen the deceased with the accused. The Hon'ble Apex Court in Criminal Appeal No. 378 of 2015, Chandra Pal vs. State of Chhattisgarh decided on 27.5.2022 in paragraphs- 13, 14, 15, 16 and 17 has observed as under: -
"13. This takes the court to examine the theory of "Last seen together" propounded by the prosecution. As per the case of prosecution, PW-1 Dhansingh had seen the accused Chandrapal calling the deceased Kanhaiya and taking him inside his house on the fateful night. Apart from the fact that the said Dhansingh had not stated about the time or date when he had lastly seen Kanhaiya with Chandrapal, even assuming that he had seen Chandrapal calling Kanhaiya at his house when he was sitting at the premises of village panchayat, the said even had taken place ten days prior to the day when the dead bodies of the deceased were found. The time gap between the two incidents i.e., the day when Dhansingh saw Chandrapal calling Kanhaiya at his house and the day Kanhaiya's dead body was found being quite big, it is difficult to connect the present appellant with the alleged crime, more particularly when there is no other clinching and cogent evidence produced by the prosecution.
14. In this regard it would be also relevant to regurgitate the law laid down by this court with regard to the theory of "Last seen together".
15. In case of Bodhraj & Ors. Vs. State of Jammu and Kashmir (2002) 8 SCC 45, this court held in para 31 that:
"31. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible...."
16. In Jaswant Gir Vs. State of Punjab, (2005) 12 SCC 438, this court held that in absence of any other links in the chain of circumstantial evidence, the accused cannot be convicted solely on the basis of "Last seen together", even if version of the prosecution witness in this regard is believed.
17. In Arjun Marik & Ors. Vs. State of Bihar 10, It was observed that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused, and therefore no conviction on that basis alone can be founded."
57. No doubt, suspicion, however, grave it may be, but it does not chair the seat of proof, as an accused is presumed to be innocent unless proved guilty beyond reasonable doubt.
58. In Nathiya Vs. State represented by Inspector of Police, Bagayam Police Station Vellore (2016) 10 SCC 298, the Hon'ble Apex Court in paragraph 25 has observed as under:-
"25. On an analysis of the overall fact situation, we are of the considered opinion that the chain of circumstantial evidence relied upon by the prosecution to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record do raise a needle of suspicion towards them, the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof."
59. The Hon'ble Apex Court in the case of The State of Odisha vs. Banabihari Mohapatra (supra) in paragraph 38 has held as under:-
"It is well settled by a plethora of judicial pronouncement of this Court that suspicion, however strong cannot take the place of proof. An accused is presumed to be innocent unless proved guilty beyond reasonable doubt. This proposition has been reiterated in Sujit Biswas v. State of Assam reported in AIR 2013 SC 3817."
60. In nutshell, the Court finds that the prosecution case proceeds upon weak evidences and the complete chain so as to indicate the accused to have committed the crime while completing the chain pointedly marking the case to have committed crime is also missing.
61. This Court further finds that the view taken by the learned Trial Court is a possible view and there is no justification in adopting any other view. The considerations, which weighed the learned Trial Court while acquitting the accused itself are based on the ocular testimony and the evidence so adduced in support thereof and in absence of any perversity so committed by the learned Trial Court, this Court finds its inability to hold the judgment as perverse.
62. Hence, in any view of the matter applying the principles of law so culled out by the Hon'ble Apex Court in the facts of the present case, we have no option but to concur with the view taken by the learned Sessions Judge.
63. We find that it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.
64. Since the leave to file the appeal has not been granted, consequently, present government appeal also stands dismissed.
65. Records of the present case be sent back to the concerned court below.
(Vikas Budhwar, J.) (Vivek Kumar Birla,J.) Order Date :- 5.8.2022 N.S.Rathour