State Of U.P. vs Sukhai @ Bhagwan Das on 11 August, 2022

[Cites 50, Cited by 0]

Allahabad High Court

State Of U.P. vs Sukhai @ Bhagwan Das on 11 August, 2022

1. This is an appeal u/s 378 (3) of the Code of Criminal Procedure 1973 (hereinafter referred to as Cr.P.C.) challenging the judgment and the order dated 10.05.2019 passed by Additional Sessions Judge/Special Judge (Essential Commodities Act), District Jalaun at Orai in Session Trial No. 101 of 2015 (State of U.P. Vs. Sukhai alias Bhagwan Das), in Case Crime No. 288 of 2015, u/s 302, 201 IPC, P.S. Kalpi, District Jalaun.

2. Essential facts emanating to the filing of the present appeal as transcribed are that the first informant Mohd. Naseem S/o Mohd. Nizam R/o Bazar Ward, Amraudha, P.S. Bhognipur, District Kanpur Dehat had submitted a written report on 04.03.2015 before Police Station Kalpi, District Jalaun with an allegation that his brother Azeem and partner Iqbal S/o Razzaq R/o Mohalla Katra, Kasba Amraudha, P.S. Bhognipur, Kanpur Dehat he along with them had gone to Jolhupur in connection with purchase of cattle and after purchase of two cattle he along with his brother Azeem and partner Iqbal return back to Kalpi and after leaving Azeem and Iqbal at Karbala (Eidgah) he proceeded to Kasba, Kalpi for purchase of an additional cattle and when he returned at 10 in the night after purchasing a cattle, then in Karbala he met Iqbal and asked about the whereabouts of his brother Azeem and he was apprised by Iqbal that Azeem had gone to answer nature's call however, after waiting for some time when Azeem did not return then he called from his mobile number 9794780802 to the mobile number of Azeem 8423904201 however, despite the fact that the bell was ringing but the phone was not picked up then the first informant along with Iqbal went to trace about the whereabouts of his brother and at 02 in the night 100 meters from Karbala near a neem tree the dead body of the deceased was found which also occasioned injuries and according to him his brother had been disposed of some where else and thrown in the Eidgah.

3. On the written complaint of the first informant an FIR was lodged on 04.03.2015 at 06:20 being case crime no. 288/2015, u/s 302/201 IPC. One Sri Yogendra Pratap Singh was nominated as Investigating Officer and thereafter, one Sri Awdhesh Kumar was appointed as the Investigating Officer who has submitted the charge sheet u/s 302, 201 IPC against the accused herein.

4. The case was committed to Sessions by virtue of the order dated 15.06.2015.

5. Charges were read over to the accused herein. He pleaded innocence and claimed to be tried.

6. The learned trial court by virtue of the judgment and the order dated 10.05.2019 passed by Additional Session Judge/Special Judge (E.C. Act) , Jalaun at Orai passed in Session Trial No. 101 of 2015 acquitted the accused. Challenging the judgment and the order of acquittal now the State-appellant is before this Court.

7. The prosecution in order to bring home the charges, has produced the following prosecution witnesses as P.W. 1 S.I. Jaiveer Singh, P.W. 2, Naseem, P.W. 3 Atarur Rehman, P.W. 4 Mohd. Ishtiyaq, P.W. 5 Iqbal, P.W. 6 Dr. Bhanu Pratap Singh, P.W. 7 Yogendra Pratap Singh retired inspector (First I.O.), P.W. 8 Constable 1465 Sanjeev Kumar, P.W. 9 Awadhesh Kumar Singh, I.O. ( Second I.O.).

8. Besides the ocular testimony the following documents were also exhibited, namely, Ex. A-1 Panchayatnama, Ex. A-2 Written Complaint, Ex. A-3 Recovery memo of weapon and mobile, Ex. A-4 Blood stained and plain earth, Ex. A-5 and Ex. A-8 letter to Inspector, letter to C.M.O., Photonash, Challan Nash, Ex. A-9 and Ex. A-10 Copy of FIR and Copy of G.D., Ex. A-11 Postmortem report of the deceased Azeem, Ex.A-12 site plan and place of recovery of dead body, Ex.A-13 site plan of murder and recovery of two mobile phones, Ex. A-14 carbon copy of Kaymi G.D., Ex.A-15 Copy of Chik FIR, Ex.A-15 Charge sheet, Ex.A-17 Forensic Science Laboratory report of U.P. Agra.

9. Heard Ms. Nand Prabha Shukla, learned A.G.A. appearing for the State-appellant.

10. Before delving into the exercise so sought to be undertaken for determining as to whether the judgment and the order of acquittal has been proceeded in correct perspective or not this Court is to bear in mind that that the present proceedings emanates against the judgment and the order of acquittal so bestowing double presumption of innocence upon the accused. To put it otherwise this Court cannot venture into the judgment in a routine and cursory manner until and unless the circumstances are such which explicitly show that there has been palpable illegality committed by the learned trial court while recording perverse finding and misread the evidences on record. Without burdening the present judgment while reciting the mandate of the Hon'ble Apex Court as reduced in plethora of judgments this Court finds appropriate to refer to the recent judgments which itself is pregnant with the judgment which are on the same line right from inception.

11. Nevertheless in the Case of Rajesh Prasad Vs. State of Bihar And Another reported in 2022 (3) SCC 471 the Hon'ble Apex Court in following paragraphs have observed as under:-

"21. Before proceeding further, it would be useful to review the approach to be adopted while deciding an appeal against acquittal by the trial court as well as by the High Court. Section 378 of the Cr.P.C deals with appeals in case of acquittal. In one of the earliest cases on the powers of the High Court in dealing with an appeal against an order of acquittal the Judicial Committee of the Privy Council in Sheo Swarup vs. R. Emperor, AIR 1934 PC 227(2) considered the provisions relating to the power of an appellate court in dealing with an appeal against an order of acquittal and observed as under:

"16. It cannot, however, be forgotten that in case of acquittal, there is a 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 should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.

But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice."

It was stated that the appellate court has full powers to review and to reverse the acquittal.

22. In Atley vs. State of U.P., AIR 1955 SC 807, the approach of the appellate court while considering a judgment of acquittal was discussed and it was observed that unless the appellate court comes to the conclusion that the judgment of the acquittal was perverse, it could not set aside the same. To a similar effect are the following observations of this Court speaking through Subba Rao J., (as His Lordship then was) in Sanwat Singh vs. State of Rajasthan, AIR 1961 SC 715:

"9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford a correct guide for the appellate court's approach to a case disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) ''substantial and compelling reasons', (ii) ''good and sufficiently cogent reasons', and (iii) ''strong reasons' are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."

The need for the aforesaid observations arose on account of observations of the majority in Aher Raja Khimavs. State of Saurashtra, AIR 1956 SC 217 which stated that for the High Court to take a different view on the evidence "there must also be substantial and compelling reasons for holding that the trial court was wrong."

23. M.G. Agarwal vs. State of Maharashtra, AIR 1963 SC 200 is the judgment of the Constitution Bench of this Court, speaking through Gajendragadkar, J. (as His Lordship then was). This Court observed that the approach of the High Court (appellate court) in dealing with an appeal against acquittal ought to be cautious because the presumption of innocence in favour of the accused "is not certainly weakened by the fact that he has been acquitted at his trial."

24. In Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793, Krishna Iyer, J., observed as follows:

"In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."

25. This Court in Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225, spoke about the approach of the appellate court while considering an appeal against an order acquitting the accused and stated as follows:

"While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can thenand then only reappraise the evidence to arrive at its own conclusions."

The object and the purpose of the aforesaid approach is to ensure that there is no miscarriage of justice. In another words, there should not be an acquittal of the guilty or a conviction of an innocent person.

26. In Ajit Savant Majagvai vs. State of Karnataka, (1997) 7 SCC 110, this Court set out the following principles that would regulate and govern the hearing of an appeal by the High Court against an order of acquittal passed by the Trial Court:

"16. This Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial court. These principles have been set out in innumerable cases and may be reiterated as under:

(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.

(2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.

(3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial court that the accused is entitled to acquittal.

(4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.

(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.

(6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness box.

(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused."

27. This Court in Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225 observed visàvis the powers of an appellate court while dealing with a judgment of acquittal, as under:

"7. ... While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then--and then only--reappraise the evidence to arrive at its own conclusions."

28. This Court in Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415, highlighted that there is one significant difference in exercising power while hearing an appeal against acquittal by the appellate court. The appellate court would not interfere where the judgment impugned is based on evidence and the view taken was reasonable and plausible. This is because the appellate court will determine the fact that there is presumption in favour of the accused and the accused is entitled to get the benefit of doubt but if it decides to interfere it should assign reasons for differing with the decision of acquittal.

29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words:

"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."

30. In Nepal Singh vs. State of Haryana- (2009) 12 SCC 351, this Court reversed the judgment of the High Court which had set aside the judgment of acquittal pronounced by the trial court and restored the judgment of the trial court acquitting the accused on reappreciation of the evidence.

31. The circumstances under which an appeal would be entertained by this Court from an order of acquittal passed by a High Court may be summarized as follows:

31.1. Ordinarily, this Court is cautious in interfering with an order of acquittal, especially when the order of acquittal has been confirmed upto the High Court. It is only in rarest of rare cases, where the High Court, on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case, ignoring some of the most vital facts, has acquitted the accused, that the same may be reversed by this Court, exercising jurisdiction under Article 136 of the Constitution. [State of U.P. v. Sahai, AIR 1981 SC 1442] Such fetters on the right to entertain an appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. [Arunachalam v. Sadhananthan, AIR 1979 (SC) 1284] An appeal cannot be entertained against an order of acquittal which has, after recording valid and weighty reasons, has arrived at an unassailable, logical conclusion which justifies acquittal. [State of Haryana v. Lakhbir Singh, (1990) CrLJ 2274 (SC)] B) 31.2. However, this Court has on certain occasions, set aside the order of acquittal passed by a High Court. The circumstances under which this Court may entertain an appeal against an order of acquittal and pass an order of conviction, may be summarised as follows:

31.2.1. Where the approach or reasoning of the High Court is perverse:

a) Where incontrovertible evidence has been rejected by the High Court based on suspicion and surmises, which are rather unrealistic. [State of Rajasthan v. Sukhpal Singh, AIR 1984 SC 207] For example, where direct, unanimous accounts of the eyewitnesses, were discounted without cogent reasoning; [State of UP v. Shanker, AIR 1981 SC 879]

b) Where the intrinsic merits of the testimony of relatives, living in the same house as the victim, were discounted on the ground that they were ''interested' witnesses; [State of UP v. Hakim Singh, AIR 1980 SC 184]

c) Where testimony of witnesses had been disbelieved by the High Court, on an unrealistic conjecture of personal motive on the part of witnesses to implicate the accused, when in fact, the witnesses had no axe to grind in the said matter. [State of Rajasthan v. Sukhpal Singh, AIR 1984 SC 207]

d) Where dying declaration of the deceased victim was rejected by the High Court on an irrelevant ground that they did not explain the injury found on one of the persons present at the site of occurrence of the crime. [Arunachalam v. Sadhanantham, AIR 1979 SC 1284]

e) Where the High Court applied an unrealistic standard of ''implicit proof' rather than that of ''proof beyond reasonable doubt' and therefore evaluated the evidence in a flawed manner. [State of UP v. Ranjha Ram, AIR 1986 SC 1959]

f) Where the High Court rejected circumstantial evidence, based on an exaggerated and capricious theory, which were beyond the plea of the accused; [State of Maharashtra v. ChampalalPunjaji Shah, AIR 1981 SC 1675] or where acquittal rests merely in exaggerated devotion to the rule of benefit of doubt in favour of the accused. [Gurbachan v. Satpal Singh, AIR 1990 SC 209].

g) Where the High Court acquitted the accused on the ground that he had no adequate motive to commit the offence, although, in the said case, there was strong direct evidence establishing the guilt of the accused, thereby making it unnecessary on the part of the prosecution to establish ''motive.' [State of AP v. Bogam Chandraiah, AIR 1986 SC 1899] 31.2.2. Where acquittal would result is gross miscarriage of justice:

a) Where the findings of the High Court, disconnecting the accused persons with the crime, were based on a perfunctory consideration of evidence, [State of UP v. Pheru Singh, AIR 1989 SC 1205] or based on extenuating circumstances which were purely based in imagination and fantasy. [State of Uttar Pradesh v. Pussu 1983 AIR 867 (SC)]

b) Where the accused had been acquitted on ground of delay in conducting trial, which delay was attributable not to the tardiness or indifference of the prosecuting agencies, but to the conduct of the accused himself; or where accused had been acquitted on ground of delay in conducting trial relating to an offence which is not of a trivial nature. [State of Maharashtra v. ChampalalPunjaji Shah, AIR 1981 SC 1675] [Source : Durga Das Basu - "The Criminal Procedure Code, 1973" Sixth Edition Vol.II Chapter XXIX]"

12. Keeping in mind the aforesaid aspects that the note of caution has been mandating now the present judgment is to analysed.

13. Before proceeding further the depositions of the prosecution witnesses is to be first scanned.

14. As P.W. 1 S.I. Jaiveer Singh appeared in the witness box, according to him, he was posted in the concerned police station and he conducted the proceedings of panchayatnama. He has further deposed that he on the basis of the chik FIR had proceeded to the place of occurrence and he prepared the panchayatnama and one Sri Atarur Rehman S/o Havibul Rehman, Sahibe Alam S/o Sadik, Mohd. Nisar S/o Hazi Faiz Mohammad, Junaid Khan S/o Liyaqat Khan and Shameed S/o Waseem were appointed as panch.

15. As P.W. 2 the first informant Naseem deposed that the deceased was his younger brother and on the fateful day i.e. 03.03.2015 at 8-9 in the morning he along with his deceased brother Azeem and partner Iqbal had proceeded from Amraudha to Jolhupur and after half an hour they reached to Jolhupur and purchased two cattle and at about 07:00-07:30 in the evening they proceeded from Jolhupur and came to Kalpi and reached to Eidgah at 9 in the night and after leaving Azeem and Iqbal he proceeded to Kalpi to purchase another cattle and when he came back after one hour he met Iqbal and on being asked about the whereabouts of his brother Azeem, Iqbal told him that Azeem had proceeded for answering the nature's call and after waiting for 15 minutes when his deceased brother did not came back, they dialled on his mobile number but the phone was though ringing but the same was not picked up and they proceeded to search the deceased brother and the they found near a neem tree the deceased brother's body lying there with injuries in the shape of three marks on the body and injuries on the head and the first informant screamed when he witnessed the body of his brother, he became unconscious and when he regained conscious after half an hour by that time other villagers had come. He accordingly, submitted a written complaint and FIR was lodged against the unknown persons and one Javed who is the resident of the same village came there he wrote the written complaint on the dictation of the first informant and the first informant was read over the written complaint and he signed the same.

16. P.W. 3 Atrur Rehman claims to be the witness of panchayatnama. He proved the panchayatnama.

17. P.W. 4 Mohd. Ishtiyaq has also proved the fact that consequent to the recovery of the dead body of the deceased in his presence the plain and blood stained earth was collected.

18. As P.W. 5 Mohd Iqbal appeared as a prosecution witness and according to his statement he on 10.03.2015 had gone to purchase the cattle to a place being Jolhupur crossing and along with him neither the first informant Naseem nor the deceased was with him and he also showed his ignorance about the occurrence and thus he turned hostile.

19. P.W. 6 Dr. Bhanu Pratap claims to have conducted postmortem on 04.03.2015 when he was posed as Medical Officer in District Hospital Orai according to him the deceased sustained five injuries being rupture in ventral aspect and in his leg there was ruptured blister and on the right side of the stomach there was also penetrating wound along with unblicus and up to visceral organ. The deceased is stated to have other wounds which were injury nos. 4 and 5. As per the opinion of P.W. 6 the cause of death was oozing out of blood and death took place ¾ days back and according to him he in his deposition has stated that the death might have taken place on 03.03.2015 at about 02:00 hours.

20. P.W. 7 I.O. Yogendra Pratap Singh has claims himself to be the Investigating Officer who conducted the investigation while preparing chik FIR, taking statements of the prosecution witnesses preparing the site plan etc.

21. P.W. 8 1465 Sanjeev Kumar claims himself to be the person who has proved the FIR.

22. P.W. 9 claims himself to the I.O. being Awadhesh Kumar Singh who conducted the investigations so left by P.W. 7 Yogendra Pratap Singh and he submitted the charge sheet.

23. Undisputedly, the genesis of the present case emanates from the incident which is stated to have taken place on 03.05.2015 when the first informant, deceased and Iqbal have been stated to have gone to purchase cattle and when they return back after purchasing two cattle they left the deceased and his partner Iqbal near Karbala an thereafter, he proceeded to purchase another cattle and then he returned back then he was apprised by Iqbal that his brother had gone to answer the nature's call and on being contacted through phone and waiting for some time the deceased did not come back then they traced the deceased and found that the deceased was lying in a dead condition near the neem tree. It has also come on record that the FIR has been lodged against unknown persons.

24. So far as the issue relatable to the marking of the accused herein for commission of the crime is concerned, the name of the accused did not find place in the FIR however, it has come on record that an allegation has been sought to be levelled upon the accused herein that there existed certain dispute between the accused herein and the deceased with relation to crops as the accused used to do agriculture activities near the agriculture field of the accused that is of Mushtaq and on the other hand the complainant fraction used to trade in cattle. According to prosecution oftenly in connection with trenching and trampling of the agriculture crops by the cattle so possessed by the complainant fraction losses were sought to be sustained which became the basis of altercations. According to prosecution on the fateful day on account of trampling of the crops the disputed occurred which resulted into the murder of the deceased.

25. Even otherwise, this Court finds that a categorical finding has been recorded by the learned trial court that no such allegation relatable to the commission of crime as a motive so alleged by the prosecution finds its presence in the FIR. More so before the trial also the first informant in his examination in chief had also not reflected the said fact regarding any grudge relating to the motive and the said fact stands admitted in the page no. 7 of the cross examination wherein the first informant had stated that he is not aware and not remembering as to whether the fact relating to the loss of crops and dispute with the accused was narrated or apprised to the Investigating Officer or not.

26. The learned trial court has taken pains to go into the said aspect of the matter while recording the finding that in the FIR the name of the accused did not find place however, during the course of investigation on 13.03.2015 the first informant informed the Investigating Officer in his mazeed statement for the very first time that the accused herein had disposed of his brother and on the basis of the said statement of the first informant on 18.03.2015 the name of the accused came to the surface and he was arrested. Apart from the same though bald and vague allegation have been sought to be made referable to the dispute and the rivalry as a motive but neither any date, time nor details of the incident have been mentioned. Nonetheless, there is nothing on record to suggest as to whether any complaint to the said effect was made before any authority or not.

27. Notably, from the statement of the first informant it is clear that on 03.03.2015 the deceased was with the first informant and Iqbal barring about one hour when he had gone after leaving the deceased along with his partner to buy an additional cattle at Kalpi. Thus, merely making bald and vague allegations will not absolve the prosecution as motive is not only to be indicated but proved also beyond doubt.

28. So far as the issue relatable to the recovery of incriminating articles being the weapon alleged to be used for commission of crime and on the pointing out of the accused is concerned, the prosecution has come up with a stand that on 18.03.2015 the accused on his pointing out got recovered the weapon used for commission of crime and two mobile phones and he was also arrested and further the accused is being shown to have committed the said crime which stands proved from the report of the forensic laboratory.

29. Though it has also come on record that the recovery of the weapon used for commission of crime and two mobile phones have been shown to be recovered from the pointing out of the accused but there had been no independent witness to have corroborated the said fact. Ex. A-3 which happens to be the recovery memo shows that on the pointing out of the accused behind the Eidgah near Old Dome one Ballum, two mobiles have been shown to have been recovered however, no time has been shown of recovery. As per the Nakal Report No. 27, 16:25 hours have been shown on 18.03.2015 however, as per P.W. 7 I.O. Yogendra Pratap Singh, he in his cross examination has come up with the stand that the accused was arrested on 18.03.2015 at 14:20 pm and as per the case diary, the accused was put up in lock-up as mentioned in report no. 27 at 14:25 hours. Notably, P.W. 7 I.O. Yogendra Pratap Singh has stated that he had not prepared any fard and he is not aware as to how much is the distance between the place of arrest and the place of recovery and he has further stated that the place of recovery is an open land and there is no restriction of entry and the recovery had been made after 15 days.

30. As a matter of fact the learned trial court has further analysed the matter and according to it the recovery is at the difference of two hours and the distance is also not known to the Investigating Officer and the place is an open place which itself shows that the things do not match with the actual events as there cannot be a possibility that the recovery is a planted one particularly when there is no description given in the fard itself and there has been no investigation into the fact as to who is the owner of the mobiles in question.

31. Nonetheless, there was no independent witness to have corroborate to the said recovery event except the interested witness being the first informant. Moreover, Mohd. Naseem being the P.W. 2 the first informant has further stated certain facts which are contrary and in contradiction with the statement of P.W. 7 I.O. Yogendra Pratap Singh as according to him the date on which the dead body was recovered was the date of recovery of Barchi/Ballum and mobiles. Apart from this, it has further been deposed that in the Barchi which was recovered from dome had the blood marking and according to him the blood was fresh. Thus, according to the prosecution on the date of the arrest of the accused i.e. 18.03.2015 one Barchi/Ballum and two mobiles were recovered, however, from perusal of the statement of the P.W. 2 and P.W. 7 there are contradictions with regard to the issue of recovery of Barchi/Ballum on the date of arrest. Moreover, the question about the blood being present in the Barchi/Ballum is concerned, the same cannot be fresh that to after a long period of time i.e. 15 days. Even otherwise, P.W. 7 Yogendra Pratap Singh in his deposition has himself admitted the fact that the ownership of the two mobile phones was not got investigated by him. To put it otherwise I.O. has further come with a stand that the ownership of mobile phone could have been investigated from the mobile shop or telecom company. To put nail to the coffin of conviction, letter 57 Ka and Ex. A-17 which happens to be the report of Forensic Laboratory itself shows that the recovered Ballum which is stated to have contained blood, could not be tested and thus, no report was given in that regard. Hence, so far as the recovery aspect is concerned in absence of any independent witness to have corroborated the recovery of linking of the incriminating article being the weapon used for committing murder and the mobile phones with the accused and cloud over the arrest and recovery of the accused itself makes the prosecution theory weak.

32. The present case at best can be stretched to be of circumstantial evidence as there is no eye witness who has seen commission of crime. It has come on record that P.W. 5 Iqbal S/o Abdul Razzaq could have been the star witness as according to him he was with the accused on 03.03.2015 when the first informant left the deceased with Iqbal and had gone to purchase additional cattle. P.W. 5 Iqbal could have been the intrested witness as he is a partner with the first informant. Reasonably, it can be presumed that motive was known to him as alleged by the prosecution regarding the fact that their cattle which used to trample the crops of the accused fraction. P.W.5 Iqbal had showed his ignorance regarding the fact that he was with the first informant and he met the accused. Meaning thereby, the events dated 03.03.2015 has been completely denied by P.W. 5 Iqbal as he turned hostile. Thus, once P.W. 5 Iqbal stood hostile then the very basis of erecting the prosecution case stood demolished. So far as the issue with regard to the extra judicial confession is concerned, the same as per the settled legal position is a weak evidence.

33. It is well settled that prosecution has to prove beyond doubt that every link in the chain of circumstances establishes the guilt of accused beyond reasonable doubt and all circumstances are consistently pointing out towards the guilt of accused.

34. Recently, in the case of Criminal Appeal No. 378 of 2015 Chandrapal Vs. State of Chhattisgarh decided on 27.05.2022 the Hon'ble Apex Court in paragraph no. 7 has observed as under:-

"7. At the outset, it may be stated that undisputedly the entire case of the prosecution rested on the circumstantial evidence, as there was no eye witness to the alleged incident. The law on the appreciation of circumstantial evidence is also well settled. The circumstances concerned "must or should be" established and not "may be" established, as held in Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra1. The accused "must be" and not merely "may be" guilty before a court can convict him. The conclusions of guilt arrived at must be sure conclusions and must not be based on vague conjectures. The entire chain of circumstances on which the conclusion of guilt is to be drawn, should be fully established and should not leave any reasonable ground for the conclusion consistent with the innocence of the accused. The five golden principles enumerated in case of Sharad Birdhichand Sarda Vs. State of Maharashtra2 laid down in para 152 may be reproduced herein for ready reference:

"152. 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 v. State of Maharashtra [(1973) 2 SCC 793 : 1973 1 (1973) 2 SCC 793 2 (1984) 4 SCC 116 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] "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."

35. P.W. 5 Iqbal has come up with a stand that the accused in his presence had admitted his guilt of commission of crime while making extra judicial confession. As observed earlier, P.W. 5 himself stood hostile and denied presence of the accused and occurring of the event on 03.05.2015 thus extra judicial confession stated to be made by the accused also looses its credibility.

36. The Hon'ble Apex Court in the case of Mohd. Azad @ Samin vs. State of West Bengal, 2008 (15) SCC 449, in paragraphs 21 and 22 observed as under:-

"21. A similar view was also taken in Jaswant Gir v. State of Punjab, 2005 (12) SCC 438 and Kusuma Ankama Rao's case, 2008 (13) SCC 257.

22. "18. Confessions may be divided into two classes i.e. judicial and extra- judicial. Judicial confessions are those which are made before a Magistrate or a court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a Magistrate or court. Extra-judicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code of Criminal Procedure, 1973 (for short the `Code') or a Magistrate so empowered but receiving the confession at a stage when Section 164 of the Code does not apply. As to extra-judicial confessions, two questions arise: (i) were they made voluntarily? and (ii) are they true? As the section enacts, a confession made by an accused person is irrelevant in criminal proceedings, if the making of the confession appears to the court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement, (a) does not have reference to the charge against the accused person; or (b) it does not proceed from a person in authority; or (c) it is not sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24 of the Indian Evidence Act, 1872 (in short 'Evidence Act'). The law is clear that a confession cannot be used against an accused person unless the court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the court has to be satisfied with is, whether when the accused made the confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the court is satisfied that in its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilt. (See R. v. Warickshall) It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So where the statement is made as a result of harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of a threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not. (See Woodroffe's Evidence, 9th Edn., p. 284.) A promise is always attached to the confession alternative while a threat is always attached to the silence alternative; thus, in one case the prisoner is measuring the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the court is to determine the absence or presence of an inducement, promise etc. or its sufficiency and how or in what measure it worked on the mind of the accused. If the inducement, promise or threat is sufficient in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil, it is enough to exclude the confession. The words "appear to him" in the last part of the section refer to the mentality of the accused.

19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."

37. In the case of Sansar Chand vs. State of Rajasthan 2010 (10) SCC 604, Hon'ble Apex Court in paragraph 29 observed as under:-

"29. There is no absolute rule that an extra judicial confession can never be the basis of a conviction, although ordinarily an extra judicial confession should be corroborated by some other material vide Thimma vs. The State of Mysore - AIR 1971 SC 1871, Mulk Raj vs. The State of U.P. - AIR 1959 SC 902, Sivakumar vs. State by Inspector of Police - AIR 206 SC 563 (para 41 & 42), Shiva Karam Payaswami Tewar vs. State of Maharashtra - AIR 2009 SC 1692, Mohd. Azad vs. State of West Bengal - AIR 2009 SC 1307."

38. Further, in the case of Sahadevan and another vs. State of Tamilnadu 2012 (6) SCC 403, Hon'ble Apex Court in paragraphs 14 to 16 observed as under:-

"14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra- judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra- judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.

15. Now, we may examine some judgments of this Court dealing with this aspect.

15.1. In Balwinder Singh v. State of Punjab [1995 Supp. (4) SCC 259], this Court stated the principle that an extra-judicial confession, by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.

15.2. In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158], the Court held that:

"8. .... It is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession."

15.3. Again in Kavita v. State of T.N. [(1998) 6 SCC 108], the Court stated the dictum that:

"4. There is no doubt that conviction can be based on extrajudicial confession, but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon veracity of the witnesses to whom it is made."

15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in the case of State of Rajasthan v. Raja Ram [(2003) 8 SCC 180] stated the principle that:

"19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.

The Court, further expressed the view that:

"19. .... Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused....."

15.5. In the case of Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230], the Court, while holding the placing of reliance on extra-judicial confession by the lower courts in absence of other corroborating material, as unjustified, observed:

"87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.

X

89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof."

15.6. Accepting the admissibility of the extra-judicial confession, the Court in the case of Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604] held that :-

"29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore, Mulk Raj v. State of U.P., Sivakumar v. State (SCC paras 40 and 41 : AIR paras 41 & 42), Shiva Karam Payaswami Tewari v. State of Mahasrashtra and Mohd. Azad v. State of W.B.]

30. In the present case, the extra-judicial confession by Balwan has been referred to in the judgments of the learned Magistrate and the Special Judge, and it has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of inducement, threat or promise as contemplated by Section 24 of the Evidence Act, 1872."

15.7. Dealing with the situation of retraction from the extra-judicial confession made by an accused, the Court in the case of Rameshbhai Chandubhai Rathod v. State of Gujarat [(2009) 5 SCC 740], held as under :

"53. It appears therefore, that the appellant has retracted his confession. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless, the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true."

15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. [Ref. S.K. Yusuf v. State of W.B. [(2011) 11 SCC 754] and Pancho v. State of Haryana [(2011) 10 SCC 165].

16. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:

The Principles

i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

ii) It should be made voluntarily and should be truthful.

iii) It should inspire confidence.

iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

vi) Such statement essentially has to be proved like any other fact and in accordance with law."

39. Further, in the case of Ram Lal vs. State of Himachal Pradesh 2019 (17) SCC 411, Hon'ble Apex Court in paragraphs 13 to 15 observed as under:-

"13. Extra-judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. In order to accept extra-judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra-judicial confession is voluntary, it can be acted upon to base the conviction. Considering the admissibility and evidentiary value of extra-judicial confession, after referring to various judgments, in Sahadevn and another vs. State of Tamilnadu (2012) 6 SCC 403, this court held as under:-

"15.1. In Balwinder Singh v. State of Punjab 1995 Supp (4) SCC 259 this Court stated the principle that:

"10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution.Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance."

15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in State of Rajasthan v. Raja Ram (2003) 8 SCC 180 stated the principle that:

"19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made." The Court further expressed the view that:

"19. ... Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused...."

15.6. Accepting the admissibility of the extra-judicial confession, the Court in Sansar Chand v. State of Rajasthan (2010) 10 SCC 604 held that:

"29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimaa Raju v. State of Mysore (1970) 2 SCC 105, Mulk Raj v. State of U.P. AIR 1959 SC 902, Sivakumar v. State of Inspector of Police (2006) 1 SCC 714 (SCC paras 40 and 41 : AIR paras 41 and 42), Shiva Karam Pavaswami Tewari v. State of Maharashtra (2009) 11 SCC 262 and Mohd. Azad alias Shamin v. State of W.B. (2008) 15 SCC 449]"."

40. Moreover, it is also settled principle of law that suspicion however, strong it may be but it does not substitute place of prove. Hon'ble Apex Court in Special Leave Petition (Crl.) No. 1156 of 2021 (State of Odisha Vs. Banabihari Mohapatra and Anr.) decided on 12.02.2021 in paragraph no. 38 has observed as under:-

"38. 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."

41. Analysing the case from the four corners of law, this Court finds that the prosecution story proceeds on weak evidence as firstly FIR was lodged against unknown persons, secondly, motive though alleged could not be proved by the prosecution. Thirdly, the accused is shown to have arrested and recovery so sought to be made from him of the incriminating article but in absence of any independent witness and also the fact that the time of arrest and recovery also does not match and even the forensic laboratory report does not support the prosecution version, fourthly, extra judicial confession so made looses its efficacy as P.W. 5 Iqbal turned hostile before whom the extra judicial confession stated to be made and last but not the least the fact that circumstantial evidences do not support the prosecution case as the complete chain to link the accused to commit crime stands missing. This Court further finds that the learned trial court has meticulously scanned the depositions of the prosecution witnesses and the evidences so adduced and has come to a correct conclusion that the prosecution has miserably failed to link the accused with respect to commission of crime. The view taken by the learned trial court is a possible and a plausible view as not other view is possible. Hence, this Court has no option but to concur the judgment of the learned trial court acquitting the accused herein.

42. Resultantly, no ground is made as to accord leave to appeal and accordingly, the same is rejected.

43. As the leave to file the present appeal stands rejected thus, the present appeal so instituted at the behest of the State-appellant u/s 378 (3) of the Cr.P.C. stands dismissed.

Order Date :- 11.8.2022 Nisha

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