State Of U.P. vs Brahmjeet Alias Bittu And 2 Others
2014 Latest Caselaw 9886 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 36
 
A.F.R.
 

 
Case :- 	GOVERNMENT APPEAL No. - 4791 of 2014
 

 
Appellant :- 		State Of U.P.
 
Respondent :- 		Brahmjeet Alias Bittu And 2 Others
 
Counsel for Appellant :- Govt.Advocate
 

 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(By Hon'ble Vijay Lakshmi, J.)

This government appeal under Section 378 Cr.P.C. has been preferred on behalf of State of U.P. challenging the judgment and order dated 09.09.2014 passed by the learned Additional District & Sessions Judge, Court No. 15, Bulandshahr in S.T. No. 931 of 2010 (State Vs. Kaluwa) whereby acquitting the accused respondents from the charges levelled against them.

Heard Km. Meena, learned A.G.A. on behalf of the appellant-State and perused the impugned judgment.

The prosecution story, in brief, is that on 4.6.2000 a written report was lodged by the informant Vijay Pal at Police Station Shahpur, district Muzaffar Nagar to the effect that his brother Karn Giri used to ply a Jugarh between the village Goyala to Mandavali to earn his livelihood. On 30.5.2000 at about 2.00 P.M. accused Yogesh Kumar, Brahmjeet alias Bittu and Kayyum had hired his brother's Jugarh and had taken him away with them. When his brother did not return, the informant searched for him and lodged the F.I.R. apprehending therein that his brother might have been abducted by the accused persons with a view to kill him.

On the basis of this written report, a criminal case was registered at Crime No. 87 of 2000 under Section 364 I.P.C. against the accused persons and the matter was investigated. During investigation, it was found that on 1.6.2000 before lodging of the F.I.R. in this case, dead body of an unknown male had been recovered by the police at village Goyala which was cremated as unclaimed by the police after its inquest and post mortem examination. The police had kept the clothes worn by that unknown deceased. On 6.6.2000 Smt. Suman Devi, wife of Karan Giri identified those clothes as that of her husband. The I.O. recorded the statement of Suman Devi and the statements of other witnesses, prepared the site plan and after conclusion of the investigation, submitted charge-sheet under Sections 364, 394, 302 and 411 I.P.C. against all the accused persons named in the F.I.R.

The prosecution in order to prove its case produced 11 witnesses, out of which only 3 witnesses were of fact and the remaining were of formal character. However, Suman Devi, the wife of deceased, who had allegedly identified the clothes of her deceased husband was not produced in the court by the prosecution.

On conclusion of the prosecution evidence the defence adduced documentary as well as oral evidence. As documentary evidence the defence produced the copy of the telegram sent to District Judge, Muzaffar Nagar and S.S.P., Muzaffar Nagar mentioning that the police had arrested the accused persons from their home. The defence also produced certified copy of the judgment dated 4.10.2006 passed by Additional Sessions Judge/F.T.C. Court no. 1 in S.T. No. 848 of 2000 (State Vs. Brahmjeet) under Section 307 I.P.C., Police Station Ratanpuri and certified copy of the statements of P.Ws. 1 and 2 recorded in the aforesaid sessions trial. In oral evidence the defence produced Surendra Prasad Goyal, Senior Account Officer, Mobile Section, Shiv Chowk, Muzaffarnagar.

The learned trial court after appreciating the entire evidence available on record, found the prosecution case doubtful and acquitted all the accused persons.

Aggrieved by the aforesaid decision, the State has challenged its legality and correctness on the ground that the learned trial court has not properly appreciated the prosecution evidence and has decided the cases on the basis of surmises and conjectures.

After hearing learned A.G.A. and on a careful consideration of the impugned judgment, it appears that the statement of the witness, who has lastly seen the accused persons with the deceased, has been taken by the I.O. after 2 months of the occurrence and the I.O. has not given any explanation for such inordinate delay in recording the statement of a most important witness i.e. witness of last seen, in this case. The wife of the deceased Smt. Suman Devi has not been examined by the prosecution, who was also a very important witness in this case as she is the only person, to have identified the clothes worn by the unknown dead body as that of her husband. The withholding of aforesaid two very important witnesses raises a serious doubt in the credibility of prosecution story.

The prosecution story regarding recovery of Jugarh and the confessional statement made by the accused under Section 27 of Evidence Act has been rightly disbelieved by the learned trial court for cogent and justifiable reasons on the ground that the prosecution has failed to give any explanation of the fact as to how could it be possible for the police to record the confessional statement of accused persons at police station Ratanpuri at 11.30 A.M. because the certified copy of the judgment passed in police firing case under Section 307 I.P.C., P.S. Ratanpuri, clearly shows that the same accused persons were arrested during police encounter at 11.45 A.M. when they were going towards Khatauli riding on the same looted jugar. According to P.W. 8, the I.O. of police firing case, a further time of two and half hours was spent after the arrest in preparing recovery memo etc. at the spot meaning thereby that the accused persons could not have been brought to the police station Ratanpuri before 2.00 P.M. Then how the I.O. of instant case recorded their statement at 11.30 A.M.? The relevant findings arrived at by learned trial court in this regard are quoted below :

";gkW ij ;g Hkh egRoiw.kZ gS fd tks eqBHksM dk eqdnek /kkjk 307 Hkk0n0la0 Fkkuk jruiqjh ij ntZ gqvk Fkk mldh izFke lwpuk fjiksVZ tks i=koyh ij miyC/k gS] ds vuqlkj le; 11&45 ,0,e0 ij vfHk;qDrx.k idMs x;s vkSj fxjQ~rkj djuk crkrs gq, m0 fu0 fouksn dqekj rsofr;k ih0MCyw08 }kjk viuh eq[; ijh{kk esa dgk x;k fd djhc 11&45 cts rhuks cnek'kksa dks fgjklr esa fy;k x;k vkSj ftjg esa ist 5 ij ;g Lohdkj fd;k fd vfHk;qDrx.k dks idM+us o QnZ cukus esa djhc

The aforesaid view as expressed by the trial court appeals to the reason.

One more fact making the prosecution story doubtful is that no one has identified the dead body although it has been alleged that a huge number of local residents had assembled there including 100 - 150 residents of village Goyala when the dead body was found which was admittedly in an identifiable condition. It has also been alleged by the prosecution that several photographs were taken of the dead body but none of those photographs was produced in court.

It is a case of circumstantial evidence and several important links from the chain of circumstances appear to be missing. The circumstance in this case cannot be said to be of such nature as pointing out towards the guilt of accused persons only and towards no other hypothesis.

The Hon'ble Supreme Court, in the case of Rohtash Kumar Vs. State of Haryana; 2013 (3) RCR (Criminal) page 355 has reiterated the law relating to circumstantial evidence as under :-

"The Court while convicting a person on the basis of the circumstantial evidence, must apply the following principles :-

(i)The prosecution must establish its case beyond reasonable doubt, and cannot be derive any strength from the weaknesses in the defence put up by the accused.

(ii)The circumstances on the basis of which the conclusion of guilt is to be drawn, must be fully established - The same must be a conclusive in nature, and must exclude all possible hypothesis, except the one to be proved.

(iii)Facts so established must be consistent with the hypothesis of the guilt of the accused, and the chain of evidence must be complete, so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must further show, that in all probability, the said offence must have been committed by the accused.

Testing the facts of the case in hand on the touch-stone of well settled legal position, cited above, it cannot be said that the circumstances in this case are such so as to conclusively show that in all probability the offence must have been committed by the accused persons only and by no other person.

Considering all these facts facts and circumstances, we are of the firm view that the trial court has rightly acquitted the accused persons.

We do not find any merit in this appeal. The leave to appeal is refused. The application for leave to appeal is rejected.

Accordingly, the appeal is dismissed at the admission stage.

Order Date :- 12.12.2014

S.B.