Allahabad High Court
State Of U.P. vs Ashok Kumar & Anr. on 12 August, 2021
Bench: Ramesh Sinha, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD,
LUCKNOW BENCH, LUCKNOW
Court No. - 9 A.F.R.
Case :- U/S 378 CR.P.C. No. - 22 of 2021
State of U.P. - APPELLANT.
VERSUS
1. Ashok Kumar son of Mahavir - RESPONDENT NO.1.
2. Agya Ram son of Seetaram. - RESPONDENT NO.2.
Counsel for Appellant :- Shri Arunendra,
Additional Government Advocate.
Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Saroj Yadav,J.
(ORAL)
( per Saroj Yadav,J)
1. This appeal alongwith application under Section 378 (3) of the Code of Criminal Procedure, 1973( in short 'Cr.P.C.') has been filed by the State/appellant with the prayer that leave to appeal may be granted against the judgement and order dated 8.12.2020 passed by Additional Sessions Judge, Court No.1, Ambedkar Nagar in Sessions Trial No.211 of 2011, under Section 302 of the Indian Penal Code ( in short 'I.P.C.'), Police Station Kotwali Akbarpur, District Ambedkar Nagar whereby the trial court acquitted the accused persons/ respondents.
2. Heard Shri Arunendra, learned Additional Government Advocate (in short 'A.G.A.') for the appellant-State of U.P., perused the impugned judgement and order and record of the trial court.
3. Shorn of unnecessary details, the facts necessary
for the disposal of this appeal are as under :-
4. A First Information report (in short 'F.I.R.') was registered on the basis of a written report presented by Awadh Bihari, at Case Crime No.350 of 2011, under Section 302 I.P.C., Police Station Kotwali Akbarpur, District Ambedkar Nagar. In the written report, it was stated that on the previous night at about 10.00 p.m., somebody gave a ring on the mobile phone of his elder brother Jitendra Kumar, on it he (Jitendra Kumar) said that he was reaching in five minutes. He left the house and did not come back. On the next day i.e. 5.6.2011 at about 5-6 O' Clock in the morning, when the complainant went to defecate, he saw a crowd of some persons near the road at Tea Shop of Ashok Kumar. When the complainant reached there, he saw that the dead body of his brother Jitendra was lying on the roadside. His brother Jitendra used to go on the shop of Ashok everyday. He had doubt that his brother was killed and dead body kept on the roadside. On the basis of these allegations, investigation was made and a chargesheet under Section 302 I.P.C. was submitted in the court against Ashok Kumar and Agya Ram. The court concerned took cognizance of the crime and committed the same to the court of Sessions for trial. The learned Sessions Court framed charges against the accused/ respondents under Section 302 read with Section 34 I.P.C. The accused persons denied the charge and claimed to be tried.
5. In order to prove the charges against the accused persons, the prosecution examined Awadh Bihari the complainant as P.W.-1, Shakuntala Devi, the mother of the deceased as P.W.-2, Shri Santoshi Ram as P.W.-3,
Shri Ram Shakal as P.W.-4, Shri Raj Narayan as P.W.-5 and Dr. Pradeep as P.W.-6.
6. The statements of the accused persons were recorded under Section 313 of the Cr.P.C.. They denied the crime and stated that they have been implicated falsely due to enmity. The accused Agya Ram also took the plea of alibi and he got examined himself as D.W.-1 and Vinod Kumar as D.W.-2 in order to prove that he was elsewhere on the date of the incident.
7. After analysing the evidences available on record, the learned trial court came to the conclusion that the prosecution has failed to prove the charges against the accused persons beyond reasonable doubts. The case is based on circumstantial evidence and the prosecution could not prove all the links to connect the accused persons with the crime. Hence, the trial court acquitted the accused persons. Being dissatisfied with this acquittal, the appellant State has preferred this appeal.
8. The learned A.G.A. has assailed the impugned judgement and order by submitting that the learned trial court has not appreciated the evidence in a right perspective and the impugned judgment and order is legally not sustainable as it is based on surmises and conjectures. The learned A.G.A. also submitted that the witnesses have stated that the accused Ashok had doubt that his wife had illicit relations with the deceased and the wife of Ashok Kumar called the deceased to eat fish by giving ring on his mobile phone. The wife of Ashok Kumar had illicit relations with Agya Ram co-accused and the deceased is becoming a hurdle. So
both the accused killed the deceased. P.W.-4 Ram Shakal had stated that he heard the accused persons talking that they killed Jitendra. Learned trial court has ignored this evidence. Learned A.G.A. has further submitted that all the six witnesses have supported the prosecution case. Postmortem report also corroborates the same. The weapon of the crime was recovered at the pointing out of the accused persons. The prosecution has also proved all the documents filed on the record hence the prosecution has proved the case beyond reasonable doubt yet the learned trial court has acquitted the accused persons and committed a grave error.
9. Admittedly, the case is based on circumstantial evidence. There is no eye witness of the crime. In the F.I.R., the complainant has mentioned that his brother left the house in the night when he received a phone call from someone and did not come back. He used to sit on the Tea shop of Ashok Kumar, daily. In the morning he found that dead body of his brother was lying on the roadside near the shop of Ashok. He had doubt that somebody killed his brother and kept the body on the roadside. Even in the F.I.R., the accused was not named as an author of the crime or the complainant did not even averred that he has doubt that Ashok killed his brother and put the body on roadside.
10. In a case based on circumstantial evidence, the court has to examine the evidence more cautiously and more carefully. To record a conviction on the basis of circumstantial evidence, it is necessary that all the links
of the circumstantial evidence should be intact. There should be no gap in the links.
11. Recently, in the case of Shivaji Chintappa Patil Vs. State of Maharashtra reported in (2021) 5 SCC 626, the Hon'ble Supreme Court has laid down as under ( para 12 ) :-
"12. The law with regard to conviction on the basis of circumstantial evidence has been very well crystalised in the judgment of this Court in Sharad Birdhichand Sarda v. State of Maharashtra :-(SCC p.185, paras 153-54)
"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 v. State of Maharashtra where the observations were made : [SCC p. 807 : para 19, SCC (Cri) p. 1047]
"19. .....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.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
12. Now in the light of these principles, we have to examine the facts and evidences of the case and also the impugned judgement.
13. First of all, if we peruse the F.I.R., it comes out that in the F.I.R., nobody was named as author of the crime, only it was written that the deceased used to go on the tea shop of Ashok everyday. He left the house on getting a phone call of someone and on the next day in the morning, when the complainant the brother of the deceased, went to defecate, he saw a crowd of some people near the tea shop of Ashok. When he reached there, he found the dead body of his brother, the deceased, was lying on the roadside. In the F.I.R., there is no mention about the fact as to who called his deceased brother on his mobile phone. There is no mention of motive of the crime even there is no mention about the alleged illicit relations of the deceased with the wife of the accused Ashok. The complainant has been examined as P.W.-1. In his examination-in-Chief, he has stated that the incident took place on 4.6.2011. In the night at about 10.00 O' Clock, Kesha Devi (wife of Ashok) called on mobile phone of his deceased brother. He has stated that at that time, he had no knowledge that Kesha Devi called
his brother. Next day, he came to know about the phone call. He has also stated that his brother used to sell milk on the shop of Ashok Kumar. He started selling the milk about 12 days prior to the incident. In the night of incident, his brother went there and in the morning, he came to know that his brother was killed and his dead body is lying just 50 metres away from the tea shop on the roadside. He also saw that there was injury on the head of his deceased brother. He has also stated that his brother might be murdered by Ashok Kumar and Agya Ram because Ashok Kumar had doubt that his deceased brother had illicit relations with the wife of Ashok Kumar. This witness has lodged the F.I.R. on the next date and he did not mention that Kesha Devi called on the mobile phone of his deceased brother. Even any mobile phone has not been disclosed in the F.I.R. from which mobile no., call was made and on which mobile no. the call was received. In his statement before the court, this witness has stated that he came to know about the phone call made by Kesha Devi on the next date in the morning. The report was lodged on the next day at 7.45 a.m. but in the F.I.R., it was not there that Kesha Devi called his brother. In the F.I.R., even there was no whisper about the motive of the crime which has been stated in the court by the complainant that the accused Ashok had doubt that the deceased had illicit relations with his wife. The F.I.R. was lodged when the dead body was found. In such circumstances, it was expected from the complainant that he mentioned the phone number from which call was made and also the mobile number of his
brother on which the call was received. Even the investigating officer did not try to do that as there is nothing on the record to show that any attempt was made to connect the links of the alleged call made on the mobile number of the deceased.
14. In the cross examination, the complainant has stated that nobody informed him about the murder of his brother but he himself went there and he was alone. No family member came there on the road alongwith him.
The mother of the deceased has been examined as P.W.-2. She has also stated that Kesha Devi the wife of Ashok Kumar called his son to eat fish but there is nothing in her statement how she came to know that Kesha Devi called her son because P.W.-1 has not mentioned the name of Kesha Devi in his F.I.R.
P.W.-2 has also stated in her cross examination that she went to the spot after getting the information of the murder of her son and remained there alongwith her family members till 10-11 O'Clock. There is no eye witness of the crime.
P.W.-4 Ram Shakal has been examined who has stated that he knows accused persons very well as they all belong to his village. He has further stated that Kesha Devi, the wife of Ashok had illicit relations with Agya Ram. The deceased Jitendra used to work on the shop of Ashok Kumar. Jintendra had no relations with the wife of Ashok. Agya Ram was feeling inconvenient due to presence of Jitendra, so Agya Ram and Ashok killed Jitendra. He has further stated that Agya Ram and
Ashok told him that everything has gone messed as it is open now that they have killed Jitendra. By examining this witness, the prosecution has tried to prove extra judicial confession of the accused persons but the motive disclosed by this witness and also the complainant in itself is very shaky. The complainant has stated that Ashok had doubt that the deceased had illicit relations with his wife while this witness has stated that the wife of Ashok had illicit relations with Agya Ram and the deceased is creating hurdles so Ashok and Agya Ram killed Jitendra. There is no cogent and reliable evidence to prove this motive.
15. No doubt, to prove a motive is not a sine qua non, but if the case is based on circumstantial evidence, then a strong motive should be established for commission of the crime. In the present case, the motive disclosed and the evidence to prove that motive is of very weak type that too has not been proved. Absence of notice in a case based on circumstantial evidence weakens the case of prosecution and goes in favour of the accused.
16. Hon'ble Apex Court in the case of Anwar Ali and another Vs. The State of Himanchal Pradesh :(2020) 10 SCC 166, has held as under (Paragraph 24 ) :-
"24. Now so far as the submission on behalf of the accused that in the present case the prosecution has failed to establish and prove the motive and therefore the accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this
Court in Suresh Chandra Bahri v. State of Bihar 1995 Supp (1) SCC 80 that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this Court in Babu (supra), absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. In paras 25 and 26, it is observed and held as under (Babu's case SCC pp.200-01) :
"25. In State of U.P. v. Kishanpal, this Court examined the importance of motive in cases of circumstantial evidence and observed: (SCC pp. 87-88, paras 38 -39)
"38. ... the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime.
39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eye witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."
26. This Court has also held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. (Vide Pannayar v. State of T.N."
Further prosecution has stated that the weapon of offence i.e. an axe was recovered at the pointing out of the accused persons. The alleged recovered weapon has
neither been presented in the court nor proved as required.
Furthermore, no injury of axe was found on the cadaver by the doctor conducting postmortem. In the cross- examination, the doctor has stated that no injury found on the body was caused by axe.
17. There is nothing on record to show that the investigating officer had tried to trace mobile phone number of the deceased on which call was received and the phone number from which the call was made on the mobile phone of the deceased but how the accused persons were connected with the crime has not been established. It has not been proved that Kesha Devi called the deceased on his mobile phone number. The person before whom the extra judicial confession was allegedly been made i.e. P.W.-4 has stated in his cross examination that he lives in Delhi since 1983. He came to the village after hearing about the incident. It is noteworthy that when the alleged extra judicial confession was made the accused persons were already enlarged on bail. So it is unnatural that a person after getting the bail, will make extra judicial confession to a person who was residing in Delhi at the time of the incident that the accused persons have committed the crime. There is no last seen evidence and no evidence to connect the accused persons with the crime.
18. In short, the prosecution has failed to prove the motive to commit the crime, to prove the fact that there was illicit relations between the deceased and the wife of accused Ashok or the illicit relations between Agya Ram and the wife of Ashok. Even if it is assumed that
Agya Ram and the wife of Ashok had illicit relations and Jitendra is creating hurdles, then why Ashok would have killed the deceased.
The alleged recovery of weapon also appears to be false as no injury of the recovered weapon was found on the dead body of the deceased and the recovered weapon has not been presented and proved before the court.
19. Furthermore, the mother of the deceased has admitted in her cross examination that her son used to consume liquor. He developed the habit of consuming liquor due to the bad company. She has also admitted that she did not know in what circumstances, her son died. As far as accused Agya Ram is concerned, he has examined himself as D.W.-1 and stated that he was in the village Dalpatpur on the date of the incident as there was some function in the house of the sister of his wife. He alongwith his wife, went to Dalpatpur to attend the function and came back to his own village on 6.6.2011. On 9.6.2011, police called him and sent to jail. As D.W.-2, the brother-in-law of Agya Ram has been examined, he has also proved the fact that Agya Ram alongwith his wife was at his place on the date of incident.
20. There is no evidence on record to establish the guilt of the accused persons. The chain of circumstance is not only incomplete but can be said as broken at many points. In fact no evidence is there to connect the accused persons with the crime. In order to convict an accused person, it is necessary that prosecution has to prove the guilt of the accused beyond reasonable doubt.
21. In this regard, the Hon'ble Apex Court in the case of Achhar Singh Vs. State of Himachal Pradesh reported in (2021) 5 SCC 543, has laid down as under ( para 16) :-
"16. It is thus a well crystalized principle that if two views are possible, the High Court ought not to interfere with the trial Court's judgment. However, such a precautionary principle cannot be overstretched to portray that the "contours of appeal" against acquittal under Section 378 CrPC are limited to seeing whether or not the trial Court's view was impossible. It is equally well settled that there is no bar on the High Court's power to re-appreciate evidence in an appeal against acquittal. This Court has held in a catena of decisions (including Chandrappa v. State of Karnataka, State of Andhra Pradesh v. M. Madhusudhan Rao, And Raveen Kumar v. State of Himachal Pradesh) that the Cr.P.C does not differentiate in the power, scope, jurisdiction or limitation between appeals against judgments of conviction or acquittal and that the appellate Court is free to consider on both fact and law, despite the self-restraint that has been ingrained into practice while dealing with orders of acquittal where there is a double presumption of innocence of the accused".
22. In the light of the above discussions and the law laid down by Hon'ble Apex Court referred above, we do not find any factual or legal error in the appreciation of evidences by the trial court for the reasons that there is no direct evidence of the offence and the chain of circumstantial evidence is not complete. The motive of the crime has not been established. There is nothing on record to connect the accused persons with crime. The mobile numbers from which call was given and on which call was received have not been disclosed. The weapon of offence i.e. axe allegedly recovered at the pointing out of accused persons has not been produced and proved in court. Furthermore, no injury of 'axe' was found on cadaver. Moreover, the view taken by the court below is a possible view. The court below has
given cogent, convincing and satisfactory reasons while passing the order of acquittal.
23. We therefore, do not consider it to be a fit case for grant of leave to appeal to the appellant. The application seeking leave to appeal is, accordingly rejected and the appeal is also dismissed.
.
(Saroj Yadav,J) (Ramesh Sinha,J)
Order Date :- 12.8.2021
Shukla
