State Of U.P. vs Aslam And 2 Others
2021 Latest Caselaw 7257 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 47
 
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 113 of 2021
 
Appellant :- State of U.P.
 
Respondent :- Aslam And 2 Others
 
Counsel for Appellant :- G.A.
 

 
Hon'ble Arvind Kumar Mishra-I,J.

Hon'ble Syed Aftab Husain Rizvi,J.

Order on Delay Condonation Application

We have heard Sri Bhanu Prakash Singh and Sri Rajiv Rai brief holders for the State.

A delay of 1862 days has been reported by the Stamp Reporting Section.

In view of prevailing pandemic condition and considering the reasons assigned in support of the delay condonation application and in view of the submission that the matter should normally be considered on its merit, delay is liable to be condoned.

After considering the averments made in the delay condonation application and also considering the submission made in that regard the delay condonation application is allowed.

Delay is condoned.

Office is directed to allot regular number to this appeal.

Request has been made that hearing may be done on the merit of the application for leave to appeal which is sustained by us.

Order Date :- 8.7.2021

Arif

Case :- GOVERNMENT APPEAL DEFECTIVE No. - 113 of 2021

Appellant :- State of U.P.

Respondent :- Aslam And 2 Others

Counsel for Appellant :- G.A.

Hon'ble Arvind Kumar Mishra-I,J.

Hon'ble Syed Aftab Husain Rizvi,J.

We have heard Sri Bhanu Prakash Singh and Sri Rajiv Rai brief holders for the State / appellant.

By way of instant appeal, the State has challenged the order of acquittal dated 30.1.2016 of the trial Court, Additional Sessions Judge, Court No. 6, Agra passed in session trial no. 1067 of 2007 (State of U.P. Vs. Aslam) connected with session trial no. 1260 of 2007 (State Vs. Kalu & another) and sessions trial no. 1068 of 2007 (State Vs. Aslam) under Section 302 IPC and Section 25 of the Arms Act concerning Case Crime Nos. 258 of 2007 and 272 of 2007, Police Station - Malpura, District - Agra, respectively.

It has been claimed that in this case there is clear cut and clinching evidence produced by the prosecution regarding fact of disappearance of the deceased - Deepak - a boy of hardly 22 years. Further urged that in this case, all the circumstances of the case have been consistently proved and the chain of circumstances is complete. It is upon the accused and, in particular, on accused - Aslam to prove his innocence, once it was testified by the father of the deceased before the trial Court (as P.W.-2) that Aslam called his son by his mobile cell phone.

The mobile cell phone numbers of both Aslam and deceased have also been described in the testimony. It being the factual and admitted position, there was no point to base the judgment on conjuncture or surmises and to pass order of acquittal against the accused.

Before proceedings with this case, it would be relevant to take note of the relevant facts of this case for proper disposal of this case.

We peruse from record that a written information was given by Hiralal, the village chaukidar to the effect that on 4.6.2021 at about 10:00 a.m. he was going to take medicine and on the way when he reached the field of Mahavirjar, at village - Garhsani, he was crowd thronged over there, he reached near the spot, he saw dead body of a boy aged about 22 years lying over there and a knife was also lying beside it. It looked as if someone has caused the murder of the boy by inflicting knife injuries. The aforesaid information was taken down in General Diary and an FIR was registered on its basis. Thereafter on 5.6.2007 the information - Shivratan Joshi given an information (Exhibit - Ka-2) narrating that he is resident of district - Farrukhabad and presently residing at Aitmaddaula, Agra his son Deepak aged about 22 years went away from his house on 3.6.2007 at 1:30 p.m., he did not return back home. On 5.6.2007, he came across a news item published in Hindi Daily - Amar Ujala that a boy has been murdered by inflicting knife injuries under the police station - Malpura. Upon reading this, he went to the police station - Malpura and after seeing the photograph and the belongings, he identified the deceased as his son - Deepak. The police investigated into the matter. During course of the investigation, the name of accused - Aslam came to the light. He was arrested by the police and a country made gun was recovered from his possession for which a separate case under Section 5 of the Arms Act was registered against him.

Charge sheet was submitted against the accused under the aforesaid Section of IPC and Arms Act respectively. The accused were heard on point of charge but they denied the charges which were framed against them and claimed to be tried. Consequently, the prosecution in order to prove its case examined ten prosecution witnesses and after closing the evidence for the prosecution witnesses statement of the accused was recorded under Section 313 Cr.P.C. wherein they denied their involvement and participation in the occurrence. Accused - Aslam also denied any recovery having been effected from him by the police and claimed false recovery in this case by the police. The accused did not lead any evidence in defence.

Consequently, the case was heard on merit and after considering the evidence fact and circumstances vis-a-vis submission made by both the sides judgment of acquittal was delivered by the trial Court which gave rise to this appeal by the State.

It has been brought to our notice that no separate appeal has been filed by the complainant P.W.-2 - Shivratan father of the deceased. In so far as the finding of acquittal recorded by the trial Court is concerned, the trial Court was primarily concerned with the evidence and the supporting material in that regard. It so occurred that during course of the proceedings, P.W.-2 Shivratan, father of the deceased was produced in the Court where he categorically stated that Aslam called his son by calling from his cell phone and he also gave the cell phone number of Aslam which was described as 9719226477. However, this was found to be an improvement at subsequent stage because no such whisper was either recorded by the police in the first statement of the informant under Section 161 Cr.P.C.

It being so the contention urged by the defence that the testimony of P.W.-2 is full of deliberation, improvement and the witness is highly tutored on this specific point. Further, a case was also tried to be built up upon the plea of extra judicial confession that after the occurrence took place, Aslam, Kale and Kake - all the three accused - came to him on 11.6.2007 and confessed to have committed the offence. This extra judicial confession was not supported by any independent testimony, facts or circumstances of the case therefore, they same when read in line with the testimony of P.W. -2 regarding the creation of last seen theory by adducing testimony in the shape of Aslam calling the deceased by using his cell phone, is not believable unless corroborated by independent circumstance or testimony as such. Though, it is not imperative that an extra-judicial confession, to be admissible must be supported by independent evidence, fact or circumstance - but under prevailing facts and circumstances of a particular case it should be a truthful version beyond shadow of suspicion. If the circumstances of a case are suspicious then it is rule of cautious that the court should normally look for corroboration of it from some independent source.

In view of the above, the trial Court was justified in recording the finding of acquittal, for the specific reason that it being a case based on circumstantial evidence, all the links in the chain of circumstances must be consistently intertwined established and must leave aside every hypothesis of innocence of the accused and it must indicate invariably that the accused and accused alone were the author of the crime and none other. Therefore, we are not inclined to interfere with the judgment of acquittal dated 30.1.2016 passed by Additional Sessions Judge, Court No. - 6, Agra, at this stage.

Consequently, the leave to appeal sans merit and the same is dismissed.

Resultantly, this appeal goes and the same is also dismissed.

Order Date :- 8.7.2021

Arif