State Of U.P. vs Yasin Beg
2021 Latest Caselaw 7846 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 47
 

 
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 103 of 2021
 
Appellant :- State of U.P.
 
Respondent :- Yasin Beg
 
Counsel for Appellant :- G.A.
 

 
Hon'ble Arvind Kumar Mishra-I,J.

Hon'ble Syed Aftab Husain Rizvi,J.

Heard Sri Bhanu Prakash Singh, learned Brief Holder for the State-appellant and perused the material brought on record.

The instant appeal is reported to be filed beyond time by 1529 days, as per the Stamp Reporting Section.

In view of prevailing pandemic Covid-19, reasons assigned in support of the delay condonation application as well as submissions, the delay in filing the instant appeal is condoned. The instant appeal is treated to be filed within time.

Delay condonation application is, accordingly, allowed.

Office is directed to allot regular number to this appeal.

At this stage, learned counsel for the State-appellant has requested for hearing of this appeal by pressing leave to appeal application, therefore, we are considering the leave to appeal as such.

Order Date :- 13.7.2021

S Rawat

Court No. - 47 (A.F.R.)

Case :- GOVERNMENT APPEAL DEFECTIVE No. - 103 of 2021

Appellant :- State of U.P.

Respondent :- Yasin Beg

Counsel for Appellant :- G.A.

Hon'ble Arvind Kumar Mishra-I,J.

Hon'ble Syed Aftab Husain Rizvi,J.

Heard Sri Bhanu Prakash Singh, learned Brief Holder for the State-appellant and perused the material brought on record.

The instant Government Appeal has been preferred by the State-appellant against judgement and order of acquittal dated 13.10.20216, passed by Additional Sessions Judge/Special Judge, E.C. Act Bareilly in Sessions Trial No.609 of 2010 (State vs. Yasin Beg) and Sessions Trial No.610 of 2010 (State versus Yasin Beg), under Sections - 302/34 I.P.C. and 25 Arms Act, Police Station - Siroli, District - Bareilly.

We have been persuaded that in this case, there was plethora of evidence but casual approach was adopted in relation thereto by the trial judge, who failed to appreciate properly and to take notice of the clinching circumstances, which were very much apparent on record, pointing to the guilt of the accused.

Learned Brief Holder for the State has added that primarily, it is worth mentioning that the circumstances of a case cannot tell a lie, whereas, a person can !. In this case, the circumstances are consistently intertwined and placed so innocuously as to point to the guilt of the accused. Merely because of the failure of the investigating officer in regard to carrying out certain formalities, modalities and technicalities, the entire prosecution story cannot be thrown out, once it is established that the accused- respondent Yasin Beg was conniving with the other co-accused - say Akeeb and Yamin, and he had a strong motive and cause for committing the offence, then there was no point that he should have been given benefit of doubt on account of fact that nothing exist against him involving him in the commission of the crime.

The learned counsel continued and added that irony of the case is that the two main accused against whom evidence existed and the F.I.R. entailed a detailed description for taking away the victim with them in the night of 9.3.2009 at about 9:00 p.m., there is nothing which may generate any suspicion regarding the complicity and involvement of the accused because the deceased Raisuddin son of the informant was having love affair with the daughter of the accused-respondent.

In the peculiar circumstances of this case, the testimony on record was plausible one and satisfactorily pointing to the guilt of the accused. However, the reasoning given by the trial court is on the face perverse and cannot be sustained as such vis a vis the evidence on record and the prevailing circumstances of the case.

So far as the factum of recovery is concerned, the police personnel, who effectuated the recovery have very much proved the factum of recovery. However, their evidence cannot be brushed aside and minimized merely on account of absence of independent witness.

We have considered the submissions and the argument advanced by the prosecution and also scanned the entire judgment - the certified copy of it as has been brought before us - whereby we gather that in this case the judgment and order of acquittal was delivered by the trial court on 13.10.2016 after taking into account each and every aspect of this case, it can be observed that evidence was properly appraised and circumstances were also considered by the court below.

It so happened that some F.I.R. was lodged on 10.03.2009 at about 11:15 a.m. with the Police Station ? Siroli, District ? Bareilly at Case Crime No. 81 of 2009, under Section ? 302 read with Section - 34 I.P.C. During course of investigation, some recovery was effectuated against the accused-respondent and a case under Section ? 25 Arms Act was also lodged against the accused at Case Crime No. 696 of 2009, Police Station ? Siroli, District ? Bareilly. The motive for committing the crime is no doubt the alleged illicit relationship in context between the daughter of the accused-respondent and Raisuddin son of the informant. After completion of the investigation, charge-sheet was filed against the accused-respondent-Yaseen Beg.

It is noticeable from the judgment itself that the other two accused say Aqib and Yameen, both the named accused in the F.I.R. were found to be juvenile, therefore, after the submission of the charge-sheet, their trial was separated and they were tried separately by the Juvenile Justice Board, Bareilly.

Upon careful perusal of the testimony of the fact witnesses, to be particular P.W.1- Mohd. Hasmuddin son of Vikaruddin and P.W.2- Atikuddin son of Fatruddin, we come across fact that their version cannot be said to be free from inherent infirmities, for the reason that as per the testimony of P.W.-1, he came to hear about the sound of fire from some place one kilometer away from the place of occurrence where this witness was standing, still he says before the trial court that he saw the occurrence and the present accused respondent Yasin Beg fired two shots at the deceased, while Akib was pointing gun at the deceased and Yamin made first shot at the deceased. This goes to show by itself that the things have been tried to be improved and testimony of the witnesses of fact is full of embellishment. Their presence on the spot instantly cannot be accepted and inferred, if his testimony regarding the incident is taken to be true, for the reason that he himself says that he heard the sound of fire almost one kilometer away from the place of occurrence, then there is no point that he witnessed the incident as such and his explanation that because of fear, the accused-respondent Yasin Beg could not be named in the F.I.R. is also not sustainable in the eye of law.

Once the testimony of witnesses of fact becomes doubtful and suspicious regarding the occurrence itself, then in view of the recovery of the illegal countrymade gun while that too has not been proved within the four corners of law, goes to show that the factum of recovery cannot be said to be satisfactorily established by the prosecution. It is substantial law that merely recovery does not connect one with the commission of the offence, unless cogent, consistent and direct or clinching circumstantial evidence is brought forth to prove the guilt of the accused-respondent by the prosecution.

In that way, the trial court has taken note of each and every fact relevant and the circumstances of the case and has rightly calibrated the testimony of the witnesses of fact as well as that of the formal witnesses and has analyzed the circumstances properly and after churning the merit of this case, has entertained doubt regarding the complicity of the accused-respondent in commission of the crime. No doubt, some suspicion exist regarding cause of action being implicit or existing in the mind of the accused respondent that his daughter was having some relationship with the deceased - son of the informant, but this aspect is different from fact, which was required to be proved by the prosecution in accordance with the procedure and the law laid down, which has not been done in the present case. The illicit relationship here in this case may serve as the very motive behind the crime. So it is apparent that the finding of the trial court cannot be faulted with, once it is found to be based on material on record and the appreciation is based on analogy and reason supported by material. That being the case, the appellate court would not come to the rescue of the prosecution merely on the basis of several possibilities in the shape of suspicion and that cannot form the basis of conviction. In order to achieve a conviction, the things are required to be proved beyond all reasonable doubt, which has not been done in this case.

Presumption of innocence runs in favour of the accused right from the stage of commencement of trial and the same continues upto the Appellate stage. In case finding of acquittal is recorded by the trial court and the order of acquittal is found to be based on material on record then presumption of innocence is fortified and strengthened in favour of the accused as has been held by Hon'ble Apex Court in the case of Kanhaiya Lal & Ors. v. State of Rajasthan; AIR 2013 SC 1940.

Even in cases where two views regarding the same incident are possible then the view adhered to and adopted by the trial court will not be disturbed if material on record justifies the finding so recorded as has been held by Hon'ble Apex Court in the case of Bhadragiri Venkata Ravi v. Public Prosecutor High Court of A.P., Hyderabad; 2013 (4) Supreme 450.

For the reasons aforesaid, we affirm and approve the judgment and order of acquittal dated 13.10.20216, passed by Additional Sessions Judge/Special Judge, E.C. Act Bareilly in Sessions Trial No.609 of 2010 (State vs. Yasin Beg) and Sessions Trial No.610 of 2010 (State versus Yasin Beg), under Sections - 302/34 I.P.C. and 25 Arms Act, Police Station - Siroli, District - Bareilly.

Thus, leave to appeal is refused.

Consequently, the instant appeal being insignificant is dismissed.

Let a copy of this order be certified to the trial court concerned.

Order Date :- 13.7.2021

S Rawat