Allahabad High Court
State Of U.P. vs Smt. Rajwati Alias Rajjo And 2 ... on 2 March, 2021
Bench: Munishwar Nath Bhandari, Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 48
Case :- GOVERNMENT APPEAL No. - 150 of 2020
Appellant :- State of U.P.
Respondent :- Smt. Rajwati Alias Rajjo And 2 Others
Counsel for Appellant :- G.A.
Hon'ble Munishwar Nath Bhandari,J.
Hon'ble Shamim Ahmed,J.
The State has preferred this appeal against the judgment dated 16.03.2020 passed by the Sessions Judge, Sessions Court, Aligarh acquitting the accused for the offence under Section 302/34 and 201 I.P.C.
Learned A.G.A. submits that despite availability of evidence to prove the crime beyond doubt, the learned Sessions Judge as acquitted the accused. Referring to the facts of this case, it is submitted that a written report was submitted by PW-1 Chandrapal Sharma stating that on 01.12.2011 at around 9.00PM, he saw Dalvir Singh standing near the shop of Nekram Mahor. His motorcycle was standing near the tubewell of Hari Singh, resident of Bheelpur. His son was having intimacy with Kunwar Pal's wife. On certain issues, a fight took place with Lokesh almost one and a half months back where a threat was given to his son that 'he will not leave him rather kill him'. On 04.12.2011, he received a telephonic information about the dead body of his son near roadside. It was covered with quilt. The body was having injuries out of sharp edged weapon. The description of the body was given. On the basis of the report, investigation was conducted and finding a case, a charge-sheet was submitted for the offence under Sections 302, 201 I.P.C. against Rajjo @ Rajwati, Kunwar Pal, Lokesh and Mahesh. After framing of the charges, the trial was commenced.
The prosecution produced five witnesses to prove their case while the statement of the accused was recorded under Section 313 Cr.P.C. Learned Trial Court found no convincing evidence to prove the case based on circumstantial evidence. The chain of evidence could not be collected by the prosecution and accordingly the accused were acquitted.
It is stated that judgment aforesaid is in ignorance of the statement of the witnesses produced by the prosecution. The arguments would be dealt with while discussing the evidence.
We have considered the submissions made by learned A.G.A. and perused the record.
The learned Trial Court found that on 01.12.2011, presence of accused Kunwar Pal was at Hathras to attend a marriage ceremony. He was however arrested by the police and charge-sheet was filed. The insertion of Rajwati @ Rajjo was based on her mobile number alleged to have conversation with the deceased Shiv Hari Sharma.
The learned Sessions Judge did not find any evidence to prove mobile numbers of accused Rajwati @ Rajjo and deceased and C.D.R. In absence of any evidence to prove the mobile numbers of the accused as well as the deceased and C.D.R. produced by the police was not proved with the production of the officer of the mobile company. Compliance of Section 65 (B) of the Evidence Act, 1872 was not made. C.D.R. was thus not found admissible in the evidence. No other evidence was produced to connect accused Rajwati @ Rajjo with the crime.
Learned Sessions Judge discussed the statement of all the witnesses produced by the prosecution to find out as to whether chain of circumstances has been brought to prove a case of circumstantial evidence.
PW-1 was informant and father of the deceased. The said witness could not stand in the cross-examination either to prove the motive for commission of offence or of last seen. In the similar manner, the statement of PW-4 Dr. Yogendra Kumar Sharma was discussed. He had shown eight injuries on the person of the deceased out of which six were out of sharp edged weapon. The sharp edged weapon "Baank (????)" was recovered by the investigating officer PW-5 Arun Kumar Gautam. The blood stained "Baank (????)" was sent for F.S.L. which was recovered at the instance of the accused under Section 27 of the Evidence Act, 1872. The recovery could not be believed for the reason that the weapon was recovered from the open place after lapse of days of occurrence. The F.S.L. report (Exhibit A-17) does not confirm human blood on the weapon thus report could not show it to be matching to the blood group of the deceased. Even for the blood stained clothes recovered by the police, the report is only of human blood but was of the blood group of deceased has not been given.
Learned Sessions Judge even found that the mobile numbers with C.D.R. recovered by the police could not be proved to be belonging either to the deceased or to the accused. PW-3 Head Constable Indrapal had taken the first information report. It was stated that prior to it, he did not receive any information of missing of the deceased though he was not available for three days. The Investigating Officer did not prove that call details or the mobile number of deceased and the accused to prove conversation between accused Rajwati and the deceased.
The learned Sessions Judge has discussed the evidence produced by the prosecution. It was not of the nature to prove the case beyond doubt.
After going through the entire judgment, we do not find any error so as to grant leave to appeal in favour of the State.
The learned Sessions Court has discussed the evidence of PW-1 to 5 produced by the prosecution along with the statement of accused recorded under Section 313 Cr.P.C. The prosecution could not give reasons as to why the officer of the mobile company not being produced to prove the C.D.R. as per Section 65 (B) of the Evidence Act, 1872.
We find that the effort of the prosecution was not to bring the evidence to prove their case beyond doubt. The witnesses produced by them were not sufficient to prove the chain of circumstances rather no evidence worth proving the case against the accused could be brought, and accordingly, we do not find a case for grant of leave in favour of the State for maintaining this appeal.
The appeal is accordingly dismissed.
Before parting the judgment, the State Government is directed to remain careful in filing the appeal. It should be filed only in those cases where despite sufficient evidence to prove the case beyond doubt, the Court has acquitted the accused or has not convicted him/them for the offence for which the case is made out. The appeal should be filed after proper scrutiny of the case and not in a casual manner, as has been done in this case. It unnecessarily creates burden on the Court so as on the State without any justified reason.
Order Date :- 2.3.2021
Nirmal Sinha
