State Of U.P. vs Mohd. Umar And 3 Others
2022 Latest Caselaw 10354 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 42
 

 
Case :- GOVERNMENT APPEAL No. - 2442 of 2016
 

 
Appellant :- State of U.P.
 
Respondent :- Mohd. Umar And 3 Others
 
Counsel for Appellant :- G.A.
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Shiv Shanker Prasad,J.

Re: Criminal Misc. Application (Leave to Appeal)

1. Heard Sri Kailash Prakash Pathak, learned AGA appearing for the appellant-State of UP and perused the record.

2. Present government appeal has been preferred against the judgement and order dated 06.02.2016, passed by the Additional Sessions Judge, Court No.3, Bijnor in Session Trial No. 769 of 2011 (State vs. Mohd. Umar), Sessions Trial No.770 of 2011 (State vs. Mohd. Umar) and Sessions Trial No.771 of 2011 (State vs. Jarees), arising out of Case Crime No. 141 of 2011, 146 of 2011 and 147 of 2011, under Section 302/34, 394, 201, 411 IPC and Section 4/25 Arms Act, P.S. Heempur, District-Bijnor, whereby the accused persons have been acquitted.

3. Prosecution story, in brief, is that the village Pradhan namely Neeraj Gurjar has given a written report on 24.06.2011 scribed by one Manoj Kumar at Police Station Heempur stating therein that on 24.06.2011 an unknown dead body of male aged about 28-30 years was recovered at his village Jhaledha on the road going towards near Jhaal under the Puliya of Nahar, which came with the flow of canal and the same was lying under the Puliya. On the basis of the aforesaid report, G.D. entry dated 24.06.2011 at sl. No.22, time 12.30 hours was made and accordingly, proceeding of panchayatnama was conducted and after panchayatnama dead body was sent for post mortem. On 25.06.2011, one Bundu Khan has given an application at Police Station Heempur stating therein that the dead body, which was put in the mortuary, has been identified by him properly and the same is of his son namely Sarfaraj. Thereafter, on 28.06.2011 the complainant Bundu Khan again given a written report scribed by Pradhan Aslam at Police Station Heempur stating therein that he is resident of Mohalla Raipur Road, Azadnagar Colony, Dehradoon. His son Sarfaraj aged about 26 years was driving Scorpio vehicle No.U.A.08-F-7001 on booking. On 23.06.2011 at about 8.00 pm the son of the complainant had gone to Moradabad on booking after telling his mother that he will return back tomorrow and he was having a Carbon Mobile bearing Mobile No.9761410801 and at that time he was wearing black jeans. On 24.06.2011 an information from the Police Station Kanth, District Moradabad through phone was received that a Scorpio Car bearing No.U.A. 08-F-7001 is standing within the territorial jurisdiction of Umari and two tyres of the said vehicle are burst and in the vehicle no one is present. On receiving the said information he proceed and inquired and it was found that an unknown dead body had come at postmortem house of District Bijnor, thereafter, he reached at District Hospital Bijnor where he saw the dead body, which was of his son namely Sarfaraj and he has identified the same, then police personal told that the dead body was found at Police Station Heempur near village Jhall under the bridge of canal. After post mortem, complainant has conducted last rites of his son and thereafter, he came to lodge the first information report at police station. The vehicle of his son was standing at Police Station Kanth, District Moradabad and the pant as well as mobile phone of his son is missing. On 24.06.2011 a G.D. entry was made regarding the vehicle in question at the Police Station concerned. During the course of investigation of present case, when the police party was on patrolling, it has received information that the accused persons of the present case namely Mohd. Umar and Jarees have come on a motorcycle from the side of Bijnor and thereafter, both the accused persons were apprehended by the police and they confessed the complicity of other accused persons namely Saleem and Haroon in the commission of the present crime and they have also confessed that they with the intention to commit loot have committed murder of owner/driver of the vehicle in question and thrown the dead body under the Puliya of Jhaal canal. On the pointing out of the accused persons jeans pant of the deceased and knife used in commission of crime have been recovered and accordingly Fard recovery memo was prepared and separate case under Section 4/25 of Arms Act was also registered against Jarees and Mohd. Umar. Thereafter, the Investigating Officer after completing all the formalities of the investigation has submitted chargesheet against the accused persons.

4. In support of prosecution case, PW-1- Bundu Khan, PW-2-Mashroor, PW-3 Neeraj Gujjar, PW-4-Dr. Bhojraj Singh, PW-5-Sonu alias Zakir, PW-6-Hamid Hussain, PW-7-Constable 56 Uday Singh, PW-8-Constable 192 Mohd. Khalid, PW-9-Sub Inspector Nanak Chand, PW-10-Sub Inspector Chandramukut Sharma, PW-11-Dharmendra Singh, PW-12-Sub Inspector Mohan Lal Yadav, PW-13-Constable 319 Rajveer Singh and PW.14 Constable 352 Lal Bahadur were produced and examined before the Court below.

5. The judgement of acquittal has been passed on the ground that it is a case of circumstantial evidence and the chain of events is not completed so as to connect the accused persons with the incident of crime. The court below found that an unidentified body was recovered under the Puliya of Nahar, which had come with the flow of canal and the same was lying under the Puliya of Nahar. There is material contradiction that whether the canal was dry or full of water at the time when the dead body was recovered from the spot. It is alleged that the deceased was wearing black jeans whereas in the panchayatnama it was found that a red pant was found on the dead body and the recovery of black jeans was made on the pointing out of the one of the accused persons, therefore, the court below found that if black jeans was on the dead body then it was not possible that it would have been recovered on the pointing out of the accused persons. So far as arrest of two accused persons are concerned, it was found that there is no public witness of such arrest and motorcycle which was being driven by them was also not recovered. It was further found that knife recovered on the pointing out of those two accused persons also could not be connected with the offence. Inasmuch as the knife recovered from the accused Jarees was having disintegrated bloodstains and knife recovered from accused- Mohd Umar was having human blood but the blood was not match with the blood group of the deceased. The story that the deceased was murdered for the purpose of taking away the Scorpio Car, which was being driven by him, was also disbelieved by the trial court as the same was found standing unclaimed at one isolated place within the territorial jurisdiction of Umari. The court below also found that PW-1-Informant, father of the deceased was not the eyewitness and the eyewitness account of the other prosecution witnesses particularly of the PW-2 has not explained as to why he had gone to the taxi stand on 23.06.2011 leaving his shop open and PW.5, who had categorically stated that on 23.06.2011 his marriage was to be solemnized, therefore, the two eye witnesses produced by the prosecution as a last seen witnesses were also found not worth belief. Although, a copy of the Call Detail Report (CDR) was produced, however, the mobile phone and sim card were not made exhibit. As such call detail report was also not worth belief. On these grounds the judgment of acquittal has been passed by the trial court acquitting the accused persons.

6. Challenging the impugned judgment, Sri Kailash Prakash Pathak, learned AGA submits that there was cogent evidence to convict the accused persons herein. He submits that there is eyewitness account of last seen evidence and the recovery was also made on the pointing out of the accused persons, who were arrested by the police, therefore, the judgment of acquittal passed by the Trial Court is perverse in nature and is liable to be reversed.

7. We have considered the submissions and have perused the record.

8. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.

9. In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have reappreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities"

10. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against an order of acquittal passed by a Trial Court.

11. In a recent judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered.

12. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.

13. On perusal of record, we find that a first information report was lodged after unknown dead body of male aged about 28-30 years was recovered under the Puliya of Nahar, allegedly reached to the spot with the flow of water. No doubt the post mortem report clearly reveals that there were fatal injuries on the body of the deceased, however, we find that the accused Jarees and Mohd. Umar were arrested by the police while they were driving a motorcycle and they have also named Salim and Harun that they were also involved in the incident. On their pointing out a black jeans belonging to the deceased and knifes were recovered but the Fard report regarding knife recovered on the pointing out of accused Jarees was having disintegrated bloodstains and the knife recovered from the accused-Mohd Umar was having human blood but his blood does not match with the blood of the deceased. We further find that the PW-2 claimed that he has seen the accused persons with the deceased on 23.06.2011 at 7.00 pm at Dehradoon taxi stand, however, the same could not be proved, inasmuch as he could not explain for what reason he had gone to the taxi stand leaving his shop open. PW.5 has also stated in his cross examination that canal was dry and the dead body was lying in dry canal whereas the first information report is to the effect that the dead body reached at the spot with the flowing water. PW-3 had stated that when he had seen the dead body there was no injury on the dead body whereas as per the post moretem report several incised wounds were found on the body of the deceased. PW-5 though claimed that he had seen the deceased accompanying with the accused persons on 23.06.2011 at the taxi stand but in his cross examination he had stated that on that day his marriage was to be solemnized and he was at home through out. Therefore, the last seen evidence was also not worth belief. The mobile call detail (CDR) is also not worth belief as the police has not recovered any mobile phone and sim card from the accused persons. Further, there was no certificate as required under Section 65B of the I.T. Act and was, therefore, inadmissible in evidence. Recovery of motorcycle, which was being driven by the accused persons was also not exhibited. Scorpio Car was also found abandoned with two bust tyre, therefore, motive that the offence was committed for the purposes of taking away the Scorpio also could not be proved. The recovery of black jeans, which the deceased was wearing when he had left his house, is also doubtful inasmuch as at one hand he had claimed that black jeans was found on the body of the deceased whereas recovery of black jeans was shown on the pointing out of the accused persons.

14. In such view of the matter, we are of the opinion that the chain of events in this case of circumstantial evidence is not so completed so as to hold that the accused persons had committed the offence in question. In view of the aforesaid, as reflected from perusal of the evidence, we find that the court below has taken a possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court by taking a different view as per the law discussed above.

15. Accordingly, it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.

Re: Government Appeal

1. Consequently, since the Criminal Misc. Application (Leave to Appeal) has been rejected by order of this date, the present government appeal is also dismissed.

Order Date :- 17.8.2022

Nitendra