State Of U.P. vs Smt. Omwati
2022 Latest Caselaw 9178 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 42
 

 
Case :- GOVERNMENT APPEAL No. - 412 of 2021
 

 
Appellant :- State of U.P.
 
Respondent :- Smt. Omwati
 
Counsel for Appellant :- G.A.
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Vikas Budhwar,J.

Order on Leave to Appeal

1. Heard Ms. Nand Prabha Shukla, learned counsel for the appellant and perused the record.

2. This appeal under Section 378(3) of Criminal Procedure Code, 1973 (in short 'Cr.P.C.'), has been instituted at the behest of State of U.P. against the judgment and order dated 6.2.2019, passed by learned Additional Civil Judge , Court No. 7/ A.C.J.M. Bareilly, in S.T. No. 3000328 of 2017 (State of U.P. Vs. Omwati), under Section 302 I.P.C. arising out of Case Crime No. 268 of 2017, Police Station. Bithrichainpur, District Bareilly, acquitting the accused respondent.

3. The prosecution story in brief is that on 14-06-2017 the first informant Veerendra Pal Singh s/o Babu Ram r/o Mohanpur @ Ramnagar, Bithrichainpur, Bareilly gave a written report (tehrir) (Ex.Ka-1) to S.O. Bithrichainpur, Bareilly stating that his wife had expired and he has two children, a girl and a boy namely Yogesh Patel aged 11 years. That on 14.06.2017 while his daughter had gone to her aunt's (bua) house his son Yogesh Patel was alone at home. That around 5:00 pm he received a call from his cousin brother Gagan Patel that his son Yogesh is not well and he should immediately come home. When the informant Veerendra Pal Singh reached home, he found that his son Yogesh Patel died and his dead body was lying in the Verandah of the house. That there were strangulation mark on his neck and abrasions present all over the body. The informant Veerendra Pal Singh alleged that some unknown persons had entered his house and murdered his son. On the basis of the written complaint, an FIR has been lodged thereafter Investigating Officer while completing all the formalities submitted a charge-sheet against the accused respondent under Section 302 IPC. Thereafter cognizance was taken by the Magistrate concerned  and case was committed for trial.

4. In support of his case, prosecution has produced following witnesses:-

PW1 Veerendra Pal Singh, PW2 Madan Lal, PW3 Sukhdaie, PW4 Jugal Kishor, PW5 Dr. Ajay Mohan Agarwal, PW6 Constable 512 Ankur Singh, PW7 S.I. Harish Chandra, PW8 Karan Pal Singh.

5. The judgment of acquittal has been passed on the ground that the first information report was lodged against some unknown persons by PW1 Veerendra Pal Singh regarding death of his 11 year old son and that he was informed that he was lying in a bad condition in his Verandah and therefore when he reached the spot, he found that his dead body was lying there with several injuries and mark of strangulation. The name of the accused herein was added subsequently during investigation by PW2 Madan Lal and PW3 Sukhdaie who were produced as witnesses of last seen that Omwati (accused herein) were seen by them on the Varandah in the house of Veerendra Pal Singh with a wooden stick is not worth belief and, therefore, the presence of Omwati on the spot could not be proved. The court below found that since nobody has seen the incident, therefore, it was a case of circumstantial evidence and unless the chain of circumstances is so complete the judgment of conviction cannot be passed merely on the statement of the witnesses, who were examined after quite long time to create evidence that the accused person was seen inside the house of Veerendra Pal Singh.

6. It was further found that the house of PW2 was two houses away and, therefore, it was not possible for him to see Omwati moving around. Court below also found discrepancy in the statement of PW3 Sukhdai as to time, manner and the movement at which she had seen the accused Omwati in the Varandah of the PW1 informant.

7. On this basis it was found that as per settled law unless the chain of circumstances so complete which leads to no other conclusion but proves that accused and none other has committed offence and merely on the basis of suspicion howsoever strong it may be order of conviction cannot be passed. Hence, the judgment of acquittal was passed.

8. Challenging the aforesaid judgment, learned AGA has submitted that even the first information report was lodged against unknown person but PWs 1 to 3 have proved the presence of accused Omwati in the Verandah of Veerendra Pal Singh whose son was killed and the wooden stick which was used by accused, the same was also recovered on her pointing out. She further submitted that there was a strong motive to commit such crime, inasmuch as Omwati's own son died and she believed that the deceased was responsible for such incident, therefore there was a strong motive to commit such crime.

9. Submission therefore is that the judgment of acquittal is liable to be reversed and the accused person is liable to be convicted.Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.

10. 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"

11. 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.

12. 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.

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

14. We have considered the submission and perused the record. We find that the first information report was lodged on 16.6.2017 at 21.30 hours (9.30 p.m.) whereas as rightly noticed by the trial court the PW1 Veerendra Pal Singh had stated that PW2 Madan Lal had informed about Omwati (who was moving around) at about 6-7 p.m. Further PW2 Madan Lal himself has stated that he had told, Veerendra Pal Singh about the incident (or that he had seen that Omwati was moving in his house) after cremation of Yogesh.

15. In this view of the matter, we find that PW2 himself stated that he had narrated the incident to PW1 on the next date after cremation. It is, therefore, the statement of PW1 Veerendra Pal Singh is incorrect to the extent where he states that Madan Pal had informed him about Omwati at 6-7 p.m. whereas the first information report was lodged at 9.30 p.m. on 14.6.2017 but she was not named or even mentioned. Moreover, PW3 Sukhdai had acted strangely inasmuch as she in her statement stated that about the fact that she had seen Omwati in the house of Veerendra Pal Singh, had not been narrated to her husband and that he did not tell this fact to anyone on that date and that for the first time she had told the police about this after 4-5 days when the Investigating Officer has visited him.

16. In such view of the matter, in our opinion the trial court has rightly disbelieve the presence of Omwati on the date of incident in side the house of Veerendra Pal Singh. The sole basis of proceeding against the accused Omwati was that PW1, PW2 and PW3 have stated about their presence inside the house of Veerendra Pal Singh before the murder had taken place with a wooden stick in her hand. Once his story is knocked of, there is no occasion to convict the accused herein Omwati and therefore, the trial court has rightly held that the prosecution has failed to prove its case beyond shadow of doubt.

17. Needless to say that it is a case of circumstantial evidence where the chain of circumstances is not complete so as to hold that accused Omwati and no other person must have committed this offence.

18. In such view of the matter, we find that possible view has been taken by the trial court in acquitting the accused herein and we do not find any good ground to take a different view of the matter.

19. Accordingly, this application for grant to leave 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 :- 4.8.2022

piyush