State Of U.P. vs Naveen Sharma And 3 Ors.
2022 Latest Caselaw 9783 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 42
 

 
Case :- GOVERNMENT APPEAL No. - 784 of 2018
 

 
Appellant :- State of U.P.
 
Respondent :- Naveen Sharma And 3 Ors.
 
Counsel for Appellant :- G.A.
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Vikas Budhwar,J.

Re: Criminal Misc. Application (Leave to Appeal)

1. Heard Ms. Nand Prabha Shukla, learned AGA for the State-appellant and perused the records.

2. This Government appeal has been preferred against the judgment and order dated 23.07.2018, passed by Additional Sessions Judge, Court No.12, Ghaziabad in Sessions Trial No.1826 of 2006 (State of U.P. vs. Naveen Sharma and Others), arising out of Case Crime No.424 of 2001, under Sections 364, 302, 201, 411, 406 IPC, Sessions Trial No.1827 of 2006 (State of U.P. vs. Tunnu alias Pradeep), arising out of Case Crime No.429 of 2001, under section 4/25 Arms Act, Sessions Trial No.1828 of 2006, Sessions Trial No.1829 of 2006 (State of U.P. vs. Pankaj), arising out of Case Crime No.427 of 2001, under Section 25 Arms Act and Sessions Trial No.1830 of 2006 (State of U.P. vs. Naveen), arising out of Case Crime No.426 of 2001, under Section 25 Arms Act, Police Station Delhi Gate, District Meerut whereby the accused persons have been acquitted.

3. Prosecution story, in brief, is that the complainant- Jagdish Saran has lodged a complaint on 05.09.2001 before the Police Station-Delhi Gate, Meerut regarding missing of his son-Sharad Verma, who owned a jewellery shop at Neelgali for the last 8 years. It is further alleged that on 04.09.2001 at about 6.00 pm. his son gone away somewhere from his shop, thereafter, his brother-in-law Rajaram Verma has lodged a missing report in the police station-Delhi Gate. Subsequently, he received an information that an unknown dead body was found within the jurisdiction of Police Station Jani, which was identified by the informant and his family members as his son Sharad Verma. Consequently, a first information report was lodged against unknown accused persons. On the basis of the first information report the Investigating Officer started investigation and after completing all the formalities, he has submitted a chargesheet against the accused persons. Thereafter, the case was committed for trial.

4. In support of prosecution case, PW-1- Jagdish Saran Verma, PW-2-Jaipal Verma, PW-3 Vichitra Bharadwaj, PW-4-Jitendra Verma, PW-5 Rajesh Kumar Verma, PW.6-Vijya Kumar, PW-7-Constable 1792-Rabendra Kumar, PW-8-Anoop Singh Rathi, PW-9-Dr. K.V. Pathak, PW.10-Harendra Singh, PW-11 Constable 2073 Ashok Kumar, PW-12-S.I. Naresh Pal Singh and PW-13-Somprakash-Incharge Inspector 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 prosecution has failed to prove that the dead body so recovered in the present case is the dead body of the deceased Sharad Verma, who was working as Gold Smith for the last 8 years, as the court below has found that there was material difference in the face cut as well as in the age between the dead body which was recovered in this case and deceased. The prosecution theory of kidnapping of the deceased and his murder was also disbelieved on the ground that witnesses of fact namely PW-1- Jagdish Saran Verma, PW-2-Jaipal Verma, PW-3 Vichitra Bharadwaj could not prove their presence on the spot. So far as the recovery of ornaments and weapons used in the offence namely, knife and the firearm could not be connected with the present case inasmuch as there was material differences in the ornaments recovered and the ornaments which were alleged to have been handed over by the deceased to the accused persons and knife was not sent for forensic science laboratory as well as firearm so recovered on the pointing out of the accused persons was also not sent for ballistic report and there is nothing on record to connect all such weapons in the present case. In respect of motive, it was found that the same also could not be proved inasmuch as PW-1 had not stated anything about given any jewellery to the accused persons whereas PW-2 has stated that the jewellery was given to the accused persons but its actual weight was not known, it is not even known how much worth it was whereas Gold is an expensive metal but there is nothing on record to prove that jewellery was given to the accused persons by the deceased. In this backdrop, the judgment of acquittal was passed.

6. Challenging the impugned judgment, Ms. Nand Prabha Shukla, learned AGA submits that there was cogent evidence to convict the accused persons herein. She submits that there was recovery of ornaments as well as the weapons on the pointing out of the accused persons and minor contradiction in the recovery of dead body will not sufficient to acquit the accused from the charges. Submission, therefore, is that the judgment is perverse in nature and requires deeper scrutiny and 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. 05.09.2001

13. On perusal of record, we find that the date of alleged incident is 04.09.2001 whereas the first information report was lodged on 05.09.2001 at 17.00 hours and the allegation is that the dead body was identified by the family members of the deceased on the same date i.e. on 05.09.2001 at 5.00 pm before lodging of the first information report. On the contrary, PW.9-Dr. K.V. Pathak, who has conducted the post mortem has clearly stated in his statement that panchayatnama, which was proved by PW-1 himself, was written till 4.30 pm and thereafter the dead body was sealed and sent for post mortem to Medical College, Meerut where the body was unsealed at 8.30 pm, then how and when was the body seen and identified by the appellant and his family members and how the first information report was lodged at 5.00 pm. has not explained by the prosecution. We further find that the appearance and the age of the dead body which was recovered in the present case, did not match with the description of the deceased. We further find that PW-1, who is the father of the deceased, lives in Moradabad and on the date of incident he has come to meet his son and was sitting in the jewellery shop when the accused persons, namely, Naveen and Pankaj have come and some gold ornaments were handed over to them by the deceased, however, he had not stated anything about the fact that how much gold ornaments were given to the accused persons by the deceaed. PW-4 in his statement has stated the accused persons Navin and Pankaj had come to the jewellery shop at about 2:00-2:30 in the noon and at that point of time there was no customer or workman in the shop and only Sharad Verma, PW-1 as well as accused persons were present there, therefore, we find that presence of PW-2 and PW-3 on the place of occurence was rightly disbelieved by the trial court as they have also stated that they have come from outside Meerut from train. We further find that there is no forensic laboratory report regarding recovery of cloths from the unidentified body and the knife which could have been used in the commission of crime. The firearm and the live cartridges so recovered were also not sent for ballistic report.

14. 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) is rejected by order of this date, the present government appeal is also dismissed.

Order Date :- 10.8.2022

Nitendra