State Of Uttar Pradesh vs Yogesh And Others
2022 Latest Caselaw 9909 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 42
 

 
Case :- GOVERNMENT APPEAL No. - 2311 of 2009
 

 
Appellant :- State Of Uttar Pradesh
 
Respondent :- Yogesh And Others
 
Counsel for Appellant :- Desh Ratan Chaudhary,G.A.
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Vikas Budhwar,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 25.10.2008 passed by the Additional Sessions Judge, Court No. 2 Kanpur Dehat in Session Trial No. 270 of 2002 (State vs. Yogesh and others) arising out of Case Crime No. 07 of 1994, under Section 364/120B IPC, P.S. Sikandra, District Kanpur Dehat, whereby the accused persons have been acquitted from the charges under Sections 364/120B IPC.

3. Prosecution story, in nutshell is that the complainant Prem Kumar Tiwari lodged a complaint with the police station Sikandra on 18.1.994 to the effect that on 7.12.1993 when he along with his brother Raju and Govind Kumar Tiwari was home, at around 1.00 pm Yogesh, Dinesh, Chakesh sons Ram Asare Awasthi and Vijay Narayan son Prayag Narayan Tiwari and Ramkrishna Rajput alias Baba son of Ishwari, Ranjeet came to his house and Yogesh and Vijay Narayan called the his brother Raju Tiwari (co-accused in Prabhakar murder case along with Yogesh) by voice, then the informant came out of the house with his brothers Govind Kumar and Raju and Yogesh and Vijay Narayan told Raju that the they had to talk with witnesses in Prabhakar's murder case, come to Kasol with us, on which the informant said that why Raju is needed and if he went along with them, you will not be able to talk to the witnesses and it may take a couple of days to talk to the witnesses and the date of appearance in this case was fixed on 10.12.1993. Thereafter, Yogesh and Vijay took him to Liva with Narayan for talking to the witnesses. When his brother did not return home till 13.12.1993, the informant went to the village of Yogesh Adi but he was not found at home, during this the informant kept looking for his brother Raju, but he was not found. During the search, Radhakrishna Singh and Sukhram Singh told the informant that on 7.12.1993 they met Raju along with all the above persons while returning from Auraiya by cycle at around 4.00 pm and Raju had told on being asked that he was going to Kasol for urgent work. In the meantime on 17.12.1993, his grandfather had died, due to which he along with his family was busy in his last rites and after getting time from last rites, the informant tried to meet the above persons to get information about his brother, but all the persons deliberately kept away from meeting, when the informant went to the court and got information that neither his brother nor Yogesh and Dinesh had reached on 10.12.1993. There was a rivalry with Devendra Katiyar and Shyam Kishore Katiyar and trial was going on with Devendra Katiyar etc. The informant's brother Raju wanted to become a government witness in the murder case of Prabhakar, due to which Yogesh was afraid of being punished in the trial. That is why Yogesh etc came to Devendra Katiyar and Shyam Kishore Katiyar along with above accomplices, his brother Raju has been murdered by playing fraud, therefore, his brother Raju has not been found so far. All the said persons are professional criminals. If the informant take any action against these persons, then all the above persons may commit any serious incident with the informant and his family at any time. The informant requested that by exposing the murder of his brother Raju, necessary action should be taken against the accused persons and arrangements should be ensured for the safety of the informant and his family. The above case was registered and the investigation was done and the charge-sheet was submitted against the accused persons. The court below summoned the accused persons and they denied the charge and sought trial.

4. In support of prosecution case, PW-1 Ram Kumar Tiwari, PW-2 Prem Kumar Tiwari, PW-3 Radha Krishna Singh, PW-4 Sukh Ram, PW-5 SI Nathhu Singh, PW-6 SI Prabhat Kumar, PW-7 Inspector K.N. Shukla, PW-8 I.O. M.L. Chaudhary and PW-9 Veer Singh, were produced and examined before the Court below.

5. The judgement of acquittal was passed by the Court below on the ground that the prosecution has completely failed to prove its case that accused persons have committed the offence under Section 364/120-B IPC. It was found that the date on which the brother of the informant Raju Tiwari was taken away by the accused persons was 7.12.1993 at about 1:00 pm whereas the first information report was lodged on 18.1.1994 i.e. about after 45 days. The Court below found that the delay is material as there was admitted enmity between the informant, his brother and the accused persons. It was also found that missing person Raju was a hardened criminal and several criminal cases were pending against him and except the statement of informant Prem Kumar Tiwri, there was no evidence against the accused persons and no other evidence was on record. It was further found by the court below that the witness Radha Krishna Singh is a professional witness and he has already deposed against the accused persons earlier also. It was also found that one witness Veer Singh was made witness in a calculated manner and statement of Sant Ram Pal was baseless and was not supported by any independent witness. It was also found that Raju Tiwari was co-accused with accused Yogesh in a murder case of one Prabhakar and case was pending against him, therefore, he could not have been approver in the aforesaid case and there was admitted enmity between the informant side and the accused side and it is an admitted fact that the dead body of Raju Tiwari was not recovered. Under such circumstances, the Court below found that the prosecution could not prove his case beyond doubt and the accused person was given benefit of doubt and judgement of acquittal was passed.

6. Challenging the impugned judgment, learned AGA submits that there was cogent evidence to convict the accused persons herein. He next submits that there is a last seen evidence available on record and in view of the enmity there was every possibility that the accused persons have committed the offence and their acquittal on minor contradictions is perverse, therefore, submission is that the judgement and order of acquittal passed by the trial Court requires serious consideration and reversal and the accused persons herein are liable to be convicted.

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 admittedly there is a delay of 45 days in lodging the FIR. We find that the delay has been sought to be explained on the ground that grandfather of the informant had died and he was busy in his last rites and prior to that they were in search of Raju, however, we find that the delay is not convincing. It has also come on record that the matter was handed over to the CB CID and after investigation CB CID, as the dead body has not been recovered, therefore, submitted the charge-sheet under Section 364/120B IPC. The investigating officer of the CB CID has recorded the statement of Radha Krishna Singh and Sukh Ram but no site plan was prepared by the IO and statements of the witnesses were recorded after about one year. It is clear that witness Radha Krishna Singh was a professional witness and was person of confidence of the informant and has deposed against the accused persons and therefore, he was highly interested witness, however, his name as witness of even last seen was not disclosed in the first information report. Similarly, statement of co-accused Sant Ram Pal was also not supported by any other independent witness or evidence. Admittedly, there was enmity between the informant side and the accused persons and oral statement of last seen was given by the informant only and no other witness could prove the aforesaid fact. On the contrary, witness Sukh Ram has stated that he had not seen the accused persons with Raju Tiwari and he belonged to the side of the informant and was a highly interested witness. The query that was put forth that Raju Tiwari have turned approver also rightly did not find favour with the trial Court, inasmuch as he himself was a co-accused.

14. In view of the aforesaid, as reflected from perusal of the evidence, we find that the court below has taken a plausible and 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 date, the present government appeal is also dismissed.

Order Date :- 11.8.2022

Abhishek