Allahabad High Court
State Of U.P. vs Sanjay Arora S/O Subhash And ... on 13 December, 2022
Bench: Ashwani Kumar Mishra, Shiv Shanker Prasad
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 43
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 100 of 2022
Appellant :- State of U.P.
Respondent :- Sanjay Arora S/O Subhash And Another
Counsel for Appellant :- Shiv Kumar Pal
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Shiv Shanker Prasad,J.
Heard.
Delay in filing of the criminal appeal has been explained to the satisfaction of the Court.
Application is allowed. Delay in filing of criminal appeal is condoned.
This appeal is by the State alongwith an application for grant of leave to challenge the judgment and order dated 14.6.2022, passed by Additional Sessions Judge, Court No.7, Ghaziabad, in Sessions Trial Nos.470 of 2015 (State Vs. Sanjay Arora and others), 471 of 2015 (State Vs. Sanjay Arora) & 472 of 2015 (State Vs. Vipin Kumar Bhatiya) arising out of Case Crime Nos. 1609 of 2014 and 1670 of 2014, under Section 302/34, 201 IPC & Section 4/25, 25 Arms Act, Police Station Sihanigate, District Ghaziabad, whereby the accused has been acquitted of the charges levelled against them.
Prosecution case proceeds on the written report of one Ajay Kumar, who had gone to the bank of Hindon River on 10.11.2014 at about 6.30 am, where he found corpse of the deceased, who had sustained various knife blows and his neck had been slit. On the basis of such written information Case Crime No.1609 of 2014 was registered and the investigation proceeded in the matter. The dead body has been recognized by the wife of the deceased namely Bhawana. During investigation name of Sanjay Arora and Vipin Kumar Bhatiya surfaced. Vipin Kumar Bhatiya was arrested on 24.11.2014 and a Deshi Tamancha of 315 bore was recovered from him. On the basis of such recovery Case Crime No.1670 of 2014 under Section 25 Arms Act was also registered. During interrogation the arrested accused Vipin Kumar Bhatiya in his confessional statement implicated his friend Sanjay Arora, who was also arrested and on his pointing out the alleged knife used for commissioning of offence has been recovered. The accused Sanjay Arora was already lodged in Tihar Jail and was produced on a B-warrant. The recovery of knife has been made from an open field and the recovery memo has been exhibited as Paper Ka-14. The FIR was also registered in respect of alleged recovery of knife under Section 4/25 Arms Act. Investigation in all the three cases proceeded and ultimately a chargesheet was submitted against Sanjay Arora and Vipin Kumar Bhatiya under Section 302/34, 201 IPC and against Sanjay Arora Section 4/25 Arms Act and Vipin Kumar Bhatiya Section 25 Arms Act were also invoked.
The trial commenced in which the prosecution has adduced 11 witnesses. The prosecution has produced Bhawana @ Yogeshwari as PW-1, who is the wife of the deceased and PW-2 Jagmohan is the brother-in-law of the deceased. The motive for commissioning of offence as per the prosecution is the desire on part of the accused Sanjay Arora to marry PW-1.
This is a case of circumstantial evidence in which the alleged motive is the desire of the accused to marry the wife of the deceased. The chain of events is sought to be completed on the strength of recovery of a knife on the pointing out of the accused. There is no other evidence brought on record by the prosecution to implicate the accused respondents.
The trial court has evaluated the evidence brought on record and has found that chain of events has not been completed by the prosecution pointing exclusively to the guilt of the accused, inasmuch as the motive has not been substantiated nor the recovery is reliable as there is no independent witness to the memo of recovery. The recovery of knife is otherwise from an open place and though it is claimed that knife had blood stains but neither the blood group has been matched nor the prosecution has otherwise established that it was this very knife that has been used for commissioning of the offence.
Law with regard to conviction based on circumstantial evidence has now been well-settled in a catena of judgments. Reliance has been placed by the court below upon the judgment of the Supreme Court in Sharad Birdichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, wherein five golden principles have been evolved by the Supreme Court to ascertain as to whether the guilt of the accused, in such circumstances, is proved or not.
Although learned AGA has taken us through the judgment in order to submit that the view taken by the court below is unsustainable but we are not impressed by the argument made in that regard. Except the recovery there is nothing else on record to directly implicate the accused. This recovery is also not entirely reliable as the recovery has been made from an open place and no independent witness has come forward to testify the recovery. In the facts and circumstances of the present case the court below has, therefore, come to a conclusion that the prosecution has not been able to establish the guilt of the accused beyond reasonable doubt. The view so taken by the court below is clearly permissible and just because a different view could be taken in the matter would not be a ground for us to interfere in the present appeal. No triable issues are otherwise shown to arise in the facts of the present case. Prayer made for grant of leave is, accordingly, refused and the appeal, consequently, is dismissed.
Order Date :- 13.12.2022
Anil
