State Of U.P. vs Nizamuddin
2022 Latest Caselaw 8327 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 42
 
Case :- GOVERNMENT APPEAL No. - 448 of 2022
 
Appellant :- State of U.P.
 
Respondent :- Nizamuddin
 
Counsel for Appellant :- G.A.
 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Vikas Budhwar,J.

(Judgment by Hon. Vikas Budhwar, J.)

1. State of U.P. being aggrieved and dissatisfied against the judgment and order of the acquittal dated 23.11.2018 passed by Addl. Sessions Judge/ Special Judge (P.C. Act), Special Court No.1, Meerut in Sessions Trial No. 1181 of 2013 (State Vs. Nizamuddin), in Case Crime No. 233 of 2013, under Sections 304, 506 IPC, P.S. Kharkhauda, District Meerut, acquitting the accused respondents herein.

2. The present appeal centers around the prosecution case that the first informant Mohd. Shahib, resident of P.S. Kharkhauda, District Meerut had lodged a written complaint on 9.6.2013 at 1:30 in the noon, which transformed into a first information report with an allegation that his son Salman was called upon by one Nizamuddin (accused herein) son of Azimulla on 6.6.2013 at 9:00 in the morning on the pretext that the son of the first informant had directed Tabassum the daughter of the accused herein to press and massage his head and being aggrieved against the said act of the son of the first informant, the accused herein along with his son Gulla attacked and pounced upon the son of the informant with kicks, fists and wooden stick, and the said fact was also witnessed by Shahid son of Abdul Hakeem and Saleem son of Sabir and other villagers, who were the neighbours and with their attempts, the matter was pacified, however the accused herein ran away and threatened that they will fire upon them. Faced with these circumstances, the son of the first informant being Salman ran away from the house and he returned on 8.3.2013 at 6:00 in the evening while complaining that there was severe stomach ache and as his situation was becoming bad to worst, he was taken to one Dr. Ashok Garg, Shastrinagar, Meerut, where he was detected to be suffering from severe problem and his condition was stated to be critical and thereafter he was taken to Sahara Hospital, Garh Road, Meerut, where he succumbed.

3. On the basis of written complaint so sought to be lodged, a first information report purported to be under Sections 304, 506 IPC against the accused and his son Gulla was lodged. Investigating Officer was nominated to conduct the investigation, who prepared site-plan, recorded the statement of witnesses, sent the body for post-mortem and thereafter submitted the charge sheet under Sections 304 & 506 IPC.

4. The case was committed to Sessions, charges were read over to the accused herein and the accused pleaded not guilty and claimed to be tried. The learned Trial Court by virtue of the judgment and order under challenge has acquitted the accused herein.

5. Challenging the judgment and order of acquittal, now the State is before this Court in the proceeding emanating under Section 378(3) CrPC.

6. The prosecution in order to support the version has produced the witnesses namely; PW-1 Shahib, PW-2 Shahid, PW-3 Saleem, PW-4 Dr. Yashveer Singh, PW-5 Dr. Ashok Garg, PW-6 Dinesh Kumar, S.I, PW-7 Neeraj Singh, Inspector and PW-8 HCP 194 Rajendra Singh.

7. We have heard Ms. Nand Prabha Shukla, learned A.G.A. for the State on the question of admission.

8. Before diving into the controversy in question, this Court is to remember that the present proceedings are at the behest of the State of U.P. under Section 378(3) of CrPC against the judgment and order of acquittal so passed in favour of the accused herein. To put it otherwise, this Court has to keep in mind the limitations, which are existing in exercise of the jurisdiction in the matter of the appeals against acquittal. The Courts of Law have been consistently mandating that invocation of jurisdiction while interfering against the judgment and order of acquittal should not be resorted to in routine manner, as they are to be taken as a devise to prevent miscarriage of justice that too in those situations when there are compelling and substantive circumstances occasioning the same. Perversity, palpable illegality and judgment being illegal and proceeding towards wrong direction are the grounds amongst others, which occasions this Court while exercising appellate jurisdiction in the matter of interference.

9. Recently, the Hon'ble Supreme Court in the case of Guru Dutt Pathak vs. State of U.P. reported in (2021) 6 SCC 116, in paragraphs 14, 15, 16, 17, 18, 19, 20 and 21, has clearly observed as under:-

"14. We are conscious of the fact that this is a case of reversal of acquittal by the High Court. Therefore, the first and foremost thing which is required to be considered is, whether in the facts and circumstances of the case, the High Court is justified in interfering with the order of acquittal passed by the learned trial Court?

15. In Babu v. State of Kerala (2010) 9 SCC 189, this Court has reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:

"12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404)

"... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42)

"(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, ''substantial and compelling reasons', ''good and sufficient grounds', ''very strong circumstances', ''distorted conclusions', ''glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ''flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28)

"28. ... (i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court's conclusions are contrary to evidence and documents on record;

(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal."

A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference." (emphasis supplied)

16. When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under:

"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC 636)." (emphasis supplied)

It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.

17. In the decision of this Court in the case of Vijay Mohan Singh v. State of Karnataka (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under:

"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on re-appreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233)

"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."

31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on re-appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416)

"8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."

31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.

31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 809-10)

"5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.

It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well- established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.

31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule." (emphasis supplied)

18. In the case of Umedbhai Jadavbhai (supra), in paragraph 10, it is observed and held as under:

"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to re-appreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."

19. In the case of Atley v. State of Uttar Pradesh AIR 1955 SC 807, this Court has observed and held as under:

"5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In Our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417, Criminal P. C. came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.

It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. The State 1952 CriLJ331; Wilayat Khan v. State of Uttar Pradesh, AIR 1953 SC 122. In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions."

20. In K.Gopal Reddy v. State of Andhra Pradesh (1979) 1 SCC 355, this Court has observed that where the trial Court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule.

21. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, it is to be considered whether in the facts and circumstances of the case, the High Court is justified in interfering with the order of acquittal passed by the learned trial Court?"

10. To begin with, the ocular testimony is to be first analyzed.

11. As PW-1, the first informant appeared in the witness box. According to him, Salman son of complainant was administered beating on 6.6.2013 at 9:00 in the morning by the accused and his son Gulla in connection with the fact that he committed an act, which according to the accused was not descent. The beating was administered with kicks, fists and wooden rod, according to the first informant, the said incident was witnessed not by him, but by Shahid son of Abdul Hakeem and Saleem son of Sabir and others and due to their intervention his son could be saved from further onslaught. According to PW-1, his son straightway ran away from the place of occurrence and returned on 8.6.2013 at 6:00 p.m, in the night and he complained stomach ache and thus he was taken to the hospital of Dr. Ashok Garg and from there to Sahara Hospital, Garh Road, where, he succumbed.

12. One Shahid son of Abdul Hakeem appeared as PW-2 and he claims himself to be the witness of the said incident, as at 9:00 O'clock in the morning, he was selling certain items in the wooden cart and at that point of time, he saw accused and his son beating Salman and according to him, at that point of time, Saleem son of Sabir, Raja and Bunti was present.

13. So far as PW-3 is concerned, Saleem got himself examined. He also narrated the fact that at 9:00 O'clock in the morning, he was also selling certain items in the wooden cart and he saw the accused hurling abuses upon the son of the complainant and the accused along with his son administered beating, pursuant whereto Salman fell down on the surface and the by-standards also came there.

14. As PW-4, Dr. Yashveer Singh got himself examined, who claims himself to be at relevant point of time posted in P.L. Sharma District Hospital, Meerut. According to him, the root cause of the death of Salman, which surfaced during post mortem was shock and hemorrhage, which in fact were ante-mortem injuries and the possibility was also there that he was beaten by wooden sticks, kicks and fists. He has further deposed that the post mortem was done on 9.6.2013, but the death occurred one day ago.

15. PW-5, Dr. Ashok Garg also got examined. He claims himself to be a doctor stationed at Garg Nursing Home, where Salman son of complainant was got admitted on 8.6.2013 at 5:00 in the evening having high fever and breathlessness. According to him, he was sent for thorough check up and thereafter, referred to Sahara Hospital, Garh Road.

16. One Dinesh Kumar, Sub-Inspector examined as PW-6, who claimed himself to be the Investigating Officer, who conducted Panchayatnama and sent the dead body for post mortem. He also claims to have completed entire procedure, which is normally being resorted to post death.

17. As PW-7, Neeraj Singh got himself examined and he claims to be posted as S.I. in the Police Station- Kharkhauda. He proved the statements which were recorded.

18. As PW-8, HCP 194 Rajendra Singh got himself examined. He proved himself as scriber of the FIR.

19. Undisputedly, the entire genesis, which relates to the commission of the offences, stems from the event, which occurred on 6.6.2013 at 9 O'clock, wherein deceased is stated to have been beaten by the accused and his son and as per prosecution case, deceased ran away and came back to his house on 8.6.2013 at 6:00 in the evening.

20. As a matter of fact, the deceased died on 8.6.2013 in the hospital and the post mortem whereof was conducted on 9.6.2013, which was proved by PW-4, who happens to be Dr. Yashveer Singh. According to PW-4, post mortem of the deceased was done on 9.6.2013 at 2:30 in the noon and further as per the opinion of the doctor, the death occurred one day ago. Meaning thereby, the actual time of death ought to have been at 2:30 in the noon of 8.6.2013. As per the deposition of PW-1 being Shahib and PW-2 Shahid and the medical reports, the deceased was admitted at 5:00 in the evening of 8.6.2013. Meaning thereby, it becomes highly implorable that a living person is admitted in a hospital, though as per the post mortem report, he ought to have been dead by that time. However, this Court also bears in mind that there is variation of two hours, plus or minus.

21. We may further delve into the issue, as it has come on record that in the post mortem report dated 9.6.2013, several injuries were shown to have been sustained by the deceased. However, PW-6, being S.I. Dinesh Kumar in his statement has proved the panchayatnama, wherein whereat, there was no mention of the injuries on the body of the deceased. Apart from the same, there is no recital about the fact that bandage was also wrapped over the portion of the dead body, which occasioned injury. Thus, by all probabilities, it becomes clear that when the body of the deceased was sealed during panchayatnama, there were no injuries available there at. To put it otherwise, possibility cannot be also ruled out that the deceased was administered beating just in order to make out a case.

22. Another additional aspect which needs to be noticed is the time-gap between the death of the deceased and running away of the deceased, particularly when as per the prosecution case, the deceased was inflicted injuries on 6.6.2013 at 9:00 in the morning and thereafter the deceased came back to his house after two days on 8.6.2013 at 6:00 o'clock complaining stomach ache and he was also admitted in the hospital. PW-5 Dr. Ashok Garg, who happens to be a prosecution witness has himself stated that the deceased when admitted at 5:00 in the evening of 8.6.2013 was suffering from high fever, breathlessness and body ache. Meaning thereby first of all there was no injury sustained by the deceased, as had the injury been inflicted upon the deceased, the same ought to have been disclosed in the medical prescription/ treatment papers. 

23. Moreover, it is quite paradoxical that the injury, which is stated to be inflicted by the accused upon the deceased could be a factor for the death of the deceased, particularly, when there is nothing on record to suggest that the deceased was having such type of injuries, which became fatal, as according to the opinion of the Doctor, it was only fever and breathlessness, which cannot be one of the factors occasioned by injuries.

24. Even otherwise, the Investigating Officer was made available certain papers relating to the treatment of the deceased through Asif. However, PW-6, who happens to be Dinesh Kumar, S.I. has stated that these papers were sent by Dr. Ashok Garg from his Clinic, however, Asif has been stated to be unknown to Dr. Ashok Garg and he was further also not produced as witness. The said factor is also relevant, which can change the entire case, particularly, when there is nothing on record to suggest as to whether the said medical reports are genuine and how the same were made available to investigating officer.

25. The learned Trial Court has also analyzed the issue from another point of angle that PW-1 Shahib is not an eye-witness to the said incident, which occurred at 9:00 o'clock in the morning on 6.6.2013. However, the same was witnessed by PW-2 Shahid and PW-3 Saleem. In the FIR, there is no recital of the fact that the said information was made available to him by PW-2 and PW-3. None the less, it has also come on record that, as per the statement of PW-1 and the FIR that after 6.6.2013 at 9:00 o'clock in the morning the deceased ran away and he returned back on 8.6.2013 at 6:00 o'clock. Meaning thereby, the accused might have obtained the knowledge on 8.6.2013 about the beating so administered by his son. None the less, the conduct of the prosecution being PW-1 is also apparent as no justification was given by the prosecution, as to why FIR was not lodged on 6.6.2013, 7.6.2013 and 8.6.2013. In case, it is derived that the information was received by the first informant on 6.6.2013, then what was the first informant was doing in order to search whereabouts of his son.

26. Another additional aspect of the matter, which needs to be considered is the fact that on 30.7.2013, a document was submitted before the court below being paper no. A-13, which is under the signatures of the complainant Shahib along with signatures of Bunti, Saleem, Raja and witness Shahid with thumb impression, addressed to SSP, wherein a pointed allegation was made that on 6.6.2013 at 9:00 o'clock in the morning, the accused in order to kill his son Salman along with Gulla called him outside the house and thereafter with the aid of kicks, fists and wooden sticks administered beating on 6.6.2013 and his son died on the said date. The said document itself also puts nail upon the coffin as according to the prosecution, the date of the death was 6.6.2013 at 9:00 o'clock and how can the same be said to be 8.6.2013. Moreover, the said document dated 30.7.2013 had been submitted after 24 days.

27. Viewing the present case from the four-corners of law, while applying it to the facts, this Court finds that the entire prosecution case proceeds on week premises. Not only there has been delay in lodging of the FIR, but also no explanation worth consideration in delay in lodging of the FIR has been shown. Even the time-gap of the allegations regarding beating so administered to the deceased and the actual date of death is so long and enormous and the same does not link the accused to have committed crime, particularly when in the Panchayatnama as well as in the statement of PW-5 Dr. Ashok Garg, there is no recital of the fact that the deceased sustained injuries, however, he was complaining high fever and breathlessness and body ache. The death of the deceased so claimed by the prosecution also does not match, as post mortem was done at 9.6.2013 at 2:30 in the noon and the death was stated to have been occurred one day ago, i.e, 8.6.2013, i.e, 2:30 hours, however, at that point of time, the deceased was already alive, as he got admitted in the hospital at 8.6.2013 at 5:00 in the evening. Moreso, the document dated 30.7.2013 submitted by the complainant contains the allegation that the deceased died on 6.6.2013, thus all the factors indicate that the accused has not committed crime. Moreso, it is the duty of the prosecution to prove that in all probabilities, the accused has committed the crime, but none of the factors so engineered by the prosecution marks or points out that the accused has committed crime.

28. As already discussed, the learned trial court has meticulously analyzed the entire case from all angles, while appreciating the evidences so adduced in the background of the ocular testimony.

29. Hence, in any view of the matter applying the principles of law so culled out by the Hon'ble Apex Court in the facts of the present case, we have no option but to concur with the view taken by the learned Sessions Judge.

30. We find that it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.

31. Since the application for granting leave to appeal has not been granted, consequently, present government appeal also stands dismissed at the admission stage itself.

32. Records of the present case be sent back to the concerned court below.

(Vikas Budhwar, J.) (Vivek Kumar Birla,J.)

Order Date :- 28.7.2022

N.S.Rathour