State Of U.P. vs Hans Raj And Ors.
2023 Latest Caselaw 23763 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


High Court of Judicature at Allahabad
 
(Lucknow)
 
*********
 

 
Neutral Citation No. - 2023:AHC-KO:57559-DB
 

 
Reserved on :- 08.08.2023
 
Delivered on :- 29.08.2023
 

 
Court No. - 9
 

 
Case :- GOVERNMENT APPEAL No. - 2275 of 2010
 
Appellant :- State of U.P.
 
Respondent :- Hans Raj And Ors.
 
Counsel for Appellant :- Govt. Advocate
 
Counsel for Respondent :- Anil Kumar Yadav
 
Hon'ble Rajan Roy,J.

Hon'ble Ajai Kumar Srivastava-I,J.

1. We have heard Sri Umesh Chandra Verma, learned A.G.A. for the State-appellant, Sri Anil Kumar Yadav, learned counsel for the accused-respondents and have also perused the record available before us.

2. By means of the present government appeal under Section 378 Cr.P.C., after seeking leave to appeal under Section 378(3) Cr.P.C., the State has assailed the judgment and order dated 08.04.2010, passed by the learned Additional Session Judge (Court No.2), Barabanki in Sessions Trial No.88 of 1997, arising out of Crime No.255 of 1995, under Sections 302 & 201 I.P.C., Police Station Fatehpur, District Barabanki, whereby the learned trial Court has acquitted the accused-respondents, namely, Hansraj, Shafeeq, Musheer, Mohd. Yunus, Ali Hussain and Lallu of the charges under Sections 364/149, 302/149 and 201/149 I.P.C.

3. The prosecution case, in short conspectus, is that the first informant, Naseeman, wife of the deceased, submitted a written report at Police Station Fatehpur, District Barabanki stating therein that her husband, namely, Mohaiyyadin was assaulted by accused-respondents. The assailants took away him towards river bridge. The dead body of the deceased was recovered on the pointing out of accused-respondent, namely, Lallu from an open field which belonged to Lallu.

4. On the basis of aforesaid written report, a first information report as Crime No.255 of 1995, under Sections 302 & 201 I.P.C. came to be registered against the Hansraj, Shafeeq, Musheer, Mohd. Yunus, Ali Hussain and Lallu at Police Station Fatehpur, District Barabanki.

5. The Investigating Officer recorded the statements of witnesses under Section 161 Cr.P.C. Upon conclusion of investigation, he submitted charge sheet, Ex. Ka-13, against the respondents under Sections 302, 362 and 201 I.P.C.

6. In order to prove its case, the prosecution has examined seven prosecution witnesses. P.W.-1, Naseeman, who is the wife of the deceased, P.W.-2, Mohd. Shabbir, P.W.-3, Mohd. Yunus, P.W.-4, Jannu, P.W.-5, Dr. Nirmesh Bhalla, P.W.-6, Babu Lal Singh, who is the investigating officer and P.W.-7, Jagdish.

7. The accused respondents were charged under Sections 364/149, 302/149 and 201/149 I.P.C., who denied the charges and claimed to be tried.

8. According to the postmortem report of the deceased, Ext. Ka-3, the cause of death of the deceased could not be ascertained, therefore, viscera was preserved.

9. After conclusion of prosecution evidence, statements of accused-respondents were recorded under Section 313 Cr.P.C., wherein they have stated the prosecution story to be false and concocted and also stated themselves to be innocent and claimed to have been falsely implicated in this case.

10. DW-1, Shankar was examined from the side of defence.

11. The learned trial court vide impugned judgment and order dated 08.04.2010 has acquitted the respondents of all the charges.

12. Aggrieved by the aforesaid impugned judgment and order dated 08.04.2010, whereby the respondents were acquitted, the State has preferred the instant appeal.

13. It is submitted by learned Additional Government Advocate that though it is a case of circumstantial evidence, however, the witnesses of fact have supported the prosecution case to establish a complete chain of events pointing at the guilt of accused persons. The learned trial court fell in error in acquitting the accused persons by over looking the material placed on record. Therefore, the impugned judgment and order dated 08.04.2010 is liable to be set aside.

14. Per contra, learned counsel for the accused-respondents has stated that the finding of acquittal of accused-respondents is based on proper appreciation and analysis of prosecution evidence and as a result thereof, the accused-respondents have rightly been acquitted of the charges under Sections 364/149, 302/149 and 201/149 I.P.C. He has, thus, submitted that the instant appeal being devoid of merit, deserves to be dismissed.

15. Having heard learned Additional Government Advocate, learned counsel for the accused-respondents and upon perusal of material available on record, it transpires that the prosecution's case is primarily based on circumstantial evidence as there is no prosecution witness who alleges to have seen the deceased being killed by the accused-respondents. The first informant/PW-1, Naseeman, in her testimony, has stated that her husband was taken away by the accused-respondents. The PW-3, Mohd. Yunus has also stated that the deceased was taken away by the accused-respondents. However, when we examined the testimonies of PW-1, Naseeman and PW-3, Mohd. Yunus, we notice that there are material contradictions in their testimonies. The PW-1, Naseeman has stated that on the date of incident when she saw the deceased being taken away by the accused-respondents, her son, namely, Jannu had gone to her maternal grand mother's house, meaning thereby, he was not present along with the first informant. However, PW-3, Mohd. Yunus has categorically stated that Jannu was also present when the deceased was taken away by the accused-respondents, which shows that perhaps neither PW-1, Naseeman nor PW-3, Mohd. Yunus had seen the deceased being taken away by the accused-respondents on the date of incident. Therefore, the prosecution's attempt to establish the evidence of last seen is unsuccessful.

16. We also find that the identification of corpse of the deceased was also not done in such a manner to ascertain its identity as deceased's corpse. Neither any clothes of the deceased were identified nor any scientific test such as Neutron Activation Analysis (N.A.A.) was conducted in order to identify the deceased's dead body.

17. The Hon'ble Supreme Court in the case of Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172 in para no.27 has held as under :-

"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration."

(emphasis supplied)

18. Thus, having regard to the fact that the prosecution case rests on circumstantial evidence. There is no eye witness of alleged murder of the deceased by the accused-respondents. The last seen theory of prosecution appears to be unreliable. Therefore, we are constrained to hold that the prosecution has failed to prove such a complete and well-knit chain of events which is incompatible with the innocence of the accused or the guilt of any other person as held by Hon'ble Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116.

19. The alleged recovery of dead body of the deceased from an open field belonging to one of the accused, namely, Lallu itself cannot give rise to a presumption as envisaged under Section 106 Indian Evidence Act.

20. In these circumstances, the findings of fact recorded by the trial court appears to be based on proper appreciation of evidence, which cannot be said to be perverse or unjustified.

21. Therefore, in view of the aforesaid, the learned trial court appears to have rightly recorded the finding of acquittal of the respondents which is based on proper appreciation and analysis of evidence available on record.

22. In Ramphubala Reddy and Others vs. State of Andhra Pradesh reported in AIR 1971 SC 460, 463, 464, the Hon'ble Supreme Court has held that if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the findings of trial court.

23. Thus, having considered the matter in its entirety and in view of settled legal position as stated above, we find that the learned trial court's findings regarding acquittal of accused/respondents herein are based on proper appreciation and analysis of evidence available on record which do not, in any manner, appear to be improbable or perverse.

24. The order of acquittal on the face of evidence appears to be probable view which does not suffer from any infirmity.

25. We are, thus, of the considered view that instant appeal lacks merit and is, accordingly, dismissed.

26. In compliance with the provision contained in Section 437-A Cr.P.C. the accused-respondents is directed to furnish personal bond and two sureties to the satisfaction of the court concerned within a period of six weeks from today.

27. Let the lower court record along with a copy of this judgment be transmitted forthwith to the learned trial Court for information and necessary compliance.

(Ajai Kumar Srivastava-I, J)          (Rajan Roy, J)
 
Order Date :- 29.08.2023
 
A.Dewal