Allahabad High Court
State Of U.P. vs Chunne Khan @ Firoz And Anr. on 12 January, 2023
Bench: Rajesh Bindal, Chief Justice, Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Chief Justice's Court
Serial No. 310
HIGH COURT OF JUDICATURE AT ALLAHABAD
(LUCKNOW)
APPLICATION U/S 378 No. - 99 of 2015
Pronounced on : January 12, 2023
State of U.P. .....Appellant
Through:- Ms. Shikha Sinha,
Additional Government Advocate
v/s
Chunne Khan @ Firoz and another .....Respondents
CORAM : HON'BLE RAJESH BINDAL, CHIEF JUSTICE
HON'BLE RAJEEV SINGH, JUDGE
ORDER
Rajeev Singh, J.
1. We have heard Ms. Shikha Sinha, learned Additional Government Advocate for the State/appellant and have also perused the record available before us.
2. By means of the present application under Section 378(3) Cr.P.C., the State has sought leave to appeal to assail the judgment and order dated 3.3.2015 passed by the learned Special Judge, (SC/ST Act), District Faizabad, whereby the learned trial court has acquitted the accused/respondent no. 1, namely, Chunne Khan @ Firoz in the instant appeal, for the offence under Sections 302/34, 201, 394, 411 I.P.C. and 3 (2)(v) SC/ST Act and acquitted the accused/respondent no. 2, namley, Matloob for the offence under Sections 302 read with Section 120 I.P.C. and Section 3(2)(v) of SC/ST Act.
3. As per the prosecution case, on the written complaint of the informant, the F.I.R. was lodged on 6.3.2011 with the allegation that the agriculture field of the informant is adjoining to the road of village Lodhpurvan, in which potato, mustard and pea crops are sown and the mother of informant, namely, Rajkala Devi aged about 70 years was taking care of the same. On 5.3.2011, at about 2.30 P.M., his mother went to the agricultural field for watching the crop, but she did not return till late night and thereafter, search was started. On the next day, during the course of search, at about 9 A.M., the informant found that the body of his mother was lying in the field of mustard crop of Khadim s/o Dargahi. He also mentioned that some unknown persons killed his mother and hide the body in the mustard field.
4. Inquest as well as post mortem of the body of the deceased was conducted and site plan was also prepared. During the course of investigation, involvement of respondent was found. Thereafter, charge sheet was filed for the offence under Sections 394, 302, 201, 411 I.P.C. and 3(2) (v) of SC/ST Act. Chief Judicial Magistrate had taken cognizance and thereafter, the case was committed to the court of session. Learned trial court framed the charges. The respondents denied the guilt and requested for trial.
5. The prosecution placed 10 witnesses and certain documentary evidences to prove its case. After completion of evidence of prosecution, statement under Section 313 Cr.P.C. was recorded, in which, the respondent categorically denied the case of the prosecution and stated that they were falsely implicated in the present case. They also placed list of documents for establishing the annoyance with the informant.
6. The trial court, after hearing the parties, passed the impugned order acquitting the respondent. Hence, the present application for leave to appeal.
7. Learned Additional Government Advocate submits that the learned trial court committed error in disbelieving the confessional statement of the accused-respondent no. 1, in which, he admitted his crime before P.W. 6-Aslam and P.W. 7- Puttan @ Shamim. It is, thus, submitted that the present application for leave to appeal is liable to be allowed and the appeal may be admitted.
8. Considering the submissions advanced by the learned A.G.A. and going through the record, it is evident that the prosecution tried to develop a case that necklace (hasuli) was recovered on the pointing out of the respondent-accused persons, which was looted from the mother of the informant (P.W. 1) only with the intention to get money and when she raised objection, she was killed. However, P.W. 3 has categorically stated that he made his statement before the trial court, as had been told to him by the police as well as Prosecuting Officer. He also stated that no one has seen the incident.
9. Moreover, the Hon'ble Apex Court in the case of Suresh and another vs. State of Haryana (2018) 18 SCC 654 has held that conviction should not be done on the basis of confessional statement. Relevant portion of the said judgment (Para 50) is quoted hereunder:
50. Now we need to concentrate on the relevance of the alleged confessions of the co-accused made before Zile Singh (PW 16). In Periaswami Moopan, In re [Periaswami Moopan, In re, 1930 SCC OnLine Mad 86 : AIR 1931 Mad 177] , Reilly, J. observed: (SCC OnLine Mad)
"... where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence."
Therefore, the aforesaid extra-judicial confession against the co-accused needs to be taken into consideration if at all it is one, only if other independent evidence on record have established the basic premise of the prosecution."
10. In view of above, the trial court has rightly appreciated the evidences and acquitted the respondent.
11. As it is well settled by the Hon'ble Supreme Court that while exercising its appellate power, the High Court is empowered to re-appreciate, review and reconsider the evidence and this exercise is to be undertaken in order to come to an independent conclusion and unless there are substantial and compelling reasons or very strong reasons to differ from the findings of the trial court, the High Court, as an appellate court in an appeal is not supposed to substitute its findings in case the findings recorded by the trial court are equally plausible. This view was taken by the Hon'ble Supreme Court in the case of Ramesh And Others vs. State of Haryana reported in (2017) 1 SCC 529 as well as Anwar Ali and Another vs. State of Himachal Pradesh reported in (2020) 10 SCC 166.
12. Thus, having considered the matter in its totality and in view of the law laid down by the Hon'ble Supreme Court in Ramesh's case (supra) and Anwar Ali's case (supra), 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.
13. On the basis of forgoing discussions, we are of the considered view that the application for leave to appeal lacks merit and deserves to be rejected and the same is hereby rejected.
14. Since the application for leave to appeal has been rejected, the appeal also does not survive and the same stands dismissed.
(Rajeev Singh, J.) (Rajesh Bindal, C.J.)
Lucknow
January12, 2023
VKS
Whether the order is speaking : Yes/No
Whether the order is reportable : Yes/No
