Allahabad High Court
State Of Up vs Salman Kha And Another on 10 October, 2023
Bench: Surya Prakash Kesarwani, Nand Prabha Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:194838-DB
Court No. - 42
Case :- GOVERNMENT APPEAL No. - 418 of 2023
Appellant :- State of U.P.
Respondent :- Salman Kha And Another
Counsel for Appellant :- Ashutosh Kumar Sand
Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Ms. Nand Prabha Shukla,J.
1. Heard Sri K.P. Pathak, learned A.G.A. for the appellant in this Government Appeal.
2. This Government Appeal has been filed praying to set aside the impugned judgment and order dated 19.06.2023 in Session Trial No.177 of 2016 (State vs. Salman Kha and Sonu, both sons of Maqsood Kha) arising out of Case Crime No.828 of 2016 under Section 302 I.P.C., P.S. Kotwali, District Ballia passed by the Additional Session Judge, Court No.3, Ballia whereby the accused opposite parties have been acquitted from the charges.
3. Briefly stated facts of the present case are that a first information report being Case Crime No.228 of 2016 under Section 302 I.P.C. was registered on 28.05.2016 lodged by Mohd. Fareed Kha alleging that his cousin Mohd. Kais (the deceased) son of Asmoot Kha was working in his furniture shop but went from the shop at about 09:15 P.M. on 27.05.2016 but did not return and in the morning, it was seen that the dead body of Mohd. Kais is lying near the railway line Baheri. It was alleged that some unknown persons have killed Mohd. Kais by cutting his neck. Investigating Officer shown recovery of one 'Aari' on 05.06.2016 at the pointing out of Sonu and recovery of one 'Rukhani' on 31.05.2016 at the pointing out of Salman. Both the aforesaid weapons were sent for chemical examination. No one has seen the incident. Thus, there is no eyewitness. Informant Fareed Khan proved the first information report lodged by him. He has proved only to the extent that the deceased went from his shop at about 09:15 P.M. on 27.05.2016 but did not return and next day his dead body was seen near the railway line. In his evidence, he stated that Ashfaq Ahmad - PW-9 who worked at the furniture shop of Imtiyaz came and told that Salman and Sonu came to his shop and asked for Aari and Batali for work. It was also told about 4-5 months' ago that the wife of the accused Sonu had gone with someone and therefore, the accused Sonu and Salman used to suspect that the deceased Mohd. Kais that he is behind the said episode. PW-4 Ballu Kha has merely expressed his suspicion that the accused persons may be involved in the murder of the deceased. The PW-8 Asmoot Kha has made a similar statement and stated that the accused persons would have murdered the deceased. PW-9 Ashfaq Ahmad stated that he does not remember as to whether the accused persons had taken away any Aari and Batali from his shop or not but after seeing the recovered Aari and Batali, he stated that it is not his Aari and Batali. No map or site plan was prepared of the place from where recovery of the said Aari and Batali was made. At the time of alleged recovery of Aari and Batali, both the accused persons were in police custody. The prosecution has failed to establish the recovery in terms of Sections 25, 26 and 27 of the Evidence Act. The forensic reprot merely proves that human blood was found on the recovered Aari, Batali and Barmuda but no evidence has been laid or forensic report has been submitted to prove that the blood found on the Barmuda and Batali is the same and is of the deceased. Under the circumstances, in view of the law laid down in the case of Hardyal Prem vs. State of Rajsthan, AIR 1991 SC 269 : 1991 Supp. (1) SCC 148, Raghunath vs. State of Haryana (2003) 1 SCC 398, State of Rajsthan vs. Raja Ram (2003) 8 SCC 180 and State of M.P. vs. Nisar (2007) 5 SCC 658, it cannot be said that the recovered Aari and Batali were the same weapons which were used in murder of the deceased, inasmuch as it could not be proved by the prosecution by any evidence that the human blood found on the Aari and Batali is the blood of the deceased. PW-8 is a hearsay witness. Thus, the entire chain of circumstances was not completed by the prosecution to establish the guilt of the accused persons beyond reasonable doubt. Reference in this regard may be had to the judgment in the case of Sharda Birdhi Chand Sarda vs. State of Maharashtra, AIR 1984 SC 1622. Considering all these facts and evidences as well as the law settled by Hon'ble Supreme Court as briefly noted, the learned trial court has acquitted both the accused opposite parties. The impugned judgment of the learned trial court does not suffer from any apparent error of fact or law.
4. For all the reasons aforestated, we do not find any good reason to grant leave to appeal. Therefore, the application for leave to appeal is hereby rejected. Consequently, the Government Appeal also stands dismissed.
Order Date :- 10.10.2023
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