Mithlesh Kumar vs State Of Up 2 Others
2024 Latest Caselaw 15618 ALL

Allahabad High Court

Mithlesh Kumar vs State Of Up 2 Others on 6 May, 2024

Author: Rahul Chaturvedi

Bench: Rahul Chaturvedi

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:80529-DB
 
Court No. - 67
 

 
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 201 of 2024
 

 
Appellant :- Mithlesh Kumar
 
Respondent :- State Of Up 2 Others
 
Counsel for Appellant :- Om Shiv
 
Counsel for Respondent :- G.A.
 
AND
 
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 224 of 2024
 

 
Appellant :- Mithlesh Kumar
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Om Shiv
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Rahul Chaturvedi,J.
 

Hon'ble Ms. Nand Prabha Shukla,J.

1. Heard learned counsel for the appellant as well as learned A.G.A.

2. There are two connected appeals and by means of the present appeal, the appellant is assailing the legality and validity of the order dated 18.03.2024 passed by the Additional Sessions Judge, Court no.1, Kanpur Dehat in S.T. No.27 of 2014 arising out of case crime no.377 of 2012 and S.T. No.155 of 2016 arising out of case crime no.377 of 2012 under sections 302/34, 201 IPC and S.T. No.154 of 2016 arising out of case crime no.401 of 2013 under section 4/25 of the Arms Act, Police station-Shivli, District-Kanpur Dehat acquitting the accused/respondents in the aforesaid sections.

3. Since, there are two connected appeals arising out of the same case crime number, hence, for the sake of brevity, we are deciding both the appeals by a common judgment.

3. Before assessing the legal aspect of the issue, let us spell out the factual aspect of the issue.

4. Submission advanced by learned counsel for the appellant is that the present FIR came into existence through 156(3) Cr.P.C. application on behalf of the appellant/informant filed before the Additional Chief Judicial Magistrate, Kanpur Dehat on 22.10.2012. From the 156(3) Cr.P.C application, it is clear that on 06.09.2012, around 11 in the day, his son Dhiru Sukla(deceased), who was working in Bhauti PSIT, along with his brother Mayank went to Aunaha tempo stand. On the same day, informant also went to the market where they met with Mayank. Around 4 in the evening, Dhiru Shukla met with Vivek Shukla. Vivek Shukla asked Dhiru Shukla to meet him and would come back by the late night but his son did not come back on that day. On 07.09.2012, around 9:30 in the day, he got a call from the G.R.P., Anwar Ganj, Kanpur that dead body of his son was lying near IIT crossing near gate no.14. On this, Dinesh Sharma and Amrish Awasthi went to the site and by the time, dead body was sealed and his brother-in-law Raj Kumar and Krishna Kumar identified the dead body. Vivek Shukla is a person of criminal antecedents and facing number of serious accusations against him. Despite of the best efforts, FIR could not be lodged and eventually through 156 (3) application, FIR came into existence. From the aforesaid, it is clear that the FIR was registered only against Vivek Shukla. After lodging of the FIR, investigation started rolling and the I.O. of the case has conducted in-depth probe into the matter in which witnesses have added Rajan and Sonu Ali along with Vivek Shukla and therefore, separate charge sheets were filed against all the three accused persons. Besides this, on 05.10.2013, S.H.O. along with police personnel have recovered one dagger and one iron rod on the pointing out of the accused/respondents. Therefore, Section 4/25 of the Arms Act was also fastened to accused-Vivek Shukla.

5. Being Cognizable offence, case was committed to the court of Sessions for trial and in support of the prosecution case, the prosecution has submitted as many as 20 documents which were duly exhibited during trial. In addition to above, as many as 11 witnesses of fact as well as formal witnesses were produced and examined before the trial court to establish the case.

6. We have keenly perused the depositions of every prosecution witnesses.

7. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.

8. In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have re-appreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities."

9. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against an order of acquittal passed by a Trial Court.

10. In a recent judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered.

11. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.

12. Since, it is a government appeal against the acquittal, it will be relevant to note the principles of law laid down by the Apex Court with regard to the appreciation of evidence in the appeal against the acquittal. Recently, in the case of Mallapa and others Vs. State of Karnataka , the Apex Court has held as under :-

"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:

(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive ? inclusive of all evidence, oral or documentary;

(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;

(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;

(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;

(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;

(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."

13. Learned counsel for the appellant has laid excessive stress upon the testimony of PW-1, Mithlesh Kumar and PW-2, Raghvendra Shukla@Mayank who reiterated the version of the FIR. From the above discussion, it is clear that there is no ocular testimony of the entire incident and the entire prosecution case hinges upon the circumstantial evidence. It is settled principle of law that in the case of circumstantial evidence, mens rea or the mental element of the accused occupies front seat and has to be established by the prosecution before initiating the case against them. From the perusal of the judgment, it has surfaced that Vivek Shukla, Rajan Katheria and Sonu Ali along with Dhiru Shukla committed theft and there was serious dispute regarding distribution of theft and the discover motorcycle and that is the reason behind the commission of the offence.

14. We have keenly perused the testimony of PW-6, Dr. Dhirendra Kumar Saxena, who in his examination-in-chief has submitted that the deceased has sustained as many as four injuries over his person which finds reference at page-28 and has clearly opined that the injuries sustained by the deceased cannot be caused by the dagger or iron rod. These injuries are being caused by train accident and that is the reason that the brain of the deceased was found missing. There is no injury of any dagger or iron rod. After assessing the entirety of circumstances, learned trial Court has come to conclusion that the prosecution has miserably failed to establish the case to its core. The alleged recovery of the weapon and the iron rod is doubtful proposition. Fact remains that the deceased died on account of severe train accident causing multiple injuries over his person. The accused/respondents have been falsely dragged in the present case. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116, there are five principles mentioned to prove the case based on circumstantial evidence, which are as follows :-

?(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established;

(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(iii) The circumstances should be of a conclusive nature and tendency;

(iv) They should exclude every possible hypothesis except the one to be proved;

(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.?

15. Thus, after thrashing the entire evidences on record and after critically analyzing the submissions advanced and the findings recorded by the learned trial Court, we are of the considered opinion that the judgment of the trial court does not suffer from any illegality or non appreciation of evidence. The reasoning adopted by the learned trial Judge is quite sound and suitable which do not warrant any interference.

16. We have heard learned counsel for the appellant at length and we are of the considered opinion that the circumstantial evidences are so scattered and disgruntled that if unit of chain are put together, they would not indict the accused/respondent with certainty and the learned trial Judge has rightly recorded the order of acquittal which deserves no interference from this Court in exercise of power under section 372 Cr.P.C. We also do not find that the findings recorded by the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable.

17. Accordingly, the instant appeal lacks merit and is hereby dismissed.

Order Date :- 6.5.2024

Sumit S