Allahabad High Court
Pushyanjali vs State Of Up And 2 Others on 20 May, 2024
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:91712-DB
Court No. - 67
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 1157 of 2022
Appellant :- Pushyanjali
Respondent :- State Of Up And 2 Others
Counsel for Appellant :- Adarsh Kumar,Shivam Singh,Vishwa Pratap Singh
Counsel for Respondent :- G.A.,Mahendra Singh
Hon'ble Rahul Chaturvedi,J.
Hon'ble Ms. Nand Prabha Shukla,J.
1. Heard Sri Shivam Singh, learned counsel for the appellant and Sri Mahendra Singh, learned counsel for proposed respondents 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 29.02.2020 passed by the Additional Sessions Judge/Fast Track Court, Badaun in S.T. No.133 of 2013 (State Vs. Vinod Sharma and another) arising out of case crime no.458 of 2012, under section 302/34 of I.P.C., Police Station-Ushait, District-Badaun acquitting the accused/respondents in the aforesaid sections.
3. The order sheet indicates that this appeal was filed on 18.8.2020 but till date it has not been admitted. Learned counsel for the contesting parties are ready to assist the Court for deciding the present criminal appeal under Section 372 Cr.P.C. at the admission stage itself.
4. Sri Shivam Singh, learned counsel for the appellant has drawn the attention on the FIR lodged by Ramniwas Sharma who has given detail on 4.8.2012 to Police Station-Ushait, District-Badaun that his son Anoop Sharma aged about 23 years went to guard the crop of maize around 200 metres far from his residence and some unknown persons have murdered his son during the intervening night when he went to maize field he found that his son was lying in the dead condition. He further states that he and his family members having no animosity with any other person of the village.
5. After lodging of the FIR the police started investigating the matter and on Charge Sheet No. 128/12 under Section 302/34 was filed against the named accused-respondents.
6. Being Cognizable offence, case was committed to the court of Sessions for trial, vide order dated 30.01.2013 and the learned Sessions Judge have framed charges under Section 302/34 I.P.C. agaisnt the Vinod Sharma and Subhash Sharma both are sons of Hariday Narayan Sharma and explain the charges to them. The accused persons have denied from the charges and insisted to be trial and in support of the prosecution case, the prosecution has submitted as many as 9 witnesses of fact as well as formal witnesses and 12 documents were produced and exhibited by the prosecution.
7. After the prosecution witnesses were offered the statements of accused-respondents were recorded under Section 313 Cr.P.C. in which both the accused persons have denied their participation in the commission of the offence.
8. Learned counsel for the appellants first and foremost submitted that the entire case hinges upon the circumstantial evidence. There is no ocular witness to the entire case. Hon'ble Apex 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.
9. The P.W.-1 Kumari Shanu states in her examination-in-chief that they are one brother and three sisters. Anoop Sharma was one of the brother and they are three sisters namely Anjali, Swanjali and Shanu. Anjali was married with Vinod, Swanjali was married with Dheeraj and she is unmarried. She further states that she went to the agricultural field with her torch around 9:00 P.M. to tie her buffalo where she saw that her brother-in-law (Vinod) and his brother Subhash were carrying lathi and iron rod in their hands going to the field but she did not ask any question to them. On next date when she was got information that her brother was eliminated then she could connect that Vinod and his brother Subhash were carrying lathi and iron rod in their hands and thus she has got strong suspicion that both might have eliminated her brother. So far as motive parts is concerned she states that Vinod and Anjali was having no issue, and about one year back Vinod has made offer to the deceased Anoop Sharma to get his second sister Swanjali to marry with her but deceased Anoop Sharma declined his offer.
10. So far as Anjali and Vinod issuless this fact found false stands that this couples have blessed with baby girl who is aged about two years at the relevant point of time and thus theory of making an offer to get marry with Swanjali goes haywire.
11. In the cross examination there is a considerable change in the texture of mens rea that Vinod and Subhash have untied the buffalo belonging to the informant and this was the sole reason for committing the offence.
12. On this scope learned AGA as well as counsel for the proposed accused persons state that there is shifting stand in the mental and mens rea by the prosecution causing of serious dent to the veracity and the authenticity of the of the prosecution story.
13. Sri Shivam Singh, learned counsel for the appellant submits that there is a recovery of weapon i.e. lathi and iron rod at the pointing out of the co-accused respondents out of which only iron rod was recovered from the agricultural field of Charan Singh i.e. an open filed, therefore this recovery by itself is of no help for implicating the accused-respondents. Learned counsel for the appellant further submits that co-accused respondents have confessed their guilt before the police officer namely, Jai Prakash Singh (P.W.-7). Making statement before the Jai Prakash Singh (P.W.-7) is no value in the eye of law.
14. Last but not least the alleged recovery of lathi and iron rod is a households items of every villagers. None of it was sent to F.S.L. examination to establish the fact that weapon recovered of any used to the commission of offence. There is visible blanks in the prosecution story which do not generating the sufficient amount of prosecution story.
15. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.
16. 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."
17. 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.
18. 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.
19. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
20. 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."
21. 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.
22. 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.
23. Accordingly, the instant appeal lacks merit and is hereby dismissed.
Order Date :- 20.5.2024
Md Faisal
