State Of U.P. vs Smt. Payal And 3 Others
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Allahabad High Court

State Of U.P. vs Smt. Payal And 3 Others on 21 May, 2024

Author: Rahul Chaturvedi

Bench: Rahul Chaturvedi

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:91640-DB
 
Court No. - 67
 

 
Case :- GOVERNMENT APPEAL No. - 196 of 2024
 

 
Appellant :- State of U.P.
 
Respondent :- Smt. Payal And 3 Others
 
Counsel for Appellant :- Ashutosh Kumar Sand
 

 
Hon'ble Rahul Chaturvedi,J.
 

Hon'ble Ms. Nand Prabha Shukla,J.

1. Heard Shri Satendra Tiwari, learned AGA for the State of U.P./appellant.

2. By means of the present appeal, the appellant is is assailing the legality and validity of the judgment and order dated 31.01.2024 passed by learned Additional Sessions Judge/Special Judge, Anti Corruption (V.B.U.P.S.E.B.)., Meerut in S.T. No.132 of 2011 (State v. Smt. Payal and others) arising out of case crime no.295 of 2010 under Sections 364, 302, 201 of I.P.C., Police Station-Mawana, District- Meerut acquitting the accused/respondents in the aforesaid sections.

3. The prosecution story, in brief, is that the complainant namely Sunil Kumar has given a written report at Police Station Mawana, Meerut on 03.07.2010 stating therein that on 02.07.2010 at about 10:00 a.m., he along with his brother Awadhesh and some other family members had gone to take a bath in Ganga Nahar situated at Hastinapur Road. At about 12:00 noon, a red colour Scorpio vehicle bearing Registration No.HR 26 AH 6623 has came, in which a girl namely Payal along with her brother Sonu was present, they have called his brother Awadhesh and, thereafter, whereabouts of his brother could not be ascertained. The complainant has stated that his brother Awadhesh was having love affairs with Payal for the last about three years. The whereabouts of his brother could not be ascertained, rather only his clothes and mobile were found at the bank of Canal.

4. On the basis of the aforesaid, a missing report was registered. Thereafter, on 06.07.2010 the dead body of a person was found from Village Rajapur, Police Station Simbhawali, District Ghaziabad. The inquest of unknown person was prepared and post mortem was conducted on 07.07.2010. The complainant on the basis of news item published in the news-papers gone at the Post Mortem House, Ghaziabad on 08.07.2010 and identified the dead body as of his brother Awadhesh. Thereafter, again on 08.07.2010, the complainant has given another written report and apart from the aforesaid facts has also stated that Payal as well as her husband Raju, brothers Sonu and Sachin have called his brother and forcibly taken away him, committed his murder by strangulating his neck and thrown the dead body in the Rajwaha of Village Rajapur, Police Station Simbhawali.

5. On the basis of the aforesaid, F.I.R. of the present case was registered, in which the investigating officer after completing all necessary formalities finding sufficient evidence has submitted charge sheet against the accused-respondents and sent the same to the court concerned to face trial where the case was committed to the court of sessions.

6. On this one missing report was lodged, dead body of a person was recovered on 06.07.2010 from the Village Rajapur.

7. Being Cognizable offence, case was committed to the court of Sessions for trial where the learned trial judge has framed the charges under Sections 364, 302/149, 201 I.P.C. against the accused persons. All the accused persons have denied from the charges and insisted to be trial. In addition to above, as many as 9 witnesses of fact as well as formal witnesses were produced and examined before the trial court to establish the case.

8. Shri Satendra Tiwari, learned AGA argued that PW-1 in his testimony states that he has seen Payal while taking his brother, but the dead body which was allegedly recovered after much delay in mutilated & decomposed condition at Ghaziabad. From the facts and other distinctive features of the body, the same could not be identified by any of the prosecution witnesses. The fact of the dead body was swollen or extremely decomposed condition. In paragraph 25 of the judgment it has been clearly mentioned that Doctor have opined age of the dead body as 38 years and could not be identified. The interesting feature is that PW-1 in his cross examination states that age of the deceased was 24-26 years whereas, the Doctor is giving an opinion that the dead body of which the autopsy was prepared is 38 years. There is no parallel in the absence of this vital link whereas the dead body could not be identified.

9. From the facts and other distinctive features of the body, the same could not be identified by any of the prosecution witnesses. The fact of the dead body was swollen or extremely decomposed condition. The basic feature of the case is that alleged recovery of unknown dead body belongs to Awadhesh or not, till this issue is not satisfactorily resolve, no successful criminal prosecution could be initiated or culminated. Its simply amusing that the identity of the dead body is yet to establish, the prosecution on half baked story lands no where a bogus exercise.

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

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

12. 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."

13. 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.

14. 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.

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

16. 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."

17. The prosecution has failed to establish the relation between the the Payal and the deceased. The allegation of strong motive qua Payal. There are many other loopholes in the prosecution case. The Doctor has not sent the samples of the dead body for the DNA profiling so as to ascertain the identity of the abandoned dead body, whether he belongs to deceased Awadhesh or not.

18. 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 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.

19. 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.

20. 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.

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

Order Date :- 21.5.2024

A.N. Mishra