Allahabad High Court
State Of U.P. vs Chhotu And 3 Others on 12 November, 2024
Bench: Siddharth, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:177177-DB
Court No. - 48
Case :- GOVERNMENT APPEAL No. - 522 of 2023
Appellant :- State of U.P.
Respondent :- Chhotu And 3 Others
Counsel for Appellant :- A. K. Sand
Hon'ble Siddharth,J.
Hon'ble Subhash Chandra Sharma,J.
Order on Criminal Misc. (Leave to Appeal) Application
Heard Sri Sushil Kumar Pandey, learned A.G.A for the State.
This government appeal is directed against impugned judgment and order dated 18.09.2023 passed by Smt. Hemlata Tyagi, Additional Sessions Judge, Court No. 10, Muzaffar Nagar in Sessions Trial No. 77 of 2020 (State of Uttar Pradesh vs. Chhotu and 3 others), arising out of Case Crime No. 325 of 2019, under Sections- 302, 201, 404 IPC, Police Station- Meerapur, District- Muzaffar Nagar.
The prosecution case is that the son of informant, Irshad, has gone on motorcycle to Kallapur on 12.10.2019. He met Rakesh Chaukidar at 15:00 hours and informed that he is going to meet some friends at Kasampur Khola. Thereafter his whereabouts were not known. Shaukeen son of Ehsaan, Hasan son of Nazar, informed him that day before yesterday they saw his son, Irshad, going on motorcycle along with the respondents. The informant did not found the respondents in their house and lodged the F.I.R alleging that he is certain that respondents have murdered his son and thrown his dead body somewhere.
Learned counsel for the appellant has submitted that the trial court has committed error in acquitting the respondents without consideration evidence on record is correct perspective.
Learned counsel for the appellant has submitted that trial court has mislead the evidence on record and wrongly acquitted the respondents.
The appellate Court is usually reluctant to interfere with a judgment acquitting an accused on the principle that the presumption of innocence in favour of the accused is reinforced by such a judgment. The above principle has been consistently followed by the Constitutional Court while deciding appeals against acquittal by way of Article 136 of the Constitution or appeals filed under Section 378 and 386 (a) Cr.P.C. in State of M.P. Vs. Sharad Goswami,(2021) 17 SCC 783; State of Rajasthan Vs. Shera Ram, (2012) 1 SCC 602, Shivaji Sahabrao Bobade Vs. State of Maharastra, (1973) 2 SCC 793.
The Supreme Court in the case of Ramesh Babulal Doshi Vs. State of Gujarat, (1996) 9 SCC 225 has observed that the High Court must examine the reasons given by the trial Court for recording their acquittal before disturbing the same by re-appraising the evidence recorded by the trial court. For clarity, para 7 is extracted herein below:
"Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial Court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellant Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellant Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellant Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not."
The Supreme Court in the case of Sadhu Saran Singh Vs. State of U.P., (2016) 4 SCC 357 has observed that an appeal against acquittal has always been on an altogether different pedestal from an appeal against conviction. In an appeal against acquittal, where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity.
The Supreme Court in the case Basheera Begam Vs. Mohd. Ibrahim, (2020) 11 SCC 174 has held that the burden of proving an accused guilty beyond all reasonable doubt lies on the prosecution. If, upon analysis of evidence, two views are possible, one which points to the guilt of the accused and the other which is inconsistent with the guilt of the accused, the latter must be preferred. Reversal of a judgment and other of conviction and acquittal of the accused should not ordinarily be interfered with unless such reversal/acquittal is vitiated by perversity. In other words, the court might reverse an order of acquittal if the court finds that no person properly instructed in law could have, upon analysis of the evidence on record, found the accused to be "not guilty". When circumstantial evidence points to the guilt of the accused, it is necessary to prove a motive for the crime. However, motive need not be proved where there is direct evidence. In this case, there is no direct evidence of the crime.
The Supreme Court in the case of Kali Ram Vs. State of H.P., (1973) 2 SCC 808 has observed as under:
"25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought is to established by circumstantial evidence."
The Supreme Court again examined in State of Odisha v. Banabihari Mohapatra & Ors, (2021) 15 SCC 268 the effect of the probability of two views in cases of appeal against acquittal and held that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused, and the other to his innocence, the view which is favourable to the accused should be adopted.
The Supreme Court in Sujit Biswas v. State of Assam, (2013) 12 SCC 406 has reiterated the position that suspicion, however strong, cannot replace proof. An accused is presumed to be innocent unless proven guilty beyond a reasonable doubt.
In the background of the law discussed herein above, we will examine the trial court's findings and evidence adduced during the trial by the witnesses to test the legality and validity of the impugned order.
After hearing the counsel for the appellant, we find from the record that P.W.-1, Mehboob, is informant and father of deceased while P.W.-2, Shaukeen, is the witness of last seen. The implication made by P.W.-1 is based on the information given by P.W.-2 regarding his evidence of last seen. We find from the record that the deceased went missing on 12.10.2019. No missing report was lodged at police station on 13.10.2019 and the F.I.R was lodged only 14.10.2019. Recovery of dead body of the deceased was made on 15.10.2019 in the jungle of Kasampur Khola on the pointing out of the respondent, Deepak. The implication of the respondents were made on the basis of their confessional statements before the police. Recovery of dead body was made from open place and therefore, the same was relevant as per Section 27 of the Evidence Act.
Trial court has found material contradictions in the statements of P.W.-1 and P.W.-2, while P.W.-2 has stated that the deceased was last seen by P.W.-2, P.W.-3 and P.W.-4 between 12-12:30 p.m.P.W.-1 has stated that he received the information from the aforesaid witnesses at 03:00 p.m that they had seen the deceased at 12-12:30 p.m while P.W.-2 has stated that P.W.-1 came to his house at 11-11:30 p.m. Trial court has found that the chain of circumstances required to be proved in case of circumstantial evidence was not proved in this case. No motive of the crime was alleged or proved before the court. The motive of relationship of deceased with sister of respondent, Deepak was set up before the trial court for the first time. The trial court has recorded the finding that in the case of circumstantial evidence in absence of motive has relevance. In case of direct evidence, motive may not be relevant.
We further find that the memo of recovery of motorcycle of the deceased was not prepared by the police and it is not clear whether it was recovered from the place of incident or somewhere else. The court has recorded its finding regarding this aspect also. Trial court has acquitted the respondents after giving thoughtful consideration to the evidence on record and also considering the relevant law in this regard, we do not find any infirmity in the judgment and order of trial court.
Accordingly, the leave to appeal application filed by appellant is rejected.
Order on Government Appeal
In view of the rejection of leave to appeal application, the government appeal is also dismissed.
Order Date :- 12.11.2024
Rohit
(Subhash Chandra Sharma,J.) (Siddharth, J.)
