Uttarakhand High Court

GA/28/2021 on 20 July, 2021

       IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
                             AND
         THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA


        SPECIAL LEAVE TO APPEAL No. 62 OF 2021
                          IN
          GOVERNMENT APPEAL No. 28 OF 2021


                              20TH JULY, 2021


 Between:

 State of Uttarakhand.
                                                             ...Appellant

 and


 Ravindra Kashyap.
                                                          ...Respondent

Counsel for the appellant : Mr. Jagjit Singh Virk, learned Deputy Advocate General, for the State of Uttarakhand.

Counsel for the respondent : None.

The Court made the following:

JUDGMENT : (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)

For the reasons stated in the application

seeking condonation of delay, the delay of 75 days in

preferring the present Government Appeal is, hereby,

condoned. Delay Condonation Application is, hereby,

allowed.

2. The application seeking Special Leave to Appeal

is, hereby, allowed. Leave granted.

3. Aggrieved by the acquittal of the respondent-

accused, Ravindra Kashyap, for the offence under Section

302 IPC read with Section 34 IPC, the State of

Uttarakhand has filed the present appeal against the

judgment dated 29.01.2021 passed by the learned Third

Additional Session Judge, Haridwar.

4. Briefly, the facts of the case are that on

21.02.2018 Shravan Kumar (P.W. 1) lodged a report with

the Police Station Kankhal, District Haridwar, wherein he

claimed that his son, Aman Kashyap, aged 18 years, had

left the house around 12 o'clock in the afternoon with his

friend Sachin, S/o Roopchand, R/o Himgiri Colony,

Kankhal, and Ravindra Kashyap, S/o Mahavir Kashyap,

R/o Chetandev Kutiya, Kankhal. His son has not returned

back home. When he asked both his friends, they

informed him that they had left Aman Kashyap at 12:30

P.M. at the Kankhal Chowk Bazar. They further informed

that, thereafter, they have no information about the

whereabouts of his son. He further claimed that he had

tried to contact his son on both his mobile numbers,

which were with him. However, the mobile numbers

were switched off. He further described his son. Initially,

the complaint was registered for a missing person.

However, subsequently, the complaint was converted into

F.I.R. No. 81 of 2018 for offences under Sections 201 and

304 IPC against both Sachin and Ravindra Kashyap.

After completing the investigation, the charge-sheets

were filed against both the accused persons for the said

offences.

5. In order to establish its case, the prosecution

examined thirteen witnesses, and submitted fifteen

documents. After completing the trial, the learned Trial

Court has acquitted the respondent-accused for offence

under Section 304 IPC read with Section 34 IPC, but

convicted the respondent-accused for offence under

Section 201 IPC read with Section 34 IPC. The sentence

was reduced to as undergone, but the respondent-

accused was imposed with a fine of Rs. 10,000/-, and in

default thereof to undergo further simple imprisonment

for a period of three months. Since the appellant-State is

aggrieved by the acquittal of the respondent-accused, it

has filed the present appeal before this Court.

6. Mr. J.S. Virk, the learned Deputy Advocate

General for the State of Uttarakhand, has pleaded that

the prosecution had succeeded in establishing its case

against the accused. For, there is the evidence of the last

seen. Secondly, a wrong explanation was given by the

accused for the disappearance of the deceased. Thus,

both these factors unerringly point towards the guilt of

the accused. Hence, the learned Trial Court has

committed an error while acquitting the accused.

7. Heard the learned Deputy Advocate General for

the State, and perused the impugned judgment.

8. There are certain established principles with

regard to the jurisdiction of the High Court while dealing

with an acquittal order. In the case of Sampat Babso

Kale v. State of Maharashtra [(2019) 4 SCC 739],

the Hon'ble Supreme Court has laid down the principles

with regard to the powers of an appellate Court in an

appeal against an acquittal order. The Hon'ble Supreme

Court observed as under:-

8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of

witnesses. This Court in Chandrappa v. State of Karnataka [(2007) 4 SCC 415, laid down the following principles: (SCC p. 432, para 42) "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

9. In the case of State of Rajasthan v. Naresh

[(2009) 9 SCC 368], the Hon'ble Supreme Court opined

that "an order of acquittal should not be lightly interfered

with even if the court believes that there are some

evidence pointing out the finger towards the accused".

10. These principles have recently been reiterated

by the Hon'ble Supreme Court in the case of Anwar Ali

& another v. State of Himachal Pradesh [(2020) 10

SCC 166]. Therefore, these settled principles of criminal

jurisprudence would have to be kept in mind while

examining the legality or illegality of the impugned

judgment.

11. Shravan Kumar (P.W. 1) has categorically

admitted in his cross-examination that he did not see his

son leaving the house with Sachin and Ravindra Kashyap.

It is only Arti Kashyap (P.W. 2), the aunt of the deceased,

who claims that at 02:20 P.M., she had called Ravindra

Kashyap. Initially, Ravindra Kashyap gave the mobile

phone to Sachin, and subsequently, she spoke to Aman

Kashyap, the deceased. She has asked him to come back

home. He told her that he will come back home in about

five minutes. In her cross-examination, she claims that

she has known Ravindra Kashyap for the last six to seven

years. This is the only evidence produced by the

prosecution that reveals that the deceased was with the

accused on the last occasion.

12. According to Shravan Kumar (P.W. 1), when he

asked both the accused persons as to the whereabouts of

his son, they informed him that they had left him at the

Kankhal Chowk Bazar around 12:30 P.M. Thus, a false

explanation was given by the accused-respondent.

13. However, neither of these two links in the chain

are so complete as to unerringly point towards the guilt

of the accused. Both these factors may raise a strong

suspicion about the culpability of the accused. But, no

matter how strong a suspicion may be, it does not take

the place of proof.

14. In the case of Sujit Biswas v. State of

Assam, (AIR 2013 SC 3817), the Hon'ble Supreme

Court held as follows :-

13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure

conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.

(Vide Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343 : 1953 Cri LJ 129] , State v. Mahender Singh Dahiya [(2011) 3 SCC 109 : (2011) 1 SCC (Cri) 821 : AIR 2011 SC 1017] and Ramesh Harijan v. State of U.P. [(2012) 5 SCC 777 : (2012) 2 SCC (Cri) 905]).

15. The aforesaid proposition was reiterated by the

Hon'ble Supreme Court in the case of State of Odhisha

v. Banabihari Mohapatra, (AIR 2021 SC 1375),

wherein it was held as follows:-

It is well settled by a plethora of judicial pronouncement of this Court that suspicion, however strong cannot take the place of proof. An accused is presumed to be innocent unless proved guilty beyond reasonable doubt. The proposition has been reiterated in Sujit Biswas v. State of Assam reported in AIR 2013 SC 3817.

16. Furthermore, in the case of Kali Ram v. State

of Himachal Pradesh, [(1973) 2 SCC 808, the Hon'ble

Supreme Court 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 the 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 to be established by circumstantial evidence."

17. At best, the two evidences proved by the

prosecution merely raise a suspicion against the

appellant. However, such a suspicion does not prove the

case of the prosecution. Therefore, the learned Trial

Court was justified that there is no evidence against the

appellant for offence under Section 304 read with Section

34 IPC.

18. However, as the wrong explanation was given

by the respondent-accused, the learned Trial Court has

rightly convicted the respondent-accused for offence

under Section 201 read with Section 34 IPC.

19. For the reasons stated above, this Court does