Court No. - 41
Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 219 of 2018
Applicant :- Deepchand Puri
Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Surendra Mohan Mishra Counsel for Opposite Party :- G.A.
Hon'ble Rajesh Dayal Khare,J. Hon'ble Umesh Chandra Tripathi,J.
Heard learned counsel for the applicant-appellant and learned A.G.A. for the State-opposite party and perused the material on record.
This appeal under Section 378 Cr.P.C. along with an application seeking leave to appeal has been filed by the applicant- appellant with the prayer that leave to appeal may be granted against the judgement and order of acquittal dated 27.02.2018 passed by learned Additional Sessions Judge, Court No. 2, Gorakhpur in Sessions Trial No. 20 of 2012 arising out of Case Crime No. 29 of 2011 under Sections 302/34 and 201 I.P.C., Police Station - Uruwa Bazar, District - Gorakhpur, whereby the accused-opposite party no. 2 has been acquitted for the offence punishable under the sections referred to above.
After lodging of the FIR by the first informant in the aforesaid case crime, investigation proceeded, which resulted into filing of charge-sheet against the accused-respondents and as they pleaded not guilty, they were put to trial and the trial concluded and judgment and order of acquittal has been returned by the trial court, which is impugned in the present appeal.
It is contended by learned counsel for the applicant-appellant that from the statements of P.W.2 and P.W.5, evidence of last seen has been proved beyond reasonable doubt. Perusal of statement of P.W.6 goes on to show that co-accused Janardan has been named on the basis of his extra-judicial confession. Dead body of the deceased was recovered after four days of the occurrence. He next contended that at the time of the occurrence, election for the post of Gram Pradhan was going on in the village. The allegation of the accused that they have been falsely implicated in the case due to political rivalry is totally false and groundless. The present case is not of circumstantial evidence and therefore, the judgment and order of acquittal, which is impugned in the present appeal, is liable to be set aside.
After having heard learned counsel for the applicant-appellant and perused the judgement impugned, it is apparent that P.W.2, owner of a beetle shop had stated in his statement that he had seen co-accused Janardan, but not accused opposite party no. 2 Raju @ Rajesh Yadav. It is not disputed that Janardan in his extra-judicial confession had stated that he had killed Shayamacharan Puri, but this statement cannot be relied upon as per law. Evidence of last seen adduced and motive as alleged has not been proved by the prosecution.
A perusal of the evidence available on record shows that is is a case of circumstantial evidence and the chain of events is not complete. Even the motive for committing the alleged offence which is very important link in the chain of circumstances has not been proved.
After having heard learned counsel for the appellant-applicant and learned A.G.A., we are of the considering opinion that no good ground is made out by the prosecution for exercising extraordinary jurisdiction of this Court. We do not find any factual or legal error in the assessment of evidence by the court below.
The present case rests on circumstantial evidence and the well settled law regarding a case based on circumstantial evidence is that the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances, so proved, must form such a chain of events so complete as would permit no conclusion other than one of guilt of the accused.
Recently, in the case of Ganpat Singh Vs. The State of Madhya Pradesh reported in AIR 2017 SC 4839, the Hon'ble Apex Court has once again reiterated the law relating to circumstantial evidence as follows:
"The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence."
The learned lower court has discussed the evidence point-wise and no other inference except that arrived at by the trial court could be drawn in this case. Moreover, the view taken by the court below is a possible view and it is well settled that, if two views are possible and the trial judge has taken one view, which is reasonable and plausible and appeals to the judicial mind, then the High Court should refrain from interfering with the order of acquittal. Interference with the order of acquittal should only be done when the findings are perverse, illegal and against the material available on record. The court below has given cogent, convincing and satisfactory reasons while passing the impugned judgement of acquittal.
In Ramesh Babulal Doshi Vs. State of Gujarat reported in 1996 (9) SCC 225, the Hon'ble Supreme Court has held as under : -
"...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 should be presumed to be innocence unless he is proved to be guilty by a competent court and secondly the accused having secured an acquittal, the presumption of innocence is, re-enforced and strengthened by the trial court "
In Mahadeo Laxman Sarane vs. State of Maharashtra reported in (2007) 12 SCC 705, the Apex Court has observed that:-
"It is true, that the settled legal position is that in an appeal against acquittal the High Court ought not to interfere with the order of acquittal if on the basis of the same evidence two views are reasonably possible-one in favour of the accused and the other against him. In such a case if the trial court takes a view in favour of the accused, the High Court ought not to interfere with the order of acquittal."
In C. Antony Vs. K.G. Raghavan Nair reported in (2003) 1 SCC 1, the Apex Court has laid down the law as follows:-
"Unless the findings of trial court are perverse or contrary to the material on record, High Court cannot, in appeal, substitute its finding merely because another contrary opinion was possible on the basis of the material on record."
In Sirajuddin Vs. State of Karnataka reported in (1980) 4 SCC 375, the Apex Court has reiterated the same principle in the following words:-
"Where trial Court's order of acquittal is based on a reasonably possible view, High court should not, as a rule of prudence, disturb the acquittal."
Considering the facts and circumstances in wake of the above cited legal position, we do not consider it to be a fit case for grant of leave to appeal to the applicant.
The application seeking leave to appeal is rejected and consequently the appeal is dismissed.
Order Date :- 29.5.2018
I. Batabyal