Chief Justice's Court
Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 438 of 2018 Applicant :- Ghan Shyam Verma Opposite Party :- State Of U.P. And 6 Ors.
Counsel for Applicant :- Pankaj Srivastava,Gopal Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Govind Mathur,Chief Justice Hon'ble Dr. Yogendra Kumar Srivastava,J.
This appeal is before us to challenge the judgment dated 27th August, 2018 passed by the learned Additional Sessions Judge, Court No.3, Mathura in S.T. No. 441 of 2007 (State vs. Mahesh and others), P.S. Farah, District Mathura. By the judgment impugned, learned trial court acquitted the accused-respondents Mahesh, Dinesh, Kailash, Pancham @ Pancho, Pintu and Bhoora from the charges relating to commission of offence under Section 396, 120B of the Indian Penal Code. The trial court also acquitted the accused Kailash and Pancham from the charge relating to commission of offence punishable under Section 412 of Indian Penal Code.
The entire matrix, necessary to be noticed, is that at the instance of one Ghanshyam s/o Late Onkar Prasad, a first information report was lodged at police station Farah, District Mathura on 16.02.2006 with an assertion that on the same day at about 6.30 p.m. while returning home from the shop with his son Ravi, who was carrying a bag containing ornaments at a distance of some steps, opposite the residence of Sri Madan Mohan Agrawal, in front of the post office street, 3-4 unknown miscreants came and caused a fire arm shot to Ravi and fled from the spot after snatching the bag containing ornaments. All the 3-4 miscreants were young and the bag was containing half kilogram of gold ornaments, and silver ornaments weighing 8-
10 Kg and a cash of 20-21 thousand rupees. The incident aforesaid was witnessed by Daya Ram s/o Kali Charan and Laxman s/o Late Sri Ram Swaroop and several others, who could identify the accused persons, upon being produced before them.
On the basis of the information given, a case was lodged for commission of offence under Section 394 of Indian Penal Code and the investigation commenced as usual. An application, then, was submitted by the informant Ghanshyam Verma stating therein that his son, who suffered fire arm injury had died on 19th May 2006 during the course of treatment. It was further stated that the crime in question was committed by Mukesh s/o Kartar Singh, Mahesh s/o Hakim Singh Farah, Hakim Singh, Farah, Banti s/o Bhagwan Das. The investigating agency, acting upon the application given by Ghanshyam Verma made recovery of certain articles. At the instance of accused Mahesh and Dinesh certain other articles were recovered and at the instance of the accused Pancham and Pintu on 14.08.2006 certain articles were also recovered. The Investigating agency after completing the investigation filed a police report before the competent court for the offences under Sections 394, 302 and 411 of Indian Penal Code read with Section 120B IPC.
The trial court after awarding an opportunity of hearing to the accused persons framed a charge for commission of offences under Sections 396, 120B IPC against accused Mahesh, Dinesh, Kailash, Pintu, Pancham @ Bhoora and also for an offence under Section 412 of Indian Penal Code accused Pintu, Dinesh, Kailash, Pancham and Mahesh. On denial of charge the trial commenced as desired. The prosecution supported its case with ocular evidence adduced by 13 persons, including Ghanshyam Verma (PW-1) and Madan Mohan Verma (PW-2), who were cited as eye witnesses. Certain documents were exhibited including the disclosure made as per section 27 of the Indian Evidence Act, and the recovery made on the basis of certain disclosure. An opportunity was given to the accused persons as per provision of Section 313 Cr.P.C. to explain adverse and incriminating circumstances existing against them in prosecution evidence. All accused persons termed the entire evidence as false with an explanation that they are having a shop adjacent to the complainant's shop and the entire case has been alleged against them only due to business rivalry. Accused persons denied the recovery of articles from them. In defence, testimony of Rajvir Singh (DW-1), Arvind Kumar (DW-2) and Head Constable Narendra Singh (CW-1) were examined. The trial court after examining the the entire evidence available on record arrived at the conclusion that no substantial evidence is available on record to arrive at a definite conclusion about involvement of the accused persons in the crime in question. Accordingly by extending benefit of doubt the trial court acquitted all the accused persons.
In appeal the argument advanced by learned counsel appearing on behalf of the appellant is that on the basis of disclosure made by the accused persons certain articles were recovered and those were identified by the appellant and as such, participation of the accused persons in the crime in question is definite and, therefore, the trial court erred while acquitting them.
On going through the facts stated in the judgment and the evidence discussed by the trial court, we do not find any merit in the arguments advanced. The trial court after examining the evidence relating to recovery arrived at the conclusion that the disclosure made and the recovery effected as per Section 27 of the Indian Evidence Act is not at all reliable. While relying upon the statement given by PW-12 Padam Singh the learned trial court noticed that this witness acquired the responsibility of the investigation on 15.08.2006, whereas a recovery was made prior to that of 14.08.2006. This witness as such was not competent to verify the recovery made during the course of investigation. The Investigating Officer prior to 15th August, 2006 nowhere stated in his statement about effecting such recovery. The trial court further held that the eye witnesses, including the present appellant, did not identify or name the accused persons and as such, a reasonable doubt exists in accepting the prosecution story. The finding, arrived at by the trial court in view of whatever has been stated above, is just and proper. It is pertinent to notice that no identification parade of the accused persons was conducted in prison and the eye witnesses too failed to name them in court.
In view of the discussions, made above, the appeal, is having no merits and is dismissed.
Order Date :- 29.11.2018 Imroz [Dr. Y. K. Srivastava, J.] [Govind Mathur, C.J.]