Court No. - 51
Case :- CRIMINAL MISC. APPLICATION DEFECTIVE U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 69 of 2018 Applicant :- Kunwarpal Opposite Party :- State Of U.P. And 2 Ors. Counsel for Applicant :- Sunil Kumar Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
As per the office report dated 17.07.2018 initially there was a delay of 5 days in filing the appeal. However, subsequently on account of omission further delay of 7 days also occurred as on 24.07.2018 and thus there was delay of 12 days. Cause shown is sufficient.
The delay in filing the appeal is allowed.
We have perused the office report looking to the controversy in issue and on the request of learned A.G.A appearing for the State the court involved in the present case proceeds to hear the case on its own merit.
Heard Sri Sunil Kumar Dwivedi, learned A.G.A appearing for the appellant on the application seeking leave to appeal against the judgment and order dated 11.04.2018 passed by Additional District & Sessions Judge, Room No. 5, Bulandshahar by means of which accused-respondents have been acquitted of the offence under sections 302/34 IPC.
Heard Sri Sunil Kumar Dwivedi, at great length the contention of the learned counsel for the appellant at Bar of this Court is to the effect that the Court has written the illegal findings. The witnesses were examined and the testimony of PW-1 and PW-2 have been given. Keeping in view the contention as has been raised at Bar of this Court proceed to examine the findings as have been recorded by the court concerned. At the very outset it may be noted that the deceased is Brahma who is said to be married to Rmeshwari who happens to be the sister of the accused/respondents namely Virendra and Om Pal nos. 2 and 3 respectively. Thus in fact the allegation has been made against brother-in-law of committing there Jija.
Perusal of the record shows that FIR was lodged by Kumar Pal who happens to be the brother of the deceased with the contention is that younger brother Brahma had gone to visit in-laws house on 22.07.2013 and has not returned. The body was recovered on 26.07.2013 from the bagh of one Rajpal, the body was on hanging from the mango tree. As per FIR version deceased was unemployed and on account of his unemployment a penurious condition there were quarrel between the husband and wife for the poor financial condition and thus the deceased Brahma has committed suicide out of sheers frustrations. FIR also shows that it was clearly mentioned therein that there was no enmity of deceased with any one. Thereafter, it appears that father of the first informant and the father of the deceased namely Mahaveer gave an application in writing to the SSP Bulandshahar after a period of almost 1 ½ years of the incident wherein he assigned the motive of accused/respondents Virendra and Om Pal. The application was filed with the contention that the deceased was seen by Parma and also on the basis hear say evidence of Gajendra and Vijay. The relevant portion of testimony of PW-1 Mahaveer is being quoted herein below. In his testimony he said;
fnukad 22-07-2013 dh 'kke djhc 6-00 cts mldk csVk czge flag xkao ds ijek iq= ukud ds lkFk ijokuk ls vkSjxkckn tk jgk Fkk rks jkLrs esa ohjsUnz o vkseiky iq=x.k ';ksjkt feys tks czge flag dks viuh cgu dh xyrh ekurs gq, vkSj Jherh jkes'ojh dks vius ?kj ys tkus dh ckr dgdj czge flag dks vius lkFk cqyk ys x;sA At further stage he says that.
mldks ?kVuk ds dqN fnu ckn xtsUnz iq= juohj fuoklh eksgYyk x<h+] dLck o Fkkuk vuwi'kgj ftyk cqyUn'kgj o fot; iq= Jh jkelju flag fuoklh xzke dilkbZ] Fkkuk ujlSuh] ftyk cqyUn'kgj feys rks mUgksaus mldks Mj&Mj ds crk;kA And they have seen the accused-respondents hanging body of the deceased. However, it is beyond apprehension that if Mahaveer who happens to be the father was informed within two days of the incident about the present eye witness accounts then why was they need not disclosed names immediately thereafter, and why was PW-1 wating for almost 1 ½ years for moving the application before the SSP Bulandshahar. It may at this stage itself appreciated and this fact is not being disputed by the counsel for the appellant that all the three persons who have been named and on the basis of whose information present accused-respondents are thought to be impleaded were not examined during the trial. Meaning thereby Gajendra, Vijay and Parma had not appeared at during trial and there were not examined as witness by the prosecution even the first informant Mahaveer had not taken any step whatsoever for summoning these three accused persons during trial.
As at this stage it may also be appreciated that as far as motorcycle and bag of the deceased are concerned same were recovered from the house of Dharamveer who happens to be a Sadu of Mahaveer.
It may also be appreciated that PW-1 Mahaveer has built up the case that Smt. Rameshwari who happens to be the wife of deceased Brahma was a women of a loose character, dubious character and was sharing illicit liquor with a number of other persons on account of which Brahma was a spake turmoil. He submits that this information was received by him by one Mahipal Singh and when he confronted Virendra and Om Pal with this information they become annoyed. This version has been brought up to introduced the element of motive in the case. The relevant extract of the testimony of PW-2 Kunwar Pal and PW-3 Mahipal Singh is being extracted here in below.
,& ih0 MCyw0 daqojiky us l'kiFk eq[; ijh{k.k esa dFku fd;k gS fd czge flg mldk NksVk HkkbZ FkkA ?kVuk ds le; mldh vk;q yxHkx 23&24 o"kZ gksxhA mldk HkkbZ czge flag fnukad 22-07-2013 dks viuh llqjky vthtkckn x;k FkkA tc og okil ugha vk;k rks mlus mldks ryk'k fd;k rks mldk HkkbZ czge flag dk 'ko fnukad 26-07-2013 dks xkWo gluiqj ds ckx esa feyk Fkk rFkk mldks jLlh ls ,d vke dk isM+ ij ¼mldk 'ko½ yVdk ik;kA mlds HkkbZ czge flag dk viuh iRuh jkes'ojh ls eueqVko Fkk] D;ksfd mldh iRuh dk pky pyu xyr FkkA bl ? kVuk dh rgjhj fnukad 26-07-2013 dks tc mlds HkkbZ dh yk'k fey x;h rc mlds ekSalk /keZohj us ubZ e.Mh pkSdh ij fy[kdj nh Fkh rFkk bl rgjhj ij mlds gLrk{kj djk;s Fks] ysfdu ;g rgjhj mls i<dj ugha lquk;h FkhA xokg us i=koyh ij dkxt la[;k &1 , dks ns[kdj dgk fd ;g ogh rgjhj gSA bl ij mlds gLrk{kj gS bl ij izn'kZ d&2 Mkyk x;kA ch& egkohj flg mlds [kkunkuh pkpk gS egkohj flag us vius iq= czge flg dh 'kknh jkes'ojh iq=h ';kSjkt fuoklh xzke vthtkckn Fkkuk vkSjaxkckn ds lkFk dh FkhA jkes'ojh dh 'kknh ds ckn ls gh vutku O;fDr;kas dk vkuk tkuk c<+ x;k FkkA blh otg ls ijs'kku jgrk Fkk rFkk blh dkj.k viuh iRuh jkes'ojh ls czge flag dh vucu jgrh FkhA jkes'ojh ds pfj= dks lafnX/k ekurs gq, rFkk vutku O;fDr;kas ds ?kj ij vkus tkus dh otg ls lekt esa mudh cbs Ttrh gks jgh gS] ;g ckr mlus egkohj flag dks crk;h FkhA The Court further proceeded to examine the testimony of PW-4 Dr. Sunil Kumar Rawat who has conducted the postmortem of deceased as per the testimony of doctor and the postmortem report it appears that body was in highly decompose stage and a cause of death has been recorded as strangulation. The relevant testimony of PW-4 Dr. Sunil Kumar Rawat.
lh& ih0 MCyw0 Mk0 lquhy dqekj jkor us vius l'kiFk eq[; ijh{k.k esa dFku fd;k gS fd fnukad 26-07-2013 dks og ckcw cukjlh nkl ftyk fpfdRlky; cqyUn'kgj esa bZ- ,e- vks- ds in ij rSukr FkkA ml fnu 2-20 ih- ,e- ij mlus o MkDVj lfpu dqekj us e`rd czg~e iq= egkohj mQZ uSfu;k fuoklh lseyh Fkkuk dksrokyh nsgkr] ftyk cqyUn'kgj mez 25 o"kZ ds 'ko dk ijh{k.k fd;k FkkA dk0 jktho dqekj o dk0 fofiu dqekj Fkkuk dksrokyh nsgkr ysdj vk;s FksA e`rd dk 'ko foPNsnu ds le; lM+u dh vksj vxzlj FkkA e`rd dh [kky dbZ txg ls vklkuh ls fudy jgh FkhA e`rd ds [kky o uk[kwu vklkuh ls fudy jgs FksA e`rd ds VsLVht Qwys gq, FksA e`rd dh thHk ckgj dh rjQ fudy dj eqMh+ gqbZ FkhA e`rd dk eqag v/k[kqyk gqvk FkkA e`rd dh nksukas vkW[k o ukd dh fVi fMdEikst gks pqds FksA ckg~; ijh{k.k%& e`rd ds xnZu fyxspj ekdZ 27 x 1-5 ls- eh- Fkk;jkbZM dkVhZyst ls ,dne ÅijA mldks [kksyus ij vkUrfjd Y;wos o ely blkbE;w ik;s x;sA gkbZMcksu ds nksuksa foax QSzDpj FksA fyxspj ekdZ dkUVhU;w Fkk] dgha ij bUVªsIlu ugha FkkA ;g ekdZ ckW;s rFkk nkW;s dku ls 4-5 lss- eh- uhps FkkA 'okl uyh ,d ls pkj rd Vªkfd;k foaXl QzSDpj FksA
vkUrfjd ijh{k.k%&
e`rd dkczsu lk¶V rFkk Iyih FkkA nksukas QQs M+s dUtLs VsM FkAs e`rdk dks vkek'k; iwjk [kkyh FkkA e`rd ds yhoj] Lihfyu rFkk fdMuh Hkh dUtsLVsM FksA mldh jk; esa e`rd dh e`R;q 'ko foPNsnu ls 4 ls 5 fnu iwoZ gksuk laHkao gSA e`rd dh e`R;q ne ?kqVus ls gqbZ FkhA LVsUxqys'ku ds dkj.k gqbZ Fkha e`rd ds 'ko dks e; iqfyl izi= dk0 jktho dqekj] Fkkuk dksrokyh nsgkr ds lqiqnZ fd;k x;k rFkk 'ko foPNsnu vk[;k mlus Lo;a vius ys[k o gaLrk{kj esa rS;kj dh Fkh tks i=koyh ij dkxt la[;k&9,-1 rk 9,-3 ds :i esa ekStwn gSA ftl ij izn'kZ d&3 Mkyk x;kA With regard to the recovery of vehicle from the house of Dharamveer, it may be appreciated that PW-3 Mahipal Singh that;
ih0 MCyw0 3 eghiky flag us] vius l'kiFk c;ku ds i`"V 4 ij dFku fd;k gS fd ;g ckr lgh gS fd e`rd czge dh eksVjlkbZfdy czge ds ekSlk ds ;gka ls cjken gqbZ FkhA Thus on the basis of evidence on record the Court has rightly concluded that apart from evidence of last seen which was sought to be introduced. However, prosecution has not succeeded in this regard. The case is a circumstantial evidence, but important links are missing conclusion of the court in this regard Mh& ih0 MCyw0 2 dqej iky ds }kjk ;g lk{; nh x;h gS fd mlus vfUre ckj e`rd dks vius ?kj ls vfHk;qDrx.k ds lkFk tkrs gq, ns[kkA tcfd bl rF; dk leFkZu ih0 MCyw0 1 egkohj flag dsa }kjk ugha fd;k x;k gSA ih0 MCyw0 1 egkohj flag us lk{; nh gS fd e`rd dks ys tkrs gq, ijek us ns[kk FkkA ijek dks U;k;ky; eas i'ks ugha fd;k x;k gSA ;g Hkh lk{; vk;h gS fd tc erd` ijek ds lkFk nkor [kkdj ijokus ls vk jgs Fks rc ijek us crk;k Fkk fd e`rd czge vkSjaxkckn esa mrj x;k Fkk] tks mlds lkys us mrkj fy;k FkkA bl izdkj vfUre ckj e`rd dks vfHk;qDrx.k ds lkFk ns[ks tkus dh lk{; dsoy ijek gh ns ldrk FkkA tcfd ijek dks vfHk;kstu us is'k ugh fd;k gSA ;g rF; fcuk ijek dh lk{; ds lkfcr ugha ekuk tk ldrkA izn'kZ d&1 eas ;g vk;k gS fd vfHk;Drx.q k erd` czge dh yk'k dks ckx esa ,d xkMh ls mrkjdj isM+ ij Vkax jgs FksA ftls xtsUnz o fot; us ns[kk FkkA tcfd vfHk;kstu us xtsUnz o fot; dks is'k ugh fd;k gSA ih0 MCyw0 1 egkohj flag us vius l'kiFk c;ku ds i`"V 4 ij dFku fd;k gS fd iksLVekVZe ?kj ls iqfylokys o xkao okys ?kj yk;s FksA xkao lc fj'rsnkj vk;s Fks] ysfdu vthtkckn okys ugha vk;s FksA bl lk{kh us i`"V 5 ij dFku fd;k gS fd jkes'ojh Hkh ugh vk;h FkhA mlus [kcj 9-00 cts rd dj nh Fkh] ysfdu og 2-00 cts rd ugh vk;s FksA tcfd ih0 MCyw0 2 dqejiky us vius l'kiFk c;ku eas i`"V 4 ij dFku fd;k gS fd mlus jkes'ojh dks ugha cqyk;k Fkk vkSj u gh czge ds yM+ds dks ysus x;sA ih0 MCyw 2 dqejiky ds }kjk rgjhj ¼QkSrh lwpuk½ izn'kZ d&2 fy[kdj Fkkus ij fnukad 26-07-2013 dks nh x;h gSA bl lEcU/k eas dejikq y us vius l'kiFk c;ku ds i`"V 4 ij dFku fd;k gS fd mlus iqfyl okykas dks ;g fy[kdj ugha fn;k Fkk vkSj u gh crk;k Fkk fd czge dk mldh dgk&lquh gqbZ Fkh] blfy, mlus vkRegR;k dj yh FkhA mlus rgjhj esa ,slk ugha fy[kok;k fd mldk HkkbZ csjkstxkj gS] bl dkj.k mlus vkRegR;k dk yhA tcfd rgjhj izn'kZ d&2 eas ;g vfdra gS fd mldk HkkbZ cjks txkjs gkuss ds dkj.k ijs'kku jgrk Fkk vkSj blh ckr dks ysdj mldh iRuh ls dgk &lquh gksrh jgrh Fkh vkSj ?kj dh dyg dh otg ls mlus vkRegR;k dj yhA ih0 MCyw0 2 dqejiky us i`"V 5 ij dFku fd;k gS fd ;g fjiksVZ mlus ugha fy[kh FkhA pkSdh ij iqfyl us Lo;a fy[kh FkhA tcfd izn'kZ d&2 ds ys[kd /keZohj iq= Lo0 Jh[kku pUnz flg gS tks ih0 MCyw0 2 dqejiky ds ekSlk gSA ih0 MCyw 3 eghiky flag dsoy iapk;rukek dk lk{kh gSA ?kVuk ds rF; ds leFkZu eas dkbZs lk{; ugha nh gSA Thus, keeping in view the facts and circumstances which shows that there is no evidence whatsoever which may connect the present accused/respondents in the alleged crime, or which may show any participation of them in the alleged crime apart from the suspicion. No case of grant of any indulgence has been made out.
It is one of the established principles of law that a witness may lie but not the circumstances. However, the court must adopt a cautious approach while basing its conviction purely on circumstantial evidence. The standard of proof required to convict a person on circumstantial evidence is well established by a series of decisions of Supreme Court.
According to that standard the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and further it must be such as to show that within all human probability the act must have been done by the accused.
There is this basic rule of criminal jurisprudence that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the court should adopt view which is favorable to the accused.
In reference to cases where there is no direct evidence and the decision has to rest on circumstantial evidence, the Supreme Court in a line of decisions has consistently held that such evidence must satisfied the following tests:-
(a) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(b) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(c) 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 none else; and
(d) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
Reference, may also be made to the judgment of the Apex Court rendered in the cases of Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622.
On a bare perusal of the judgment and order dated 11.04.2018, it cannot be said that the view taken by the trial court is not a possible view or a feasible view that could be taken by a reasonable person. Moreover as no illegality or perversity has been pointed out by the learned A.G.A., this Court refuses to grant any indulgence in the impugned judgment.
In view of the aforesaid facts and circumstance of the case, application seeking leave to appeal is rejected. Consequently the appeal is dismissed.
Let a copy of this order be certified to the court concerned.
Order Date :- 26.7.2018 Vikram