Court No. - 2
Case :- GOVERNMENT APPEAL No. - 5 of 2019 Appellant :- State of U.P. Respondent :- Ankit Jaat Counsel for Appellant :- G.A.
Hon'ble Suneet Kumar,J. Hon'ble Brij Raj Singh,J.
Heard learned AGA and perused the trial court record with his assistance.
The appeal is directed against the judgment and order dated 28.9.2018 passed in Sessions Trial No. 622 of 2011 arsing from Case Crime No. 146 of 2011 under Sections 364, 302, 201 I.P.C., Police Station-Civil Lines, District-Muzaffar Nagar whereby accused respondent Ankit Jaat has been acquitted.
The prosecution case, briefly stated is that on 3.3.2011 at 17:10 hours, Mukul Singh, son of the informant, Pradeep Singh, aged about 13-14 years, student of class -9, went missing from school on 14.2.2011. An FIR came to be lodged against unknown person under Section 364 I.P.C. On 6.3.2011, informant was informed by the concerned police station about recovery of a body. The body was identified by one Arun Singh, consequently, Sections 302 and 201 I.P.C. were added. During investigation, name of the accused-respondent surfaced. On the pointing out of the accused- respondent, school bag of the deceased was recovered from the spot where the body was disposed of. The accused confessed commission of the offence. After investigation, a report (charge sheet) came to be filed against the accused-respondent.
In trial the prosecution to prove the charge against the accused-respondent examined Pradeep Singh (P.W.-1), Mukul (P.W.-2), H.C.P. Indrapal Singh (P.W.-3), Dr. Jaiprakash Tyagi (P.W.-4), S.I. Babu Lal (P.W.-5), S.I. Pirthi Singh (P.W.-6) and Ranveer Singh (P.W.-7).
The accused-respondent in examination under Section 313 Cr.P.C. declined the allegations and deposed that he has been falsely implicated; recovery is implanted and denied the facts and allegations.
Trial Court, considering the evidence and statements of cross-examination, was of the opinion that the prosecution failed to prove the charge against the accused-respondent beyond reasonable doubt.
The case is based on circumstantial evidence. The prosecution miserably failed to prove the chain of circumstances linking the accused-respondent with the commission of the offence. Accordingly, accused-respondent was acquitted. Hence the present appeal has been filed.
It is submitted by learned Additional Government Advocate (AGA) that recovery of the school bag from the spot where dead body of the deceased was disposed of on the pointing of the accused, the informant (P.W.-1) identified the bag of the deceased and its belongings during trial. It is therefore, submitted that the accused-respondent has wrongly been acquitted by the trial court on misreading and appreciation of the evidence.
The informant (P-.W.-1) lodged the First Information Report on 6.3.2011 , alleging that the deceased was missing since 14.2.2011. It is further alleged that on 14.2.2011, he had informed the police station about his missing son. The body of the son was recovered and informed by the police station to the informant. During trial, P.W.-1 identified the bag and its belongings but in cross-examination P.W.-1 stated that neither the recovery of bag and its belonging, nor, the body of the deceased was made in his presence. He was informed of the recovery by the police station. The other witnesses have not deposed that missing report was lodged by the informant on 14.2.2011. P.W.-2 Mukul son of Sudhir a student studying with the deceased was declared hostile. He denied the allegations of an altercation between the deceased and accused-respondent before the incident. He further stated that he had not seen the deceased accompanying the accused-respondent from school on 14.2.2011. The body of the deceased was recovered, on an information received by the police station from village Chowkidaar, that a body is lying in a plastic bag.
The post mortem report suggest that there is ligature mark, thyroid bone fracture and tracheal ring raptured, the cause of death is strangulation due to ante mortem asphyxia and excessive bleeding. The time of death is approximately two weeks earlier between 14.2.2011 and 6.3.2011. The medical expert (P.W.-4) could not clearly and categorically state that the approximate date and time of the death. He further deposed that the body was highly decomposed and could not be identified. Head Constable (P.W.-3) is a witness to the recovery of the bag and the spot where the offence was committed. P.W.-3 deposed that on the pointing out of the accused-respondent, the bag was recovered from the canal where the body was disposed. In cross-examination, he deposed that on 18.3.2011, accused-respondent was brought to the police station by the Station Officer (S.O.). P.W.-3 was accompanied with other constables. He further stated that he is not aware as to when the accused-respondent was brought from the Jail to the police station or the Rawangi (movement) is not recorded in the General Diary (G.D.). He was not aware of the spot or who is owner of the field, further, he was also not aware after how many days of the incident, the bag was recovered. He however admitted that the recovery memo bears his signature and accused-respondent's signature. In contradiction to the statement of P.W.-3, informant (P.W.-1) clearly stated that the bag that was produced during trial was not signed by the accused-respondent. The trial court in the circumstances did not accept the testimony of P.W.-3 as he has stated that accused had also signed the recovery memo. It is also admitted that there was no independent witness to the recovery.
The case is based on circumstantial evidence and having regard to the chain of events, the prosecution from the evidence led during trial was unable to prove involvement of the accused-respondent in the commission of offence. The prosecution failed to explain the chain of events and involvement of the accused-respondent in the commission of offence.
Supreme Court in a decision rendered in Sharad Birdhichand Sarda Vs. State of Maharashtra1 held as follows:
“A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra2 where the observations were made:
“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”
It was further followed by a three Judge Bench in Padala Veera Reddy Vs. State of Andhra Pradesh and Ors.3 wherein this Court held as under:-
“Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests 1 (1984) 4 SCC 116 2 (1973) 2 SCC 793 3 1989 Supp (2) SCC 706 upon circumstantial evidence such evidence must satisfy the following tests:
“(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) 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
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of 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. (See Gambhir v. State of Maharashtra4”
Learned AGA failed to point out any illegality, infirmity or perversity in the impugned judgment.
In view thereof, application (Leave to Appeal) is rejected.
The appeal is, accordingly, dismissed.
Order Date :- 27.10.2021 Md Faisal (Brij Raj Singh, J.) (Suneet Kumar, J.) 4 (1982) 2 SCC 351