Court No. - 41
Case :- GOVERNMENT APPEAL No. - 5854 of 2017
Appellant :- State Of U.P.
Respondent :- Chandan Vishwakarma & Another Counsel for Appellant :- Govt. Advocate Counsel for Respondent :- B.K.Pandey
Hon'ble Rajesh Dayal Khare,J. Hon'ble Jayant Banerji,J.
This government appeal under Section 378 Cr.P.C. alongwith an application for grant of leave to appeal has been filed against the judgment and order dated 05.10.2011 passed by learned Additional Sessions Judge, Court No.8 Varanasi in Sessions Trial No.98 of 2009 (State Vs. Chandan Vishwakarma and another) arising out of case crime no.303 of 2008 under Section 302/34, 201 IPC, police station Shivpur, district Varanasi, whereby the accused-respondents have been acquitted of the charges levelled against them.
Heard learned A.G.A. on behalf of the State-appellant on the application seeking leave to appeal. Perused the impugned judgment and trial court's record which has been received.
Learned A.G.A. contends that as per prosecution version, as spelt out in the F.I.R., which was lodged against unknown persons by the informant Dr. Bhupendra Pratap Singh informed the police station that towards west of Bada Lal Stadium at the corner of the road a headless body is lying in naked stage whose penis was also cut off, which incident is said to have taken place on 02.9.2008. During investigation, head of the deceased was also recovered and same was identified as that of Santosh Pandey-the deceased. It is further contended by learned A.G.A. that on the statement of Sameer and Anil Yadav name of the accused respondents came into light and Chandran Vishwakarma-accused respondent No.1 after his arrest, confessed about commission of the alleged crime. It is further contended that at his pointing out the weapon of assault i.e. Gadasa was recovered. Learned A.G.A. contends that as many as eleven prosecution witnesses were examined and the prosecution evidence corroborate with the medical evidence on record and the prosecution has proved its case beyond doubt, therefore, order of acquittal recorded by the trial Judge is not sustainable and is liable to be set aside.
Perusal of the judgment impugned shows that as many as eleven prosecution witnesses were examined including the witnesses of fact and apart from P.W.-2 mother of the deceased all the witnesses of fact have turned hostile. Perusal of statement of PW2 also shows that same is contradictory. It is further apparent from the record that the case is that of circumstantial evidence and even no motive has been shown for commission of the alleged offence, which is an important link in the case of circumstantial evidence and the chain is incomplete, which may possibly point towards the guilt of the accused respondent. It is also apparent that the name of the accused respondent came into light in the statement of the persons who have not even been examined by the prosecution and in the confessional statement of the accused-respondent No.1.
The present case rests on circumstantial evidence. The court below has examined the evidence adduced as well as the statement of the witnesses recorded by it in detail and after examining all the circumstances one after another, it has come to the conclusion that the chain of circumstances is not so complete so as to point out only towards the guilt of the accused- respondents. It has also been noted by the learned trial court that the motive shown is not established. The accused-respondents have been implicated on the basis of the confessional statement given to the police which is not admissible as evidence as per law and thus the trial court has recorded the finding of acquittal by the order impugned.
After hearing the learned learned A.G.A., perusing the order impugned as well as the lower court's record, we are of the considered opinion that no good ground has been made out for interference by this Court.
Recently, in the case of Ganpat Singh Vs. The State of Madhya Pradesh 2017 (7) Supreme 377, 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 view taken by learned trial court is a possible view and the golden thread which runs through the administration of criminal justice while hearing the appeal against the acquittal is that even if two views are possible on the evidence, one pointing towards the guilt of the accused and other towards their innocence, the view which is favourable to the accused should be accepted and the finding of acquittal recorded by the trial court should not be disturbed by the appellate court. The reason is that while passing the order of acquittal, the presumption of innocence in favour of the accused is re-inforced In Ramesh Babulal Doshi Vs. State of Gujrat; 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, (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, (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, (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 Government Appeal is dismissed.
Order Date :- 31.5.2018 faraz