Court No. - 1
Case :- GOVERNMENT APPEAL No. - 771 of 2018 Appellant :- State Of U.P.
Respondent :- Neelam Sanjeev Reddy @ Neelu And 4 Ors. Counsel for Appellant :- G.A.
Hon'ble Ramesh Sinha,J. Hon'ble Dinesh Kumar Singh-I,J.
1. This application seeking leave to file appeal against the judgment and order dated 30.5.2018 passed by Additional Session Judge/FTC, Bhadohi Gyanpur in Session Trial No.163 of 2014 (State vs. Neelam Sanjiv Reddy @ Neelu and 3 others) and S.T. No. 61 of 2015 (State vs. Bablu Khan) has been preferred by the State whereby the respondents-accused have been acquitted of offences under sections 302 read with 34 and 120B IPC.
2. It is argued by the learned A.G.A. that the trial court has misread the evidence and despite there being sufficient incriminating evidence on record against the respondents without making proper appreciation of the same, judgment of acquittal has been passed by the trial court and hence the above prayer is made that leave may be granted to file appeal against the same.
3. Before passing an order on the leave to appeal, it would be appropriate to assess the merits of the case.
4. In short, the prosecution case as disclosed in the FIR is that the informant Raj Kumar Rajbhar son of Late Kali Charan Rajbhar, r/o Bardahan, P.S. Chauri, District Sant Ravidas Nagar Bhadohi, had submitted a written report (Exhibit Ka- 1) before SHO Chauri on 18.6.2014 stating therein that his younger brother Ajai Kumar @ Goli was returning home with his younger son Akash on 18.6.2014 after sale of fruits and when he reached near Bramh Sthan in Chauri Bazar situated in village Chakbhuidhar, unknown assailants fired upon him which resulted in his death. The said occurrence took place at about 9.15 in the night. Some persons had taken his injured brother to Government Hospital, Bhadohi, where finding his condition serious, he was referred to Regional Hospital, Varanasi, where his brother succumbed to injuries.
5. On the said information Head Constable Raj Nath Dubey had registered crime no. 58 of 2014 under section 302 IPC against unknown persons and prepared chik FIR Exhibit Ka-2 and made entry of the said case in G.D. Exhibit Ka-3 on 18.6.2014 at 23.55 hours. Subsequently during the investigation offence under section 120-B IPC was also added. After investigation, the Investigating Officer filed charge-sheet (Exhibit Ka-6) against the accused respondent Neelam Sanjeev Reddy @ Neelu, Munna, Mehtab, Smt. Nirmala and Bablu Khan and prior to that he had prepared site plan Exhibit Ka-4.
6. Charge under section 302/34 and 120-B IPC was levelled against the abovementioned accused-respondents to which they pleaded not guilty and claimed to be tried.
7. In order to establish its case the prosecution examined informant Raj Kumar Rajbhar as PW1, Shama Devi, mother of the deceased as PW2, Akash son of the deceased as PW3, Raj Nath Dubey as PW-4, Bhola Nath as PW5, Jitendra Singh as PW6 and Dr. Anil Kumar as PW7, Rakesh Kumar as PW8 and Vinod Kumar Yadav as PW9.
8. As per the first information report, PW1 deposed before the Court that his younger brother (deceased) Ajai Rajbhar used to sell vegetables and fruits in Chauri Bazar prior to the incident. His wife’s name is Nirmala Rajbhar (accused) in the present case. His brother had two sons and a daughter and was living with his mother. One daughter had got married. His father was living in Katni who was employed in Railways. The wife of the deceased Nirmala Devi had illicit relationship with the accused Neelam Sanjeev Reddy @ Neelu resident of the same village because of which, there used to be quarrel often between his brother and his wife as his brother used to restrain her from going to the shop of Neelam Sanjeev Reddy, because of which she used to remain annoyed. On the date of incident, his brother was returning after sale of vegetables and fruits at about 8.30 p.m. with his son Akash and when they reached near Ranjan Ki Bramha, all of a sudden some unknown persons made fire upon him and fled from there. Some persons had given him information about this. His brother was taken to Hemant Hospital, Bhadohi by Administration from where he was referred to Kabir Chaura Hospital, where he died. He had given report in writing of this incident (Exhibit Ka1) at the police station and his statement was also recorded by the police.
9. In cross-examination, this witness has stated that at the time of lodging this report, he had knowledge that Neelam Sanjeev Reddy @ Neelu had illicit relationship with Nirmala. Since two years prior to the incident, Nirmala was living in her parental home. The house of Nirmala was about 10-15 bighas away from the house of Neelam Sanjeev Reddy in between there must be around 100 houses. He has further stated that he had mentioned in the report that Nirmala had illicit relationship with Neelam Sanjeev Reddy but if the same is not written, it might have been because of hurry, it got omitted from being mentioned.
10. From the above statement of this witness, we find that he is not an eye witness of this occurrence and the motive which he suggested is that the wife of deceased was having illicit relationship with accused Neelam Sanjeev Reddy, also appears to be not wholly supported because when he had knowledge of this fact, why the same was not mentioned by him in the written report.
11. PW2, Shama who is the mother of the deceased has stated that her husband was working in Railways and she had three sons. The deceased Ajai Kumar used to sell vegetables and fruits etc. The name of his wife is Nirmala, who used to go to the house of Neelam Sanjeev Reddy @ Neelu as she had illicit relationship with him, for which the deceased used to restrain her but she would not listen and this used to result in quarrel between them and for the last two days, Nirmala had left her matrimonial home. His son Ajai has been killed by Nirmala and Neelam Sanjeev Reddy in collusion with each other and also in association with some other accused outside the village by getting him shot dead. When her son was fired upon, her grandson (Nati) Akash was accompanying him and Akash told her that Kasai had killed his father near Bramha Baba. Her statement was recorded by the police.
12. In cross-examination she has stated that Ajai had not beaten his wife because she went to her parental home rather she had gone there of her own free- will. There was no dispute between Ajai and his wife. She had stated before the Investigating Officer that Kasai had killed her son near Bramha Baba. She was not present at the place where Ajai was killed.
13. From the above statement it is apparent that she is not an eye witness of the occurrence and as per her statement, the son of the deceased i.e. Akash was accompanying the deceased, therefore, the testimony of Akash is material one on the basis of which the Court would be in a position to form its opinion. The testimony of this witness PW2 with respect to dispute between the deceased and his wife also got diluted on account of her statement in cross-examination that there was no dispute between Ajai and his wife and that she had heard about illicit relationship between Nirmala and Neelam Sanjeev Reddy @ Neelu.
14. PW3, Akash, who is son of the deceased, and is stated to be accompanying the deceased at the time when he is said to have been assaulted, has stated that his father was living in Katni with his grandfather. About one and half years ago, his father had come from Katni and started living with his family and thereafter he had gone Mumbai and during this period, he was living with his mother. Expenses were sent by his father as his mother looked after the work of agriculture as he has 12 biswas of land. In his village Neelm Sanjeev Reddy @ Neelu has a shop where he sells rice and wheat etc., from whose shop mother used to purchase items. After coming from Mumbai, there was some altercation between his father and his mother because his father used to restrain her from going to the shop of Neelam Sanjeev Reddy but subsequently he has stated that no quarrel had taken place. His father restrained his mother from going there. On the date of occurrence he was accompanying his father. The incident had happened on 18.6.2014 at about 9.30 p.m. when his father after sale of vegetables and fruits had reached near bridge of Bramha Baba, which is situated on Baneres road; there were two assailants on motorcycle who had fired upon him. The assailants were not already standing there and had reached there only after they had reached but he could not recognize them. One of them used to come to the shop of Neelam Sanjeev Reddy, he does not know. He also could not see whether the person who was sitting behind had made fire or person who was driving the motorcycle but the bullet had hit the head of his father and soon after assailants had fled from there. He does not know that one of the assailants who had fired upon his father, had come at the shop of Neelam Sanjeev Reddy 15 days prior to the incident and he also cannot tell who were involved in this occurrence. If the accused who had assaulted his father comes before him, he would not able to recognize him. This witness was declared hostile.
15. From the statement of this witness who is star witness of the prosecution, the prosecution case does not find support because he has turned hostile and the motive of causing this occurrence, which was attributed to the accused Nirmala, wife of the deceased and to co-accused Neelam Sanjeev Reddy, who were stated to be having illicit relationship with each other also does not stand proved by the statement of this witness.
16. PW4, Raj Nath Dubey is a formal witness who simply registered the FIR and made entry in G.D. of the case.
17. PW5, Bhola Nath is Investigating Officer of this case who had partially investigated this case and hence, he is also formal witness.
18. PW6, Jitendra Singh is also Investigating Officer of this case, who has collected some documentary evidence such as call details of the mobile phone to establish the talks which were held between co-accused and it was sought to be proved by these call details with the accused in collusion with each other had given effect to this incident. This witness has also collected mobile set and sim card from co-accused Munna and one mobile each from Mehtab and Neelam Sanjeev Reddy. The learned trial court has recorded in the judgment that this witness cannot give details as to what was talked about between these persons and moreover the employee of the said company from where call details were obtained, has also not been examined nor the identification of the accused has been got done by this witness because this witness had stated that he did not consider it important.
19. We find it absolutely astonishing that this witness did not consider it important to get the assailants identified on the basis of sufficiency of evidence.
20. We have already noticed above that the star witness who was accompanying the deceased, has already turned hostile, hence in such situation, it was very important that identification of the accused ought to have been got done by this witness.
21. PW7 Dr. Anil Kumar has conducted post-mortem of the deceased on 19.6.2014 at 6.10 p.m. and has found the following ante-mortem injuries and has proved his report, which is Exhibit Ka-15.
i) Fire arm entrance wound 2cm in dia-meter x brain deep on right side of head in temporal region 3 cm above right ear and 11 cm outer to mid line. On opening scalp there is fracture of right temporal and parietal bone and entrance hole and lacerating brain, bullet recovered in left side of brain.
Note:- One metallic bullet recovered from brain, sealed and sent to SSP Varanasi along with sample seal.
ii) Lacerated wound .5 cm x .5 cm on back of left fore arm 7 cm below to the left elbow joint.
22. In cross-examination this witness has stated that there were two injuries on the body of the deceased out of which one could have been caused by fire arm while the other could have been caused by falling on the ground. He could not tell exact time when the same was caused but he after having seen the condition of body, stated that it would have been one day old.
23. It is apparent from the above statement of this witness that the deceased died due to bullet injury but who was the actual assailant, has not been disclosed by any of the witnesses who have been examined by the prosecution.
24. PW8 Rakesh Kumar is the witness who has filled up the Panchayatnama Exhibit Ka-16. He is also formal witness.
25. PW9 Vinod Kumar is also one of the Investigating Officers who has submitted charge-sheet Exhibit Ka-17, therefore, he is also formal witness.
26. The accused has stated that they have been falsely implicated due to enmity. Accused Munna had stated that earlier an Election of Pradhan had taken place in the village, because of which there was Party Bandi and the opposite parties were visiting police station, Chauri often, therefore in collusion with the police of the said police station, he has been falsely implicated. The accused Nirmala has stated that prior to the incident, her father-in-law Kali Charan who had retired from Railways had died and his pension was being taken by her Jeth Raj Kumar and her mother-in-law and was not given to her although she used to ask for pension to be given to her from Ram Kumar Rajbhar but he never gave it because of which Ram Kumar Rajbhar was annoyed and subsequently she has been falsely implicated. The accused Mehtab has stated that he had no connection with the occurrence nor does have any relation with any accused. Accused Neelam Sanjeev Reddy has stated that Ram Kumar Rajbhar had got implicated him because there was some money due for the items which Ram Kumar Rajbhar used to purchase and because of the same, he has been falsely implicated.
27. The trial court after having gone through the above evidence and argument made before it has held that it is true from the evidence on record that Exhibit-13 has not been got proved by prosecution, which is call details as the persons from whom the same has been obtained (Computer Operator) has not been examined nor there is any certificate issued with respect to the said call details being genuine. The said argument was rebutted from the prosecution side saying that as per provision of 65 of the Indian Evidence Act, there was no necessity for certificate to be issued for making electronic evidence admissible in evidence but the trial court has held that Exhibit Ka-13 proves that the talks were held among accused prior to the occurrence and even after occurrence and that the said document is admissible in evidence as per the provision under section 65 of the Indian Evidence Act.
28. Further it is recorded in the judgment that it was argued that motive was not proved because the same was not mentioned in the FIR that Neelam Sanjeev Reddy and Nirmala had any illicit relationship but it was rebutted by the prosecution side saying that by filing call details, it was established by prosecution that accused Neelam Sanjeev Reddy and wife of the deceased Nirmala had illicit relationship. The trial court has discussed the evidence and it is mentioned that in the statement under section 161 Cr.P.C. given by the informant only it was stated that there was some kind of displeasure but it has come on record that about the said illicit relationship, villagers had told him but those villagers were not examined, hence the said evidence would not be sufficient to prove the illicit relationship between above two because the basis of the same is hearsay evidence. Moreover, it is also recorded what kind of talk was held between them, has also not come on record, therefore, beyond reasonable doubt the prosecution has failed to establish the motive to commit offence. We do not have opinion different from the opinion expressed by the trial court in this regard and are fully in agreement with the inference drawn by the trial court. The discussion made in the impugned judgment with respect to FIR not being ante-time is also absolutely in accordance with law and we are of the view that there is no infirmity with regard to this aspect of the case also.
29. In the impugned judgment, it is recorded that the case rests on the circumstantial evidence and that only because on the date of incident, soon before the incident the accused had talked to each other, would not be conclusive evidence against the accused having given effect to this incident. It is also recorded that the weapon, which is alleged to have been used and motorcycle by which the assailants were travelling, have also not been procured by the prosecution during the investigation, which could be clinching evidence. If it had come on record the weapon, which was used had finger print of the accused thereon or that the bullet which was found buried in body of the deceased would match with the said fire arm it could link the accused to commission of offence but nothing of the sort has come on record.
30. The trial court has also recorded with respect to Bablu that he had fled from his house and could be arrested in Allahabad much later, and therefore, his conduct was such which indicates that he was involved. It was not held by the trial court to be the sufficient reason to hold this accused guilty because such conduct could not be sufficient to hold him liable for the said offence.
31. We have already discussed above that the star witness PW3 who is son of the deceased, who was stated to be accompaning the deceased at the time of occurrence, has not supported the prosecution case as he turned completely hostile, coupled with the fact that neither motive is fully proved nor weapon of assault has been recovered by the Investigating agency, these facts have left gaping holes in the prosecution case and, therefore, we believe that the trial court has rightly concluded that this case being a case of circumstantial evidence, all the links have not been fully proved to form complete chain of the facts from which it could be concluded that it was only the accused-appellant, who could have killed the deceased and none else. Because of this, we are of the opinion that the trial court’s conclusion is correctly drawn and there is no infirmity in the judgment.
32. We rely on law laid-down in Arulvelu and another vs. State, (2009) 10 SCC 206, in which it is clearly held that appellate court should be very slow in setting aside the judgment of acquittal where two views are possible. The Trial Court's judgment cannot be set aside because appellate court's view is more probable. It should not set aside trial court's judgment unless it is either perverse or wholly unsustainable in law.
33. In our opinion, the view taken by the learned Sessions Judge is based upon proper appreciation of evidence on record. The findings recorded by the Trial Judge do not require any interference. There is no illegality or perversity in the impugned order.
34. Accordingly, leave to appeal is refused and the application is rejected.
35. Since leave to appeal has been refused, the appeal is also dismissed.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.) Order Date :- 22.2.2019 AU