High Court
Case Details
1 Court No. - 43 Case - GOVERNMENT APPEAL No. - 361 of 2021 Appellant - State of U.P. Respondent – Omendra @ Homendra and 5 others Counsel for Appellant - G.A. Hon'ble Vivek Kumar Birla J. Hon'ble Subhash Vidyarthi J. Order on The Application Seeking Leave to File Appeal Heard the learned A.G.A. on the application under Section 378 (3) of the Code of Criminal Procedure seeking leave to file appeal against the judgment and order dated 25-03-2021 passed by the III Additional Sessions Judge / Special Judge, Dacoity Affected Area, District Azamgarh in S.S.T. Nos. 99 of 2007, 154 of 2007, 93 of 2007, 115 of 2007 and 107 of 2007 (State Vs. Omendra @ Homendra and Others), acquitting the accused-respondents of all the charges unde Prosecution case, briefly stated, is that the informant Karan Pal Singh gave a report (Ext. A-1) on 25-06-2007 at 21:30 p.m. stating that the informant and his brother Ramesh were coming after closing their shop at 8:00 p.m. and they were talking about the marriage of the informant’s niece, which was scheduled to be solemnised on 27-06-2007. The informant’s brother stopped on the way in Mohalla Jamani for some chore related to the marriage. The informant had walked about 50 steps forward when he heard gunshots and upon looking back, he saw that four-five unknown assailants were running towards Islam Nagar
Facts
Chauraha while firing shots in air. The informant ran towards the spot and found his brother lying dead in a pool of blood and the miscreants had snatched away the bag containing the cash and jewellery collected for wedding from his hand. After investigation the police submitted the following charge-sheets: - Accused Charge-sheet (1) Omendra @ Homendra Case Crime No. 261 of 2007 2 (2) Vijay Pal U/Ss 302, 394 I.P.C., P.S. Islamnagar, District Budaun. Case Crime No. 261 of 2007 U/Ss 302, 394 I.P.C., P.S. Islamnagar, District Budaun. (3) Omendra @ Homendra Case Crime No. 266 of 2007 U/Ss 307 I.P.C., P.S. Islamnagar, District Budaun. (4) Omendra @ Homendra Case Crime No. 267 of 2007 U/S 25 Arms Act., P.S. Islamnagar, District Budaun. (5) Kamaruddin Case Crime No. 271 of 2007 U/Ss 25 Arms Act, Islamnagar, District Budaun. As all the charge-sheets arose out of the same incident, all the trials were decided by a common judgment dated 25-03-2021, against which the appellant-State is seeking leave to file an appeal. After examination of the entire evidence on the record, the learned Court below held that the F.I.R. of the incident was lodged against unknown persons whereas the informant (PW-1) claims himself to be an eyewitness of the incident. Although the informant knew the accused- respondent no.1 Omendra and the accused-respondent no. 6 Vijay Pal since before, he lodged the F.I.R. against unknown persons. He has stated that he made a mention of robbery of Jewellery etc. in pursuance 3 of a consultation. No recovery of any goods has been made from the accused persons. PW-1 has stated that there were four-five miscreants whereas during investigation the shopkeepers of the neighbourhood have stated that two miscreants had given effect to the incident. Two broken spectacles were found at the spot, but no effort was made by the prosecution to establish as to whom did the second spectacles belong. No shopkeeper of the five shops shown in the site-plan has been examined. Initially during investigation the informant said that he had no suspicion against any person. However, he mentioned the names of the accused persons after the police made the revelation. On the basis of the aforesaid findings the learned Court below passed the judgment and order dated 25-03-2021 acquitting the respondents of all the charges. The appellant-State has challenged the aforesaid order of acquittal on the ground that the prosecution has fully proved its case beyond reasonable doubt but the learned Trial Court has not weighed and assessed the prosecution case in its proper perspective and has erroneously acquitted the accused-respondents. We have gone through the statements of witnesses and record of the Court below to examine as to whether there is any ground to grant leave to the State to file an appeal against the aforesaid judgment and order. In Jayamma v. State of Karnataka, (2021) 6 SCC 213, the Hon’ble Supreme Court has reiterated the manner in which the High Court should exercise its power of scrutiny in an appeal filed against an order of acquittal, in the following words: - “the power of scrutiny exercisable by the High Court under Section 378 Cr.P.C. should not be routinely invoked where the view formed by the trial court was a “possible view”. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also 4 possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to reappreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact.” We proceed to examine the record of the case to ascertain as to whether the view taken by the Court below in the judgment and order under challenge is a possible view or whether the findings of the Court below are perverse and warrant interference by this Court. The prosecution story starts after the alleged revelation made by the police in furtherance of an alleged confession made by the accused persons and in continuance thereof, the entire matter has been revealed. However, Section 26 of the Indian Evidence Act prohibits the use of any confession made by any person whilst in custody of a police officer. As per the Investigating Officer, Dipti and Ritu are the same person whereas in fact Dipti and Ritu were two daughters of the deceased. In the alleged confessional statements made by the accused-respondent no.1 Omendra in police custody, he had mentioned a love-affair with Ritu whereas the entire matter had been shown to be revolving around Dipti, whose marriage was settled about six months before the incident and the marriage was solemnised on the scheduled date which was merely two days after the incident. After the revelation made by the police, the wife of the deceased had stated that she suspected that the accused-respondent no.1 Omendra and accused-respondent no. 6 Vijay Pal had killed here husband and she alleged that they had threatened her against the marriage but she has not mentioned any date of the alleged threatening. However, she has not given any explanation as to why did she not make any complaint of the alleged threats. The informant PW-1 has stated that he had seen the accused persons running away and he had seen their back. In such a situation he could not have identified the accused persons. PW-1 (the informant), who is the younger brother of the deceased, stated that the accused-respondent no.6 Vijay Pal lives in the neighbourhood of 5 the deceased. Vijay Pal is the brother-in-law of Omendra (respondent no.1) and he used to study while residing in the house of Vijay Pal. He wanted to marry Ritu @ Dipti, daughter of the deceased Ramesh. The deceased was against it and he had settled the marriage of his daughter with another person. The accused persons killed the informant’s brother to stop his daughter’s wedding. However, in his cross-examination he stated that after about a month or two, when the case was investigated by the police, he came to know that Omendra was in love with Dipti. This fact was revealed by the police.
Legal Reasoning
below, we are of the view that the findings of the Court below forming basis of its judgment are based on a correct evaluation of the evidence available on the record of the case and the same are not at all perverse. The judgment and order dated 25-03-2021 passed by the III Additional Sessions Judge/Special Judge, Dacoity Affected Area, District Azamgarh in S.S.T. Nos. 99 of 2007, 154 of 2007, 93 of 2007, 115 of 2007 and 107 of 2007 (State Vs. Omendra @ Homendra and Others) does not suffer from any illegality or infirmity so as to warrant a further scrutiny by this Court in exercise of its appellate jurisdiction. There is no good ground for grant of leave to appeal to the State- appellants. The application seeking leave to file an appeal is, accordingly rejected. Order on Appeal Since the application seeking leave to file an appeal is rejected, the appeal also stands dismissed summarily at the admission stage. Dt/04-03-2022 pks/ Digitally signed by PANKAJ KUMAR SRIVASTAVA Date: 2022.03.10 10:08:18 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
PW-2 Smt. Shashi Kala, wife of the deceased, also stated that the accused-respondent no.1 Omendra had a one-sided love-affair with her daughter. Omendra had sent his father with a proposal of his marriage. The deceased had declined the proposal saying that his daughter was M.A., B.Ed and was elder than the respondent no.1, who was younger and was studying in Intermediate. Two-three days before the incident, the respondent nos.1 and 6 had come to the house of PW-2 and had threatened that in case Dipti was married elsewhere, the consequence will not be good. PW-3 stated that he saw the incident from a distance of 100 steps. He has also stated that has made the statement as per the advice of his mother. A pistol is alleged to have been recovered from the accused-respondent no.1, but there are neither any independent witnesses nor has any ballistic report been placed on record. No injury was suffered by anyone during the alleged encounter of the accused-respondents with the police which makes the story of the alleged recovery baseless. The Investigating Officer has himself accepted that the pistol recovered from Omendra is not related to the incident of murder. After highlighting these discrepancies, the learned Court below recorded a finding that the story developed after the police revelation of the case, which was initially registered against unknown miscreants, has been tried to be taken forward by adding colours to it by the witnesses four years after the incident. There are material irregularities in the statements of PW-1, PW-2, PW-3 and PW-4, due to which the prosecution has failed to establish the guilt of the accused-respondents beyond reasonable 6 doubt. Examining the impugned judgment and order passed by the learned court