State v. Bablu Patel
Case Details
Court No. - 42 Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 226 of 2019 Appellant :- Ram Kumar Prajapati Respondent :- State Of U.P. And 4 Ors. Counsel for Appellant :- Birendra Singh Khokher,Manoj Kumar Yadav Counsel for Respondent :- G.A. Hon'ble Vivek Kumar Birla,J. Hon'ble Shiv Shanker Prasad,J.
Legal Reasoning
11. In a recent judgement of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered. 12. Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471. 13. From perusal of record, we find that it is case of circumstantial evidence where First Information Report was lodged when dead body of Ram Avtar was found by informant at about 7:30 p.m. on a roadside. In the First Information Report, it was alleged that some unidentified persons have murdered his brother. The motorcycle of the deceased was also found standing near the dead body. The accused persons were arrested by the police on pointing out of the informer of the police. The country made pistol 315 bore along with two live cartridges and one mobile phone was also recovered from the possession of accused Ajay. Recovery memos of all were prepared. As per Investigating Officer, accused Babloo Pal confessed before the police that it is because of medicine business and he has got murdered by Santosh Pal and Survesh Pal. 14. We find that PW-1 Ram Kumar Prajapati is not an eye-witness. P.W.-2 Late Devi wife of deceased, who had stated that deceased was threatened by accused Babloo, however, no action was taken on such threat. She had stated that about 15 days back, her husband told that he was being threatened by the accused persons and although, admittedly, everyone was present at that point of time but no action was taken by anyone in this regard against the accused persons. We further find that regrading the persons, who have gone out in search of deceased, there is a material contradictions about the timing and manner in which they were informed or has seen the body and, therefore, their testimony was rightly not found to be worth belief in a case of circumstantial evidence. It is settled law that in case of circumstantial evidence, motive becomes important. However, in the present case, we find that insofar as motive is concerned, PW-1 had stated that his deceased brother about 10-15 days back had told him that Babloo had taken away keys of his shop but being questioned by the customers, he returned the same. It seems strange that neither anyone had made any complaint of the same nor anyone had told anything to anyone in the family or to any other relative. More so, when the deceased was retailer and the accused Ajay was wholesaler, there was distance of about 1 k.m. between their shops, in such view of the matter, unproved claim of business rivalry does not inspire confidence. That apart defence version has come that both had good relationship and the defence witness was not even cross-examined by the prosecution. Hence, motive is not provedly any cogent evidence. Apart from the other circumstances, insofar as recovery of bullet from the body of deceased is concerned, as per F.S.L. report, the same was not connected with the recovered country made pistol so recovered from the possession of Ajay. Insofar as recovery of weapon from accused persons is concerned, there was no independent witness and could not be connected with the crime. 15. We find that in the present case, chain of circumstantial case is not complete so as to point out that accused persons alone and no one else had committed the offence herein. At this stage, there is double presumption of innocence in favour of all the accused persons. We, therefore, do not find any good ground to interfere in the findings recorded by the Court below in the impugned judgment and order. 16. Accordingly, the present appeal stands dismissed at the stage of admission itself. Order Date :- 17.8.2022 Rishabh Digitally signed by RISHABH KUMAR Date: 2022.09.16 13:00:43 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
1. Heard Shri Shailendra Kumar Singh, Advocate holding brief of Shri Brijendra Singh Khoker, learned counsel for appellant and learned A.G.A. for State. 2. Present appeal has been preferred against the judgment and order of acquittal dated 28.8.2019 passed by learned Additional Session Judge, Court No.2, Fatehpur in Sessions Trial No.271 of 2013 (State vs. Bablu Patel @ Ajay Singh and others), arising out of Case Crime No.70 of 2013, under Sections 302/34, 120 IPC, S.T. No.272 of 2013 (State vs. Roshan Kori), arising out of Case Crime No.73 of 2013, under Section 25 Arms Act, Session Trial No.273 of 2013 (State vs. Santosh Patel) arising out of Case Crime No.77 of 2013, under Section 25 Arms Act and Sessions Trial No.274 of 2013 (State vs. Sarvesh Patel) arising out of Case Crime No.78 of 2013, under Section 25 Arms Act, P.S. - Hussainganj, District - Fatehpur whereby accused parties have been acquitted for the offence under Sections 302/34, 120B IPC and Section 25 Arms Act. 3. The prosecution story in brief is that younger brother of informant - Ram Autar Prajapati s/o Nanku has a private shop in the name of Hari Medical 1 Store in Pucca Talab Tehpur. His brother used to come from home every day and returned home by 7 pm. On 7.3.2013, when he did not return at 7 pm, the informant and his family members went out to search him. At about 7:30 p.m. near Hajipurgang road, the dead body of deceased was lying on the side of road next to farm of Sahiyapur, who was shot dead by some unknown persons. The motorcycle of deceased was found standing near dead body. 4. In support of prosecution case, PW-1 - Ram Kumar Prajapati, PW-2- Laalti Devi, P.W.3-Haridas, P.W.4- Gangadeen, P.W.-5- Brij Bhushan, P.W.-6- Dr. Suresh Kumar, P.W.-7-Mata Prasad, P.W.-8-S.S.I. Jitendra Pratap Singh, P.W.-9- Kameshwar Singh, P.W.10-Om Prakash Dwivedi and P.W.11-Brijendra Pratap Singh were produced and examined before the Court below. 5. The judgment of acquittal has been passed on the ground that it is a case of circumstantial evidence wherein dead body of Ram Avtar was found lying by the side of the road and the informant is his brother. The Court found that two eye-witnesses of last seen are not worth belief and that motive attributed to commit the offence that there was business rivalry between Bablu Patel @ Ajay and deceased - Ram Avtar is not correct in as much as accused - Ajay was wholesaler and deceased Ram Avtar was a retailer of medicines and as per the defence witness, they had good terms which could not be contradicted by any evidence and even the witness defence was not cross-examined on this issue. It was further found that as per the F.S.L. Report, recovery of country-made pistol and bullet from the dead body was not part from the weapon so recovered. Under such circumstances, it was found that there was no motive to commit such offence and weapon so recovered could not be connected with the alleged offence. The last seen Under such evidence was also not circumstances, the Court below found that the prosecution could not prove its case beyond doubt and the accused person was given benefit of doubt and judgment of acquittal was passed. proved. 6. Challenging the impugned judgment, learned counsel for appellant submits that there was no cogent evidence to convict the accused persons for contravention simply because of minor contradictions. The judgment of the acquittal has been incorrectly passed and is wholly perverse in nature and requires deeper scrutiny and liable to be set aside and reversed. 7. We have considered the submissions and perused the record. 8. Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal. 9. In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have reappreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities" 10. In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against an order of acquittal passed by a Trial Court.