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2018 DIGILAW 878 (ALL)

State of U. P. v. Riya Julla @ Munna

2018-04-11

ANIL KUMAR, DAYA SHANKAR TRIPATHI

body2018
JUDGMENT & ORDER : 1. Heard learned AGA on behalf of State and perused the record. 2. By means of the present application under Section 378(3) Cr.P.C., State has sought leave to challenge the judgment and order dated 22.11.2005 passed by Additional Sessions Judge, Court No. 3, Lakhimpur Kheri in Sessions Trial No. 1327 of 2003 (State Vs. Riya Julla @ Munna and another) arising out of Case Crime No. 272 of 2003, under Sections 302/34, 201 IPC, P.S. Hyderabad, District Kheri, by which the respondents-accused have been acquitted. 3. Facts of this case, in brief, are that one Sushil Kumar Maheshwari, resident of Nagra, Salempur P.S. Hyderabad, submitted a written Tahrir dated 01.08.2003 (Ext. Ka-1) before the police station concerned, stating therein that a dead body of unknown person aged about 30 to 35 years is lying in the field of Moharram Ali situated in village Phoolpur, Majra Nagra, Salempur, which is in a decomposed position and foul smell is coming out from it. 4. On the basis of aforesaid written report (Ext. Ka-4), entry was made in the general diary of the police station on RAPAT no. 21 at 12:30 p.m. Sub Inspector J.K. Singh inspected the place of occurrence and dead body of the deceased was taken into possession and its inquest report along with other papers were prepared and the same was transmitted for conducting postmortem and clothes received from the dead body of deceased, were put into a POTLI and map of the spot (Ext. Ka-9) was prepared. 5. On 03.08.2003, Shafiquddin son of Babu, resident of Kukra, P.S. Mailani submitted a written information in the police station concerned that his brother Munna had gone from Kukra to Gola in connection to some work, but he did not turn up till the evening. He had searched his brother, but in vain. He has come to know that dead body of an unknown person has been recovered, which may be shown to him for identification. 6. On 06.08.2003, Shahnaz wife of deceased submitted a written Tahrir (Ext. Ka-2) in the police station concerned that her husband had gone from the house on 29.07.2003, saying that he is going to bring money from someone at Gola and thereafter he did not turn up. She has come to know that dead body of an unknown person has been recovered, which could not be identified by his Devar Shafiquddin. Ka-2) in the police station concerned that her husband had gone from the house on 29.07.2003, saying that he is going to bring money from someone at Gola and thereafter he did not turn up. She has come to know that dead body of an unknown person has been recovered, which could not be identified by his Devar Shafiquddin. Clothes of the deceased may be shown to her for identification. 7. On 08.08.2003, Babu (father of the deceased) submitted a written information (Ext. Ka-1) in the police station concerned, stating therein that accused Munna @ Riya Julla had taken loan of Rs. 10,000/- from his son Munna, which was not returned, due to which heated exchange took place several times between the deceased and the accused Munna @ Riya Julla. Accused Munna @ Riya Julla came to his house on 28.07.2003 and stated to return Rs. 10,000/- to him from Tinku Verma, resident of Gola and accused Munna @ Riya Julla and Chhotanna took away his son on 29.07.2003 at about 8:00 a.m. for the said purpose. When he did not turn up till the evening, he visited the house of both the accused persons and asked about his son, then they told that the deceased may be in Gola and again he visited the house of accused persons on the next day, when his son was not traced, but the accused persons were not present at their house. He visited the police station Hyderabad and he came to know that a dead body of unknown person was recovered and its postmortem has been conducted and clothes recovered from the dead body of the deceased are lying in police station and he had identified those clothes which were worn by the deceased when he had gone with the accused persons on 29.07.2003. His son has been murdered by the accused persons. 8. Statement of witnesses were recorded by the I.O. during the course of investigation and accused persons were arrested on 09.08.2003 and arm (BANKA) used in commission of crime was recovered at the pointing out of accused persons and its recovery memo (Ext. Ka-3) was prepared and map of the place of recovery (Ext. Ka-10) was prepared. After completing the investigation, charge-sheet (Ext. Ka-11) under Sections 302/201 IPC was submitted by the I.O. against the accused persons. 9. Ka-3) was prepared and map of the place of recovery (Ext. Ka-10) was prepared. After completing the investigation, charge-sheet (Ext. Ka-11) under Sections 302/201 IPC was submitted by the I.O. against the accused persons. 9. Charges under Sections 302/34, 201 IPC were framed by the trial court against respondents-accused persons. Accused persons denied the charges levelled against them and claimed for trial. 10. Pw-1 Babu (father of the deceased), PW-2 Smt. Shahnaz (wife of the deceased), PW-3 Qayamuddin, PW-4 Sushil Kumar Maheshwari (informant), PW-5 Sadik Hussain, PW-6 H.C. Udal Singh, PW-7 Dr. S.P. Verma, PW-8 S.I. Siyaram Tiwari and PW-9 Jitendra Kumar Singh have been examined on behalf of prosecution, before the trial court. 11. Statement of accused persons under Section 313 Cr.P.C. was recorded by the trial court. Accused persons stated that the prosecution evidence is false and they have been falsely implicated in the case. No defence witness was produced on behalf of accused persons in their defence. 12. After hearing learned counsel for both the parties, impugned judgment of acquittal and order dated 22.11.2005 has been passed by learned trial court, which is under challenge. 13. We have heard the arguments advanced by learned AGA and perused the material placed on record. 14. Learned AGA submitted that the prosecution had led evidence to this effect that the respondents-accused had taken away the deceased from his house on the pretext to return the amount of loan. There is last seen evidence of PW-5. There is motive behind the commission of crime. Arm used in commission of crime has been recovered on pointing out of respondents-accused. Dead body of deceased had been identified on the basis of clothes recovered from the dead body of deceased. It has been lastly submitted that chain of circumstantial evidence is complete and guilt of respondents-accused is proved on the basis of evidence adduced by the prosecution and impugned judgment and order of acquittal passed by learned trial court is illegal and perverse, which is liable to be set aside. Hence, leave to appeal may be granted. 15. It is borne out from the record that the deceased was missing from 29.07.2003, but no prompt missing report was lodged by any family members of the deceased. Hence, leave to appeal may be granted. 15. It is borne out from the record that the deceased was missing from 29.07.2003, but no prompt missing report was lodged by any family members of the deceased. After delay of five days, a written report dated 03.08.2003 was submitted by the brother of the deceased before the police station concerned, in which it was mentioned that the deceased had gone from house on 29.07.2003 saying that he is going to Gola in connection of some work and did not turn up. It is noteworthy that this missing report was submitted after the dead body of deceased was recovered on 01.08.2003. It is also noteworthy that wife of the deceased submitted a written report on 06.08.2003 in the police station concerned, according to which the deceased had gone from house on 29.07.2003 saying that he is going to Gola for taking money from somone and did not turn up. Father of the deceased submitted a written report on 08.08.2003 stating that the respondents-accused had taken away his son from his house on 29.07.2003, saying that they will return loan of Rs. 10,000/- from Tinku Verma resident of Gola and thereafter his son did not turn up and when he went to the house of accused persons, they told that the deceased may be in Gola. It is a matter of utter surprise that when the aforesaid fact was within the knowledge of the father of the deceased on 29.07.2003 itself and name of accused persons were known to him, even then no prompt missing report was lodged and brother of the deceased submitted written report on 03.08.2003 and wife of the deceased submitted written report on 06.08.2003 before the police station but they do not name the accused persons in their reports. This fact is sufficient to indicate that prosecution version is doubtful. It is also noteworthy that motive behind the commission of crime is said to be dispute of loan of Rs. 10,000/- given by the deceased to respondents-accused, which was not being returned. But there is no iota of evidence on record to prove that the aforesaid amount of loan was given by the deceased to respondents-accused, in presence of any witness. 16. Pw-5 Sadik Hussain is said to be witness of last seen. 10,000/- given by the deceased to respondents-accused, which was not being returned. But there is no iota of evidence on record to prove that the aforesaid amount of loan was given by the deceased to respondents-accused, in presence of any witness. 16. Pw-5 Sadik Hussain is said to be witness of last seen. It is alleged that this witness had lastly seen the deceased in the company of accused persons before commission of crime. Learned trial court has recorded findings on this point that this witness is a chance witness and material contradictions have appeared in the testimony of this witness, due to which he is not reliable. As far as recovery of arm used in commission of crime is concerned, alleged arm is said to have been recovered on the joint pointing out of respondents-accused persons and joint disclosure statement. Learned trial court has recorded finding on this point that no separate disclosure statement of accused persons has been recorded by the Investigating Officer and material contradictions have appeared in the statement of I.O. (PW-8) and independent witness of alleged recovery PW-3, due to which alleged recovery is doubtful. 17. Identification of deceased is said to have been made on the basis of clothes, which were recovered from the dead body. According to prosecution case, clothes recovered from the dead body of the deceased were kept in a POTLI, while PW-2 (wife of the deceased) has deposed that when he reached at police station, clothes of her husband were kept outside for getting dry. Accordingly, serious contradiction has appeared in prosecution evidence on this point also and prosecution version appears to be doubtful. 18. Hon'ble Supreme Court in State of Rajasthan v. Firoz Khan @ Arif Khan, (2016) 1 SCCriR 815, after referring to an earlier judgment rendered by the apex court in State of Maharashtra v. Sujay Mangesh Poyarekar, (2008) 9 SCC 475 , has noted the parameters which are to be kept in mind by the High Court while deciding an application for grant of leave to appeal under Section 378 (3) Cr.P.C. The relevant paragraphs 19, 20, 21 and 24 are quoted herein below: "19. Now, Section 378 of the Code provides for filing of appeal by the State in case of acquittal. Sub-section (3) declares that no appeal shall be entertained except with the leave of the High Court. Now, Section 378 of the Code provides for filing of appeal by the State in case of acquittal. Sub-section (3) declares that no appeal shall be entertained except with the leave of the High Court. It is, therefore, necessary for the State where it is aggrieved by an order of acquittal recorded by a Court of Session to file an application for grant of leave to appeal as required by sub-section (3) of Section 378 of the Code. It is also true that an appeal can be registered and heard on merits by the High Court only after the High Court grants leave by allowing the application filed under sub-section (3) of Section 378 of the Code. 20. In our opinion, however, in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether a prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside. 21. It cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial court must be allowed by the appellate court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial court could not be said to be perverse and, hence, no leave should be granted. 24. We may hasten to clarify that we may not be understood to have laid down an inviolable rule that no leave should be refused by the appellate court against an order of acquittal recorded by the trial court. We only state that in such cases, the appellate court must consider the relevant material, sworn testimonies of prosecution witnesses and record reasons why leave sought by the State should not be granted and the order of acquittal recorded by the trial court should not be disturbed. Where there is application of mind by the appellate court and reasons (may be in brief) in support of such view are recorded, the order of the court may not be said to be illegal or objectionable. Where there is application of mind by the appellate court and reasons (may be in brief) in support of such view are recorded, the order of the court may not be said to be illegal or objectionable. At the same time, however, if arguable points have been raised, if the material on record discloses deeper scrutiny and reappreciation, review or reconsideration of evidence, the appellate court must grant leave as sought and decide the appeal on merits. In the case on hand, the High Court, with respect, did neither. In the opinion of the High Court, the case did not require grant of leave. But it also failed to record reasons for refusal of such leave." 19. In State of Gujarat v. Jayrajbhai Punjabhai Varu, (2016) 2 SCCriR 943, it has been held by Hon'ble Supreme Court that it is rule of justice in criminal law that if two views are possible, the view which is favourable to the accused should be adopted. Relevant portion of the report is reproduced below:- "13. The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted." 20. For all the reasons mentioned hereinabove and principles laid down by the Hon'ble Supreme Court in the aforesaid cases of State of Rajasthan and State of Gujarat, we are of the considered opinion that the view taken by learned trial court while acquitting the respondents-accused is based on proper appreciation of evidence and sound reasonings and the impugned judgment cannot be said to be illegal and perverse and there is no hope of success in this appeal. 21. Hence, prayer for grant of leave to appeal is hereby rejected.