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2020 DIGILAW 266 (ALL)

State of U. P. v. Abid

2020-01-23

ARVIND KUMAR MISHRA I, GAUTAM CHOWDHARY

body2020
JUDGMENT : 1. Report of the CJM-Muzaffarnagar dated 18.04.2019 reflects that the accused-respondent no. 1-Abid has expired 10-12 years ago. 2. In view of the report of CJM-Muzaffarnagar dated 18.04.2019, this appeal stands abated qua accused-respondent no. 1-Abid and is dismissed. 3. Now, this appeal qua the surviving respondent no. 1-Amir is for adjudication. 4. Case called out in the revised list. No one is present on behalf of the respondents to press this appeal. 5. Heard Sri Krishna Pahal, learned A.A.G. assisted by Sri Nafis Ahmad, Sri Bhanu Prakash Singh, Sanjay Kumar Rajbhar, Ajay Kumr Singh, Jitendra Kumar and Mahesh Kumar Dwivedi, learned A.G.A. for the State, perused the impugned judgment of acquittal and record of the appeal. 6. The instant Government Appeal has been preferred by the State against judgment and order of acquittal dated 28.03.2001 passed by Additional Sessions Judge, court no. 8 Muzaffarnagar in Sessions Trial No. 475 of 1996, under Sections 364, 302 read with 34, 201 I.P.C. police station-Bhopa, district-Muzaffarnagar. 7. Relevant facts as discernible from the record giving rise to this appeal appear to be thatcomplainant Patora S/o Kutubuddin gave a written report in police station-Bhopa on 4.1.1996 with the allegations that both the accused were usually coming to his house who belonged to same village and they came to his house at 4.30 p.m. and called Najjay and took him with them and since then whereabouts of Najjay is not known and there is suspicion that he will be killed by the accused-respondents. The report be lodged and action be taken. 8. On this written report, Exhibit Ka-1, a first information report was lodged at police station-Bhopa on 04.01.1996, under section 364 I.P.C. at case crime no. 1/96. The entry in the General Diary was prepared as G.D. No. 21 on 4.1.1996 at 6.15 hours in the aforesaid sections of Indian Penal Code against the accused-respondents. 9. The investigation was carried out by Investigating Officer-Sri P.K. Jetha, who arrested the accused-respondents and on their pointing out, the dead body of Najjay was recovered on 12.1.1996, thereafter case was converted under Section 302, 201 IPC. The investigation has been completed and after the investigation accused was charge-sheeted. 10. 9. The investigation was carried out by Investigating Officer-Sri P.K. Jetha, who arrested the accused-respondents and on their pointing out, the dead body of Najjay was recovered on 12.1.1996, thereafter case was converted under Section 302, 201 IPC. The investigation has been completed and after the investigation accused was charge-sheeted. 10. Thereafter during course of hearing on the point of charge, the court concerned found the case covered under Section 364, 302 read with Section 34 and 201 IPC against accused, therefore, committed the case to the Sessions Court, whereupon, accused were heard on the point of charge and charges under the aforesaid sections were framed against aforesaid accused persons, who denied charges and opted for trial. 11. In order to prove its case, prosecution produced PW-1 Patora, PW-2 Liyaqat, PW-3 Jodh Singh, PW-4 Dr. A.S. Rathore, PW-5 P.K. Jetha and PW-6 H.C. Surendra Pal. All the aforesaid prosecution witnesses are witnesses of fact/formal witnesses and the eye-witnesses. Thereafter, evidence for the prosecution was closed and the statement of accused persons were recorded under Section 313 Cr.P.C. wherein, it was submitted that they have been falsely implicated in this case on account of partibandi. 12. The defence did not lead any evidence, whatsoever and after considering the merit of the case, charges were found not proved beyond reasonable doubt. Resultantly, the trial court returned finding of acquittal against the accused. 13. Consequently, this Government Appeal. 14. The contention of learned A.A.G. for the State-appellant is specific to the ambit that in this case, infact, the charge was framed under Sections 364, 302, 201 IPC in Case Crime No. 1/1996, Police Station-Bhopa, District-Muzaffarnagar and accused was tried by the court, wherein, the trial court after vetting the entire testimony and the circumstances of this case, found the case not proved against the respondent-accused, consequently, acquitted him of the charges under Sections 364, 302 read with 34 and Section 201 IPC. 15. Learned A.A.G. assails the aforesaid judgment and order of acquittal dated 28.3.2001 on ground that the findings drawn by the trial Judge are not sustainable in view of fact that there is categorical allegation and the allegation has been proved by the testimony of the prosecution witnesses of fact. 15. Learned A.A.G. assails the aforesaid judgment and order of acquittal dated 28.3.2001 on ground that the findings drawn by the trial Judge are not sustainable in view of fact that there is categorical allegation and the allegation has been proved by the testimony of the prosecution witnesses of fact. The investigation was properly conducted and charge-sheet was filed and that testimony cannot be overlooked merely on casual remark that there was no motivating force existing against the deceased and working for the accused to commit the crime in question. It is not necessary that the dead body should normally be recovered and it must be identified and then alone the case would fall under Section 302 IPC even in the absence of corpus, the matter can be considered and adjudicated upon provided evidence is forthcoming in that regard. 16. In support of his claim, learned A.A.G. has placed reliance on (2000) 8 SCC 382 , State of West Bengal vs. Mir Mohammad Omar and Others, wherein under the prevailing facts and circumstances of this case where abduction for murder took place then in the absence of proper identification the fact of murder had not come to light and only this much was heard that he will eliminated the deceased. A presumption was raised regarding death of the victim. Learned A.A.G. submitted that in this case, the testimony establishes the last scene theory and proper identification of the dead body/corpus is very much there, still the trial court held otherwise that the dead body was not identifiable and there was no motive as such for committing the offence, though some panchayat had taken place. 17. We have considered relevant aspect of the case and taken note of fact that the incident in question was reported at the police station-Bhopa on 4.1.1996 that the accused took away with him the son of the informant-around 4.30 P.M. and the whereabouts of the informants son is not known/untraceable. The matter was taken down at Case Crime No. 1/96, under Section 364 IPC, Police Station-Bhopa and relevant entries were made in the concerned General Diary and the case was registered under aforesaid sections of Indian Penal Code, vide Rapate No. 14 on 4.1.1996. The matter was investigated by the Investigating Officer Sri P.K. Jetha. The matter was taken down at Case Crime No. 1/96, under Section 364 IPC, Police Station-Bhopa and relevant entries were made in the concerned General Diary and the case was registered under aforesaid sections of Indian Penal Code, vide Rapate No. 14 on 4.1.1996. The matter was investigated by the Investigating Officer Sri P.K. Jetha. On 12.1.1996, the accused was apprehended by the Investigating Officer upon whose pointing out the dead body was allegedly recovered thereafter proper action was taken and after completing the investigation, charge-sheet was filed in the case. Consequently, the trial court charged the accused under Section 364, 302/34 IPC apart from framing charge under Section 201 IPC. The prosecution produced its witnesses and after completion of the prosecution evidence, the evidence was closed and statement of the accused recorded under Section 313 Cr.P.C. No defence whatsoever was led. The trial court while considering the entirety of the case, recorded specific finding on point of non-identifiable of the corpus recovered. Apart from that the motivating force behind committing the offence was found non-existing. In view of above, the circumstances explained and it was found that the chain of circumstances were not complete, therefore, passed the acquittal order in favour of the accused. 18. We have also perused the entire judgment impugned and also considered the submission so raised also perused the carefully citation of the Hon'ble Apex Court. 19. In our considered opinion obviously, it cannot be said with certainty that the motive behind committing the offence was established for the reason that it being the circumstantial evidence case, the motive for committing the offence forms central theme and unless and until the motive is proved specifically, the prosecution shall not be able to bring home the charge framed against the accused. This being the present position when the case becomes weak on the central point of motive, then the other considerations fall on the periphery of the case and that don't substantially go in favour of the prosecution. The point under consideration is very much based on fact whether on the analogy made by the trial Judge, the conclusion drawn was altogether impossible or perverse on the face or was based on material on record. We upon careful perusal find that the conclusion drawn is supported by the material on record, as such no interference is required. The point under consideration is very much based on fact whether on the analogy made by the trial Judge, the conclusion drawn was altogether impossible or perverse on the face or was based on material on record. We upon careful perusal find that the conclusion drawn is supported by the material on record, as such no interference is required. May be that another alternate view is also emanating from the same material but the view and the alternative, which favours the accused, is to be preferred by the Appellate Court. 20. Consequently, this Government Appeal lacks merit an the same is liable to be dismissed. We hereby affirmed judgment and order of acquittal dated 28.03.2001 passed by Additional Sessions Judge, court no. 8 Muzaffarnagar in Sessions Trial No. 475 of 1996, under Sections 364, 302 read with 34, 201 I.P.C., police station-Bhopa, district- Muzaffarnagar. 21. The leave to appeal is hereby refused.