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2022 DIGILAW 289 (UTT)

Kurban v. State of Uttarakhand

2022-09-06

ALOK KUMAR VERMA, S.K.MISHRA

body2022
JUDGMENT : S.K. Mishra, J. By filing these appeals, the appellants, who happens to be the complainant in the original case and the State of Uttarakhand has assailed the judgment of acquittal recorded by the learned IIIrd Additional Sessions Judge, Haridwar, on dated 31.01.2013 in Sessions Case No.145 of 2000, arising out of Case Crime No. 301 of 1999 for the offence under Sections 302, 201, 364 of the Indian Penal Code, 1860 (hereinafter referred to as “the Penal Code” for brevity). Two charge-sheets were submitted and, hence, two cases were initiated. Since the FIR was originally filed under Sections 302, 201, 364 of the Penal Code, the Investigating Officer later on submitted a charge-sheet also under Section 4/25 of the Arms Act, 1959 (hereinafter referred to as “the Arms Act”), for which a separate Sessions trial has been initiated, though, the entire trial has been taken analogously, and was disposed by a single judgment. 2. The case of the prosecution, in short, is that on 01.11.1999, both the respondents came to the house of the informant-Kurban, and took away the appellant on the pretext of visiting the garden. It is also stated that there are some disputes between the deceased and the two respondents. Therefore, when the deceased did not return, the complainant enquired about his whereabouts, but, could not find him. Then, on 14.11.1999, a Village Panchayat was called, where both the respondents- Naushad and Rizwan confessed their guilt and stated that they have committed murder by means of a knife, and buried his dead body in the burial ground. Thereafter, an FIR was lodged on 14.11.1999 itself. Both the respondents were arrested, and it is alleged that they led to recovery of a dead body, which was in a very high state of decomposition. But, it was identified by the complainant and his son when it was exhumed from the burial ground in the presence of a Magistrate. The body was recovered on the pointing out on the respondent-Rizwan, and a knife was recovered on the pointing out on the respondent- Naushad. Thereafter, the dead body was despatched for the post-mortem examination. Upon post-mortem examination the doctor could not give any definite opinion on the cause of death of the deceased, as the dead body was in a highly decomposed state. Thereafter, the dead body was despatched for the post-mortem examination. Upon post-mortem examination the doctor could not give any definite opinion on the cause of death of the deceased, as the dead body was in a highly decomposed state. However, he preserved the Viscera of the deceased and sent it for serological/chemical examination, whereupon, it was found that the visceras contains Organophosphorus insecticides. Thereafter, the Investigating Officer submitted a chargesheet against both the respondents for the offence under Sections 302, 201, 364 of the Penal Code read with Section 4/25 of the Arms Act. 3. The defence, in this case, took the plea of simple denial and false accusation. They also stated, in the statements under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code” for brevity), that the deceased was betrayed by his lover and, therefore, he consumed poison. The prosecution, in order to prove its case examined 12 witnesses and led into evidence several documents as Exhibits. 4. PW1-Kurban, is the complainant of the case. PW2-Smt. Munija, is a witness to the last seen. PW3- Mohammad Maksood and PW4-Jahid Hasan are the father and the brother-in-law of the deceased, who speaks about the recovery of the dead body etc., and also they were present in the panchayat. PW6-Mohd. Hanif and PW8- Fakhruddin are two co-villagers, who were present in the Panchayat, where the respondents allegedly made the extra judicial confession. Rest all other witnesses are formal and official witnesses. PW5-Dr. P.K. Bhatnagar has conducted the post-mortem examination of the dead body of the deceased. PW7- Pooranmal Sharma is the Magistrate, in whose presence the dead body was exhumed. PW9- S.I. Kripal Singh Rathi is the witness to the recovery of the dead body and that he prepared the inquest report. PW10- J.P. Juyal, is the Investigating Officer of the case. PW11- S.I. Anand Prakash and PW12- Dinesh Chandra Mishra are the two Police Officials, who scribed the FIR and General Diary, respectively. Out of 15 documents exhibited, Exhibit d& 14 (A-14 ) is the Forensic Examination Report. Exhibit d& 2, is the post-mortem report. No evidence, either oral or documentary, was led on the behalf of the defence. One material object, i.e. knife, was also led into evidence by the prosecution. 5. Out of 15 documents exhibited, Exhibit d& 14 (A-14 ) is the Forensic Examination Report. Exhibit d& 2, is the post-mortem report. No evidence, either oral or documentary, was led on the behalf of the defence. One material object, i.e. knife, was also led into evidence by the prosecution. 5. The learned Additional Sessions Judge, after taking into consideration the entire material available on record, came to the conclusion that the last seen theory cannot be believed. He further relied upon the inconclusive opinion of the doctor conducting post-mortem examination, and finding of poison in the visceras of the deceased, which was militating against the very case of the prosecution that they made extra judicial confession before the Village Panchayat, and confessed to have killed the deceased by giving knife blows on his body. Therefore, the Additional Sessions Judge came to the conclusion that the prosecution has not been able to prove its case beyond any reasonable doubt, as all the circumstances have not been established firmly and conclusively forming a complete chain of events unerringly pointing to the guilt of the respondents. 6. The learned Deputy Advocate General would submit that, as there is important evidence of recovery of the dead body at the pointing of the respondent-Rizwan, and it was found to be containing traces of Organophosphorus insecticides, the findings recorded by the learned Sessions Judge are perverse and requires to be interfered with. The learned Deputy Advocate General further submitted that the recovery of knife, having blood stains, also goes a long way to prove the case of the prosecution. 7. We have heard Mr. Naveen Singh Bisht, the learned counsel holding brief of Mr. Lalit Sharma, the learned counsel on record for the appellant-Kurban. He also supports the case of the prosecution. We have also heard Mr. Sajjad Ahmad, the learned counsel for the private respondent. 8. The Hon’ble Supreme Court in the case of Chadrappa and Others vs. State of Karnataka, (2007) 4 SCC 415 , while dealing with the case of appeal against acquittal, has come to the following conclusion:- “(i) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. 8. The Hon’ble Supreme Court in the case of Chadrappa and Others vs. State of Karnataka, (2007) 4 SCC 415 , while dealing with the case of appeal against acquittal, has come to the following conclusion:- “(i) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (ii) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (iii) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (iv) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.” 9. Keeping in view the aforesaid principle of law, we have examined the evidences of PW1 and PW2 regarding the last seen theory. The last seen of the deceased with the appellant becomes relevant when the time gap between their seen together, and the recovery of the dead body, is so short that there is no chance of any other person coming in between and committing the offence arises. Even if it is established that the respondent and the deceased were seen together and after considerable time, the deceased was found to be dead, then there is always a stateable probability that somebody else might have come to the contact of the deceased and committed the offence. 10. The golden thread that runs throughout the Indian Criminal Judicial Administration System is that the prosecution must prove the very case which it alleges. 10. The golden thread that runs throughout the Indian Criminal Judicial Administration System is that the prosecution must prove the very case which it alleges. If there is any reasonable doubt regarding the commission of the crime by the appellant, then, the benefit of doubt always goes to the accused and not to the prosecution, unless, of course, because of the specific plea taken by the accused, the onus shifts to the defence, which is not the case at present. 11. In this case, the alleged last seen was observed on 1.11.1999 and the deceased was found to have been died on 14.11.1999. So, there is a considerable time gap between these two dates, and considering the case and the facts of this case, this Court is of the opinion that there is a considerable gap between the two dates. 12. Coming to the question of the recovery of the dead body, it is true that the dead body has been recovered in the presence of the Magistrate, and he has also supported the case of the prosecution. But, it is further apparent from the record that no statement of the respondent-Rizwan was recorded by the Investigating Officer. Moreover, the exact information or fact discovered, has not been reflected in the document i.e. Exhibit d& 3. Though, we are of the opinion that not in all cases, the statements of the accused in custody, giving information about the fact, which is later discovered and connected with the crime, is necessary, but, there must be some material on record to show the exact information, which was voluntarily given by the accused in custody, so that the Court could come to a conclusion about its reliability and truthfulness. 13. In that view of the matter, in this case, there being no material to show the exact words expressed by the respondent-Rizwan before the police while in custody, we are unable to come to a conclusion that this recovery of the dead body shall be a circumstance against the respondent-Rizwan. 14. Thirdly, it is seen that the post-mortem examination held in this case did not lead to any definite conclusion, and PW5-Dr. P.K. Bhatnagar has categorically stated that because of decomposition, he could not find any injury on the dead body of the deceased. 14. Thirdly, it is seen that the post-mortem examination held in this case did not lead to any definite conclusion, and PW5-Dr. P.K. Bhatnagar has categorically stated that because of decomposition, he could not find any injury on the dead body of the deceased. However, such non-finding of any injuries on the dead body will create a doubt as far as the extra-judicial confessions of the respondents are concerned. Furthermore, the extra judicial confession has been made by the respondents before the Village Panchayat, and it is alleged that they have stated that they committed murder of the deceased by means of a knife. However, the prosecution has also come forward with a case that on serological and chemical examination, the visceras of the deceased, preserved by the PW5 at the time of post-mortem examination, were found to have contained Organophosphorus insecticide (poison). But, it is not the case of the prosecution that the deceased died due to the poison, rather the respondents have stated in their statements, under Section 313 of the Code that the deceased, because of being betrayed by his beloved, has consumed poison. 15. Thus, a reasonable doubt arises against the case of the prosecution, and relying upon the judgment of the Hon’ble Supreme Court in the case of Chandrappa and Others vs. State of Karnataka (Supra), we come to the conclusion that the presumption of innocence available to both the respondents, under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by the competent court of law, is reinforced, reaffirmed and strengthened by the judgment of the acquittal recorded by the learned trial Judge. 16. Moreover, even if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the learned trial court. Moreover, the learned trial Judge, has the opportunity of observing the genuineness of the witnesses, while recording their depositions, and such findings, based on the trained intuition and robust common sense of the learned trial should not be lightly be interfered by the learned Appellate Court to overturn a judgment of acquittal into a judgment of conviction. 17. Moreover, the learned trial Judge, has the opportunity of observing the genuineness of the witnesses, while recording their depositions, and such findings, based on the trained intuition and robust common sense of the learned trial should not be lightly be interfered by the learned Appellate Court to overturn a judgment of acquittal into a judgment of conviction. 17. In that view of the matter, this Court comes to the conclusion that the appeals filed by the State, as well as the complainant, merit no consideration, are therefore, dismissed. 18. Records of trial courts be sent back immediately.