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2024 DIGILAW 1128 (ALL)

State of U. P. v. Navin Tyagi S/o Bhishm Tyagi

2024-04-25

ASHWANI KUMAR MISHRA, MOHD.AZHAR HUSAIN IDRISI

body2024
JUDGMENT : (Ref: Criminal Misc. Delay Condonation Application) 1. Heard learned A.G.A. for the State. 2. Delay in filing the present appeal is explained to the satisfaction of the Court. Delay is, accordingly, condoned. Office is directed to allot a regular number to the present appeal. 3. Application stands allowed. Ref: Appeal 4. This appeal has been filed by the State along with application for grant of leave to challenge the judgment of acquittal passed by the trial court in Sessions Trial (POCSO) No. 31 of 2018 (State of U.P. Vs. Navin Tyagi) arising out of case crime No. 01 of 2018, under Sections 363, 302, 201, 377 IPC, Police Station Balaini, District Baghpat. 5. The prosecution case is that son of the informant had gone to attend the Jagran at about 9.00 p.m. on 04.01.2018 whereafter he has not returned. The victim was in red Jarsi and blue jeans. The information furnished to the police station in the form of written report came to be recorded in the G.D. whereafter case Crime No. 01 of 2018 was registered at 14.19 hours on 05.01.2018. The investigation proceeded and ultimately dead body of missing child was recovered on 13.01.2018 below the Hindon river bridge at Mukari. The inquest and postmortem followed and it was found that cause of death was ante-mortem injuries and death was homicidal. The implication of the accused in the present matter surfaced on the basis of information received from some villagers. After recording the statement of the witnesses etc., the accused was arrested and it is alleged that on his pointing out, a locket and cap belonging to the deceased, was recovered from his house. The charge sheet accordingly, was submitted against the accused. Charges were framed against the accused under Sections 363, 302, 201, 377 I.P.C. read with Section 3/4 POCSO Act. The accused denied the accusation and demanded trial. On the basis of evidence led at the trial, the court of sessions has concluded that the prosecution has failed to prove its case beyond reasonable doubt. 6. We have heard the learned State counsel and have carefully perused the material on record. Admittedly, there is no direct evidence available on record to implicate the accused. The implication of the accused is based on circumstantial evidence, which has been noticed by the court of sessions in paragraph 29 of the judgment. 6. We have heard the learned State counsel and have carefully perused the material on record. Admittedly, there is no direct evidence available on record to implicate the accused. The implication of the accused is based on circumstantial evidence, which has been noticed by the court of sessions in paragraph 29 of the judgment. The circumstances relied upon are as under: (i) In the night of incident dated 04.01.2018, the victim alongwith his mother had gone in the neighbourhood to attend the Jagran. (ii) The victim thereafter returned to go to his house but never reached. (iii) The accused has been seen lastly alongwith deceased victim by Rajendra Tyagi and Rahul Tyagi. (iv) While the victim was going to attend the Jagran, he was called by the accused. (v) Recovery of dead body of the victim from below the Hindon river bridge at Mukari. (vii) Confession made by the accused before the police. (vii) Recovery of cap and locket of the victim from the house of the accused on his pointing out. (viii) F.S.L. report in respect of samples collected from the accused and victim. 7. The first circumstance with regard to the victim having gone to Jagran and not reached home on return is proved. The prosecution case at the stage of investigation was that late in the night the victim was seen in the company of Rajendra Tyagi and Rahul Tyagi. At the stage of trial, it has come in the evidence that Rajendra Tyagi and Rahul Tyagi are close relatives of the victim. None of these two witnesses of last seen have been produced in the evidence. The prosecution moved an application for discharge of the two witnesses of last seen. The circumstance of last seen relied upon by the prosecution has, therefore, not been found proved. The fourth circumstance with regard to accused's calling the deceased while he was going with his mother to attend the Jagran has been disbelieved after noticing that such a stand has been taken by the mother (PW-5) for the first time at the stage of trial. At previous stage, no such case was set up by the prosecution. The testimony of PW-5 on this score, therefore, has been doubted. At previous stage, no such case was set up by the prosecution. The testimony of PW-5 on this score, therefore, has been doubted. The court of sessions has also noted that the alleged act of calling the deceased was while he was going to attend the Jagran whereas his disappearance was on return, and at that stage, no evidence has come that either the deceased was in the company of the accused or he was called by the accused. The fifth circumstance with regard to the recovery of dead body from below the Hindon river bridge at Mukari is proved. The next circumstances with regard to confessional statement being made by the accused before the police has rightly been disbelieved by the court of sessions relying upon Section 25 of the Evidence Act. 8. Learned A.G.A. has placed heavy reliance upon the circumstance relating to recovery of a cap and locket of the deceased from the house of the accused. On this aspect of the matter, the court of sessions has meticulously evaluated the evidence and has noticed that in the initial F.I.R. or at any other stage, it was not alleged that the deceased was wearingany cap or had locket on him. Admittedly, the deceased had disappeared on 04.01.2018. The accused was arrested and thereafter for the first time the informant gave an application stating that the deceased was wearing a locket and cap when he disappeared. Thereafter this locket and cap have been recovered from the room of the accused. The court of session has rightly observed that the introduction of locket and cap is an improvement after arrest of accused whereas the same was not disclosed earlier. Moreover, premises of the accused had been searched earlier by the investigating agency and no such locket or cap was found in his room. The court of sessions has, therefore, disbelieved the circumstance of recovery of locket and cap with which we entirely agree. 9. The last circumstance against the accused relates to the F.S.L. report in which slides prepared from the deceased has not matched with the blood sample of the accused. In respect of other recovered items also only partial D.N.A. could be generated. None of the recovered articles has matched with the accused. 10. 9. The last circumstance against the accused relates to the F.S.L. report in which slides prepared from the deceased has not matched with the blood sample of the accused. In respect of other recovered items also only partial D.N.A. could be generated. None of the recovered articles has matched with the accused. 10. On the strength of evidence led at the trial, the court of sessions accordingly has come to the conclusion that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt. It has been held that this is a circumstantial evidence and chain of evidence is not complete, which alone may establish the complicity of the accused. 11. Though various arguments have been advanced on behalf of the State but we find that the court of sessions has rightly disbelieved the evidence on record and has relied upon the settled legal principles while applying its judicial mind to the facts of the case. The view taken by the court of sessions is, therefore, plausible view. We see no perversity in the judgment in acquitting the accused. Learned A.G.A. has placed reliance upon a judgment of Hon'ble Supreme Court in the case of Babu Sahebagouda Rudragoudar and others Vs. State of Karnataka, passed in Criminal Appeal No. 985 of 2010. Paragraphs 36 to 40 of the said judgment are reproduced below: “36. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging acquittal of the accused recorded by the trial Court. 37. This Court in the case of Rajesh Prasad v. State of Bihar and Another1 encapsulated the legal position covering the field after considering various earlier judgments and held as below: “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 ] “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 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. (3) 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. (4) 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. (5) 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 trial court.” 38. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of Cr.P.C. as follows: “8.1. The acquittal of the accused further strengthens the presumption of innocence. 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence. 8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record. 8.4. 8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record. 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible. 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 39. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles: (a) That the judgment of acquittal suffers from patent perversity. (b) That the same is based on a misreading/omission to consider material evidence on record. (c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record. 40. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.” 12. The court of sessions upon elaborate analysis of the evidence on record has come to the conclusion that prosecution has not been able to establish its case beyond reasonable doubt. Though learned A.G.A. submits that there is an apparent perversity in the judgment of acquittal, but no such perversity could be substantiated at the time of hearing. In the circumstances, we find that the view taken by the court of sessions to acquit the accused is a permissible view and merely because a different view could have been taken cannot be a ground to interfere with the judgment of acquittal. Prayer made for grant of leave to challenge the judgment is therefore refused. Consequently, the appeal fails and is dismissed.