State of U.P. vs Omvir and Others

Rakesh Tiwari, J.—Heard learned AGA for the State of U.P. appellant and perused the record. This Government Appeal No. 3156 of 2007 along with Criminal Misc. Application (Leave to Appeal) under sections 378 and 378(3) Cr.P.C. has been preferred challenging the validity and correctness of the impugned judgment and order dated 10.1.2007 passed by the Addl. Sessions Judge, Court No. 7, Muzaffarnagar in S.T. No. 436 of 2005 (State v. Omvir and another) connected with S.T. No. 437/2005 (State v. Omvir), S.T. No. 438/2005 (State v. Shahzad) and S.T. No. 895 of 2005 (State v. Idrisi) acquitting the accused-respondents of the charges framed against them under sections 302 IPC read with section 34 IPC and section 25 of the Arms Act.

The prosecution story, in brief, is that informant Rais Ahmad son of Jamil Ahmad Ansari submitted a written report scribed by one Wakil Ahmad at P.S. Kairana averring that his father Jamil Ahmad alias Jatlo was running a General Merchant shop near his house in which his younger brother Shahzad also used to sit. Anwar son of Sharif Ansari and Idris of his village were lifting/stealing the goods from that shop. On numerous occasions they took Gotkha from the shop and when Shahzad demanded money they threatened with dire consequences to his life; that on the intervening night of 8.11.2004 when father of the informant was sleeping in upper portion of a room of the house alongwith his family members and his younger brother Shahzad was also sleeping in another room, at about 1.30 A.M. in the night on hearing the cry of the father, informant and his younger brother suddenly came out Informant and his brother saw three persons namely, Anwar, Idris and one another person coming out of the room in the light source there. Anwar was armed with knife, Idris and the other were armed with country made pistol. After fleeing away of having seen the accused persons the informant and his brother went in the room of his father and saw that the neck of his father was chopped off from his body which was lying on earth.

Pursuant to the report, Crime Nos. 364/2004, 366/2004 and 367/2004 under section 302/34 IPC and section 25 of the Arms Act were registered on 8.11.2004 at 2.45 A.M. at P.S. Kairana, District Muzaffarnagar. The dead body of the deceased was sent to District Hospital, Muzaffarnagar where Dr. Krakesh Kumar conducted the post mortem examination on the cadaver of the deceased on 8.11.2004 at 3.45 P.M. The Doctor found one contusion 6 cm: x 3 c.m. and two incised wounds 21 c.m. x 3 c.m. and 5 c.m. x 2.5 c.m. on the person of the deceased. In his opinion the death had occurred due to shock and haemorrhage.

After investigation, the I.O. submitted charge sheet against the accused persons under sections 302/34 IPC and section 25 of the Arms Act.

The case was thereafter committed to the Court of Session, where the charges under section 302 read with section 34 IPC and section 25 of the Arms Act were framed against the accused-respondents.

In order to prove its case the prosecution examined ten witnesses, namely, Rais Ahmad (PW-1) Yaseen (PW-2), Shamim (PW-3), Charan Singh (PW-4), E. Bal Kishore Tyagi (PW-5), constable Sandeep Kumar (PW-6) HCP Hari Om Tyagi (PW-7), Dr. Rajesh Kumar (PW-8), Constable Ravindra Kumar (PW-9) and E. Hari Prakash Ka-san (PW-10) whereas the accused persons in their statements under section 313 Cr.P.C. denied the entire circumstances appearing in story against them stating that they have been falsely implicated in the case and claimed to be tried.

After considering the evidence, material on record and hearing Counsel for the parties, the Trial Court acquitted the accused-respondents vide impugned judgment and order dated 10.1.2007 holding that the prosecution has failed to prove its case beyond all reasonable doubts. It is assailed by the learned Government Advocate on the ground that there are no contradictions in the statements of the witnesses and if there are any minor contradictions, they are minor and insignificant attractable to vagueness of memories due to lapse of time and nothing else; that the impugned judgment and order of the Trial Court is against the facts and law, weight of evidence on record, without application of mind, illegal, arbitrary and unjustified hence, the impugned judgment and order is not sustainable in the eyes of law as such is liable to be set aside.

Upon hearing learned Counsel for the parties and on perusal of the FIR it appears that three persons had committed the murder of father of the informant and P.W. 1 has also in his evidence stated that three persons had committed the murder of his father whereas P.W. 2 Yaseen, P.W. 3 Shamim and the I.O. have stated in their statements that four persons had committed the murder of father of the informant. There is contradictions in the statements of witnesses regarding the date, time and place of arrest of respondents-accused Omvir and Shahzad. The murder has been committed by cutting throat of the deceased and stabbing off the knife on his stomach. No case of firing of country made pistol by the accused persons has been proved by the prosecution. Recovery of country made pistol from the accused does not relate to the murder of deceased. No identification proceedings were conducted in respect of accused Omvir and Shahzad, hence the participation of accused Omvir and Shahzad in the crime in question appears to be doubtful.

The case against respondent-accused Idris rests upon circumstantial evidence.

Before a case against an accused resting on circumstantial evidence can be said to be fully established the following conditions must be fulfilled as held by the Apex Court:

"1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;

The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

The circumstances should be of a conclusive nature and tendency;

They should exclude every possible hypothesis except the one to be proved; and

There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

These five golden principles constitute the panchsheel of take proof in a case based on circumstantial evidence and in the absence of a corpus delicti.

In the cases of circumstantial evidence rendered in Baba Ram Das alias Tarlok Singh v. State of Punjab 1998 (11) CCR 16 (P & H), Shyamal Saha and Another Vs. State of West Bengal, , Shyodan v. State of U.P. 2014 (1) AAR 337 (Alld.), State of Gujrat v. Raton Singh alias Chini Bhai 2014 (135) AIC 155 (SC) : 2014 (85) ACC 670 (SC), Padala Veera Reddy Vs. State of Andhra Pradesh and others, , and State of U.P. Vs. Ashok Kumar Srivastava, ., it has been held that the chain of circumstantial evidence is to be complete for holding that the accused and none other would have committed offence and it should be unbroken to point out to the guilt of the accused persons only and no other.

The law firmly entrenched by the Apex Court is that there can be no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence in view of the decision rendered in Hanumant Vs. The State of Madhya Pradesh, , and Smt. Mula Devi and Another Vs. State of Uttarakhand, .

In the case of Ram Singh Vs. Sonia and Others, , the Apex Court has held that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a complete chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis regarding the guilt is possible.

From the statement of the witnesses, the chain of circumstantial evidence being incomplete, therefore, in our considered opinion, the Trial Court has not committed any illegality or infirmity in acquitting the accused Idris and also two other remaining accused persons namely, Omvir and Shahzad. The judgment of the Trial Court is a quite exhaustive one. On the basis of the evidence, the Trial Court has rightly come to the conclusion that there is no evidence on record to connect the accused and as such acquitted the accused-respondents of the charges levelled against them. In the aforesaid facts and circumstances, we are of the considered view that the findings of acquittal recorded by the Trial Court are based on the evidence on record. It can not be said that the Trial Court has not properly appreciated the evidence or there is any perversity in the findings so recorded by it. There appears to be no illegality or infirmity in the impugned judgment. On the evidence available, no other view is possible than acquittal.

For the reasons stated above, the application for leave to appeal is rejected. As a consequence, the Government Appeal is also dismissed.