Dismissed

State of U.P. v. Parul @ Tawrej Jamal Siddqui and Another

Allahabad HC24 Dec 2021GOVA/1000087/2008

Case brief

AI extract

What is this about?

The Allahabad High Court, in a special leave to appeal against an order of acquittal under Section 378 Cr.P.C., examined the trial court's reasoning. The defence of benefit of doubt was upheld as the acquittal was well-founded on the record. The appeal was dismissed.

What did the court decide?

Application for leave to appeal under Section 378 Cr.P.C. rejected; memorandum of appeal dismissed; acquittal stands sustained.

State of U.P. Vs Parul @ Tawrej Jamal Siddqui… — Murder and Culpable Homicide | Allahabad HC (2021)

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Chief Justice’s Court Additional Cause List Serial No. 5

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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

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(Lucknow)

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U/s 378 Cr.P.C. No. 87 of 2008

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State of Uttar Pradesh ...Applicant/appellant

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Through : Mr. Arunendra, Additional Government Advocate

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v/s

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Parul @ Tabrej Jamal Siddiqui and another ....Opposite parties

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CORAM : HON'BLE RAJESH BINDAL,CHIEF JUSTICE HON'BLE NARENDRA KUMAR JOHARI, JUDGE

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ORDER

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NARENDRA KUMAR JOHARI, J.

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The present Criminal Misc. Application under Section 378 (3) Cr.P.C. has been filed by the State seeking leave to appeal against the judgment and order dated 23.11.2007, passed by learned Additional Sessions Judge, Court No.1, Hardoi in S.T. No.195/2005 (State Vs. Parul @ Tabrej Jamal Siddiqui and another), Crime No.952/2004, under Sections 302, 506 IPC, S.T. No.196/2005 (State Vs. Parul @ Tabrej Jamal Siddiqui), Crime No.962/2004, under Sections 25/27 Arms Act, and S.T. No.197/2005 (State Vs. Abdul Muin Khan), Crime No.963/2004, under Sections 25/27 Arms Act, Police Station Kotwali City, District Hardoi. By the impugned judgment and order, learned trial

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2 U/s 378 Cr.P.C. No.87 of 2008

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court has acquitted accused persons Parul @ Tabrej Jamal Siddiqui and Abdul Muin Khan from the charges under Sections 302/506 IPC and Section 25 Arms Act.

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In brief, the case of the prosecution is that, on 28.12.2004, informant Najeeb Ahmad was going to town Bavan by Maruti Car along with his brothers Haseeb, Tanvir and neighbour Jaheer Ahmad. The car was being driven by Tanvir Ahmad. The owner of the car was one Virendra Gupta, with whom his brother Tanvir Ahmad was working as driver. On the way, Tanvir Ahmad told his brother that he had to meet a person near S.D. College for some work. At about 7.30 P.M., they reached in front of S.D. College, and near its field Tanvir Ahmad parked the car and went towards S.D. College for his work. After some time, informant and his other companions in the car, heard the sound of firing. They ran towards the sound, where they saw that accused Parul along with one unknown person was shooting Tanvir Ahmad, who fell down after receiving the gun shot injuries. Having seen the occurrence in the light of electricity, they ran towards the assailants hurling their voice. Accused persons by pointing their guns gave them threat to life and ran away towards the lane of S.D. College. The informant and his companions could not chase armed accused persons in the darkness of night. The brother of informant Tanvir Ahmad succumbed on the spot on account of firearm injuries.

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On the Tehrir (written application) with above facts, a First Information Report was lodged in Police Station concerned, against Parul and one unknown person vide Crime No.952/2004, under Sections 302/506 IPC and the investigation started. During investigation, accused persons were arrested and the firearms, allegedly used in the offence, along with live cartridges were recovered from the possession of accused persons. After completion of investigation, the charge-sheet was submitted by police against accused persons. The case was committed to the Court of Sessions. Learned trial court framed charges against accused persons under Sections 302/506 IPC and Section 25 Arms Act.

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3 U/s 378 Cr.P.C. No.87 of 2008

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The accused persons denied the charges, pleaded not guilty and claimed trial.

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On behalf of the prosecution, PW 1 Najeeb Ahmad, PW 2 Haseeb Ahmad, PW 3 Dr. Shami Ahmad, PW 4 H.C.P. Ram Bahadur Awasthi, PW 5 Incharge Inspector Ram Lal Rai, PW 6 Constable 630 Brij Nandan Singh, PW 7 S.I. Chandra Pal Singh Parihar, PW 8 S.I. Ram Ujagar Singh were examined as prosecution witness.

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After conclusion of prosecution evidence, the trial court recorded statements of accused under Section 313 Cr.P.C. Accused persons denied their involvement in the occurrence and stated that they had falsely been implicated by informant due to enmity. Vide list 94B, they submitted documentary evidence in their defence. Learned trial court considered the case on merit and by impugned judgment acquitted accused persons from the charges, which has been assailed by the State Government in present appeal.

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Learned A.G.A. has submitted that the trial court has committed material illegality in acquitting the accused persons. The conclusion drawn by trial court regarding ante timed F.I.R. was misconceived. The trial court assessed the medical evidence wrongly and did not consider the recovery of firearms from the possession of accused. Learned trial court did not appreciate the prosecution evidence in accordance with law, hence the judgment of acquittal is liable to be set aside and application under Section 378 (3) Cr.P.C. deserves to be allowed.

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Heard learned Additional Government Advocate Mr. Arunendra, on the application under Section 378 (3) Cr.P.C. and perused the record.

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It reveals from the record that witness PW 1 Najeeb Ahmad in his evidence had narrated the details of incident as he had mentioned in the F.I.R. He had further stated in his evidence that he was the eye witness of occurrence. Witness PW 2, Haseeb Ahmad also in his

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4 U/s 378 Cr.P.C. No.87 of 2008

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evidence had stated almost the same facts as was stated by PW 1 Najeeb Ahmad in his evidence. Both the witnesses PW 1 and PW 2 were produced by the prosecution as witnesses of fact. Learned trial court after thorough scrutiny of these evidence concluded that there were material discrepancies in their evidence. In entire evidence of prosecution, it has not been shown that why and for which work informant, witnesses and deceased had gone to town Bavan. It has also not been shown that near S.D. College with whom brother of the informant Tanvir Ahmad was intending to meet and how the accused persons got knowledge that at that particular time deceased Tanveer Ahmad would come at S.D. College, particularly when the accused and deceased were not the residents of same locality. The occurrence took place at about 7.30 P.M. in the month of December but prosecution could not prove source of light to establish identification of accused. It was mentioned in the F.I.R. that Tanveer Ahmad had received gun shot injury on the attack of both the accused persons. One was named as Parul @ Tabrej Jamal Siddiqui and another was unknown. Both the accused were arrested by police on the information of informant itself. The unknown accused was identified as Abdul Muin Khan but how this accused was identified by informant, had not been shown by PW 1 in his evidence particularly when no identification parade was conducted by the jail authorities.

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Witnesses PW 1 and PW 2 had deposed as eye witnesses. Witness PW 1 had stated that accused opened fire at Tanveer Ahmad from the distance of 2-3 steps but in the post mortem report no blackening or tatooing was found on entry wounds. Learned trial court further thoroughly assessed the dimension of injuries and by taking the reference of books, medical jurisprudence and toxicology by Dr. S.S. Danial, Principle and Practices of Medical Jurisprudence by Tailor, Jurisprudence by Lian, inferred that injury Nos.3 and 4, which are of entry wounds of firearm, were not possible by the fire from country made pistols, rather the same were inflicted by Rifle. Apart from that,

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5 U/s 378 Cr.P.C. No.87 of 2008

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injury No.1, which is of abraded contusion, was possible only by blow of any hard and blunt object. The witnesses PW 1 and PW 2 who allege themselves to be eye witnesses of occurrence, neither could explain the above discrepancy regarding firearm nor stated about availability of any hard and blunt object with accused. Hence, trial court concluded that the witnesses of fact PW 1 and PW 2 are not credible. The recovery of one metallic bullet from the lungs of deceased had been shown in post mortem report and also the recovery of weapons i.e. country made pistols was alleged by prosecution. Despite availability of bullet which caused the injury to deceased, the weapons recovered, had not been sent to Forensic Science Laboratory, which comes under the purview of fatal lapse, committed by the Investigating agency.

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It has also been found that prosecution could not produce any criminal history of accused, rather it came into light with evidence on record. Learned trial court gathered the fact from documentary evidence that deceased was a "Goonda" and was extracting money by his illegal work, against which the FIR had been lodged by victim. The accused as a documentary evidence had also submitted the copy of the claim petition under Workmen Compensation Act, which was filed by the widow of deceased, Smt. Driksha before the competent authority, in which she had stated that while her husband Tanveer Ahmad was going for the work of his employer Smt. Ratna Gupta, on the way near S.D. College, he received gun shot injuries, consequently he succumbed. The above fact is entirely different from the fact as mentioned in the F.I.R. of present case. The prosecution also failed to produce independent witness of occurrence. Consequently, learned trial court by giving benefit of doubt, acquitted the accused persons Parul @ Tabrej Jamal Siddiqui and Abdul Moin Khan from the charges under Sections 302/506 IPC and Section 25 Arms Act.

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In cases where accused are acquitted by giving benefit of doubt or in absence of cogent and incriminating evidence, while deciding the application for leave to appeal, it has to be kept in kind by

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6 U/s 378 Cr.P.C. No.87 of 2008

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the appellate court that when the reasons given by the trial court for recording acquittal are good and sturdy, the High Court should not set aside the order of acquittal. In other words, it can be said that where the reason of the trial court for acquitting the accused is well in conformity with the evidence and material on record, the High Court should not reverse the order of acquittal.

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It has been held by Hon'ble Supreme Court in the case of Ramanand Yadav Vs. Prabhunath Jha, AIR 2004 SC 1053 :

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"(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.

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(2) The High Court has the power to reconsider the whole issue, reappraise the evidence, and come to its own conclusion and findings, in place of the findings recorded by the trial Court, if the said findings are against the weight of the evidence on record, or in other words, perverse.

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(3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal.

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(4) In reversing the finding of acquittal, the High Court had to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.

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(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.

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(6) The High Court has also to keep in mind that the trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box.

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7 U/s 378 Cr.P.C. No.87 of 2008

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(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.

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(8) Unless the High Court arrives at definite conclusion that the findings recorded by trial court are perverse, it would not substitute its own view on a totally different perspective.

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(9) The appellate Court in considering the appeal against judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference."

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Hence, no interference is called for with the order of acquittal, unless the approach of the lower court in appreciating evidence is perverse or the case is vitiated by the some manifest illegality or the conclusion recorded by the court is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse.

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For the aforesaid reasons, we are of the considered view that the impugned judgment is well discussed and based on proper reasoning. The view taken by the trial court is possible and no perversity or illegality is found. Therefore, the prayer for leave as mentioned in the application under Section 378 (3) Cr.P.C. is rejected.

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The application under Section 378 (3) Cr.P.C. is, accordingly, dismissed. Consequently, the memorandum of appeal does not survive and is hereby dismissed.

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(Narendra Kumar Johari, J.) (Rajesh Bindal, C.J.)

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Lucknow December 24, 2021 ML/Rakesh Mehta

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Whether the order is speaking : Yes/No Whether the order is reportable: Yes/No

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Digitally signed by MUNNA LAL Date: 2022.03.15 16:52:35 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. v. Parul @ Tawrej Jamal Siddqui and Another

Case brief

What is this about?

What did the court decide?

State of U.P. v. Parul @ Tawrej Jamal Siddqui and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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