Dismissed

State of U.P. v. Nan Bacha

Allahabad HC8 Dec 2021GOVA/1000193/2007

Case brief

AI extract

What is this about?

The High Court of Allahabad rejected the State's application for leave to appeal against an acquittal. The trial court found the prosecution failed to prove the chain of circumstantial evidence beyond doubt regarding the accused's involvement in the murder. The High Court upheld the acquittal.

What did the court decide?

Application for leave to appeal refused; memorandum of appeal dismissed.

State of U.P. Vs Nan Bacha — Murder and Culpable Homicide | Allahabad HC (2021)

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Chief Justice’s Court Additional Cause List Serial No.3

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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.193 of 2007

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State of U.P.

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...Applicant

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Through: Smt. Smiti Sahay, Additional Government Advocate

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vs.

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Nan Bacha and another

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...Opposite party

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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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Challenge in the present acquittal appeal is to the judgment and order dated February 24, 2007 passed by Additional Sessions Judge, Gonda in Sessions Trial No. 345 of 1998 (State Vs. Nan Bacha and another) by which the learned trial court has acquitted two accused Nan Bacha and Awadhesh Kumar from the charges under Sections 302 and 201 IPC against which present application for leave to appeal has been filed by the State Government.

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Brief facts of the case are that Shivdayal Shukla gave information to police station concerned on 9.10.1997 that an unknown dead body, without head, has been found in the field of sugarcane. On the basis of above written ‘Tehrir’, an FIR under Case Crime No. 153 of 1997 under Sections 302, 201 IPC was lodged against unknown accused persons by police station concerned.

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The inquest of dead body was conducted on 9.10.1997. The head of the dead body was missing and dead body could not be identified by anybody. The investigating officer after preparing inquest

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2 U/s 378 Cr.P.C. No.193 of 2007

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report sent the dead body for postmortem. It was conducted on 10.10.1997. The cause of death was found as antemortem injury, excessive bleeding and shock.

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During investigation, the investigating officer prepared the spot map and ‘ fard’ of blood-stained soil, plain soil and recovered one empty cartridge and one live cartridge of 315 bore and also seized a ‘guriya’ which was of red colour with black thread. The investigating officer recorded statements of witnesses and submitted the charge sheet against accused persons, Nan Bacha and Awadhesh Kumar whose names came on surface during investigation. This fact also came into light that on 22.10.1997 a bundle containing blood stained handkerchief, shirt, wallet and diary was found near the place of occurrence. On 28.10.1997, Ram Naresh, Rama Shankar and Smt. Arti identified the articles and submitted that the deceased was Ghanshyam. After submission of charge sheet, it was found that one of the accused Neebar had absconded. The Magistrate committed the case to the Sessions Court. The Sessions Court framed the charges under Sections 302 and 201 IPC against accused persons Nan Bacha and Awadhesh Kumar. Accused persons denied the charges and preferred to contest the case.

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In the trial, on behalf of prosecution, Ram Naresh, Shiv Dayal Singh, Ram Shankar, Bam Bahadur Singh, Satish Kumar Singh and Dr. Alok Kumar Agarwal were examined as prosecution witnesses PW-1 to PW-6.

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In their statements recorded under Section 313 Cr.P.C., accused persons submitted that they have been falsely implicated in the case only due to enmity and partibandi of Village.

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Learned trial court after hearing the arguments of learned counsel for the parties and considering the material produced on record, concluded that the prosecution could not succeed to prove the case against accused persons. It is a case of circumstantial evidence and the prosecution failed to prove the ingredients in accordance with settled law and the chain of circumstances could not be completed, hence, the accused persons were acquitted from all the charges.

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3 U/s 378 Cr.P.C. No.193 of 2007

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Learned Additional Government Advocate has submitted that trial court has wrongly acquitted the accused persons. The prosecution had proved its case against accused person beyond doubt. Although there was no eye witness of occurrence but circumstantial evidence was sufficient to prove the guilt of accused. Learned trial court could not appreciate the evidence according to law, hence impugned judgment is liable to be set aside. The application of State for grant of leave to appeal deserves to be allowed.

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Heard learned counsel for the State on application for leave under section 378 (3) of Cr.P.C. and perused the record. 10. A perusal of the record indicates that during investigation, Bambahadur Singh and Putala got recorded their statements under Section 161 Cr.P.C. and stated that they saw that deceased was going on motorcycle with accused persons Nan Bacha and Awadhesh Kumar and they heard the sound of fire arm also but in the trial of the case those witnesses were not produced by the prosecution. PW-1 Ram Naresh, who is the father of Ghanshyam, had stated in his evidence that on 7.10.1997 he saw that his son was present at the seat of Mr. Shashi Kant Shukla, Advocate in court campus. Subsequently, his son had gone with accused persons Awadhesh Kumar and Nan Bacha on motorcycle but the witness had not taken the name of third accused Neebar. The witness PW-1 had also stated that deceased was having a criminal history and so many cases were pending against him and he was having enmity with many persons including Satish Shukla, who was having enmity with deceased for the last more than 6 years. The witness PW-1 also apprehended that Satish Shukla has managed to kill his son through accused persons Nan Bacha and Awadhesh Kumar. On the other hand, the fact came on record that Awadhesh Kumar was the friend of deceased Ghanshyam. The witness PW-1 has also stated in his evidence that he was not knowing any details about accused Nan Bacha, rather he got information about the role of accused Nan Bacha from the police. Apart from that no evidence or any link has been established by the prosecution, which could prove involvement of accused in the offence.

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4 U/s 378 Cr.P.C. No.193 of 2007

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Neither any intention, enmity and motive have been proved by prosecution against accused persons nor recovery of any incriminating articles has been shown. The statement of witness PW-1 has not been corroborated by any evidence. Deceased was having enmity with several persons. The case is based upon circumstantial evidence and the chain of events could not be interlinked so as to prove guilt of the accused persons beyond doubt, therefore, the trial court has rightly acquitted the accused persons from the charges of offence.

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So far as the case of circumstantial evidence is concerned, Hon'ble Apex Court in the case of Padala Veera Reddi Vs. State of A. P. [AIR 1990 SC 90] has laid down that following conditions must be fulfilled for conviction:

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"1. The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.

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Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.

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The circumstances taken cumulatively should form a chain so complete, that there is no escape from the conclusion that within all human probability that crime was committed by the accused and none else.

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The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation to any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of accused but should be inconsistent with his innocence."

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In the case in hand, none of the above conditions get fulfilled. The judgment of lower court is well reasoned and based on evidence available on record. No illegality or irregularity is found in the impugned judgment. So far as the principle regarding grant of leave in such cases is concerned, an appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the

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5 U/s 378 Cr.P.C. No.193 of 2007

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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. Also 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.

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Taking into consideration the above legal principle the judgment impugned, has to be considered from the point of view whether the view taken by the trial court was a probable view, based on the material on record or it is an absolutely erroneous judgment devoid of merits.

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Keeping in view the failure of the prosecution to prove the prosecution case against accused persons and considering the material available on record, we are of the view that the view taken by the trial court was probable and logical view, which is based upon proper reasons according to settle law. The judgment of the trial court cannot be said to be illegal, illogical and improbable. There seems absolutely no hope of success in this appeal and accordingly, no interference is called for.

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Hence, the prayer for grant of leave to appeal is hereby refused, accordingly, the application is rejected. Consequently, the memorandum of appeal also does not survive and stands dismissed.

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

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Lucknow December 8, 2021 Amit/P.Sri.

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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 AMIT KUMAR Date: 2022.02.25 13:31:38 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. v. Nan Bacha

Case brief

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State of U.P. v. Nan Bacha

Case brief

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