Dismissed

State of U.P. v. Ram Niwas and Ors.

Allahabad HC24 Dec 2021GOVA/1000305/2010

Case brief

AI extract

What is this about?

The High Court rejected an application for leave to appeal in a murder case. Upholding the trial court's acquittal, the court held that the chain of circumstantial evidence was incomplete and no motive was conclusively proved, warranting the benefit of doubt to the accused.

What did the court decide?

Application under Section 378(3) Cr.P.C. for leave to appeal is rejected; memorandum of appeal is dismissed.

State of U.P. Vs Ram Niwas and Ors. — Murder and Culpable Homicide | Allahabad HC (2021)

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Chief Justice’s Court Additional Cause List Serial No.9

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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. - 305 of 2010

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State of U.P.

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....Applicant

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Through:- Smt. Smiti Sahay, Additional Government Advocate

v/s

Ram Niwas and others

...Opposite parties

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 State- appellant seeking leave to appeal against judgment and order dated February 25, 2010 passed by Additional Sessions Judge, Court No.4 Hardoi in Session Trial No. 660 of 2006 (State vs. Ram Niwas & others) arising out of Case Crime No. 689 of 2006, under Sections 302/34, 201 I.P.C. Police Station Shahabad, District Hardoi. By the impugned judgment, learned trial court has acquitted accused-persons Ram Niwas, Ram Nath and Rajesh from the charges of offence under Sections 302/34 & 201 I.P.C.

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Brief facts of the case are that informant- Veer Bahadur Agnihotri lodged an F.I.R. on August 8, 2006 in police station concerned with averments that his grand son named Praveen Kumar @ Hemant Kumar s/o Neeraj Kumar had gone to his school situated at town Shahabad on

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2 U/s 378 Cr.P.C. No. - 305 of 2010

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August 7, 2006 at about 7.00 a.m., but he did not return to his home. Informant and other villagers searched him, but he could not be found, therefore, on August 8, 2006, a report about missing of Praveen Kumar @ Hemant Kumar was lodged in police station Shahabad. Thereafter, on the same day, one Imran Khan informed him that the dead body of a child was laying in his mango grove. The informant and villagers on above information reached on the spot and identified the dead body as of his grand son. The complainant was informed by some person that Ram Niwas, Ram Nath and Rajesh, who were the residents of his village, were going with his grand son yesterday. Informant apprehended that above Ram Niwas and others had killed his grand son.

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On above Tahrir, FIR was lodged against Ram Niwas, Ram Nath and Rajesh under Sections 302/34 & 201 I.P.C. vide Crime No. 689 of 2006. After investigation, the Investigating Officer filed chargesheet against the aforesaid accused persons. The case was committed to Sessions Court where the learned trial court framed charges against the accused persons under Section 302/34 & 201 I.P.C. The accused persons denied the charges, pleaded not guilty and requested for trial.

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On behalf of prosecution, PW-1 Veer Bahadur, PW-2 Ram Lakhan, PW-3 Ramanand, PW-4 Jamuna Pandey, PW-5 In-charge Inspector Vijay Kumar Mishra, PW-6 Shyam Bahadur, PW-7 Dr. Vishnu Kumar and PW-8 S.I. Bajrang Bahadur got their statements recorded. Prosecution also submitted some documentary evidence as Exhibits Ka1 to Ka-15. After conclusion of prosecution evidence, the statements of accused persons were recorded by court under Section 313 Cr.P.C., in which they denied their involvement in the commission of offence and stated that the prosecution witnesses had given false evidence against them. Learned trial court after considering the case on merit, acquitted all the accused persons from charges by providing them benefit of doubt, against which the present application seeking leave to appeal has been filed.

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U/s 378 Cr.P.C. No. - 305 of 2010

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Heard Smt. Smiti Sahay, learned Additional Government Advocate on application under Section 378(3) Cr.P.C. for leave to appeal and perused the record.

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On perusal of record in the light of argument of learned Additional Government Advocate, this fact came to light that witness PW-1, who is informant, was not witness of occurrence. In his oral statement, he proved the contents of Tehrir as well as identification of dead body of his grand son. He also identified the articles as of deceased, which were found near the dead body. He further stated in his evidence that Shyam Bahadur, Ram Lakhan and Ramanand had told him that on August 7, 2006 they had seen the deceased going with accused persons Ram Niwas and others. PW-1 Veer Bahadur also stated that accused Ram Niwas was having enmity with informant on the issue of execution of sale deed. In fact, accused Ram Niwas had mortgaged his land with the informant. He had taken ₹14,000/- from informant as consideration money but at the time of registration of sale deed in the office of Sub Registrar, Ram Niwas fled away without signing the sale deed. Resultantly the deed could not be registered and for the same reason Ram Niwas was having enmity with informant. So far as the statement of PW-2 Ram Lakhan is concerned, he stated in his evidence that he was going to Roopapur with Shyam Bahadur and Ramanand on motorcycle. When he reached near Narmada Taal, he saw that deceased was going with accused Ram Niwas, Ram Nath and Rajesh from the side of Shahabad towards his village. PW-3 Ramanand had stated in his evidence that on August 07, 2006 at about 4:00 p.m. when he along with Shaym Bahadur were going towards Shahabad, he had seen that accused Rajesh was sitting near the grove of Imran Khan. Further, at a distance of one kilometer near Narmada Taal, he had seen the accused Ram Niwas and Ram Nath with the deceased.

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PW-6 Shyam Bahadur had given evidence that on August 7, 2006, when he was going to Roopapur sugar mill for getting information of his

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U/s 378 Cr.P.C. No. - 305 of 2010

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sugarcane slip, he had seen that deceased Praveen Kumar @ Hemant Kumar were going with accused persons near Narmada Taal.

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The learned trial court, after considering the entire evidence, concluded that no motive of offence has been proved. Informant could not establish any enmity with accused Rajesh. The enmity with accused Ram Niwas and informant had been alleged due to the reason of nonexecution of sale deed. It is not such a grave and spontaneous reason which could cause the murder of an innocent boy. The record indicates that the land was mortgaged in the year 2001. The date of execution of sale deed was October 18, 2005, whereas, the date of occurrence was August 7, 2006. Therefore, the enmity with accused Ram Niwas, as shown by informant, was a bleak reason to constitute the motive of offence. There was substantial contradiction in the statements of all the witnesses of prosecution who allegedly had seen that accused persons were going with deceased on August 7, 2006. Their statements regarding informing to complainant about last seen were also full of discrepancies. Therefore, learned trial court found that statements of PW-2, PW-3 & PW-6 regarding last seen were not trustworthy. Learned trial court also concluded that in the case in hand, F.I.R. was lodged after preparation of inquest report. Learned trial court also recorded its finding that Investigating Officer had committed material latches as he had not inquired the fact whether the deceased had reached his school on August 7, 2006 or not and whether his presence on alleged road was probable at 4.00 p.m. or not. The occurrence is based upon circumstantial evidence. Nobody had seen the occurrence. The evidence of last seen also could not be established by cogent and reliable evidence. The chain of circumstances is not complete, therefore, by providing the benefit of doubt, the learned trial court acquitted all the accused persons from the charges.

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In a case of acquittal, the appellate court should not easily interfere with the finding of trial court. Where the evidence has not been properly analyzed or the court has acted on surmises and conjectures, it

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5 U/s 378 Cr.P.C. No. - 305 of 2010

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is duty of the trial court to set right the wrong. If evaluation of the evidence by trial court does not suffer from illegality, manifest error or perversity and the main grounds on which it has based its order are reasonable and plausible, the appellate court should not disturb the order of acquittal, even if another view is possible.

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Apparently, this is the case of circumstantial evidence and in such cases, according to settled law, the circumstances from which an inference of guilt is sought to be drawn must be cogent and firmly established. Those circumstances should be a definite tendency, unerringly pointing towards guilt of accused and 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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In the case in hand, the circumstantial evidence, in order to sustain conviction is not complete. They are not able to infer a definite conclusion towards guilt of accused. The judgment of trial court is well discussed and based on proper reasoning, therefore, we find no reason to interfere with the findings of trial court, hence we are of the considered view that the application for leave to appeal is liable to be rejected.

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In view of above, the application u/s 378 (3) Cr.P.C. for leave to appeal is hereby rejected. Consequently, the memorandum of appeal does not survive and stands dismissed.

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

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Lucknow December 24, 2021

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Reena/Manish

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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 REENA KANNAUJIYA Date: 2022.02.25 16:50:12 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. v. Ram Niwas and Ors.

Case brief

What is this about?

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State of U.P. v. Ram Niwas and Ors.

Case brief

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What did the court decide?

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