Dismissed

State of U.P. v. Billu @ Rizwan

Allahabad HC23 Dec 2021GOVA/1000354/2008

Case brief

AI extract

What is this about?

In an appeal against acquittal, the High Court reviewed the trial court's finding exempting two accused from murder charges. Finding insufficient evidence linking them to the crime and upholding the double presumption of innocence, the court dismissed the appeal and refused leave to appeal.

What did the court decide?

Prayer for grant of leave to appeal refused; application dismissed; memorandum of appeal stands dismissed.

State of U.P. Vs Billu @ Rizwan — Murder and Culpable Homicide | Allahabad HC (2021)

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Chief Justice’s Court Additional Cause List Serial No. 12

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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

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(Lucknow)

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*******

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U/s 378 Cr.P.C. No. 354 of 2008

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State of Uttar Pradesh ...Applicant/appellant Through : Mr. Dhananjay Kumar Singh, Additional Government Advocate

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v/s

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Billu @ Rizwan 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 appeal with Criminal Misc. Application under Section 378 (3) Cr.P.C. has been filed by the State Government - appellant against judgment and order dated 27.05.2008, passed by Additional Sessions Judge, Ambedkar Nagar in S.T. No.120 of 2005, arising out of Case Crime No.143/2005, under Section 302 I.P.C., Police Station Jahangirganj, District Ambedkar Nagar. By the impugned judgment, the trial court acquitted the accused Billu @ Rizwan and Smt. Khalida Khatoon from the charges under Section 302 I.P.C.

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The brief facts of the case, according to the F.I.R., are that on 18.05.2005 the informant Karimulla Khan gave a Tehrir (written complaint) to the Police Station concerned that the accused Firoz Khan

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U/s 378 Cr.P.C. No. 354 of 2008

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came to the village of Abdul Rajjak (father-in-law of the informant) and stated that some of his relatives are coming to his house regarding certain matter and requested him to take part in the conversation. Firoz Khan is son of Abdul Rajjak's cousin sister. Abdul Rajjak accepted the request of Firoz Khan and went to his house along with cousin Abdul Hameed and informant on motorcycle. When they reached the house of Firoz Khan, his mother Khalida Khatoon called Abdul Rajjak to come inside the room, which was situated across the Shutter and Verandah of house. Inside the room as she was talking to Abdul Rajjak, all of sudden, Billu @ Rizwan and his mother Khalida Khatoon caught hold to Abdul Rajjak and Firoz Khan attacked with knife on the chest of Abdul Rajjak. On hearing the cry of Abdul Rajjak, the informant and Abdul Hameed watched the occurrence that accused Firoz Khan was attacking Abdul Rajjak with knife and after the attack Abdul Rajjak immediately fell down by wriggling. As informant and Abdul Hameed tried to rescue Abdul Rajjak, but accused Firoz Khan ran towards them with intention to attack with the same blood stained knife. Resultantly, the informant and Abdul Hameed ran way from the spot and shouted for help. On hearing their voice, some villagers reached there. Thereafter, accused persons fled away from their house. They found Abdul Rajjak dead. Thereafter, informant and Abdul Hameed went to the house of deceased and from there, they went to the police station for lodging the F.I.R., for which they gave the written complaint against accused person. Accordingly, on the written complaint of informant, an F.I.R. vide Crime No.143/2005, under Section 302 IPC was registered on 18.05.2005 at 16.30 hours.

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After registration of the F.I.R., the Police started investigation. The Investigating Officer send the dead body for post mortem, prepared site map, recorded statement of witnesses, arrested accused persons Firoz Khan and others and recovered the weapon Knife used in crime and registered a case under Sections 4/25 Arms Act also against accused Firoz Khan vide Crime No.169 of 2005.

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3 U/s 378 Cr.P.C. No. 354 of 2008

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After completing the investigation of aforesaid Crime No.143/2005 and Crime No.169/2005, the Investigating Officer submitted charge sheet against accused persons. Learned Magistrate took cognizance of the case and committed the case to the Court of Sessions. The trial court framed the charges against accused persons Billu @ Rizwan, Smt. Khalida Khatoon and Firoz Khan under Sections 302/34 IPC. Accused Firoz Khan was charged for offence under Sections 4/25 Arms Act also. Accused persons denied the charges, pleaded not guilty and preferred trial.

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On behalf of the prosecution, PW 1 Karimullah (informant), PW 2 Abdul Hameed, PW 3 Dr. A.K. Gupta, PW 4 SI Arun Kumar Mishra (I.O.), PW 5 Constable Venkatesh Bahadur Singh were examined as prosecution witnesses.

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After completion of the prosecution evidence, statement of accused persons was recorded under Section 313 Cr.P.C., in which they stated that they were falsely implicated in the case. Accused Billu @ Rizwan had also taken the plea of alibi. On behalf of accused persons DW 1 Imanuddin and DW 2 Daya Ram were examined as defence witnesses.

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The trial court, after considering the arguments of both sides, convicted the accused Firoz Khan under Section 302 IPC and Sections 4/25 Arms Act and acquitted the accused Billu @ Rizwan and Smt. Khalida Khatoon from the charges under Section 302 IPC. Against the acquittal of accused Billu @ Rizwan and Smt. Khalida Khatoon, present appeal with application for leave to appeal has been filed by the State Government.

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Learned A.G.A., pressing the application under Section 378 (3) Cr.P.C., submitted that the trial court has wrongly acquitted the accused persons. The trial court did not consider the settled principles of law and did not appreciate the prosecution evidence in accordance with law. Prosecution had succeeded in proving the charges against all the

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4 U/s 378 Cr.P.C. No. 354 of 2008

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accused persons but the trial court had not considered it and acquitted accused Billu @ Rizwan and Smt. Khalida Khatoon illegally. Therefore, the impugned judgment is liable to be set aside and both the accused persons be also convicted for the offence, accordingly the application for leave to appeal be allowed.

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

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From perusal of the record, it has been found that there was enmity between the informant and accused persons, as the accused Billu @ Rizwan wanted to marry with the daughter of Abdul Rajjak, who later on got married with the informant. It has also been found by the trial court that according to the oral evidence of witness PW 2, when they reached to the house of accused with Abdul Rajjak, Abdul Rajjak had gone in side the house, whereas the informant and PW 2 were stayed outside on a Bench/Takhat in Verandah. This place was divided by a Shutter from other part of the house. After the shutter, the room is situated where Abdul Rajjak had gone to talk on the request of accused Khalida Khatoon. In such a scenario, it was not possible for witness PW 2 to see the occurrence as narrated by him in his examination-in-chief. It has also come into light that the daughter of Abdul Rajjak had solemnized marriage with the informant approximately one year back. The accused persons were in close and fiduciary relation with deceased. Hence, in absence of any cogent evidence, existence of enmity has not been established. The trial court also found active role of sole accused Firoz Khan in commission of offence. The weapon, blood stained knife was recovered on the pointing out of the accused Firoz Khan. Except Firoz Khan the prosecution could not collect any positive and cogent evidence against accused persons Billu @ Rizwan and Smt. Khalida Khatoon. Therefore, the trial court rightly concluded that accused Firoz Khan was involved in the offence and the court convicted him for offences under Section 302 IPC and Section 4/25 Arms Act. On the other

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5 U/s 378 Cr.P.C. No. 354 of 2008

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hand, the Court in absence of evidence, acquitted accused persons Smt. Khalida Khatoon and Billu @ Rizwan.

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So far as the acquittal of accused persons Billu @ Rizwan and Smt. Khalida Khatoon is concerned, on the basis of fact, evidence and circumstances of the case, the finding of trial court is proper and is not found to be perverse. The view taken by the trial court is possible and cannot be said perverse.

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Undoubtedly in such a matter, while deciding the application for leave to appeal at this stage, an appellate court has full power to review and reconsider the evidence upon which the order of acquittal is founded. As a general principle, 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 been acquitted by trial court, the presumption of his innocence is further reaffirmed by the trial court. It is also to be kept in mind that if on the basis of evidence on record, two reasonable conclusions, one against and another in favour of accused, are possible and learned trial court chooses to go with acquittal of accused, the appellate court should not disturb the finding of acquittal recorded by the trial court.

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On the basis of above norms set up by settled legal principles, the impugned judgment 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. We have gathered the conclusion, after reviewing the impugned judgment, that the judgment of trial court is well discussed and has been based on material evidence available on record. The conclusion has been based by the trial court upon proper reasoning too.

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6 U/s 378 Cr.P.C. No. 354 of 2008

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Keeping in view the aforesaid failure of the prosecution to prove the guilt of accused, as noted by the trial court, we are of the considered view that the judgment of the trial court cannot be said to be illegal, illogical and improbable. We find 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. The application is dismissed accordingly. 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 23, 2021 ML/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 MUNNA LAL Date: 2022.02.24 19:37:49 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. v. Billu @ Rizwan

Case brief

What is this about?

What did the court decide?

State of U.P. v. Billu @ Rizwan

Case brief

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What did the court decide?

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