Dismissed

State of U.P. v. Nanhey Lal Yadav and Another

Allahabad HC8 Dec 2021GOVA/1002800/2006

Case brief

AI extract

What is this about?

High Court dismissed the State's application for leave to appeal against an acquittal by the Sessions Court. The court found that the prosecution failed to prove the case due to unreliable evidence and incomplete circumstantial chain.

What the court decided

AI extract

State of U.P. Vs Nanhey Lal Yadav and Another — Murder and Culpable Homicide | Allahabad HC (2021)

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Chief Justice’s Court Additional Cause List Serial No.8

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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. 2800 of 2006

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State of U.P.

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...Applicant

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Through: Ms. Smiti Sahay, Additional Government Advocate

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vs.

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Nanhey Lal Yadav 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 01.06.2006 passed by Additional Sessions Judge in Sessions Trial No. 366 of 2000 (State Vs. Nanhey Lal Yadav), acquitting the respondents of all the offences in the aforesaid trial against which the present application for leave to appeal has been filed by the State Government.

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Brief facts of the case are that the informant Sammer Bahadur lodged an FIR in concerned police station stating that he is native of Village Roopapur, P.S. Kudwar, District Sultanpur and at present he is residing in District Sultanpur and doing the business of vegetables. His brother Amar Bahadur was residing in his Village with his wife and children. The wife of his brother namely Gyana Devi was in illicit relation with one Nanhey Lal Yadav, a resident of same village,

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U/s 378 Cr.P.C. No. 2800 of 2006

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who was the Village Pradhan also. In furtherance of illicit and extramarital relations, on 30.5.1998 the accused persons Nanhey Lal Yadav and Gyana Devi killed the brother of informant by poisoning. Thereafter dead body of his brother was got buried in the garden of informant. At that time, the informant was away to Banaras. On getting information regarding the death of Amar Bahadur, he returned to his Village. The Village persons told him that due to poisoning, foam was oozing out from the mouth of the deceased and face, nails of deceased had turned blue. Informant tried to lodge complaint at concerned police station but his report could not be lodged there. He had given information of the occurrence to District Magistrate, as well as Superintendent of Police, Sultanpur also but no action was taken. Then the informant moved application under Section 156(3) Cr.P.C. before Magistrate concerned. By the order of the court dated 5.6.1998, dead body of deceased was dug out from the grave and postmortem was carried out by the doctors. In the postmortem report, since cause of death could not be ascertained, the Viscera of deceased was sent to FSL for examination. In Viscera examination report, aluminium phosphide poison was found in the body of the deceased.

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The case was investigated by Sri B.D. Upadhaya, who during investigation prepared the spot map and recorded the statements of witnesses and submitted charge sheet under Sections 328, 302, 201 IPC against accused persons. Subsequently, the case was committed to Sessions Court. In Sessions Court, the charges against accused persons Nanhey Lal Yadav and Gyana Devi were framed under Sections 302/34, 328/34 and 201 IPC. The accused persons denied the charges and claimed trial.

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On behalf of prosecution Dr. R.R. Mishra, Barsati Yadav and Sammar Bahadur Singh deposed as witnesses PW-1 to PW-3.

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Statements of accused persons were recorded under Section 313 Cr.P.C. In her statement, accused Gyana Devi mentioned that her husband died due to illness. At the time of funeral, the informant

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3 U/s 378 Cr.P.C. No. 2800 of 2006

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Sammar Bahadur Singh was also present. There was litigation between Sammar Bahadur Singh and her deceased husband Amar Bahadur Singh, which is still pending. The informant has falsely implicated her with the motive to grab property of her husband.

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The learned trial court after hearing arguments of learned counsel for the parties and considering the evidence available on record, acquitted the accused persons from all the charges.

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The learned counsel for the State has submitted that the trial court did not assess the evidence of prosecution properly and acquitted the accused wrongly. The prosecution had proved its case and charges against accused even then the trial court acquitted the accused. Hence, the impugned judgment is liable to be set aside and application for leave deserves to be allowed.

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Heard learned counsel for the State on application for leave to appeal filed under section 378 (3) of Cr.P.C. and perused the record. 9. As far as the argument of learned counsel for the State regarding leave to appeal is concerned, it transpires from a perusal of record that two witnesses of fact have been examined by the prosecution in support of its case. The witness PW-3 Sammar Bahadur Singh, who is the informant of the case and real brother of deceased, has conceded in his cross examination that he has not seen the occurrence rather he heard about the incident from other persons. He was not present on the place of occurrence. PW-3 further stated that his brother Amar Bahadur had sold 5 Bighas of his land to Nanhey Lal Yadav (accused) and before sale his brother had not consulted the informant. Due to this reason the relations between informant with accused Nanhey Lal Yadav were inimical. PW-3 further stated in his cross examination that his father had executed a Will in favour of his wife against which Gyana Devi the wife of his brother had filed objection and the case is still pending in the court, therefore, he felt enmity with accused Gyana Devi also. Learned trial court has concluded that PW-3 Sammar Bahadur Singh is not the reliable witness and he is going to depose against accused persons due to enmity.

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4 U/s 378 Cr.P.C. No. 2800 of 2006

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So far as the evidence of witness PW-2 Barsati is concerned, he has stated in his evidence that on the date of occurrence, the deceased Amar Bahadur came to his house and pleaded to save him as Gyana Devi and Nanhey Lal Yadav had given him poison. At that time, Rauf Ansari a resident of same village was also present there, but the witness Barsati and Rauf Ansari had not taken any step to take Amar Bahadur to Doctor/Hospital for medical aid. This behaviour of witness was against the humanity. The witness PW-2 further stated in his cross examination that on the date of occurrence, he had gone to his job at 8:30 AM and returned at 9:00 PM. When he returned, he got information that Amar Bahadur had died. The witness PW-2 has also admitted that he has not told anybody in Village regarding the fact that accused persons had given poison to the deceased. This witness had also mentioned the fact that on the date of occurrence, the informant Samar Bahadur Singh was in Varanasi. Subsequently, he stated that on the date of occurrence Samar Bahadur Singh met him at 9:00 PM at the tea stall but he did not tell anything to him. On the other hand, the witness PW-3 has stated in his evidence that when he returned from Varanasi he got information regarding the death of his brother Amar Bahadur and in his absence his son had gone in funeral whereas the witness further stated that last rites of deceased were performed by brothers of accused Gyana Devi. It shows that none was present from the family of informant Sammar Bahadur Singh at the time of funeral.

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Both the alleged eye witnesses are giving contrary evidence on substantial point. The statement of witness PW-2 is not corroborated by evidence of PW-3, hence, the learned trial court did not rely on the testimony of both the witnesses of fact and after discussing all the facts and circumstances and evidence on record, the court acquitted the accused persons. There is no direct evidence available and the case is based upon circumstantial evidence but the chain of circumstances has not been completed. The view taken by the trial court was probable and logical, which is based on proper reasoning.

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5 U/s 378 Cr.P.C. No. 2800 of 2006

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The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible, the appellate court cannot substitute its view in the place of the trial court. It is only when the approach of the trial in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal.

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In the cases where there is no ocular evidence and prosecution based its case on circumstantial evidence, the Apex court in the series of cases including, Sharad Bindhichand Sarda Vs. State of Maharashtra, [AIR 1984 SC 1622] , Roop Singh @ Roopa Vs. State of Punjab [2008 Cr.L.J. 3184 SC] and Padala Veera Reddi Vs. State of A. P. [AIR 1990 SC 90] has held as under:-

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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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6 U/s 378 Cr.P.C. No. 2800 of 2006

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A criminal trial proceeds with the presumption of innocence of the accused persons. With the acquittal of the accused persons this presumption of innocence stands fortified. Therefore to interfere with the finding of trial court some cogent evidence and grounds are needed on record. When two views are reasonably possible the High Court ought not interfere with the order of acquittal.

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In the light of the guidelines framed by Apex Court, 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.

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Keeping in view the aforesaid failure of the prosecution to prove the case against accused persons, acquittal of accused, as noted by the trial court, cannot be interfered with. The view taken by the trial court is probable and logical, which is based on proper reasoning. The judgment of the trial court cannot be said to be illegal, illogical and improbable and we are of the considered view that there is absolutely no hope of success in this appeal and accordingly, no interference is called for. Hence, the prayer for grant of leave to appeal is hereby rejected and the application for grant of leave to appeal is dismissed, consequently, the memorandum of appeal does not survive.

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

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Lucknow December 8, 2021 Amit/Manish Himwan

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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 13:31:18 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. v. Nanhey Lal Yadav and Another

Case brief

What is this about?

What the court decided

State of U.P. v. Nanhey Lal Yadav and Another

Case brief

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