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ALLAHABAD HIGH COURT
Rakesh Tiwari and Vijay Lakshmi, JJ.
State of U.P. —Appellant
versus
Omvir & Ors. —Respondents
Government Appeal No. 3156 of 2007
Decided on 22.12.2014
Counsel for the Parties:
For the Appellant: Sri Rajiv Sharma, AGA
For the Respondents: None
IMPORTANT POINT
Conviction can be based solely on circumstantial evidence but it should be tested on touchstone of law relating to circumstantial evidence.
Headnote:Criminal Procedure Code, 1973 — Section 378 & 378(3) — Indian Penal Code, 1860 — Sections 302 read with 34 — Indian Arms Act, 1959 — Section 25 — Acquittal — Three persons committed murder of father of informant — PW2, PW3 and IO stated that four persons committed murder — Contradictions in statements of witnesses regarding date, time and place of arrest of accused — Murder committed by cutting throat of deceased and stabbing of knife on stomach — No case of firing of country made pistol by accused persons proved by prosecution — HELD — Recovery of country made pistol from accused does not relate to murder of deceased — No identification proceedings conducted — Hence participation of accused in crime in question appears to be doubtful. [Para 9]
Result: Govt. Appeal dismissed
JUDGMENT
Rakesh Tiwari, J.—Heard learned AGA for the State of U.P-appellant. and perused the record.
2. This Government Appeal No. 3156 of 2007 along with Criminal Misc. Application (Leave to Appeal) under Section 378 and 378(3) Cr.P.C. has been preferred challenging the validity and correctness of the impugned judgment and order dated 10.1.2007 passed by the Addl. Sessions Judge, Court No. 7, Muzaffarnagar in S.T. No. 436 of 2005 (State Vs. Omvir and another) connected with S.T. no. 437/2005 ( State versus Omvir), S.T. No. 438/2005 (State versus Shahzad) and S.T. No. 895 of 2005 (State versus Idrisi) acquitting the accused-respondents of the charges framed against them under Sections 302 IPC read with Section 34 IPC and Section 25 of the Arms Act.
3. The prosecution story, in brief, is that informant Rais Ahmad son of Jamil Ahmad Ansari submitted a written report scribed by one Wakil Ahmad at P.S. Kairana averring that his father Jamil Ahmad alias Jatlo was running a General Merchant shop near his house in which his younger brother Shahzad also used to sit. Anwar son of Sharif Ansari and Idris of his village were lifting/stealing the goods from that shop. On numerous occasions they took Gotkha from the shop and when Shahzad demanded money they threatened with dire consequences to his life; that on the intervening night of 8.11.2004 when father of the informant was sleeping in upper portion of a room of the house along with his family members & his younger brother Shahzad was also sleeping in another room, at about 1.30 A.M. in the night on hearing the cry of the father informant and his younger brother suddenly came out. Informant and his brother saw three persons namely, Anwar, Idris and one another person coming out of the room in the light source there. Anwar was armed with knife, Idris and and the other were armed with country made pistol. After fleeing away of having seen the accused persons the informant and his brother went in the room of his father and saw that the neck of his father was chopped off from his body which was lying on earth.
4. Pursuant to the report, crime nos. 364/2004, 366/2004 & 367/2004 under Section 302/34 IPC and Section 25 of the Arms Act were registered on 8.11.2004 at 2.45 A.M. at P.S. Kairana, District Muzaffarnagar. The dead body of the deceased was sent to District Hospital, Muzaffarnagar where Dr. Rrakesh Kumar conducted the post mortem examination on the cadaver of the deceased on 8.11.2004 at 3.45 P.M. The Doctor found one contusion 6 cm. x 3 cm. and two incised wounds 21 cm. x 3 cm. & 5 cm. x 2.5 cm. on the person of the deceased. In his opinion the death had occurred due to shock and haemorrhage.
5. After investigation, the I.O. submitted charge sheet against the accused persons under Sections 302/34 IPC and Section 25 of the Arms Act.
6. The case was thereafter committed to the Court of Session, where the charges under Section 302 read with Section 34 IPC and Section 25 of the Arms Act were framed against the accused-respondents.
7. In order to prove its case the prosecution examined ten witnesses, namely, Rais Ahmad (PW-1) Yaseen (PW-2), Shamim (PW-3), Charan Singh (PW-4), E. Bal Kishore Tyagi (PW-5), constable Sandeep Kumar (PW-6) HCP Hari Om Tyagi (PW-7), Dr. Rajesh Kumar (PW-8), Constable Ravindra Kumar (PW-9) and E. Hari Prakash Kasan (PW-10) whereas the accused persons in their statements under Section 313 Cr.P.C. denied the entire circumstances appearing in story against them stating that they have been falsely implicated in the case and claimed to be tried.
8. After considering the evidence, material on record and hearing counsel for the parties, the trial Court acquitted the accused-respondents vide impugned judgment and order dated 10.1.2007 holding that the prosecution has failed to prove its case beyond all reasonable doubts. It is assailed by the learned Government Advocate on the ground that there are no contradictions in the statements of the witnesses and if there are a
