State of U. P. vs Israr S/O Raees - 2022 Supreme(All) 1035

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 1035

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
VIVEK KUMAR BIRLA, VIKAS BUDHWAR, JJ.
State of U.P. – Appellant
Versus
Israr S/O Raees And 03 Others – Respondent
Government Appeal No. 334 of 2022
Decided on : 05-08-2022

Advocates:
Advocate Appeared:
For the Appellant : Shiv Kumar Pal

Headnote:
CRIMINAL - APPEAL - SECTION 378(3) OF CODE OF CRIMINAL PROCEDURE - ACQUITTAL - JUDGMENT AND ORDER OF ACQUITTAL - REVERSAL - DOUBLE PRESUMPTION OF INNOCENCE - VIEW TAKEN BY TRIAL COURT - POSSIBLE VIEW - INTERFERENCE BY APPELLATE COURT - SCOPE - DELAY IN LODGING FIR - EXPLANATION - SATISFACTORY EXPLANATION - DELAY CONDONED - HOSTILE WITNESSES - TESTIMONY - RELIABILITY - INCONSISTENCIES - CONTRADICTIONS - IMPROVEMENTS - CALL DETAILS - CERTIFICATE UNDER SECTION 65-B(4) OF EVIDENCE ACT - MANDATORY REQUIREMENT - ABSENCE OF CERTIFICATE - ORAL EVIDENCE - INADMISSIBILITY - MOTIVE - ASSIGNMENT - FAILURE TO PROVE - LAST SEEN THEORY - DEMOLISHED - CIRCUMSTANTIAL EVIDENCE - INCOMPLETE AND INCOHERENT - SUSPICION - NOT SUBSTITUTE FOR PROOF - ACQUITTAL - JUSTIFIED.
Fact of the Case:

The prosecution's case was that the deceased, Nusrat, received a phone call from Israr, one of the accused, on 29.8.2012, and went missing thereafter. An FIR was lodged on 31.8.2012, after a delay of two days. The prosecution examined several witnesses, including the deceased's father, Musharraf, who claimed to be the first informant, and Nazmeen, the deceased's wife. However, most of the prosecution witnesses turned hostile and denied supporting the prosecution's case. The Investigating Officer, Pramod Kumar Sharma, admitted that he had not taken possession of the vehicle used in the crime and had not sketched the place of occurrence from the highway while preparing the site-plan. He also stated that he had not found the dead body of the deceased or any incriminating articles.
Finding of the Court:

The court found that the prosecution's case was based on weak evidence and that the chain of evidence linking the accused to the crime was incomplete. The court also noted that the view taken by the trial court was a possible view and that there was no justification for adopting any other view. The court further found that the delay in lodging the FIR was satisfactorily explained and that the hostile witnesses' testimony was unreliable due to inconsistencies and contradictions. The court also held that the call details, which were crucial to the prosecution's case, were not proved as the requisite certificate under Section 65-B(4) of the Evidence Act was not produced. The court also found that the motive assigned for the crime, namely, love marriage and election rivalry, was not proved. The court concluded that the acquittal was justified as the prosecution had failed to prove the guilt of the accused beyond reasonable doubt.
Issues: 1. Whether the delay in lodging the FIR was fatal to the prosecution's case. 2. Whether the testimony of the hostile witnesses could be relied upon by the prosecution. 3. Whether the call details were admissible in evidence without the requisite certificate under Section 65-B(4) of the Evidence Act. 4. Whether the motive assigned for the crime was proved by the prosecution. 5. Whether the view taken by the trial court was a possible view and whether there was justification for adopting any other view.
Ratio Decidendi: 1. The delay in lodging the FIR was satisfactorily explained, and the court found that the explanation afforded was plausible enough given the facts and circumstances of the case. 2. The testimony of the hostile witnesses was unreliable due to inconsistencies and contradictions, and the court found that the prosecution had failed to prove its case beyond reasonable doubt. 3. The call details were not admissible in evidence without the requisite certificate under Section 65-B(4) of the Evidence Act, and the court held that the prosecution had failed to prove the same. 4. The motive assigned for the crime was not proved by the prosecution, and the court found that there was no evidence to support the same. 5. The view taken by the trial court was a possible view, and the court found that there was no justification for adopting any other view.
Final Decision: The court dismissed the appeal and upheld the acquittal of the accused.

JUDGMENT :

Vikas Budhwar, J.

1. This is an appeal under Section 378(3) of Code of Criminal Procedure (hereinafter referred to as ‘CrPC’) filed against the judgment and order dated 25.2.2022 passed by Additional District & Sessions Judge/ Fast Track Court No.2, Jyotiba Phule Nagar (Amroha) in Session Trial/1700263/2014, State Vs. Israr and others arising out of Case Crime No. 278 of 2012, under Section 364 IPC, P.S. Amroha City, District Amroha, whereby accused-respondents have acquitted.

2. Briefly stated facts shorn off unnecessary details that the complainant Musharraf son of Ashraf, resident of village Nanak Nagli, P.S. Kaanth, Moradabad had submitted a written report on 31.8.2012 to S.P. Amroha with an allegation that he is the resident of village Nanak Nagli, P.S. Kaanth, Moradabad and his son Nusrat aged about 27 years is living for the past 9 years in Amroha in locality Qureshi in the house of one Shoeb as a tenant and his son had married twice as the name of the first wife is Asma and the second wife is Nazmeen. Nusrat being his son about 11 years ago had married Nazmeen daughter of Afsar Khan being in love with her and in the said connection, family members of Nazmeen were furiated and they bore enmity with his son. About 8 months ago the complainant son Nusrat was abducted and the accused being Kalam son of Qayyum resident of Sultanpur, Sujauddin, Akram, Rustam sons of Afsar Khan, Alauddin son of Akhtar Khan and Mushahid son of Sher Khan resident of village Nanak Nagli, P.S. Kaanth, Moradabad were instrumental in committing said offence and his son was recovered by the joint operation of police of Hasanpur and Gajraula.

3. As per the prosecution theory, on 29.8.2012 at 3:00 in the noon, the son of the complainant being Nusrat was accompanied with his both the wives and his children was present in the locality Qureshi, then the accused Israr made a call in the mobile phone of his son. The mobile number of Nusrat is stated to be 9917816875 and 9927874914. After receiving the said call which is stated to be made by Israr resident of village Kaserua, the complainant’s son apprised his wives that he has been called by Israr resident of village Kaserua. It is further alleged that despite the fact that the complainant’s son had proceeded on receiving the call of accused Israr, but when he did not return, then calls were made, however, it was noticed that both the mobile numbers were switched off and even after repeated search, his whereabouts were not traced and thus suspicion occurred that on account of love marriage so solemnized between his son and Nazmeen, the same became the ground of commission of the offence. Further allegation has been made that the complainant proceeded to the Police Station Amroha City, however, no action, whatsoever has been taken and thus he has submitted the written report that FIR be lodged.

4. Consequent to the submission of written report on 31.8.2012 at 19:15 hours, FIR was lodged in the concerned police station against the accused Kalam, Israr, Sujauddin, Akram, Rustam, Alauddin and Mushahid under Section 364 IPC. One Pramod Kumar Sharma was nominated as the Investigating Officer along with Inspector K.P. Singh. It has also come on record that the Investigating Officer proceeded to conduct investigation while preparing the site-plan and when the dead body of the deceased was shown to be found near river Ganga, then inquest report was also prepared. Statements under Section 161 CrPC was also undertaken and charge sheet was submitted by the Investigating Officer against the accused Israr. Nanhe, Gayasuddin, Mushahid, Akram and Kalam under Section 364 IPC. It has further come on record that during investigation, Gayasuddin @ Pappu had died. The case was committed to the Sessions, charges were read over to the accused Israr, Nanhey, Mushahid, Akram and Kalam on 10.11.2016. The accused pleaded innocence and claimed to be tried. However, subsequently, accused Kalam died and thus now criminal proceedi