State of U.P. Vs. Vijai Kumar Kori [Allahabad High Court, 31-05-2016]

Section 378 of Code of Criminal Procedure, 1973 does not put any restriction on the powers of appellate Court in dealing with appeal against acquittal. It has been interpreted to give appellate Court full power to appreciate, review and reconsider the evidence on record and to reach its own conclusion on the basis of such evidence.


HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Hon’ble Ajai Lamba, J. and Hon’ble Ravindra Nath Mishra-II,J.

31.05.2016

CRIMINAL APPEAL No. – 2454 of 2009

Appellant:- State Of U.P. (State Appeal) Respondent:-Vijai Kumar Kori Counsel for Appellant:- Govt. Advocate, Shishir Pradhan Counsel for Respondent:- Gulam Mustafa

 

(Delivered by Hon’ble Ravindra Nath Mishra-II, J. )

1. Challenge, in this criminal appeal, is to judgment dated 6th April, 2009 passed by Additional Sessions Judge, Court No. 5, District Unnao in Sessions Trial No. 281 of 2007, under Sections 364, 302/34 and 201 I.P.C., Police Station Gangaghat, District Unnao, whereby the respondents-accused are acquitted of the charges levelled against them.

2. Factual matrix of the case, giving rise to this appeal, is that a missing report (Exhibit Ka-4) was given by father of deceased Sri Vipin Narain Tiwari at Police Station Gangaghat on 7th March, 2006 that his son Ashish Narain Tiwari aged about 20 years was missing since 6th March, 2006. On 8th March, 2006, an F.I.R. ( Exhibit Ka-5) was lodged at Police Station Ajgain, District Unnao at 22.30 on an application given by one Chhatrapal Yadav that a dead body of unknown person was found in charred condition near his field. Station Officer of Police Station Ajgain thereupon took the dead body in his custody and conducted Panchayatnama (Exhibit Ka-10). Autopsy (Exhibit Ka-7) was conducted on the cadaver of the deceased on 9th March, 2006 in which whole body was found to be in charred condition except sole. After postmortem the dead body was identified by Sri Vipin Narain Tiwari in mortuary as that of his missing son Ashish Narain Tiwari. He, thereafter, gave an application (Exhibit Ka-1) to Station House Officer, Ajgain, District Unnao that his son had left his house on 6th March, 2006 at about 5 O’ clock in the evening for Badshah Gym, but he did not come back. After publication of news in newspaper that a dead body of an unknown person was found, he came to mortuary and identified the dead body. The dead body was handed over to the complainant Vipin Narain Tiwari for its last rites. During investigation the complainant moved an application (Exhibit Ka-2) on 11.03.2006 to Superintendent of Police, Unnao, stating that his son Ashish Tiwari was kidnapped and killed by his friends and in order to destroy the evidence they threw him in area lying under Police Station Ajgain in charred condition. The investigation was conducted by Station House Officer, Gangaghat, which culminated in filing of charge-sheet under Sections 364, 302 and 201 I.P.C. Case was committed to the Court of Sessions where the Additional Sessions Judge, Unnao framed charges against the accused Vijay Kumar Kori, Mohm. Shafique @ Hero and Mohm. Ashif under Sections 302 and201 I.P.C. Additional Charge under section 364 I.P.C was framed against accused Vijay Kumar Kori. Charges were read over and explained to the accused persons which were denied by them. They pleaded not guilty and claimed to be tried.

3. At the trial, prosecution examined PW-1 Vipin Narain Tiwari, who has proved missing report (Exhibit Ka-4) and application moved by him on 09.03.2006 (Exhibit Ka-1). He has also stated on oath that his son Ashish Tiwari had gone to Badshah Gym on 06.03.2006 at 5 O’ clock in the evening by his Hero Honda motorcycle thereafter he did not return. PW-2 Rajesh Pandey has stated that on 06.03.2006 he was going to Lucknow by driving his own truck loaded with Morang. Between 6-7 p.m. he stopped at Unnao bypass for tea. where he saw accused Mohammad Asif coming on motorcycle. Accused Vijay was sitting on rear seat and deceased Ashish was in between them. Accused Sharif was on another motorcycle. They were going towards Ajgain. He also called Ashish, but perhaps he did not listen his voice and motorcycle proceeded towards Ajgain. After 4-5 days, when he returned, he came to know that Ashish has been murdered and his dead body has been found in Ajgain. Then he told it to Sri Vipin Narain Tiwari. PW-3 Raj Kishore Singh is also witness of last seen. He had also seen deceased Ashish on motorcycle on which accused Vijay was sitting on rear seat, however, he could not identify the person driving the motorcycle. He had also tried to intercept Ashish, but he did not stop. PW-4 Cp. 402 Shiv Pal has proved missing report (Exhibit Ka-4) and corresponding entry in G.D. No. 3 upon 1.00 a.m. dated 07.03.2006 (Exhibit Ka-4). PW-5 H.C. Arun Kumar Singh has proved Chik F.I.R. No. 30/06 (Exhibit Ka-5) and corresponding entry in G.D. (Exhibit Ka-6). PW-6 is Dr. Shiv Kumar, who has conducted postmortem of the dead body and stated that the dead body was completely charred therefore cause of death and time could not be ascertained, Postmortem report is (Exhibit Ka-7). Left humorous bone and one rib were preserved by the doctor for D.N.A. Test. PW-7 S.I. Ashok Kumar Yadav is investigating officer, but he did not record statement of any witness. PW-8 S.I. Dhirendra Singh recorded statement of accused Vijay and Gym owner Ravi Kumar and thereafter the investigation was transferred to PW-9 S.O. Brijesh Kumar Pandey, who concluded the investigation and filed charge-sheet (Exhibit Ka-8). PW-10 S.I. Rakesh Kumar Singh, who had done Panchayatnama (Exhibit Ka-10) and prepared site-plan (Exhibit Ka-9). Letter to CMO, Photo of dead body, Challan are Exhibit Ka-11 to Ka-14 respectively. DNA report is Exhibit Ka-21 and Ka-22.

4. On appreciation of evidence adduced by the prosecution, the trial Court held that no case was made out against accused persons under Sections 364, 302 and 201 I.P.C, therefore, the accused persons were acquitted of the charges levelled against them. Feeling aggrieved by the impugned Judgment passed by the trial Court the appellant-State has preferred this appeal, which has come up before us for hearing.

5. This Court has heard the learned Additional Government Advocate Mrs. Smiti Sahai for the appellant-State and the learned counsel for the accused-respondents at length and considered the evidence forming part of this appeal.

6. Learned counsel for the appellant-State has argued that the impugned judgment is not sustainable in eyes of law, as it is against record. It is also argued that the trial Court has wrongly held that PW-2 Rajesh Pandey and PW-3 Raj Kishore Singh are chance witnesses; that conduct of the witnesses are unnatural; that chain of circumstances is not complete; that there are contradictions in the statement of witnesses; that motive and extrajudicial confession made by accused-respondent are not proved. There is sufficient material on record to prove charges against the respondents-accused.

7. Per contra, learned counsel for the accused-respondents has argued that the conduct of the witnesses is unnatural, motive to commit offence is not established and there is nothing on record to evidence to establish illicit relations of the deceased with sister of Asif. Thus, as per his contention, Chain of circumstances is also not complete. The trial Court has committed no mistake in arriving at the conclusion that the prosecution has miserably failed to establish charges against the accused-respondents.

8. Accused persons in their statements recorded under Section 313 Cr.P.C. pleaded their ignorance and filed copy of fees receipt, admit card and identity card. Admit card of National Institute of Fashion Technology, inland receipt telegram and registry receipt.

9. Before coming to the spectrum of the prosecution case, we think it proper to dwell upon the scope of the power of appellate Court in an appeal against an order of acquittal.