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CASE NO.: Appeal (crl.)  635 of 2001

PETITIONER: State of U.P.

RESPONDENT: Jai Prakash

DATE OF JUDGMENT: 20/06/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the judgment of the  Division Bench of the Allahabad High Court, directing  acquittal of the respondent by setting aside the judgment of  conviction and sentence passed by learned III Additional  District and Sessions Judge, Aligarh in Sessions Trial  No.391/1979.  Accused was convicted for offence punishable  under Sections 302, 364 and 201 of the Indian Penal Code,  1860 (in short the ’IPC’). He was awarded life imprisonment for  each of the first two offences and five years RI for the last one.   All the sentences were directed to run concurrently.    2.      Sans unnecessary details prosecution version as  unfolded during trial is as follows:  

In the morning of 21-2-1978 the accused-respondent  was found talking with Nuruddin (hereinafter referred to as  ’the deceased’) at about 9 ’0’ clock in front of his house where  he was playing. The accused-respondent allegedly took him  with him and thereafter Nuruddin was not seen and his dead  body was recovered in the night from a well. Natthu Singh  (PW-4) had allegedly seen in the same forenoon the deceased-  Nuruddin going on a cycle with the accused-respondent. Smt.  Khatoon (PW-3) mother of the deceased-Nuruddin had also  seen Nuruddin with the accused-respondent outside her  house at about 9 A.M. She had also seen him going with him.  Thereafter, only his dead body could be recovered from a well.  Amina (PW-8) had also seen Nuruddin talking with the  accused-respondent outside her house in the morning of the  day of the incident. Allahdin (PW-2) had gone to Hathras to  sell iron nails and had returned home at about 5 P.M. His wife  Smt. Khatoon (PW-3) had then told him that Nuruddin had  not been seen since morning and that the accused-respondent  had taken him. He was also informed by Natthu Singh (PW-4)  and others that they had seen the deceased going on a cycle  with the accused-respondent. He had then lodged the report  the same night at 9.10 P.M.

The dead body of the deceased was recovered from the  well of Raja Ram the same night at the instance of the  accused-respondent who had allegedly been arrested by the SI  Naresh Pal Yadav (PW-7) who had reached the village of the  incident at about 10 P.M. Balbir (PW-6) was a witness of the  recovery of the dead body of the deceased from the well at the  instance of the accused and in consequence of the disclosure

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made by him under Section 27 of the Indian Evidence Act,  1872 (in short ’Evidence Act’). The case was initially registered  under Section 364 IPC but was subsequently converted  additionally under Section 302 IPC and Section 201 IPC on the  recovery of the dead body.

The dead body was subjected to postmortem which was  conducted on 22-2-1978 at 3 P.M. by Dr. S.K. Saxena (PW-1).  The deceased was aged about 7 years and about 1= day had  passed since he died. The following ante-mortem injuries were  found on his person:

1. Lacerated wound 1= " x 1" x bone deep on the scalp  (L) side ’/2" outer to midline, 1=" above (L) eyebrow. 2. Three abrasions in an area of 2" x 2" on the (L)  temple region varying from <" x <" to =’ x 2/10".  Skin of hands and feet was corrugated.

Death had occurred due to coma and asphyxia owing to  injury to brain and drowning. The investigation was  undertaken and charge sheet was filed. As noted above, the  Trial Court found the accused persons guilty.    

3.      In appeal, the appellant urged that the version of  prosecution is clearly unbelievable.  If the accused had the  motive the scenario as described by the prosecution does not  fit in. The High Court noted if the accused was harassing PW- 3 and the deceased was asked to accompany her, it is highly  improbable that mother of the deceased would like the  deceased to go with the accused. So far as the evidence of PW- 4 is concerned it was noted that he had not stated before the  Investigating Officer that the deceased was being carried by  the accused at bicycle.  Accordingly the High Court directed  acquittal.           

4.      In support of the appeal learned counsel for the  appellant-State submitted that the motive was clearly  established.  The accused was having animosity towards the  family of the deceased.  Merely because PW-4 had not stated  that during investigation the accused was carrying the  deceased on a cycle, same cannot be a ground to discard the  prosecution version.   

5.      None appeared for the respondent in spite of service of  notice.  

6.      There is no embargo on the appellate Court reviewing the  evidence upon which an order of acquittal is based.  Generally,  the order of acquittal shall not be interfered with because the  presumption of innocence of the accused is further  strengthened by acquittal. The golden thread which runs  through the web of administration of justice in criminal cases  is that if two views are possible on the evidence adduced in the  case, one pointing to the guilt of the accused and the other to  his innocence, the view which is favourable to the accused  should be adopted. The paramount consideration of the Court  is to ensure that miscarriage of justice is prevented. A  miscarriage of justice which may arise from acquittal of the  guilty is no less than from the conviction of an innocent. In a  case where admissible evidence is ignored, a duty is cast upon  the appellate Court to re-appreciate the evidence where the  accused has been acquitted, for the purpose of ascertaining as  to whether any of the accused really committed any offence or  not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh  (2002 (2) Supreme 567)]. The principle to be followed by

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appellate Court considering the appeal against the judgment of  acquittal is to interfere only when there are compelling and  substantial reasons for doing so. If the impugned judgment is  clearly unreasonable and relevant and convincing materials  have been unjustifiably eliminated in the process, it is a  compelling reason for interference. These aspects were  highlighted by this Court in Shivaji Sahabrao Bobade and Anr.  v. State of Maharashtra (AIR 1973  SC 2622), Ramesh Babulal  Doshi v. State of Gujarat (1996 (4) Supreme 167), Jaswant  Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore  Jha v. State of Bihar and Ors. (2003 (7) Supreme 152), State of  Punjab v. Karnail Singh (2003 (5) Supreme 508 and State of  Punjab v. Pohla Singh and Anr. (2003 (7) Supreme 17).

7.      In the instant case the scenario presented by the  prosecution does not appear to be natural.  Prosecution case  for establishing motive was that the accused was harassing  PW-3 and had been rebuked for that. It was also stated that  on several occasions accused wanted to sexually assault PW-8  and to ensure that she is not left alone, the deceased was  asked to accompany her. In this background it is improbable  and unnatural as rightly held by the High Court that PW-3  would permit deceased to go with the accused and would not  take any precaution when she claimed to have seen the  deceased in the company of the accused.  Evidence of PW-4 is  also not acceptable. His version in Court was that the accused  was carrying the deceased on a bicycle. He did not say so  during investigation.          

8.      In view of the nature of the evidence tendered by the  prosecution, the High Court was right in directing acquittal of  the respondent. We find no merit in this appeal which is  accordingly dismissed. Bail bonds executed for being released  on bail, stand discharged.