The Allahabad High Court has set aside the life sentence of the accused in a murder case for failing to prove the crime beyond doubt and acquitted him of the charges.
The Division Bench of Justice Siddharth and Justice Nalin Kumar Srivastava passed this order while hearing a Criminal Appeal filed by Sattar.
The criminal appeal under Section 374(2) of the Criminal Procedure Code has been preferred against the order dated 16.4.2012 passed by the IInd Additional Sessions Judge, Muzaffarnagar in Sessions Trial, arising out of Case at Police Station Shamli, District Muzaffarnagar whereby the accused appellant was convicted under Sections 363, 302 and 201 IPC and sentenced to undergo four years rigorous imprisonment for the offence under Section 363 IPC with a fine of Rs 5,000/-, to undergo life imprisonment for the offence under Section 302 IPC with a fine of Rs 10,000/- and to undergo two years rigorous imprisonment with a fine of Rs 1000/- for the offence under Section 201 IPC with default clause. All the sentences were directed to run concurrently.
The prosecution story is that a missing report in respect of the missing of Ummed, aged about 4 years, son of Momin since 10.5.2008 at about 10.00 a.m was reported at P.S Kotwali Shamli on 14.5.2008, which was registered.
Subsequently, another application was given by the informant at P.S Shamli alleging therein that his missing son was last seen in the company of Sattar son of Abbas by Shamshad and Lilu on 10.5.2008 at about 11.00 am.
During investigation, accused Sattar was arrested by the police and on his pointing-out from a sugar cane field one skeleton of deceased Ummed was retrieved by the police on 16.5.2008.
The recovered skeleton was sent for inquest and post mortem and after completion of investigation charge sheet under Sections 363, 302 and 201 IPC was submitted against accused Sattar. The case being exclusively triable by the Sessions Court was committed to the Court of sessions where charges under Sections 363, 302 and 201 IPC were framed on 25.2.2009 against the accused, who denied all the charges and claimed for trial.
Counsel for the appellant vehemently submitted that the entire prosecution story is false and frivolous and the appellant has been falsely roped in this case by the informant.
It is also submitted that the case is based upon circumstantial evidence. Nobody has seen the deceased boy in the company of the accused appellant and witness Lilu, who has been examined as last seen witness, is not reliable at all and his presence over the place of occurrence is not natural and probable.
It is also submitted that the present appellant had no motive at all to commit the alleged crime.
It is further submitted that the prosecution has failed to prove that the skeleton, which was allegedly retrieved on the pointing out of the appellant, was really of the deceased child of the informant.
On such grounds a prayer has been made for the acquittal of the appellant by allowing the criminal appeal.
The Court observed that,
Indubitably, present is a case based on circumstantial evidence and no direct evidence lies on record to indicate the involvement of the accused appellant in the alleged crime. What the prosecution is under obligation to prove in a case based upon circumstantial evidence, has been settled in umpteen of cases by the Apex Court and this Court as well.
In the light of the aforesaid submissions, we examined the evidence of Momin, the informant / father of the deceased child and it emerges from his statement that since he was busy in search of his son, he could not report to the police station prior to 14.5.2008. The said conduct of Momin in this connection was not natural. The missing boy was not a grown-up child but was a little boy of tender age of 4 years only but the police was informed four days after his missing by the informant / father which denotes the unnatural conduct of Momin and it appears that the prosecution has tried to conceal the real facts and origin of the case.
Another issue which has been raised by the counsel for the appellant is that there is one FSL report on record in respect of examination of clothings and skeleton retrieved from the pit on the pointing-out of the accused appellant which reveals that human blood was found on the articles sent for forensic test but it does not connect the present appellant with the crime alleged against him.
The Court further observed that,
On the basis of the aforesaid discussion, we are of the considered view that the prosecution has miserably failed to prove its case beyond reasonable doubt. The trial court though discussed several factors relating to the case but has not scrutinized and appreciated the evidence on record in proper and legal manner and thereby, has accorded a perverse finding of conviction. The chain of the circumstances is never complete, which was essential to record a conviction of an accused in a case based on circumstantial evidence.
All the material circumstances, like last seen, motive, recovery of kidnapped boy have not been proved for want of cogent and reliable evidence. The evidence rendered by the prosecution is shaky and not trustworthy. The medical evidence also is of no help to the prosecution. All these lacunas denude the prosecution case and in the aforesaid legal and factual scenario, we have no option but to set-aside the impugned judgment and order and to record acquittal of the appellant.
“Recently, in Ravi Sharma Vs State (NCT of Delhi), (2022) 8 SCC 536, where in the circumstances of the case, the Supreme Court found the last seen theory not to be true, motive was not proved, recovery of firearm was doubtful, material contradictions found in the evidence rendered and no sufficient link to come to the irresistible conclusion pointing guilt only to appellant, it was reiterated that mere suspicion, howsoever strong it may be, cannot be a substitute for acceptable evidence. In the peculiar circumstances of the case, the aforesaid theory applies to the case as well.
Hence, the impugned judgment and order of conviction and sentence, which has been sought to be assailed, calls for and deserves interference. The criminal appeal is liable to be allowed,” the Court also observed while allowing the appeal.
“The order dated 16.4.2012 is, accordingly, set aside. The convict-appellant Sattar is accordingly found not guilty for the offence punishable under Section 363, 302 and 201 IPC. He is acquitted from all the charges. Convict-appellant is on bail. He need not surrender, his bail bonds are cancelled and sureties are discharged,” the Court ordered.