14 Sep 2022 7:50 AM GMT
The Allahabad High Court recently upheld the acquittal of 7 murder accused in view of the fact that there was an enormous time gap between the point of time when the accused and the deceased were last seen alive together and when the deceased was found dead.The bench of Justice Vivek Kumar Birla and Justice Vikas Budhwar further took into account that there were material contradictions...
The Allahabad High Court recently upheld the acquittal of 7 murder accused in view of the fact that there was an enormous time gap between the point of time when the accused and the deceased were last seen alive together and when the deceased was found dead.
The bench of Justice Vivek Kumar Birla and Justice Vikas Budhwar further took into account that there were material contradictions and inconsistencies in the statement of the eyewitness, there was a delay in lodging of the FIR, followed by the fact that CDR details did not match or mark the presence of accused with the deceased.
Importantly, the Court relied upon the Apex Court's rulings in the cases of Dharam Deo Yadav Vs. State of Uttar Pradesh (2014) 5 SCC 509, Dhan Raj @ Dhand Vs. State of Haryana (2014) 6 SCC 745, and Chandrapal Vs. State of Chhattisgarh 2022 LiveLaw (SC) 529 to emphasize that the last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.
The case in brief
In the instant case, Jai Prakash (Informant) submitted a written report before the Deputy Inspector General of Police Bareilly on May 19, 2014, with an allegation that he solemnized marriage with the deceased (Tabbasum @ Munni) and since theirs was an interfaith marriage, therefore, the accused fraction (relatives of the woman) got frustrated as their daughter married the informant, who happens to be of a different religion.
It was further alleged that on April 25, 2014, when the informant was traveling from Bareilly to Pilibhit then at 5.00 in the evening, the accused respondents (7 in number) who happened to be the relatives of the deceased, while exerting pressure upon her, forcibly abducted his wife. It was further alleged that on May 17, 2014 (2 days before the loading of the FIR), he received a phone call from his wife/deceased apprising him that she has been illegally confined in the house of his maternal uncle and he, along with others had committed a bad act with her and they are planning to murder her.
Now, the very next day, on May 20, 2014, one Tilakram lodged a written complaint before the Station House Officer, Sungarhi, District Pilibhit reporting that near the drain in Village Gauhania a dead body of a woman was found. It was, later on, discovered that the dead body was of the deceased in this case. The trial was conducted and the accused persons were acquitted of the charges under Sections 342, 364, 302, 148, 149, and 201 IPC. Challenging the order of the acquittal, the state moved the instant appeal.
At the outset, the Court noted that PW4 (eyewitness/husband of the deceased) had made many different statements at different points of time and that there was a delay of more than 24 days in lodging of the FIR from his side that too in a case, wherein the first informant is an eye-witness and husband, who even, in fact, had done interfaith marriage.
"The reasons of the delay have been thoroughly unexplained being unbelievable and inconceivable in the light of the fact that normally where a loving husband is witnessed with the situation whereat the wife gets abducted coupled with the fact that in-laws of the husband are not happy with the marriage then no prudent person would wait for 24 days in lodging the first information report. So much so in the statement of the PW4 Jai Prakash (Husband) it has also come on record that he on 25.4.2014 proceeded to his younger brother's in-laws place and stayed thereat for 3-4 days and did not discuss the said fact with the wife of the younger brother. The explanation so offered by PW4 Jai Prakash that he inner heart wanted his wife to be safe is not an explanation worth consideration," the Court remarked.
Further, regarding the last seen evidence, the Court observed that the prosecution remained constant in its stand that the deceased was abducted and abducted by the accused on April 25, 2014, however, the dead body of the deceased was found on May 20, 2014, that means after a period of about 24 days.
In this regard, the Court observed that there was a huge time gap between the point of time when the accused and the deceased were last seen alive together and when the deceased was found dead.
Regarding the CDR, the Court noted that the call details with respect to the accused at the place of the occurrence was not proved as the certificate under Section 65-B(4) of the Indian Evidence Act, which is a mandatory condition for acceptance of the electronic evidence, was not produced by the prosecution.
Against this backdrop, the Court further observed that there exists a suspicion pointing towards the commission of offence by the accused, however, the Court added that it cannot partake the character of the accused committing the crime until and unless there is a chain or link between the accused and the commission of crime specifically pointing the accused nobody else
With this, upholding the acquittal order of the trial Court, the High Court concluded thus:
"Notably in the present case this Court finds that there are material contradictions and inconsistency in the statement of PW Jai Prakash, who happens to be an eyewitness, delay in lodging of the FIR, huge time gap between the deceased being last seen with the accused and with the deceased, followed by the fact that CDR details do not match or mark the presence of accused with the deceased and also the fact that the postmortem report though stands proved by PW7 discloses the fact that the death occurred between the intervening night of 18/19. 5. 2014."
Consequently, finding that barring PW4 Jai Prakash nobody supported the prosecution case entailing the demolition of the entire prosecution theory, the Court upheld the acquittal order and dismissed the state's appeal.
Case title - State of U.P. v. Mahfooz Ansari And 6 Ors. [GOVERNMENT APPEAL No. - 316 of 2019]
Case Citation: 2022 LiveLaw (AB) 434
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