Atul Kumar Saxena vs State of U.P.

Hon''ble Mrs. Jayashree Tiwari, J.—Case called out in the revised list.

Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

The present bail application has been filed for enlarging the accused -applicant on bail in Case Crime No. 255 of 2010, u/s 302 I.P.C., P.S. Kotwali, District Farrukhabad.

It is contended that the accused applicant has falsely been implicated in this case. The accused applicant is in jail since 10.03.2010. It is further contended that as per in F.I.R. there was a version of administer the insecticide (kitnasak) to the deceased as well as fired by country made pistol. It is further contended that catching of two things i.e. pistol as well as bottle of insecticide (kitnasak) is not possible. It is further contended that the children has shown as eye-witnesses, whereas on the day, the deceased was alone in the house. It is also contended that bottle of poison collected by the Investigating Officer shows that it was having half amount of the poison. It is further contended that poison has been taken by the deceased herself.

Learned counsel for the applicant referred to a ruling reported in the year 2011-TLPRE-0-608 in A. Shankar Vs. State of Karnataka, in which it has been held by Hon''ble Supreme Court that " it is settled legal proposition that in exceptional circumstances, the appellate court under compelling circumstances should reverse the judgment of acquittal of the court below if the findings so recorded by the court below are found to be perverse, i.e., the conclusions of the court below are contrary to the evidence on record of its entire approach in dealing with the evidence is found to be patently illegal leading to miscarriage of justice or its judgment is unreasonable based on erroneous law and facts on the record of the case. While dealing so, the appellate court must bear in mind the presumption of innocence of the accused and further that acquittal by the court below bolsters the presumption of his innocence. (Vide: Abrar Vs. The State of Uttar Pradesh, ; and Rukia Begum Vs. State of Karnataka, . In view of the above, we are of the considered opinion that the High Court committed an error in recording the finding of fact that the prosecution succeeded in providing the case beyond reasonable doubt. The High Court failed to meet the grounds pointed out by the trial court discarding the case of prosecution and thus, the findings of fact recorded by the High Court remain perverse. In view of the above, the appeal succeeds and is allowed. The judgment and order of the trial court dated 31.10.1998 passing in Sessions Case No. 366 of 1996 is restored. The appellant has been enlarged on bail by this Court vide order dated 26.07.2010. The bail bonds stand discharged." He referred another case reported in Mohinder Singh Vs. State of Punjab, , wherein Hon''ble Apex Court has held that "the applicant convicted and sentenced for offence u/s 367 of Indian Penal Code- on appeal High Court acquitted appellant on ground of benefit of doubt-whether case against appellant has been proved beyond all reasonable doubt on the same evidence-he is not justified in maintaining conviction and sentence of appellant-evidence led on behalf of prosecution had not brought charge home to accused-judgment of High Court giving one of accused benefit of doubt raised-reasonable doubt as to guilty of other accused-positive evidence against latter not stronger than or any different from evidence against former-case could not be taken as lying down and rule of universal application-set aside order of conviction and sentence of appellant and direct release-appeal allowed."

Learned counsel for the applicant referred para-7 of the judgment "The judgment of the High Court giving Baj Singh the benefit of the doubt certainly raises a reasonable doubt as to the quilt of the appellant. The positive evidence against him is not stronger than or any different from the evidence against the judgment of this Court in ''Dalip Singh v. State of Punjab'' with particular reference to the observations that it is possible that the High Court may have been in error in giving Baj Singh the benefit of the doubt and that therefore that circumstance should not weigh in favour of the appellant in this Court. Those observations were made with reference to the facts and circumstances disclosed in he evidence in that case and cannot be taken as laying down any rule of universal application.

In the present case we find that the evidence of the three witnesses aforesaid on which the case against the appellant depends is not free from the blemish that they have been more emphatic in their assertions than the circumstances of the case would justify. They were roused from a sound sleep by the alarm raised, in the first instance by the dying man so far as P.. 1 is concerned, and of P.W.1 himself so far as the other two witnesses'' evidence goes. When they were suddenly roused from their sleep in the early part of the dark light without any previous, apprehensions, it would be difficult for them to notice what they claim to have clearly observed. As already indicated, it is a case of their convincing themselves, however honest they may have been, that the two accused were the persons concerned in the crime without having clearly seen them or being able to see them. At any rate, in the case of the first witness for the prosecution who started the theory on which the prosecution case is based, his eyesight appears to have been too him to see clearly in the dark light, as he claims to have done, that the two accused had dealt the fatal blows. If the basis evidence of P.W. 1 is subject to reasonable doubt as to its correctness, as we think it is, there is no difficulty in viewing the evidence of P.Ws. 4 and 5 with the same doubt.

In these circumstances we are not satisfied that the evidence led on behalf of the prosecution has brought the charge home to the appellant. We would accordingly allow the appeal, set aside the orders of conviction and sentence of the appellant and direct that the be released forthwith allowed." Learned counsel for the applicant again referred another ruling report in 2006- ScCriR-0-1154\\2005-Crimes(Sc)-2-168 in Ranjitsingh Brahmajeet Sing Sharma Vs. State of Maharashtra, wherein it has been held by Hon''ble the Supreme Court that "Interpretation and application of the Maharashtra Control of Organised Crime Act, 1999 (for short ''MCOCA'') is involved in this appeal which arises out of a judgement and other dated 16th July, 2004 passed by a learned Single Judge of the Bombay High Court in Criminal Application No. 572/2004 refusing bail to the appellant herein."

Learned counsel for the applicant referred to para-90-91 of the judgment, wherein it has been held that - "A change of approach was, however, found in Daubart v. Merry 11 Dow Pharmaceuticals Inc. where the courts while allowing "general acceptance" stated that this might not be a precondition for admissibility of the scientific evidence, for which the court may consider the following:

(a) Whether the principle or technique has been or can be reliably tested? (b)Whether it has been subject to peer review or publication? (c) It''s known or potential rate of error? (d) Whether there are recognized standards that control the procedure of implementation of the technique? (e) Whether it is generally accepted by the community? And (f) Whether the technique has been introduced or conducted independently of the litigation?

In para-91 observed " In a case involving an issue as to whether on-jobexposure to the manufacturers'' products, promoted small cell lung cancer, the U.S. Supreme Court in General Electric Co.v. Robert K. Joiner following Daubart (supra), held that in cases involving the issue of expert evidence the appellate court should only consider whether there is any abuse or discretion in admitted such evidence by the trial courts and should not to into reviewing the evidence itself as it is for the trial courts to assume the "gate keeper''s role" in screening such evidence to ensure whether it is not only relevant but also reliable. This was further expanded in Kumho Tire Co. Ltd. v. Carmichael whereby the ''gate keeping'' obligation of the trial judge to ensure the relevancy and reliability for admitting the evidence extended not only to scientific but also to all kinds of expert evidence

As against this, learned A.G.A. submits that according to the version in F.I.R. as well as the material evidence collected during investigation u/s 161 Cr.P.C., there is specific allegation against the accused applicant of murdering the deceased. The post mortem report on page-15 shows that fire arm injuries were found on the person of the deceased. The ruling which has been cited by the learned counsel for the applicant relate to the stage when evidence has been completed and trial is over and culminated in acquittal by the trial court and the judgment has been delivered which judgment the High Court has reversed in appeal. Apparently, at this stage, the ruling so cited did not appear to be applicable because taking of the evidence to test and corroborate the version of the prosecution is yet awaited.

So far as ruling submitted in respect of ''MCOCA'' i.e. relate to the Special Act and not related to I.P.C. and hence is not applicable at the stage of the bail in this case.

Learned counsel for the applicant has failed to appreciate that the rulings which have been given in connection while dealing with the criminal appeals by the Apex Court, are meant for the stage of the cases when trial is over and the entire evidence of the prosecution has been taken and the witnesses have been examined or cross-examined and after assessing the entirety of the evidence and all material evidence, the trial court has pronounced a judgment of acquittal which has been reversed by the High Court. In the present case, the trial is still awaited as such these rulings at this bail stage do not seem to be at the appropriate stage.

At this stage, from the material evidence collected during investigation as well as the averments made in the F.I.R., it comes out that there is specific allegation against the accused applicant in killing and considering this fact that post mortem report also corroborates the contention of firing, at this stage, I do not find any good ground for enlarging the accused applicant on bail.

Keeping this fact in the circumstances as alleged, I do not think it to be a fit case for enlarging the accused applicant Atul Kumar Saxena on bail.

The bail application is therefore, rejected.