State of U.P. vs Saurabh Katiyar

Poonam Srivastav And Bala Krishna Narayana, JJ.—This government appeal has been preferred against the judgment and order dated 5.4.2003 passed by the Additional Session Judge, Fast Track Court II, Bareilly in Session Trial No. 620 of 1999 and Session Trial No. 620A of 1999 acquitting the single accused Saurabh Katiyar, under section 304 I.P.C. and 25 Arms Act, Police Station that Nagar, Bareilly. Leave was granted and appeal was admitted by this Court on 30.8.2006. Compliance of the said order could not be made for the reason that it could not be served on the opposite party for a considerable time and, therefore, he had no communication. Consequently the opposite party was unable to appear before the Chief Judicial Magistrate in compliance of the initial order. Subsequently he approached the Court but his prayer was turned down on the ground that the period granted by this Court stood expired. The opposite party brought to the notice of this Court that he is student of M. Tech. and residing at Allahabad. Thereafter the opposite party was directed by a Division Bench of this Court to appear before the Chief Judicial Magistrate, Bareilly within a week and furnish a personal bond of Rs. 50,000/ with two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate concerned. The Chief Judicial Magistrate was required to send a compliance report on or before 18th July, 2007. Compliance of the order was made. Record was summoned and the government appeal is being heard and decided finally.

According to the prosecution, the complainant Nitin Shukla gave an application at Police Station Baradari, District Bareilly on 17.4.1997 stating therein that in the intervening night of 16/17.4.1997 the first informant, Mayank Awasthi, Amit Rajwanshi, accused Saurabh Katiyar and deceased Shamit Singh were celebrating birthday of their friend Mayank Awasthi on the terrace of Tulasherpur Hostel. All the friends were having dinner. Shamit Singh deceased had consumed some alcohol. He went down stairs and came up with a country made pistol. He showed the said pistol to the appellant and both of them started playing with it. Suddenly a shot was fired from the pistol which resulted in an injury on cheek near the left ear of Shamit Singh who died instantaneously. The friends tried to stop the blood but to no avail. The accused is alleged to have run away from the place of incident. On the basis of the application given at the police station, a criminal case under section 304 I.P.C. was registered at case crime No. 489 of 1991. Since the matter related to police station Ijjat Nagar therefore, the investigation was carried out by the said police station renumbering the case crime number as 272 of 1997. After completing the investigation, charge sheet was submitted. The opposite party was summoned by the

Court. He denied the charges and claimed trial.

The prosecution witnesses were examined as PW1 Jai Gopal, PW2 Jag Raj Singh, PW3 Smt. Jyoti, PW4 Akhil Chaudhary, PW5 Nitin Shukla, PW6 Mayank Kumar Awasthi, PW7 Amit Rajvanshi, PW8 Dr. Virendra Nath, PW9 Karmvir Arya, PW10 retired SubInspector Kishan Chandra Tripathi and PW11 Chandra Singh Vishth. After completion of the trial, learned Session Judge gave a judgment of acquittal which has been challenged in the instant government appeal on a number of grounds.

Learned A.G.A. appeared on behalf of State and Sri G.S. Chaturvedi Senior Advocate assisted by Sri A.R. Mishra, Advocate on behalf of opposite party.

Counsel for the State placed the F.I.R. as well as post mortem report dated 17.4.1997. Antemortem injury which is single in number, is enumerated herein below:

(1) A firearm wound of entry 2 cm. x 2 cm. x cavity deep on the left side of face, just anterior to LL lobe of left ear and upon Lt angle of lower jaw. Margin lacerated and inverted, scratching, tattooing .and blackening present on opening left part of mandible fractured. Base of skull, 1st cervical vertebra and Rt. side of mastoid process broken and a bullet removed from RL mastoid process. Bullet preserved and sealed.

PW5 Nitin Shukla narrated the entire incident as he had stated in the F.I.R. On perusal of his statement, it transpires that while he was trying to adjust tape deck, he heard the shot and he turned around and he saw blood coming out and found Shamit Singh injured. He was not able to understand what had happened. He asked the accused Saurabh Katiyar to try to stop the blood but the accused was terrified and he ran away. The other friends tried to stop the blood but they found that Shamit was already dead. Warden of the Hostel Sri Karmveer Arya was informed. When the witness was questioned why he stated in the report that the shot was fired from Saurabh Katiyur, he had given an honest reply that since he had seen the pistol for the last time in the hand of Saurabh therefore, he had clearly stated what he had seen. Nitin Shukla had also proved the F.I.R. This witness has also admitted that he informed the S.S.P, that he had not seen anyone firing. He also supported the version of the F.I.R. that both the boys i.e. deceased and opposite party (accused) were playing with the pistol and it was also brought by deceased himself and trigger was pressed inadvertently between two friends. He has expressed his inability to state that how and in which direction the shot was fired. All the witnesses have repeated the same story besides they have admitted that the weapon belonged to the deceased and it was he who had brought it.

Learned Sessions Judge has stated in its judgment that on a number of occasions the prosecution has sought time to produce valid and reliable witnesses but finally it did not yield any result. PW1 Jai Gopal is father of the deceased. He had tried to give a twist to the prosecution story by alleging that the accused Saurabh was a bad charactered boy and he used to misbehave with a girl student Jyoti. Shamit Singh tried to stop Saurabh and in retaliation he opened fire on his son Shamit. This Jyoti was staying in the girls hostel of the college. This story was not repeated by any of the witness including Jyoti who was examined as a witness and, therefore, the Sessions Judge was of the opinion that save the father of the deceased, all the other witnesses including Warden PW9 Karmveer Arya, the prosecution has not been able to substantiate the guilt of the accused opposite party.

Jyoti was examined as PW3. She was unable to identify Saurabh in the Court. She was crossexamined by defence and she clearly stated that Saurabh accused had never tried to misbehave with her.

Learned A.G.A. has tried to emphasize that there is no denial that the shot was fired by Saurabh and he was also present in the celebration therefore, even if the motive has not been proved, admittedly the deceased died on account of shot fired by Saurabh. The grounds on which the arguments were advanced on behalf of the State, was not substantiated by any evidence. Besides, the admitted case is that it was an accidental fire from a pistol which was brought by the deceased himself and the deceased and accused were playing with it in a playful mood. The party was going on the terrace with blasting music. Occurrence took, place at midnight and no one could see the incident. The deceased had also consumed liquor. There is neither any motive nor reason to kill his friend and the accused was a student.

The State has filed this instant appeal on six grounds and all of them are neither specific nor anything has been pointed out which could render the impugned judgment against the settled principles of law laid down by the Apex Court as well as this Court. The State Counsel was unable to point out any specific evidence which has been overlooked either oral or documentary. After examining the entire judgment and evidence on record, we are of the opinion that the testimony of all the witnesses examined by the prosecution is devoid of any allegation mat they had seen the accused firing at the deceased. The father of the deceased is not an eye witness. Besides, he has tried to carve out some motive for the offence which stands completely negated by PW3 Smt. Jyoti. In fact she has refused the suggestion that at any point of time, the opposite party attempted to misbehave with her. She did not recognize him. The prosecution case commences with the story that both the boys were playing with the fire arm and how the trigger was pressed, none could see since one of them died and the another was arrayed as an accused. The assertion of the learned A.G.A. that the judgment of the Sessions Judge is against the principles laid down by the Apex Court as well as this Court and the acquittal of the opposite party is without any basis and justification and liable to be quashed. In fact there is no evidence whatsoever to substantiate the guilt of the opposite party. Not even an iota of evidence is pointed out. The prosecution has miserably failed to substantiate its case by any stretch of imagination much so against reasonable doubts.

The Apex Court has always dissuaded the Appellate Court from interfering in a judgment of acquittal into one of conviction unless and until it is a case where the Appellate Court is of the view that the finding of the Sessions Judge is absurd and against the evidence. It is well settled that the presumption of innocence of the accused was further reinforced by his acquittal by the Trial Court and the findings recorded by it which had the advantage of seeing the witnesses, hearing evidence and watching their demonour. A judgment of acquittal could be reversed only for a very substantial and compelling reasons. In a case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that any person can be presumed to be innocent unless he is proved to be guilty by a competent Court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the Trial Court. In our opinion, the instant case is squarely covered by the said principle laid down in the various cases by the Apex Court. Satya Namyan Yadav v. Gajanand and another in Criminal Appeal No. 305 and 999 of 2001 decided on 1.8.2008 as well as Mahesh v. State of Maharashtra, (2009) 3 SCC (Cri) 543 = 2008 (62) ACC 375 (SC) = 2008 (67) AIC 219. The parameters were laid down in the case of Tota Singh v. State of Punjab. 1987 SCC (Cri) 381. Paragraph 6 of the said judgment is reproduced below:

"6 ...... The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the Lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous."

The same parameters were laid down in the case of State of Rajasthan v. Raja Ram. 2003 SCC (Cri) 1965 = 2003 (47) ACC 635 (SC). Paragraph 7 of the said judgment is reproduced below :

"7.....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. [Further, it is held that] in a case where admissible evidence is ignored; a duty is cast upon the appellate Court to reappreciate the evidence in a case where the accused, has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. The principle to be followed by the 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, it is a compelling reason for interference."

The fire arm did not belong to Saurabh Katiyar. The prosecution has come up with clear case that it was the deceased who, while having his dinner, had gone down stairs and got, the illfated fire arm which was responsible for his death. Learned A.G.A. has not been able to point out any infirmity in the judgment whatsoever. So far conviction under section 25 Arms Act is concerned, it is without any basis. Prosecution itself has come up with the case that the fire arm belonged to the deceased and it was he who brought it to show to his friends therefore, the possession of the illicit arm cannot be said to be with the accused and the learned Sessions Judge has rightly acquitted the opposite party under section 25 Arms Act.

Sri G.S. Chaturvedi Senior Advocate assisted by Sri A.R. Mishra Advocate has also pointed out that there is not an iota of evidence or any motive to kill his friend with whom the accused was enjoying birthday party.

In the circumstances, we are in agreement with the judgment of the learned Sessions Judge that the prosecution has utterly failed to substantiate its case by cogent and valid evidence. We are not inclined to interfere in the judgment of acquittal. The State appeal is dismissed. The bail bonds are cancelled and sureties are discharged.