Chief Justice's Court
Case :- CRIMINAL APPEAL No. - 3742 of 2018 Appellant :- Pinku Nat Respondent :- State Of U.P.
Counsel for Appellant :- Pankaj Kumar Gupta Counsel for Respondent :- G.A.
Hon'ble Govind Mathur,Chief Justice Hon'ble Dr. Yogendra Kumar Srivastava,J.
This appeal is before us to assail correctness of the judgment dated 01.03.2004 passed by learned Additional Sessions Judge, Court No. 4, Etawah in Sessions Trial No. 319 of 2002.
By the judgment impugned, learned trial Court recorded conviction of accused Pinku Nat and Vishnu Kumar for the offence punishable under Section 302 Indian Penal Code and awarded sentence to undergo life-term imprisonment with fine of Rs. 10,000/- each and further to undergo six months imprisonment in the event of default in payment of fine.
At the threshold, it would be appropriate to state that a Division Bench of this Court has already accepted Criminal Appeal No. 1689 of 2004 on 19.04.2017 preferred by co-accused Vishnu Kumar. In the appeal aforesaid, the Division Bench arrived at the conclusion that evidence adduced by the prosecution suffers from several discrepancies. The first information report is ante- timed and a palpable attempt was made to manufacture and plant the evidence and, as such, genesis of the case is not comparable with the prosecution story and prosecution evidence.
It is submitted by learned counsel for the appellant that case of the present accused is absolutely of similar nature that with the case of co-accused Vishnu Kumar.
We have considered the entire material available on record and also heard learned counsels.
Succinctly, facts of the case are that on 28.04.2002 at about 07:00 P.M., deceased Km. Neetu was returning to her house alongwith her mother Rama Devi and younger cousin Km. Kumkum after meeting the call of nature. As per the prosecution, the accused Vishnu Kumar and his brother-in-law Pinku Nat were sitting near the house of one Sri Amar Singh and these two persons grabbed Km. Neetu with an intention to ravish her. On raising alarm, Vishnu Kumar and Pinku Nat caused several stab injuries to Km. Neetu who in turn rushed towards the road crossing. Smt. Rama Devi (PW-4) and Km. Kumkum (PW-5) were also subjected to stab injuries. Two persons, namely, Jabar Singh and Rakesh Kumar arrived at the spot of occurrence and challenged the accused Vishnu Kumar and Pinku Nat. The accused persons then fled towards Indirapur.
The Investigating Officer after making regular investigation submitted a police report as per provisions of Section 173 Code of Criminal Procedure, 1973 before the Court competent. The case being sessions triable was committed to the Court of Sessions and charges were framed after hearing the accused persons. On denial of charges, trial commenced as desired. During the course of trial, prosecution adduced ocular as well as documentary evidence. An opportunity was also given to the accused persons including the appellant Pinku Nat to explain adverse and incriminating evidence available against him. No evidence in defence was adduced, however, the Investigating Officer Anjani Kumar Srivastava was again summoned to get his testimony recorded and that was recorded as CW-1. Another Sub Inspector Panna Lal was summoned as Court witness (CW- 2).
Learned trial Court after examining the evidence available on record held the accused appellant and the co-accused Vishnu Kumar guilty for an offence under Section 302 Indian Penal Code. Accordingly, the conviction was recorded and the sentence was awarded.
As already stated, co-accused Vishnu Kumar also preferred an appeal that came to be accepted by the judgment dated 19.04.2017 in Criminal Appeal No. 1689 of 2004.
On going through the judgment passed in the case of co- accused Vishnu Kumar, it appears that a distinction has been made in the role of co-accused Vishnu Kumar and the present appellant Pinku Nat. In the case of Vishnu Kumar, the Court noticed that a chance witness Dr. Vijay Bahadur (PW-6) who also arrived at the spot and had little talk with the injured Km. Neetu. This witness stated that Km. Neetu conveyed the identities of assailants to him and that was in relation to present appellant only.
Suffice to mention that Dr. Vijay Bahadur (PW-6) was declared hostile by the trial Court, however, his statement to the extent that is in consonance with the prosecution story can very well be read in evidence and, as such, evidence adduced by this witness in relation to the present appellant is taken into consideration by us while examining the other evidence.
So far as the argument advanced on behalf of the appellant that the case of the present appellant is exactly similar to the case of co-accused Vishnu Kumar is concerned, suffice to state that as per Dr. Vijay Bahadur (PW-6), the stab injuries were said to be caused by this accused, hence minute distinction so noticed keeps the present case on different pedestal.
At the threshold, it would be appropriate to state that in light of the medical evidence adduced by Dr. Sanjay Kumar (PW-3), there is no doubt about the fact that death of Km. Neetu was homicidal one.
Precisely, the issue under examination is relating to involvement of the present accused in the crime in question. The prosecution cites Smt. Rama Devi (PW-4) and Km. Kumkum (PW-5) as eye-witnesses. These witnesses claimed that they were accompanying Km. Neetu (deceased) while returning after meeting the call of nature and defecating in the field. These two witnesses have not made any distinction in the role of co-accused Vishnu Kumar and the present appellant Pinku Nat in commission of crime. In the case of Vishnu Kumar, a Division Bench of this Court disbelieved the testimony of these two witnesses and, as such, that is applicable in the instant matter also in its entirety.
So far as the evidence adduced by Dr. Vijay Bahadur (PW-6) is concerned, pertinent to mention that he is not an eye witness. As per this witness, deceased Km. Neetu disclosed identification of the appellant Pinku Nat.
True it is, to this extent, case of the present accused-appellant is distinguishable with the case of co-accused Vishnu Kumar but merely on basis of this evidence, no evidence can be recorded especially looking to the fact that no other direct or circumstantial evidence is available on record to make a complete chain of circumstances indicating only one conclusion about involvement of the present appellant in the crime in question.
Worthwhile to mention that though in the document (Ex. K6), name of the accused-appellant Pinku Nat is referred but this document simply pertains to collection of blood soaked earth which was subjected to serological examination. In the case of Vishnu Kumar, this Court arrived at a definite conclusion that the first information report was ante-timed. The testimony of eye witness Rama Devi (PW-4) and Km. Kumkum (PW-5) suffer from discrepancy and improbable facts and further that the recovery was not established and the knife said to be recovered at the instance of both the accused persons was not having blood stain or any other sign to connect that with the crime in question.
In entirety, a reasonable doubt exists in subjecting the prosecution story and, therefore, the appellant is entitled to have benefit of doubt. Accordingly, the appeal is allowed. Judgment dated 01.03.2004 passed by learned Additional Sessions Judge, Court No. 4, Etawah is set aside. The appellant – Pinku Nat is acquitted from the charge relating to offence punishable under Section 302 I.P.C. Let the accused-appellant Pinku Nat son of Late Pooti Nat resident of Village Niwari Kala, Police Station Bakewar, District Etawah be released forthwith from State custody in Sessions Trial No. 319 of 2002 (State Vs. Pinku Nat and another) arising out of Case Crime No. 109 of 2002, under Section 302 I.P.C., Police Station Bakewar, District Etawah, if not required in any other matter.
Order Date :- 27.11.2018 Shubham .
(Dr. Y.K. Srivastava, J.) (Govind Mathur, C.J.)