Court No. - 41
Case :- CRIMINAL APPEAL No. - 1081 of 1992 Appellant :- Satish Respondent :- State Counsel for Appellant :- R.K. Saxena Counsel for Respondent :- A.G.A.
Hon'ble Harsh Kumar,J.
This appeal has been filed against the judgment and order of conviction dated 29.5.1992 passed by Vth Additional District and Sessions Judge, Kanpur Dehat in Sessions Trial No. 200 of 1990 (State v. Satish and Another), under Sections 225 and 394 IPC, Police Station Rasoolabad, District Kanpur Dehat.
The brief facts related to this case are that Sri Ashok Kumar lodged FIR on 10.8.1990 at about 10:00 p.m. at Police Station Rasoolabad, District Kanpur Dehat at Case Crime No. 140 of 1990 under Sections 394 and 225 IPC against the appellant and four others with the allegations that on 10.8.1990 he along with Sarmod Kumar and Ram Sanehi had gone to Bilaha Tiraha at about 4:00 p.m. to fetch his relatives, who were about to come from Bharthana, District Etawah but despite wait up to 7:00 p.m., the expected relatives did not come and since one Gyan Singh was coming by his Tractor, he also left to his village Ajanpur by his Tractor and when he reached ahead of Brahmin Gaon near the culvert, two miscreants armed with Pistols were seen in the light of Tractor. It was also alleged that Tractor was stopped on the Pistol point on which they got down from the Tractor and in the meantime one of the miscreants gave a Lathi blow on his head and snatched HMT wrist watch from his left hand.
It is further stated that they caught hold of both the culprits Satish son of Nanhe and Dinesh @ Pappu and upon their alarm several persons of Brahmin Gaon arrived at the road and when the miscreants were being brought to Police Station, accused Vijay Bahadur with his licensed gun along with accused Ashok Kumar, Jai Kishore and Chunna arrived there on the pretext that Dinesh @ Pappu is their relative and got him released from their custody which was seen by Shanker, Kallu and several other persons of village.
After lodging of FIR, upon investigation charge sheet was submitted against all the named accused persons under sections 394 and 225 IPC and charges under Section 225 IPC were framed against co-accused Vijay Bahadur, Ashok Kumar, Jai Kishore and Chunna while charges under Section 394 IPC were framed against accused appellant Satish and Dinesh who denied from the charges and demanded trial.
In order to prove its case the prosecution produced first informant Ashok Kumar as PW-1 and Kallu, eye witness of the incident of rescuing of accused Dinesh by co-accused persons as PW-2. After closure of prosecution evidence, statement of accused persons were recorded under Section 313 Cr.P.C. who did not produce any defence evidence and the learned trial Court upon hearing the learned counsel for the parties and perusal of the record, passed the impugned order of conviction, convicting accused appellant Satish and Dinesh for the offence under Section 394 IPC and sentenced each of them with rigorous imprisonment for a period of four years while convicted co-accused Vijay Bahadur, Ashok Kumar, Jai Kishore and Chunna for the offence under Section 225 IPC and sentenced them accordingly.
Feeling aggrieved Satish and Dinesh have preferred this appeal in which they were released on bail vide order dated 11.6.1992. No appeal is reported to have been filed against the impugned judgment and order by co-accused Vijay Bahadur, Ashok Kumar, Jai Kishore and Chhuna in respect with their conviction under Section 225 IPC.
Heard Sri S.K. Tripathi learned counsel for the accused appellant-Dinesh, Sri L.D. Rajbhar, learned AGA for the State and perused the record.
Sri Sandeep Kumar Singh, learned Amicus Curiae for accused appellant Satish did not turn up and brief holder appeared on behalf of him failed to provide any assistance.
Upon hearing learned counsel for the parties and perusal of the record, I find that prosecution has produced the first informant- Ashok Kumar and Kallu as PW-1 and PW-2. PW-2 Kallu, is alleged to be the eye witness of the incident with regard to rescue of accused appellant-Dinesh by Vijay Bahadur and Others and has stated that Dinesh was not rescued by the co- accused persons in his presence and he was not present at the spot at the time of incident. The above witness was declared hostile and nothing material has come out in his cross examination by government counsel, which may support the prosecution case.
As far as the statement of PW-1 Ashok Kumar is concerned, in his cross examination, he has admitted enmity with accused persons who are related with each other and which is alleged to the main cause behind false implication of the accused persons. As per FIR, the first informant was accompanied with Sarmod Kumar and Ram Sanehi when he had gone to Bilaha Tiraha to fetch his relatives and when his relatives did not turn up he was coming back to village Ajanpur by the Tractor of Gyan Singh with above persons. The prosecution has failed to produce either Sarmod Kumar or Ram Sanehi or Tractor owner / driver Gyan Singh or even Shanker who was alleged to be eye witnesses of the incident of rescue of accused-appellant Dinesh by co-accused Vijay Bahadur and Others. The above persons could have been best witnesses of the incident and for not producing them adverse inference has to be drawn against the prosecution to the effect that had they come to witness box, would not have supported the prosecution case. The prosecution has utterly failed to produce any corroborative evidence to corroborate the sole testimony of first informant. The sole testimony of first informant, who had contested and lost election of village Pradhan against Krishna Bihari (for whom the accused persons worked as polling agent and supporters) may not be sufficient to hold the guilt of accused persons.
In above circumstances, and evidence on record, in the absence of any corroboration to the sole testimony of PW-1, the prosecution has failed to prove the charges against accused- appellants beyond reasonable doubt. It is also pertinent to mention that in the incident in question first informant is alleged to have been given a Lathi blow by one of the miscreants, while both the miscreants are alleged to be armed with Pistols so event of hitting him by Lathi becomes highly improbable and incorrect also. Moreover, no recovery of Lathi or the looted HMT wrist watch is alleged to have been made despite alleged spot arrest of culprits and no independent witness of the incident has been produced. The prosecution has failed to produce even Medical Officer or Investigating Officer, the formal witnesses and in absence of any such evidence, it will not be correct to accept the correctness of prosecution case as gospel truth.
The learned trial Court has acted wrongly and incorrectly in appreciating the evidence on record and in convicting the accused appellants for the offence punishable under Section 394 IPC. The impugned judgement and order of conviction convicting the appellant-Dinesh and Satish is wrong and incorrect and is liable to be set aside, and accused-appellants are liable to be acquitted.
The appeal is allowed. The impugned judgment and order of conviction convicting the accused-appellants Satish and Dinesh is set aside and they stand acquitted of the charges under Section 394 IPC. The accused-appellants are on bail, their bail bonds are cancelled and sureties are discharged. They need not surrender unless wanted in some other case.
Since learned Amicus Curiae for accused-appellant Satish did not appear and did not provide any assistance, so no fee is being provided to him and his conduct is not providing due assistance being Amicus Curiae is hereby condemned.
The office is directed to send the lower court record to court below forthwith, along with a copy of the judgement.
Order Date :- 30.10.2018 Akram