Court No. - 51
Case :- GOVERNMENT APPEAL No. - 2210 of 1993
Appellant :- State
Respondent :- Indrajeet
Counsel for Appellant :- AGA
Counsel for Respondent :- A,K.Rai,R.N.Rai
Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
Heard Sri Rajesh Mishra, learned AGA, appearing for the State on the application seeking leave to appeal against judgment and order dated 30.06.1993 passed by Session Judge, Basti by means of which accused/respondents have been acquitted of the offence under sections 302/34 and 201 IPC.
The date of incident in the present case is 06.12.1990 said to have been taken place at about 8.30 p.m. The body of the deceased was found on 07.12.1990 by Kumari Sarita the sister of the deceased on the sugar cane field of Indrajeet Pandey cause of death was strangulation.
The contention of Sri Rajesh Mishra, appearing for the State that the court concerned has failed to appreciated the evidence in its correct perspective and that the court has clearly discussed the recovery of the school bag in the house of the Indrajeet Pandey and the case is a circumstantial evidence with the facts that accused had immediately thereafter absconding.
Sri. A.K. Rai, learned counsel appearing for the accused/respondent has strongly opposed the application seeking leave to appeal with the contention that the case is a circumstantial evidence with the chain of the links are not completed, eye witness account to the incident with the motive exists as with regard to the lending to money (Indrajeet Pandey had taken a loan of Rs. 6,000/-) which have been demanded back and finally the accused/respondents.
Keeping in view the contention as has been raised at Bar of this Court, the court has perused the findings as has been recorded by the court concerned while returning the verdict of acquittal. The lower court record is also available. The findings shows that the court has given the cogent reasons for arriving at his findings and it was only thereafter that verdict of acquittal has been given in favour of accused/respondent Indrajeet Pandey and Ishwar Chandra Pandey. Some of the relevant findings and the observation are being extrated herein below.
It is come in the statement of complainant itself that both the accused persons went with him in search and remained in search for long time (thus, the question of absconding is continue).
The court has observed that there is absolutely no other evidence on this fact and so under the facts and circumstances of the case the salutatory statement of the complainant who is admittedly inimical witness cannot be relied and acquit upon so.
A- It is staring that despite the fact that this witness PW-2 when told the complainant that he saw Pankaj Mohan Pandey on the same day in the morning going with both accused and after some time he saw only two accused persons coming outside the sugar cane field and then going towards east yet the complainant did not ask anything from the accused persons as to where Pankaj Mohan Pandey was. The most natural conduct of the complainant ought to have been that he should have rushed up to the field of Iundrajeet Pandey to verify as to whether there was and trace of Pankaj Mohan Pandey in that field of sugar cane of accused Indrajeet Pandey. In such situation and living such serious information by PW-2 Mnoti it was but natural for the complainant to carry them two accused to the police or to inform the police immediately therefore this part of the procreation artery that PW-2 Moti saw both a accused going with Pankaj Mohan in the field of alones seems to be highly doubtful and not genuine.
B- His statement is also not very much realised as he at ted that Darogaji come early in the morning an interrogated him while accused at 4.45 pm he thus some to be a got up witness. Therefore his evidence has to be excluded and cannot be relied upon as his statement are not inspired any confidence.
C- No special reason has been given as to way Km. Sarita proceeded from the house with her brother so early within the time of her school which was 10.00 am especially in the winter season. This fact has knowingly been introduced by the prosecution at later at go as this fact has not been mentioned by the complainant in the F.I.R. in the F.I.R. the complainant Om Prakash Pandey has only mentioned that on 16.12. 90 his son Pankaj Mohan aged about 12 hewrs, who was student in Kisan Inter College, Bhanpur in class VII came out from the house at 8.30 am with his facts containing books and copies etc. In daily routines as usually and at that time he (complainant) was coming from the chak in the northern side of the village and his son met him in the weather side of the sugar cane fields of Indrajeet Pandey on curve of chak road accompanied with in Indrajeet Pandey and Ishwar Chandra Pandey and the asked Rs. 5/- from his for fare etc. He has not mentioned in the FIR that his daughter Km. Sarita also proceed with Pankaj Mohan from the house to go to her own schook as she depart from some very Tiraha on main road and the chak road where Pankaj Mohan Pandey allegedly met his father Om Prakash. Had it been truth that his daughter Km. Sarita was also with Pankaj Mohan Pandey whole going to her school this fact must have been mentioned by the complainant in his FIR written in such details. Therefore, this fact that Km. Sarita also come out form the house with Pankaj Mohan Pandey to go to her school, has been later on introduced in the prosecution story in order to introduced one more witness of the house of the complainant to proved that both two accused persons met Pankaj Mohan Pandey near Tiraha when he was going to the school.
D- Km. Sarita was aged about hardly 9 years and so is a child witness therefore, it is evidence on record specially when her name is introduced as witness subsequent and not mentioned as a witness in the FIR.
E- In the instant case, statement of Km. Sarita does not despire much confidence in view of the facts and attending circumstances of the case that she is the real sister of the accused and in naturally under the influence of nor father Om Prakash Pandey who is complainant of the case. Her name does not find place in the FIR. Lodged by her father himself and so she sons to be a got up witness. Her going to the school with her bother so early at about 8.30 am. When her school time was naturally must have been from 10 am especially in the month of December and she was a child student in primary school.
The court has further observed that there is an evidence recorded to show that there is a lapping in the house of itself and if the girl has so desired she could easily eased herself with the premises and thus, the court has further observed F- Therefore, this part of the statement of Km. Sarita that she went to case herself in the field of accused Indrajet Pandey on 07.12.90 at 7.00 am also case not inspire any confidence and is not believed She has made exaggerations and improvements in this part of statement also by stating that she first ran to the house of accused Indrajeet crying and told his family members about lying of the dead body of Pankaj Mohan in his field and she told that Indrajeet Pandey was not at his house. This part of the story in her statement has been knowingly introduced to prove another circumstance that accused G- PW-4 Ram Charitter is r/o Chhapiya Kahs. He has stated that the knows both accused Indrajeet Pandey and Ishwar Chandra Pandey from before. He stated that murder of Pankaj Mohan Pandey complainant took place about a years and one months before. He stated that on the date become the occurrence he knew both accused Indrajeet Pandey and Ishwar Chndr at about 9'O Clock in the day doming out from sugar cane field of Indrajeet Pandey in pre planed condition seeing hither and thither on the next day the dead body of Pankaj Mohan was recovered from the committee by these the accused persons as he had seen them coming just of sugarcane filed of Indrajeet in such position a day earlier in the morning. He disclosed this fact to Darogaji after recovery of the dead body at about 4'O Clock in the evening during investigation. In cross examination he admitted that his house is not in the name Purwe of the accused person but at a distance of about bighas in Kurmi Deeh. The house of this witness is in Kumi Deeh while the house of accused persons are in Pandey Purwa of the same village. Therefore, he is a chance witness and not witness of the locality. He has not mentioned in chief as to why he was going near the field of Indrajeet Pndey at that time. In cross examination on page 6 he has stated that at that time he was going from east to west while accused person after coming out from the field were going to west and the turned towards south. He has not again given any reason as to why he was going there east to wast. Since he has not explained the reasons for his presence at unusual place. His statement cannot be believed. He seems to be inimical witness an admitted by him in his cross examination on page 3 he admitted that before this occurrence there had been litigation between him and Smt. Sitadevi, the grand mother of accused Indrajeet Pandey regarding some land.
The court has further observed that H- He has made an improvement that he saw both accused coming from the field in perplexed position seeing here and there. he simply stated before and going towards net. Therefore, he has a tendency to make improvement and embellishment in his statement by stating first time before the court that he saw both accused shivering and full of afraid going with speedy paces it is strange as to how I.O interrogated him when none told him the name of this witness who saw the accused persons coming out from the field. He has stated that he did not himself told Darogaji anything but he told him this fact when he interrogated him in the evening. Therefore, testimony of this witness goes not inspire much confidence and it is not safe to rely and act upon his testimony in view of the fact that he is inimical to both accused persons.
And the court has further observed with regard to the recovery of the bag the court has observed herein as under.
I- Now there remains only so celled evidence of the recovery or discovery of bests contained books an copoes, geometry box and a pair of chhapls of accused Indrajeet Pandey from his own house concealed behaind Dehehri in the room which is admissible u/s 27 of the Act. In this regard two witnesses have been examined by the prosecution. They are p,, 5 Ram Kripal Pandey who is father of brother-in-law of the complainant Om Prakash and PW-7 S. O. Sri Shiv Sahai Singh who is I.O. of the case but their statement are highly contradictory to each other so their testimony is not reliable.
J- In cross examination he has admitted that Ram Nihal is sarhu of his sone who is married to the sister of the complainant Om Prakash. In cross examination he has admitted that Ram Nihal is sarhbu of his son who is married to the sister of the complainant Om Prakash. In this way the other witness of the recovery is also direct relative of the complainant Om Prakash. It is strange that the I.O. preferred to make these related witnesses only as witness of arrest as well as of recovery memo. If it is accepted true that these two witness were taken by the I.O. with his for purpose of idenctifying the two accused persons at the time of the arrest. The I.O. could have easily taken other witnesses of the village when Indrajeet Pandey reached his house. Though, it has come in the statement of this witness that a big crowd assembled at the door of the Indrajeet when police reason there. It shows that no independent witness was ready to stand when as a witness of the recovery memo. It creates doubt on the genuineness and authenticity on the paras of the prosecution story regarding arrest as well recovery or discovery of said that constraining books etc. of the decreased. This witness PW-5 has given inconsistent and self contradictory statement.
K- Therefore, his testimony does not inspire confidence and it appears that neither accused were arrested in his presence nor any alleged Basti was recovered in his presence from the house of accused Indrajeet at his instance.
L- In the present case, as per I.O's deposition, the accused after they were arrested, led to the house of the accused indrajeet Pandey, where they allegedly kept hidden the Basta of the deceased Pankaj Mohan Pandey containing books and copies etc. belonging to the deceased, there is however no record of the statement of the accused which led to the discovery of the Basta but no such statement has been brought on the record aboutg the alleged concealment of the Basta in question. Thus the discovery of Basta evidence against the accused u/s 27 of the Evidence Act seen to form basis of conviction.
M- The investigation seems not fair but tainted leaning towards the prosecution and has not been preceded on proper lines. The I.O. interrogated witness with ample delay he did not interrogate even the complainant Om Prakash at the police station as soon as he lodged the report and the once was registered. In cross examination on page 18 he stated that he interrogated the complainant at 14.35 hours, witness Moti at 16.45 hours, witness Ram Charitra at 17 hours Km. Sarita at 16 hours on 7.12.90 after conducting of the inquest proceeding and preparation of the site plan. He ought to have interrogated the complainant at the polcie stationd and all other material witness as soon as the reached the place of the occurrence before doing other things. He remained busy with minor things and celibately ignored any recording of the statement of the witnesses.
Delay of a few hours. Simpliciter, in recording the statements of eye witnesses may not by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are cocomitant circumstance to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witness to be introduced. Thus under the facts and circumstance in the present case delay in recording the statement of the material witnesses. Casts a cloud of suspicion on the credibility of the entire warpans woof of the prosecution story.
N- The FIR seems to have been prepared after much deliberation and consultation with the police as it was not possible for the complainant Om Prakas Pandey to write such as detailed report just after recovery of the dead body of his son when he ought to have been under trauma of ghastly murder of his son and it could dnot even written at the house after seeing the dead body of Pankaj Mohan where the atmosphere was full of sorrow. It appears that the deck I.B. was not in existence at the time of even preparation of the inquest report on the inquest report and of the inquest proceeding name of the accused persons are not mentioned even by way of heading like state Vs. Indrajeet Pandey and others had it been mentioned in the FIR though by way of suspicion. The dead body was allegedly recovered at 7.00 am and the FIR was lodged at 10.30 am but the inquest report was completed at 2.00 pm thus here seem delay both in lodging the FIR and in conducting the proceedings of inquest report.
Therefore, in view of the above discussions I am of the opinion that in the instant case. Which is based on the circumstantial evidence incriminating facts and circumstance, in first place are to established by any cogent and reliable evidence and the facts tried to be proved are not consistent fully with the guilty of the accused and are capable of being explained away on other reasonable hypothesis than that guilt of the accused persons a there seems other initial persons of the complainant Om Prakash Pandey in the village O- Therefore, in short it can be said that the circumstantial evidence do do not unmistakably point to one and one conclusion that these two accused persons alone and more other perpetrated the alleged crime. Since the circumstance proved in this particular case. And not explanation and so convicted of the accused can not lie.
It is no doubt a matter if regret that a annual cold blooded an cruel murder should go can punished. There may also be an element of truth be the prosecution story against the accused. There are as whole the prosecution story may timing but between may be true and must be true he is inevitably a long distance to travel and whole of this distance must be covered by the rest out ion by legal, reliable and unimpeachable evidence be for an accused and be convicted, which has not been done in this case. Therefore, the Used are entitled for acquittal on the ground of benefit of doubt under the fats and standing circumstances as discussed above. And in my view the prosecution has not succeed in bring home any of the charges framed against any accused person, beyond all reasonable doubt. I am aired in my view from another decision of Hon'ble Supreme Court in Sarwan Singh Rattan Singh Verses Tata Of Panjab A.I.R. 1957 S.C. 637.
And thus in view of the aforesaid findings as recorded and after the pirate discussion, entire evidence on record, the Court has returned the verdict of acquittal and there is no illegality or perversity has been shown in the impugned judgment.
Reference may be made to the recent judgment of the Apex Court rendered in the case of Bannareddy & Ors. vs. The State of Karnataka & Ors reported in 2018 (5) SCC 790 wherein the Apex Court has held as under:
11. Before we proceed further to peruse the finding of the High Court, it is relevant to discuss the power and jurisdiction of the High Court while interfering in an appeal against acquittal. It is well settled principle of law that the High Court should not interfere in the well reasoned order of the trial court which has been arrived at after proper appreciation of the evidence. The High Court should give due regard to the findings and the conclusions reached by the trial court unless strong and compelling reasons exist in the evidence itself which can dislodge the findings itself. This principle has further been elucidated in the case of Sambhaji Hindurao Deshmukh and Ors. vs. State of Maharashtra, (2008) 11 SCC 186, para 13, wherein this Court observed that: “The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt.
12. It is not in dispute that the presumption of innocence is further reinforced, reaffirmed and strengthened against the acquitted accused by the judgment in his favor. [Vide Rabindra Kumar Pal @ Dara Singh vs. Republic of India, (2011) 2 SCC 490 in para. 94].
27. Keeping in view the facts and circumstances of the case, we hold that the prosecution was not able to establish the guilt of the accused persons beyond reasonable doubt. Further, the High Court should not have re-appreciated evidences in its entirety, especially when there existed no grave infirmity in the findings of the trial court. There exists no justification behind setting aside the order of acquittal passed by the trial court, especially when the prosecution case suffers from several contradictions and infirmities. No specific assertion could be proved regarding the role and involvement of the accused persons. Further, certain actions of the victim-respondents themselves are dubious, for instance admitting themselves later in a Multi- speciality hospital without proper cause. It has further come to our notice that respondents have already compromised and have executed a compromise deed to that extent, though the same is not the basis for our conclusion.
Reference may also be made to the judgments of the Apex Court rendered in the cases of Sanmwat Singh Vs. State of Rajasthan reported in 1961 SC 715, Murlidhar @ Gidda & Anr. Vs. State of Karnataka decided on 09.04.2014 in Criminal Appeal No. 791 of 2011, Basappa Vs. State of Karnataka decided on 27.02.2014 passed in Criminal Appeal No. 512 of 2014, Ashok Rai Vs. State of U.P. & Ors. Decided on 15.04.2014 in Criminal Appeal No. 1508 of 2005, Ramesh Harijan vs. State of U.P. 2012 AIR SCW 2990 and Murugesan v. State through Inspector of Police reported in 2012 AIR SCW 5627.
Thus, in view of aforesaid consistent legal position as elaborated above and also in view of the fact that learned A.G.A. has failed to point out any illegality or perversity with the findings so recorded in the impugned order, no case for interference has been made out.
It is an established position of law that if the court below has taken a view which is a possible view in a reasonable manner, then the same shall not be interfered with moreso in view of the fact that more than 27 years have already elapsed as the incident is of the year 1990.
After perusal of the impugned judgment shows that the trial court after a thorough marshalling of the facts of the case and a microscopic scrutiny of the evidence on record has held that the prosecution has failed to prove the charge against the accused respondents and the findings recorded by the learned trial judge in the impugned judgment are based upon evidence and supported by cogent reasons.
No interference with the impugned judgment and order of acquittal is warranted. Accordingly leave to appeal is refused and application is rejected. Consequently, the appeal also stands dismissed.
Let the lower court record be sent back to the court concerned forthwith.
Copy of the order be certified to the court concerned for consequential follow up action.
Order Date :- 23.8.2018 Vikram