State of U.P v. Pappu Mistri and others) and Sessions Trial No
Case Details
1 Court No. - 42 Case :- GOVERNMENT APPEAL No. - 60 of 2019 Appellant :- State of U.P. Respondent :- Pappu Mistri And 3 Ors. Counsel for Appellant :- G.A. Hon'ble Vivek Kumar Birla,J. Hon'ble Vikas Budhwar,J. 1. Heard Sri Kailash Prakash Pathak, learned AGA for the State-appellant and perused the record. 2. The present appeal is under Section 378(3) of the Code of Criminal Procedure (In short Cr.P.C.) seeking to challenge the judgement and order of acquittal dated 23.10.2018 passed by Additional District and Sessions Judge/Fast Track Court No.2, Kasganj in Sessions Trial No.57 of 2010 (State of U.P. Vs. Pappu Mistri and others) and Sessions Trial No.58 of 2010 (State of U.P. Vs. Mukesh and 2 others) being Case Crime No.42 of 2009, under Section 364 IPC, Police Station Soron, District Kasganj. 3. Briefly stated facts as unfolded from the prosecution case is that the informant Mahavir son of Parsadilal resident of Mallahnagar, Police Station Soron had submitted a written report with an allegation that his son Gyan Singh and the accused Mukesh son of Bankelal, resident of Mohalla New Sabji Mandi, Kasba and Police Station Soron use to ply vehicle which were owned by them and in connection with 2 parking of the same the informant son use to park in the house of accused Mukesh and they were friends. 4. On unfateful day i.e. 9.10.2008 the son of the informant being Gyan Singh had participated in a community feast whereat the accused Mukesh along with co-accused Ramvilas son of Babu Ram, Pappu Mistra, Kailash son of Baburam and Girish Chandra son of Bhudev were also there and they took the informant’s son in their vehicle in order to drop him to his house and at 9.00 in the night and the same was witnessed by Pratap Singh son of Rati Ram, Hari Sewak son of Bhagwan Das and their relative Hira Lal son of Hame Hari, resident of Makdara, District Sidhpura, District Kashiram Nagar. It is further alleged that from the said date and time the informant son went missing and when his whereabouts were being sought
Legal Reasoning
to be searched, he was not found. A first information report was also lodged against the accused herein who are three in number being Case Crime No.42 of 2009, under Section 364 IPC. 5. One S.I. Veer Pal Singh was nominated as the Investigating Officer, who as per the prosecution proceeded to conduct investigation while preparing site plan and recording of the statement under Section 161 of the Cr.P.C. of the prosecution witnesses and subsequently he submitted charge sheet in the above noted sections. 6. Case was committed to sessions. Charges were read over to the accused herein. The accused claimed to be tried while pleading innocence. 3 7. The learned Trial Court by virtue of the judgment and order in question acquitted the accused herein. 8. Challenging the same now the State is before this Court in the present proceedings. 9. Before elucidating the controversy so sought to be raised in the present appeal u/s 378 of the Cr.P.C., this Court is to re-memorize itself the boundaries within which the frame work of the case is to be drawn. Meaning thereby that this Court has to remain oblivious to the limitations so envisaged while exercising appellate powers against the judgment of acquittal. The appellate Court while exercising appellate jurisdiction cannot act in a routine or cursory manner as the jurisdiction can only be exercised when there is gross misappreciation of the evidence coupled with erroneous interpretation and palpable illegality so as to suggest that no prudent person can comprehend the same. Even if the view taken by the learned trial court while acquitting the accused is found to be a plausible and possible view then there is no occasion for this Court while exercising appellate jurisdiction to reverse the judgment from acquittal to conviction while taking another view. 10. The prosecution in order bring home the charges produced the following witnesses namely: 1. Mahavir Singh 2. Pratap Singh 3. Hari Sewak 4. Nanhu
Legal Reasoning
5. Smt. Ram Murti PW1 PW2 PW3 PW4 PW5 4 6. S.I. Veer Pal Singh PW6 11. To begin with ocular testimony of the prosecution witnesses need to be examined. PW1 Mahavir Singh appeared as the prosecution witness and according to him his son was a close friend of accused Mukesh and they used to ply vehicles and on 9.10.2008 at 9.00 p.m., he was seen to be with the accused while going from the community feast. According to PW1 his son went missing and his whereabouts were not traced so he lodged first information report. 12. PW2 Pratap Singh also got recorded statement and according to him he narrated the facts which have been mentioned in the first information report relating to the victim with accused when they had gone in the vehicle jointly. 13. As PW3 Hari Sewak appeared in the witnesses box, he is the uncle of the victim. He also narrated the incident whereat the accused was found to be with the victim after eating in a feast around 8-9. 14. PW4 Nanhe has deposed that the accused was with the victim on 9.10.2008 and thereafter he went missing when the accused and the victim were found to be in their company after eating feast. 15. PW5 Smt. Ram Murti happens to be the mother of the victim, who is deposed to be good friend of Mukesh and 5 according to her statement the accused was lastly seen with her son and after search, they had handed over underwear, handkerchief, slippers to the police authorities but the body of the deceased was not traced. 16. PW6 Veer Pal claimed himself to be the Investigating Officer and according to him he conducted the investigation got the site plan prepared, took the statements and submitted the charge sheet. 17. Undisputedly the entire allegation of the prosecution rest upon the incident which took place on 9.10.2018 when the accused were found to be in the company of the victim after attending the community feast and according to the prosecution Pratap Singh son of Rati Ram, Hari Sewak son of Bhagwan Das and Hori Lal son of Hameri saw the victim along with the accused being taken in the vehicle and from the said point of time the victim was found missing. 18. Sri Kailash Prakash Pathak, learned AGA has argued that in the statement of PW1, PW2, PW3,PW4 and PW5, it has come on record that the accused was seen lastly in the company of the victim and thus by all probability the finger stands pointed upon the accused herein as the same was also witnessed by Pratap Singh, Hari Sewak and Horil Lal. 19. Admittedly the charges so sought to be levelled against the accused is under Section 364 of the IPC, which is quoted here under:- “364. Kidnapping or abducting in order to murder. —Whoever kidnaps or abducts any person in order 6
Decision
that such person may be murdered or may be so disposed of as to be put in danger of being mur- dered, shall be punished with 1[imprisonment for life] or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” 20. As per Section 364 IPC who ever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to put in danger of being murdered shall be punished with life imprisonment or rigorous imprisonment for a term which may extent to 10 years and shall be also liable to find. 21. Here in the preset case, this Court finds that it has come on record that Mukesh happens to be a good friend of complainant son as both of them were plying vehicle and the vehicle in question was being park in Mukesh’s house. Further there is neither any indication or suggestion so as to point that motive might can be a factor for commission of crime as neither any evidence has been adduced in that regard nor the same finds its presence in the statement of prosecution witnesses. 22. More so this much has come that the victim was seen lastly with the accused on 9.10.2018 at 9.00 p.m. when the victim was spotted with the accused while sitting in the car of the accused. The said event does not in any manner whatsoever link the accused with respect to commission of crime particularly when the body of the deceased has not been recovered. 7 23. Apart from that it has further come on record in the statement of PW5 who happens to be the mother of the victim being Smt. Ram Murti that on their search they found underwear, handerchief, slippers and they handed over the same to the police officials. Meaning thereby that the same does not in any manner remotely link the accused with respect to commission of crime. 24. So far as the recovery so sought to be shown from the accused of incriminating articles belonging to the victim is concerned, the same is also of no help of the prosecution as PW5 being the mother of the victim had herself handed over the said incriminating articles, thus the entire story so build up by the prosecution also demolished. 25. Last seen theory cannot be applied in abstract as there has to be certain motive and other compelling factors consistently pointing towards commission of crime by the accused when nobody had seen the accused committing crime and rather in case the present case is stretched then it will come into the case of circumstantial evidence. Even otherwise the prosecution has failed to complete the entire chain with respect of commission of the crime. 26. The Hon’ble Apex Court in the case of Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan (2013) 5 SCC 722 paragraph 21 has observed as under:- 8 “21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved and "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be” true and “must be” true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be per to the accused, keeping in mind that a reasonable doubt is not an imaginary trivial or a merely probable doubt, but a fair doubt that is based upon A and common sense.” 27. Cumulative analysing the entire case in totality, this Court finds that the learned trial court has not committed any perversity in acquitting the accused herein as the judgment of acquittal has been passed after appreciating the testimony of the prosecution witnesses and the evidences so adduced in that regard while meticulously analysing the facts of the case in the accordance with four corner of law. The view taken by 9 the learned trial court is a possible and a plausible view which needs no substitution by this Court. 28. In such view of the matter, we find that possible view has been taken by the trial court in acquitting the accused herein and we do not find any good ground to take a different view of the matter. 29. Accordingly, this application for grant to leave is rejected. 30. Consequently, since the Criminal Misc. Application (Leave to Appeal) has been rejected by order of this date, the present government appeal is also dismissed. (Vikas Budhwar, J.) (Vivek Kumar Birla,J.) Order Date :- 11.8.2022 piyush Digitally signed by PIYUSH KUMAR Date: 2022.08.22 10:14:20 IST Reason: Location: High Court of Judicature at Allahabad