Pankaj Kumar Singh vs State Of U.P.
2016 Latest Caselaw 3010 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
RESERVED
 
Case :- CRIMINAL APPEAL No. - 493 of 2015
 

 
Appellant :- Pankaj Kumar Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- In Person (Jail Appeal),(Amicus Curiae),Dheeraj Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Mishra-I,J.

Heard Sri Dheeraj Srivastava, learned Amicus Curiae for the appellant, Sri S.A.M. Zaidi, learned AGA for the State at length and perused the record.

The instant jail appeal has been preferred by appellant Pankaj Kumar Singh from jail through Superintendent of District Jail, Lucknow against the judgment and order of conviction dated 18.11.2014 passed in Sessions Trial No. 188 of 2013 arising out of Case Crime No. 223 of 2012, under Sections 363, 366 IPC, Police Station Alambagh, District Lucknow, whereby the appellant has been sentenced to four years rigorous imprisonment with fine of Rs. 4,000/-, in case of default, he would have to suffer four months' additional rigorous imprisonment under Section 363 IPC. He has been further sentenced to six years' rigorous imprisonment with fine of Rs. 12,000/- under Section 366 IPC, in case of default, he would have to suffer six months' additional rigorous imprisonment. All sentences shall run concurrently.

The prosecution story as discernible from record appears to be; that the first informant Kaushalya Devi wife of Ramai Sahu gave a written report at Police Station Alambagh, District Lucknow on 11.10.2012 to the effect that her grand-daughter (elder daughter's daughter) namely Pooja Gupta who had come over to Lucknow for pursuing her studies, has not come back home after she had gone to take some articles at Mawaiya crossing at 9.30 am on 09.10.2012. She searched for her whereabouts but she could not trace her.

The first informant had talk with her daughter Geeta Devi on mobile whereupon it transpired that she (Pooja Gupta) did not arrive there (Rajasthan) too. Whereabout of the girl is not known. It has been mentioned in the written report that first informant's daughter Geeta Devi is resident of Mohalla Prem Nagar Crossing, P.S. Udyog Nagar (Kota), Rajasthan. Report be lodged and action be taken. This report is exhibit Ka-1. Contents of this report were taken down in the check FIR at 14.00 hours on 11.10.2012 at crime no. 223 of 2012. Check FIR is exhibit Ka-4. On the basis of entries made in the Check FIR, the case was registered under Section 364 IPC at report no. 27 of the General Diary dated 11.10.2012 at Crime No. 223 of 2012 at P.S. Alambagh, Lucknow. Carbon copy of concerned General Diary is exhibit Ka-3A.

Thereafter, the investigation of the case started and it was taken over by the Investigating Officer, Sri D.K. Singh on 11.10.2012. The Investigating Officer obtained photograph of the victim from the first informant and got advertised information regarding missing / disappearance of the victim (Pooja Gupta). This format of missing information report has been proved as exhibit Ka-2. During course of the investigation, the Investigating Officer also obtained High School mark-sheet of victim Pooja Gupta wherein date of birth of Pooja Gupta was shown as 15.01.1998. Photocopy of marksheet has been proved as exhibit Ka-3. The site plan of the place from where victim Pooja Gupta was said to have disappeared has been prepared and proved by the Investigating Officer as exhibit Ka-6.

The Investigating Officer, after completing the investigation, filed charge sheet against accused-appellant Pankaj Kumar Singh under Sections 363, 366 IPC which charge-sheet is exhibit Ka-5 on record. Thereafter, the case of the appellant was committed to the court of Session from where it was made over for disposal to the Special Court, CBI, Court No. 4, Lucknow.

The learned trial court, after hearing the prosecution and the accused on the point of charge, found prima-facie ground existing for framing charges under Section 363, 366 IPC. The charges were read over and explained to the accused who denied charges and opted for trial.

In turn, the prosecution was asked to adduce its testimony. The prosecution in all produced seven witnesses. A brief reference of the same is sketched hereunder:

Smt. Kaushalya Devi PW-1 is the first informant. She has proved exhibit Ka-1, Ka-2 and Ka-3. Km. Ruby PW-2 is witness of fact that she saw the appellant in company of victim. Juli @ Shweta Sahu PW-3 is the scribe of the first information report. She has stated that she saw the appellant in company of victim along with another co-accused, his brother Ajit Singh. Brij Kishore Gupta PW-4 is father of the victim. He came to know about the incident only at the instance of his wife and his mother-in-law. Geeta Devi PW-5 is mother of victim Pooja Gupta. Constable Rakesh Chandra PW-6 has prepared check FIR and has made entries in the concerned General Diary and has proved the same as exhibit Ka-3 and Ka-4 respectively. Sri D.K. Singh PW-7 is the Investigating Officer. He has detailed the various steps he took in completing the investigation. He has proved the charge-sheet (exhibit Ka-5) and site plan (exhibit Ka-6) respectively.

Thereafter, evidence for the prosecution was closed and statement of accused-appellant was recorded under Section 313 Cr.P.C. wherein he has termed his implication false on the ground that he happens to be brother of co-accused Ajit Singh who has not been traced out by the police. Therefore, the police in order to apply pressure on main accused has falsely implicated him. He has also stated that no one is there to look after progress of the case and he has nothing to do with this incident even remotely. No evidence whatsoever has been led by the appellant before the trial court.

The trial court after hearing the parties, passed the aforesaid judgment and order of conviction dated 18.11.2014 and, accordingly, imposed sentence.

Consequently, this appeal.

It has been vehemently contended on behalf of the appellant that it is no evidence case against the appellant. Even suspicion does not arise against the appellant that he had any motive for committing the offence. The police has deliberately recorded some statements which under circumstances of the case are exposed to have been recorded in order to create suspicion and has involved the appellant in this case. There is no eye witness account against the appellant.

Learned counsel for the appellant has contended that the so called testimony of PW-2 Km. Ruby and PW-3 Juli @ Shweta Sahu to the effect that they saw the appellant in the company of Ajit Singh and victim at Charbagh Railway Station, and thereafter, FIR was lodged stands falsified from the very perusal of FIR (exhibit Ka-1) itself which does not make any whisper about any such instance of the appellant being sighted at Charbagh Railway Station in company of the victim.

In this case, the testimony of the prosecution witnesses of fact particularly PW-2 and PW-3 is full of material contradictions and they being interested witnesses are highly motivated and are wholly unreliable. There is no corroboration of their testimony from any independent source. The Investigating Officer has not prepared the arrest memo of the appellant and has not proved the same before the trial court. Therefore, arrest of appellant by the Investigating Officer from near Kota Railway Station also stands falsified. The fact is that the appellant was forcibly taken out from his house and falsely arrested, because co-accused Ajit Singh and the victim were not traceable. The learned Trial Court has not appreciated the evidence and circumstances of the case in right perspective.

Learned AGA has vehemently refuted the contentions so raised on behalf of the appellant and has submitted that the testimony on record is cogent and clinching.

Testimony of PW-2 and PW-3 virtually proves the fact of involvement of the appellant in the entire episode. The victim is not traceable as yet. The learned trial court after assessing and analyzing the entirety of the matter, evidence and circumstance on record has rightly convicted the appellant.

Also considered the above submissions.

After considering the submission raised pros and cons, the core consideration for adjudication in this appeal relates to fact as to whether the material available on record justifies complicity and involvement of the appellant in the incident and the prosecution has been able to prove its case beyond reasonable doubt under Sections 363, 366 IPC against the appellant?

The entire testimony on record is woefully silent about any love affair between the appellant Pankaj Kumar Singh and the victim as such. The entire record is silent about the presence of the appellant in district Lucknow on or before the date and time of the incident i.e. 9.10.2012. It is admitted fact that appellant is a resident of district Kota, Rajasthan. In district Kota, the mother of victim Geeta Devi and the appellant reside in the same locality.

As per prosecution version, Smt. Geeta Devi (mother of victim Pooja Gupta) PW-5 had sent her daughter (victim) over to Lucknow for pursuing her studies and evidence has been led that the victim came over to Lucknow from Kota 15 days prior to the incident. As per testimony of PW-2 Kumari Rubi and PW-3 Juli @ Shweta Sahu, her niece (sister's daughter) had gone to take some article at the shop from Mawaiyya crossing at 9.30 a.m. on the fateful day i.e. 9.10.2012, but she did not return. The family members, particularly PW-2 and PW-3 made search for her, but could not trace her out. Their testimony, if taken and read as a whole, indicates fact that after disappearance of the victim (Pooja Gupta), PW-2 and PW-3 saw the victim in the company of present appellant Pankaj Kumar Singh and his brother Ajit Singh and at that point of time, the victim also saw them and uttered loudly "Mausi-Mausi". They tried to reach near to her but they could not reach because of heavy crowd. The testimony of both the witnesses PW-2 and PW-3 further indicates that this very fact was told by them to their mother, the first informant Smt. Kaushlya Devi. In the cross-examination, it has been stated by these witnesses that after their return from Charbagh station, the report was lodged at the police station.

It has been testified by the Investigating Officer PW-7 that Smt. Kaushlya Devi, in her subsequent statement recorded on 21.10.2012 has stated that the appellant Pankaj Kumar Singh and his brother Ajit Singh enticed away her grand daughter. This by itself is quite surprising because the previous statement of first informant, as per testimony of the Investigating Officer D.K. Singh PW-7, was recorded on 11.10.2012, the very day on which the FIR was lodged, but no such statement was given where under circumstances it was most expected to have been disclosed. Then how and why the subsequent evidence was recorded on 21.10.2012 as has not been explained by the Investigating Officer. He has further stated on page-6 of his cross-examination that on 22.12.2012, the victim was sighted at Charbagh railway station by Km. Rubi and Juli @ Shweta Sahu PW-2 and PW-3 and Ramai Sahu. But here also there is no mention of either the names or identity in the first information report. It is obvious that the Investigating Officer has tried to embellish the case by recording subsequent statement. As per testimony of PW-2 and PW-3 they sighted the appellant at Charbagh Railway Station prior to lodging of FIR and stated about the same to their mother, the first informant.

For the shake of argument, if it is assumed that the appellant was somehow involved in enticing away or kidnapping of the victim along with another co-accused-his brother-even then the same is not corroborated by circumstances, for the reason that call details of the mobile of the victim were also obtained by the Investigating Officer, wherein no mobile phone number of present appellant Pankaj Kumar Singh was noticed. Therefore, it is obvious that there is no worthy evidence on record, which may link the appellant with the offence.

The first and the foremost thing on point of elopement of victim is that after her disappearance, if the appellant was seen in the company of the victim along with another co-accused-his brother-then it is most surprising that the first information report, as per testimony of PW-2 and PW-3 which was recorded only after the aforesaid sighting incident at Charbagh Railway Station, does not whisper about such episode and the name of the appellant in the first information report. This omission in the FIR suggests that things have been improved at later stage by recording subsequent statement of prosecution witnesses.

All these anomalies point out that the suggestion of the defence to the extent that when the police failed to trace out the victim and Ajit Singh-the another co-accused-then only as a scapegoat, the appellant was found fit to be implicated in this case. But in this case there is no worthy evidence appearing against the appellant except subsequent statement by one of the prosecution witnesses which on analytical examination stands falsified as most unusual. The appellant has suggested almost every prosecution witness that he has been made scapegoat only on ground that he happens to be the brother of co-accused Ajit Singh. This fact has been virtually accepted by PW-1 in her cross-examination on page-4 when she states that it is correct to say that the victim and Ajit Singh were not traced out till date, therefore, the police nabbed his brother, Pankaj Kumar Singh.

In such a situation, where the testimony of the witnesses of fact as a whole does not inspire confidence and appears to have been tutored after deliberation then the same cannot be made foundation for recording conviction. This has happened in this case against the present appellant. It appears that he has been involved deliberately in this case by the Investigating Officer just because he happens to be the brother of Ajit Singh with whom Km. Pooja Gupta was having affair.

The trial court has miserably failed to take into account factual situation and the evidence so placed before it. The evidence of the prosecution witnesses is sketchy, vacillating and appears to be result of high deliberation. The learned trial court, under circumstances has overlooked this vital aspect of the case and has recorded conviction without there being evidence justifying the same.

Consequently, the grounds urged in support of appeal and the contention raised against the judgment and order of conviction, dated 18.11.2014 passed in Sessions Trial No. 188 of 2013 arising out of Case Crime No. 223 of 2012, under Sections 363, 366 IPC, Police Station Alambagh, District Lucknow are sustained. Consequently, the finding of impugned conviction and imposition of sentence recorded by the trial court is set aside.

In the result, the appeal succeeds and is allowed. Appellant is accordingly found not guilty of charges under Sections 363, 366 IPC under aforesaid crime number and he is acquitted of the same.

In this case, the appellant is in jail. He be set free forthwith, if he is not wanted in connection with any other case after compliance of Section 437A Cr.P.C.

Let a copy of this order be certified to the trial court for its intimation and necessary follow-up action.

Order Date :- 26th May 2016

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