Pawan Kumar vs State Of U.P.
2016 Latest Caselaw 6706 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 40 
 

 
Case :- CRIMINAL APPEAL No. - 414 of 2004 
 

 
Appellant :- Pawan Kumar 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- V.M. Zaidi,Amit Daga,R.K.Srivastava,Shri Ram Pandey,V.N. Agrawal 
 
Counsel for Respondent :- A.G.A. 
 

 
Hon'ble Bala Krishna Narayana,J. 

Hon'ble Arvind Kumar Mishra-I,J.

(Delivered by Hon'ble Bala Krishna Narayana,J.)

1. Heard Smt. Sheeba Rizvi and Rajeev Kumar Srivastava, learned counsel for the appellant, Km. Meenu, learned AGA and Smt. Manju Thakur, Brief Holder for the State.

2. This criminal appeal has been preferred by appellant Pawan Kumar against the judgment and order dated 20.1.2004 passed by Additional Sessions Judge (Fast Tack Court No. 1) Bijnor in Session Trial No. 210 of 2002 (State Vs. Pawan Kumar and others) arising out of case crime no. 368 of 2001 at Police Station Nagina, District Bijnor convicting the appellant Pawan Kumar under Section 302 IPC and sentencing him to imprisonment for life and a fine of Rs. 1000/-

3. The facts of the case as unfolded in the FIR appear to be that the complainant, Smt. Ratan Prabha wife of Laxman Ji resident of Gurjarwada, Police Station Gangoh, District Saharanpur lodged a written report Ex. Ka1 at Police Station Nagina, District Bijnor on 14.12.2001 at 00:30 hours alleging therein that she was staying in the house of her daughter Sadhna who had given birth to a female child about two months before for looking after her and her baby. Her son-in-law Pawan Kumar (accused-appellant) who was a drunkard was in the habit of beating his wife Sadhna after consuming liquor and accusing her of having an affair with one Sanjay. Although the complainant had tried to get the matter compromised several times but the accused-appellant without any rhyme or reason use to beat her daughter and say that she was having an affair with one Sanjay. The accused-appellant Pawan Kumar on returning to his house on the night of incident at about 23:30 hours had immediately started beating her daughter Sadhna with the handle of a tap shouting that she was involved with Sanjay and when PW1 Ratan Prabha intervened and raised cries for help, the accused-appellant asphyxiated her daughter to death by pressing her neck with a shawl. Raj Kumar Chauhan son of Om Prakash Singh and Sudhir Kumar Verma son of Narendra Kumar who are residents of the same locality where her son-in-law resides had reached the place of occurrence on hearing the complainant's cries and witnessed the whole incident. After committing the murder of her daughter Sadhna accused-appellant Pawan Kumar had run away from his house and was absconding.

4. On the basis of the aforesaid written complaint Ex. Ka1, case crime no. 368 of 2001, under Section 302 IPC was registered at Police Station Nagina District Bijnor against the accused-appellant. Chek FIR Ex. Ka6 was prepared and relevant GD entry was made. After it's registration investigation of case crime no. 368 of 2001 was taken over by PW8 Prahlad Singh Tyagi, SHO Police Station Nagina, District Bijnor who reached the place of incident on 14.12.2001 along with sub-inspector Hukum Chand PW11 and other police men and after appointing Mukesh Kumar, Sri Subhash Chauhan, Sri Sunil Kumar, Sri Anil Kumar Verma and Chhattar Singh as panch witnesses conducted the inquest and prepared the inquest report Ex. Ka10 and other documents. After sealing the cadaver of the deceased Sadhna he handed over the same to constable 470 Lokesh Kumar and constable 831 Vinod Kumar for being taken to District Hospital Bijnor for conducting the post mortem.

5. The post mortem of the dead body of the deceased was conducted on 14.12.2001 at about 4 PM by PW4 Dr A.S. Rathore who prepared her post mortem report Ex. Ka2. According to the post mortem report of the deceased Ex.Ka2 following ante-mortem injuries was found on her dead body :

(i) multiple abrasion on left side face , upper lip of mouth, nose area 10 cm x 6 cm.

(ii) Ligature mark in complete area on left side, 17 cm x 1 cm on the upper part of neck just below the lower rift through (L) of mandible 4 cm below the ear on left side 5 cm below on the left ear lobule, on cutting ecchymosis present underneath the stem.

6. According to PW4 Dr. AS Rathore who had conducted the post mortem of the deceased she had died due to asphyxia as a result of ante-mortem injuries. The time since death was estimated to be about ¾ of a day and it was possible that the deceased had died on 13.12.2001 at 23:30 hours and the ante-mortem injuries found on the dead body of the deceased could have been caused by pressing the shawl around her neck.

7. During the investigation of the matter the Investigating Officer of the case recorded the statements of the witnesses and after inspecting the place of incident on 14.12.2001 he prepared the site plan of the occurrence Ex. Ka9. Thereafter on 15.12.2001 SHO Sri Prahlad Singh Tyagi PW8 arrested accused-appellant Pawan Kumar and got the shawl allegedly used by him in committing the murder of the deceased recovered by him from his house and prepared the recovery memo Ex. Ka3 and also the site plan Ex. Ka5 of the place of recovery. After completing the investigation of the case PW8 SHO Prahlad Singh Tyagi submitted charge sheet against accused-appellant under Section 302 IPC before the CJM Bijnor.

8. Since the offence under Section 302 IPC mentioned in the charge sheet was triable exclusively by the Court of Session, the case was committed for the trial of the accused to the Court of Sessions, Bijnor and registered as Sessions Trial No. 210 of 2002 from where it was made over for trial to the Court of Additional Sessions Judge (Fast Track Court No. 1) Bijnor.

9. On the basis of the material available on record charge was framed against the accused-appellant under Section 302 IPC. The accused denied the charge and claimed trial.

10. The prosecution in order to prove its case against the accused-appellant examined PW1 Ratan Prabha complainant, PW2 Raj Kumar, PW3 Sudhir Kumar Verma, PW6 Laxman Swaroop husband of the complainant as witnesses of fact, PW4 Dr. A.S. Rathore, PW5 Sanjay Verma (witness of recovery of shawl), PW7 Constable Lokesh Kumar, PW8 SHO and Sri Prahlad Singh Tyagi, Investigating Officer, PW9 Vijay Bahadur, PW10 Ranveer Singh and PW11 sub-inspector Hukum Chand as formal witnesses.

11. The accused-appellant in his cross examination under Section 313 Cr.P.C., denied the prosecution case and further stated that the witnesses have given false evidence against him. The accused-appellant did not examine any defence witnesses.

12. Learned Additional Sessions Judge (Fast Track Court No. 1) Bijnor after considering the submissions made by learned counsel for the parties before him and scrutinizing the evidence on record convicted the appellant under Section 302 IPC and sentenced him to imprisonment for life and fine of Rs. 1000/-

13. Learned counsel for the appellant submitted that although the prosecution had examined as many as three eye-witnesses of the occurrence namely PW1 Ratan Prabha mother of the deceased and PW2 Raj Kumar Chauhan, PW3 Sudhir Kumar Verma who are the residents of the same locality where the occurrence had taken place and PW5 Sanjay Verma witness of recovery of shawl from the house of accused-appellant but out of the aforesaid four witnesses PW2 Raj Kumar Chauhan, PW3 Sudhir Kumar Verma and PW5 Sanjay Verma were declared hostile on the request of the DGC (Criminal) after they failed to support the prosecution case and it being fully established from the evidence of PW1 (complainant) herself that the accused-appellant had left his house before the complainant's daughter was murdered it is proved that even PW1 Ratan Prabha had not witnessed the incident and hence the recorded conviction of the appellant and the sentence awarded to him by the Trial Court by the impugned judgment and order cannot be sustained and is liable to be set aside.

14. Per contra Sri Saghir Ahmad, learned AGA appearing for the State submitted that the deceased Sadhna having been murdered in her matrimonial home and there being cogent and reliable evidence of PW1 on record proving the presence of accused-appellant in his house along with his wife Sadhna(deceased) and PW1 Ratan Prabha at the time of incident, burden to explain how and in what manner offence was committed stood shifted from the prosecution to the accused which he failed to discharge satisfactorily and hence no fault can be found with his recorded conviction by the trial Court and the sentence awarded to him. Moreover the prosecution case as spelt out in the FIR stood fully corroborated from the medical evidence on record and the recovery of shawl used in committing the murder of deceased Sadhna from his house on his pointing out.

15. The recorded conviction of the appellant is based upon cogent evidence and the sentence awarded to him is supported by relevant considerations and the impugned judgment and order which does not suffer from any error or illegality, infirmity or perversity warrants no interference by this Court.

16. We have heard learned counsel for the parties and very carefully scanned the entire lower Court record.

17. The sole question which arises for our consideration in this appeal is whether the prosecution has been able to prove its case beyond all reasonable doubts against the appellant or not ?

18. Before we proceed any further in this case it would be appropriate to take note of contents of the FIR, perusal whereof reflects that the incident had allegedly taken place on 13.12.2001 at about 23:30 hours in the house of accused appellant situate in Mohalla Sarai Quasba Bijnor where the accused-appellant was living with his wife Sadhna daughter of PW1 Ratan Prabha (complainant) and Laxman Swaroop.

19. We gather from the FIR that the deceased had given birth to a female child about two months before the incident and her mother PW1 complainant Ratan Prabha had come to stay in her house to take care of her daughter Sadhna as well as her grand-daughter. The husband of the deceased Pawan Kumar (accused-appellant) who was an alcoholic and in the habit of returning to his home late in the night in a drunken state and beating his wife Sadhna on suspicion that she was having an affair with one Sanjay, on the night of the incident also had come to his home totally drunk and had immediately after entering into his house started beating his wife Sadhna with the handle of a tap shouting loudly that she was involved with one Sanjay and when PW1 raised cries for help and tried to intervene, accused-appellant asphyxiated her to death by pressing her neck with her red colour shawl.

Sri Raj Kumar son of Om Prakash and Sudhir Kumar son of Narendra Kumar who are the residents of the same locality in which deceased was living with her husband, on hearing the hue and cry of the complainant had reached the place of occurrence and witnessed the incident. The accused-appellant Pawan Kumar after committing the murder of his wife Sadhna had run away from his house.

20. We have before us the post mortem report of the deceased Sadhna which confirms that the deceased had died at about 23:30 hours on 13.12.2001 due to asphyxia as a result of ante-mortem injuries found on the dead body of the deceased. Dr. A.S. Rathore who had conducted the post mortem of the dead body of the deceased and prepared and proved her post mortem report Ex. Ka5 during the trial deposed that the ante-mortem injury no. 2 found on the deceased's dead body fully corroborates the manner of assault on the deceased Sadhna as described in the FIR. Before we embark upon to examine on merits of the rival contentions raised by the learned counsel for the parties before us, we find it appropriate to evaluate the evidence on record regarding the actual occurrence and it being witnessed by the so-called eye-witnesses. As already noted herein above the prosecution in order to prove its case against the accused-appellant had examined PW1 Ratan Prabha complainant, PW2 Raj Kumar Chauhan, PW3 Sudhir Kumar Verma as eye-witnesses of the occurrence, PW6 Laxman Swaroop father of the deceased as witness of the fact of her daughter Sadhna being married to Pawan Kumar and her complaining to him several times that her husband accused-appellant Pawan Kumar used to beat her and demand dowry from her and accuse her of having illicit relationship with one Sanjay. As far as PW3 Raj Kumar Chauhan, PW3 Sudhir Kumar Verma and PW5 Sanjay Verma witness of recovery of shawl from the house of accused-appellant are concerned they failed to support the prosecution case during the trial and were declared hostile on the request of the DGC (Criminal). Although with the permission of the Trial Judge PW2, PW3 and PW5 were cross-examined by the DGC criminal but PW1 and PW2 stuck to the facts deposed by them in their examination-in-chief that they had not seen the accused-appellant committing the murder of deceased Sadhna on 13.12.2001 at about 23:30 hrs by pressing her neck with a shawl and PW5 Sanjay Verma also retreated the fact deposed by him in his examination-in-chief that the shawl allegedly used by the accused-appellant for committing the murder of Sadhna was not recovered by the accused-appellant from his house in his presence. PW2, PW3 and PW5 having been declared hostile, we are left with the evidence of PW1 Ratan Prabha alone on the point of manner of assault on the deceased and the identity of the accused.

21. Although PW1 Ratan Prabha in her examination-in-chief has fully corroborated the version of the incident as narrated by her in the written complaint Ex. Ka1 and proved the same but she on page 9 and 10 of the paper book in her cross-examination deposed that the father of Pawan Kumar was also living with him and her daughter in his house and when on the date of incident accused-appellant had come to his house in a drunken state and started abusing his daughter and her daughter had retaliated the accused-appellant had created an ugly scene in his house on which her daughter had complained to her father-in-law that she was being beaten up by her husband. Although PW1 had advised her daughter to keep quiet but despite that the accused-appellant continued to abuse her. She further deposed that no one from the locality was present in the house at the time of occurrence and the accused-appellant had severely beaten his father also causing multiple injuries to him but his father had kept quiet and had not made any noise and after beating his father the accused-appellant had left the house and gone somewhere and it was then that she and father of the accused-appellant had gone to the police station where she was informed that the police would soon reach the place of occurrence however when she returned from the police station to the house of her daughter Sadhna after a lapse of considerable time she saw her daughter lying dead in the Verandah of her house. In the meantime the police had also arrived. Thus from the facts deposed by PW1 in her cross examination it is proved that although on the date of the occurrence an altercation had taken place between the accused-appellant, his wife Sadhna and his father and he had beaten both his wife and his father in a drunken state and thereafter he had left his house and gone somewhere. It also follows from her evidence that when she and father of the accused-appellant had gone to the police station leaving the deceased Sadhna in the house she was alive and after they had returned from the police station after a lapse of considerable time, they had found the dead body of the deceased Sadhna lying in the Verandah of the house of accused-appellant.

22. In view of the above, the claim of PW1 that she was present at the place of incident at the time of the actual assault and she had seen that the accused-appellant pressing her neck with a shawl which resulted in her death does not appear to be true. It transpires from her evidence that no one was present in the house of the accused-appellant at the time when her daughter was asphyxiated to death. It is noteworthy that PW1 was neither declared hostile after having failed to support the prosecution case nor she was confronted by the DGC (Criminal) with the facts deposed by her in her examination-in-chief by re-examining her.

23. Since from the evidence of PW1 itself it is proved that at the time when the accused-appellant Pawan Kumar had left his house after quarreling with his wife and father, his wife Sadhna was alive and the prosecution having failed to lead any evidence to prove that after PW1 had left for the police station with the father-in-law of her daughter Sadhna who was admittedly alive at that time, the accused-appellant had returned back to his house, it cannot be said that what had happened inside the house of the accused-appellant in the absence of PW1 and accused-appellant's father was either within his special knowledge or the happening of the incident was known to him alone and hence it cannot be said that burden to explain how and in what manner the offence was committed stood shifted from the prosecution to the accused-appellant by applying Section 106 of the Evidence Act.

24. Section 106 of the Evidence Act can not be utilised to make up for the prosecution's inability to establish it's case by leading cogent and reliable evidence, especially when prosecution could have known the crime by due diligence and care. Aid of section 106 Evidence Act can be had only in cases where prosecution could not produce evidence regarding commission of crime but brings all other incriminating circumstances and sufficient material on record to prima facie probablise it's case against the accused and no plausible explanation is forthcoming from the accused regarding fact within his special knowledge about the incident. That section lays down only this much that if a fact is in the "special knowledge of a person" and other side could not have due knowledge of it in spite of due diligence and care then burden of proving that fact lies on that person in whose special knowledge it is. Section 106 Evidence Act has no application if the fact is in the knowledge of the prosecution or it could have gained it's knowledge with due care and diligence. Here we refer some of the decisions on the interpretation of Section 106 of Evidence Act. Apex court in 30 Shambhu Nath Mahra versus State of Ajmer: AIR 1956 SC 404 has held as follows:-

" 11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and S. 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that it means facts that are pre- eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.

It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49 (B).

13. We recognise that an illustration does not exhaust the full content of the section which it illustrate but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose exercise due diligence, as to the accused, the facts cannot be said to be especially" within the knowledge of the accused.

This is a section which must be considered in a common sense way; and the balance of convenience and the disproportion of labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts."

Another decision on this aspect is Attygalle versus The King:AIR 1936 PC169. In P. Mani versus State of Tamil Nadu: AIR 2006 SC 1319 apex court has held as under :-

" 10. We do not agree with the High Court. In a criminal case it was for the prosecution to prove the involvement of an accused beyond all reasonable doubt. It was not a case where both, husband and wife, were last seen together inside a room. The incident might have taken place in a room but the prosecution itself has brought out 32 evidences to the effect that the children who had been witnessing television were asked to go out by the deceased and then she bolted the room from inside. As they saw smoke coming out from the room, they rushed towards the same and broke open the door. Section 106 of the Evidence Act, to which reference was made by the High Court in the aforementioned situation, cannot be said to have any application whatsoever."

In yet another decision Murlidhar and others versus State of Rajasthan: AIR 2005 SC 2345, it has been observed by the apex court as follows:-

"22.In our judgement, the High Court was not justified in relying on and applying the rule of burden of proof under Section 106 of the Evidence Act to the case. As pointed out in Mir Mohammand Omar (supra) and Shambu Nath Mehra (supra), the rule in Section 106 of the Evidence Act would apply when the facts are "especially within the knowledge of the accused" and it would be impossible, or at any rate disproportionately difficult for the prosecution to establish such facts, "especially within the knowledge of the accused." In the present case, the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and, therefore, the principle in Section 106 could not apply. On the other hand, the prosecution proceeded on the footing that there were eye-witnesses to 33 the fact of murder. The prosecution took upon itself the burden of examining Babulal (PW-5) as eye-witness. Testimony of Ram Ratan (PW-7) and Isro (PW-10) shows that their agricultural land was situated in a close distance from the house of Khema Ram. As rightly pointed out by the High Court, it is highly unlikely and improbable that their kith and kin Ramlal would have been given beating resulting in his death by the accused-appellants while keeping lights of their house on and door of the room opened. It is also unlikely that the accused- appellants would have taken the risk of dragging Ramlal to the house of Khema Ram, which was situated in the vicinity of agricultural land and well of Isro (PW-10), the father of Ramlal. The evidence of Govind (PW-13) also appears to be unnatural, as he had not disclosed the incident to anybody. The High Court has correctly analysed that all the witnesses, namely, Babulal (PW-5), Ram Ratan (PW-7), Isro (PW-10) and Govind (PW-13) are wholly unreliable as their evidence is replete with contradiction and inherent improbabilities.

23.In the result, we are of the view that the prosecution having put forward a case that, what transpired after Ramlal was dragged away by the assailants was within the knowledge of witnesses, utterly failed in proving the said facts. Once this is established, it was not open for the High Court to have fallen back on the rule of burden of proof under Section 106 of the Evidence Act. In fact, as we notice, it was 34 nowhere the case of the prosecution that Section 106 of the Evidence Act applied to the facts on record. The High Court seems to have brought it out on its own, but without any justification."

In Ch. Razik Ram versus Ch. J.S.Chouhan: AIR 1975 SC 667 it has been held as follows:-

"116. In the first place, it may be remembered that the principle underlying Section 106, Evidence Act which is an exception to the general rule governing burden of proof - applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant-respondent. It cannot apply when the fact is such as to be capable of being known also by persons other than the respondent."

In State Of West Bengal versus Mir Mohammad Umar: 2000SCC(Cr) 1516 it has been held as follows:-

"36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows : "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn 35 regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference.

38. Vivian Bose, J. had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambu Nath Mehra v. The State of Ajmer, 1956 SCR 199 : (AIR 1956 SC 404 : 1956 Cri LJ 794) the learned Judge has stated the legal principle thus (para 11 of AIR) :

"This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word 'especially' stresses that. It means facts that are pre-eminently or exceptionally within his knowledge."

25. Thus the principle which is culled out from the reading of the aforesaid authorities on the issue is that Section 106 of Evidence Act which is an exception to the general rule governing burden of proof - applies only to such matters of defence which are supposed to be especially within the knowledge of the accused-appellant and it is not open to the prosecution to fall back on the rule of burden of proof under Section 106 of Evidence Act in a case where the guilt of an accused is sought to be proved by the prosecution by direct evidence of eye-witnesses who utterly fail in proving the same.

26. In the present case from the very beginning the prosecution has sought to prove the guilt of the accused-appellant by direct evidence but since out of three eye-witnesses PW2 Raj Kumar Chauhan and PW3 Sudhir Kumar Verma were declared hostile on the request of the DGC criminal after they failed to support the prosecution case and the claim of the surviving witness PW1 of having seen the occurrence having been rendered totally doubtful in view of the facts stated by her in her cross examination which not only prove that PW1 was not present at the time of the incident but also the fact that when the accused-appellant had left his house the deceased Sadhna was alive. Absence of any injury on the dead body of the deceased which could be said to have been caused as a result of her being assaulted with the handle of tap by the accused as alleged by the PW1 complainant in the FIR Ex. Ka1 and also in her examination-in-chief, further belies her presence at the place of incident at the time of occurrence. Thus the prosecution having failed to prove its case by direct evidence it cannot be allowed to seek accused-appellant's conviction by invoking Section 106 of the Evidence Act which itself does not apply to the facts and circumstances of the case in view of the evidence of PW1 on record which fully falsifies the prosecution case regarding his presence at the place of incident and at the time of the occurrence.

27. In view of the foregoing discussion we have no hesitation in holding that the prosecution has not been able to prove its case against the accused-appellant beyond all reasonable doubts and it is proved from the evidence of PW1 herself that no one was present in the house of the accused-appellant at the time when Sadhna daughter of the PW1 was asphyxiated to death by someone by pressing her neck with her shawl. The recovery of shawl used by real perpetrator of the crime on the alleged pointing out of the accused-appellant from his house as is evident from the perusal of the recovery memo of shawl Ex. Ka3, in our opinion does not inspire any confidence in view of the fact that the sole independent witness of recovery PW5 Sanjay Verma, examined by the prosecution for proving the recovery of shawl from the house of the accused-appellant had failed to support the prosecution case during the trial and was declared hostile.

28. Thus upon an overall appraisal of the evidence on record and after consideration of the submissions made by learned counsel for the parties advance before us in support of their respective contentions, we find that the prosecution has not been able to prove its case against the accused-appellant beyond all reasonable doubts and hence the recorded conviction of the appellant and the sentence awarded to him by the Court below vide impugned judgment and order cannot be sustained and is liable to be set aside. Accordingly this appeal succeeds and is allowed. The impugned judgment and order dated 20.1.2004 passed by Additional Sessions Judge (Fast Tack Court No. 1) Bijnor in Session Trial No. 210 of 2002 (State Vs. Pawan Kumar and others) is hereby set aside. The appellant is acquitted of the charge framed against him. The appellant is in jail. He shall be released forthwith unless he is wanted in any other case.

29. However, keeping in view the provisions of Section 437-A Cr.P.C., appellant is directed to forthwith furnish a personal bond in the sum of Rs. One lakh and two reliable sureties in the like amount before the trial Court, (which shall be effective for a period of six months) to the effect that in the event of filing of Special Leave Petition against the Instant Judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.

Order Date:- 27.10.2016

SA