Santosh Kumar vs State Of U.P.
2018 Latest Caselaw 661 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved                                                                   
 
                                                                                 AFR
 
Case :- JAIL APPEAL No. - 3030 of 2011
 

 
Appellant :- Santosh Kumar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Arvind Kr Srivastav.A.C
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Mishra-I,J.

By way of instant jail appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 25.03.2011 passed by the Additional Sessions Judge, Court No.13, Bareilly, in Session Trial No.715 of 2009 State of U.P. Vs. Santosh Kumar, arising out of Case Crime No.40 of 1989, under Section 364 IPC, Police Station- C.B. Ganj, District- Bareilly, whereby the appellant has been sentenced to undergo ten years rigorous imprisonment coupled with fine Rs.5000/-, in default of payment of fine, additional six months rigorous imprisonment.

Heard Sri Arvind Kumar Srivastava, learned amicus curiae for the appellant, learned AGA for the State and perused the record of this appeal.

Relevant facts discernible from the record appear to be that in this case, the informant Smt. Munni Devi moved an application before Senior Superintendent of Police, Bareilly whereby DH No.5 was issued and the same was converted into Case Crime No.40 of 1989, under Section 364 IPC, Police Station C.B. Ganj, District Bareilly. The allegations contained in the written report Ext. Ka-1 relate to the facts that Shiv Shanker 14 years son of the informant Smt. Munni Devi, resident of Bhurh near Galla Godown, within police circle C.B. Ganj, District Bareilly, was taken away by the appellant in company of others on the pretext that he (appellant) will secure him a job at Delhi, thus caused his disappearance. On inquiry being made by the informant, the appellant did not divulge truth about Shiv Shanker's whereabouts and was ready to fight. The informant had previously given the written report apart from making oral request that the informant's son was the only source of her livelihood as the informant is a helpless widow and apprehension was expressed in the latter part of the written report that the appellant might have killed his son after causing his disappearance. Request was made for tracing out whereabouts of the informant's son. This written report was forwarded to the Superintendent of Police, Bareilly, for necessary action. The written report is Ext. Ka-1.

As per general diary entry Ext. Ka-3, based on the written report Ext. Ka-1, D.H. No.5 was issued and the investigation was entrusted to S.I. Vinod Kumar, PW-4, after the case was registered at Case Crime No.40 of 1989 under Section 364 IPC, vide G.D. Rapat No.9 through D.H. No.5 on 01.03.1989 at Police Station C.B. Ganj, District Bareilly.

The Investigating Officer after noting down various contents of general diaries pertaining to this case also recorded statement of the various persons including the prosecution witnesses and also prepared the site plan Ext. Ka-5 and after completing the investigation, filed charge sheet Ext. Ka-6 against the appellant.

Record reflects that there were as many as three accused involved in this case. However, the file of the other two accused was separated and the appellant was tried separately.

Proceedings of the case were committed to the court of Sessions from where it was transferred for conduction of trial and disposal of the case to the aforesaid trial court of Additional Sessions Judge, Court No.13, Bareilly, who in turn heard both the sides on point of charge and was prima-facie satisfied with the case against the appellant, accordingly, framed charge under Section 364 IPC. Charge was read over and explained to the appellant who abjured charge and opted for trial.

In turn the prosecution was required to adduce its testimony. The prosecution produced in all four prosecution witnesses. A brief reference of whom entails hereinbelow.

Prem Prakash is PW-1. Munni Devi PW-2 is the informant. Constable Hawaldar Singh is PW-3. S.I. Vinod Kumar PW-4 is the Investigating Officer. The prosecution proved the following papers - say the written report Ext. Ka-1, report of weeding out of the general diary is Ext. Ka-2, another general diary is Ext. Ka-3, general diary concerning registration of the case, site plan Ext Ka-5 and charge sheet Ext. Ka-6.

Except as above, no other testimony was produced by the prosecution. Consequently, evidence for the prosecution was closed and the statement of the appellant was recorded under Section 313 Cr.P.C. wherein various reasons have been stated for false implication on account of enmity and it was stated that the case was not properly investigated and the charge sheet has been wrongly filed against the accused. He claimed to have been falsely implicated due to enmity. He has further claimed himself to be innocent and has been wrongly involved in this case.

No evidence, whatsoever, was led by the defence.

The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against appellant under Section 364 IPC and sentenced the appellant to ten years rigorous imprisonment under Section 364 IPC along with fine Rs.5000/- with stipulation to suffer additional six months rigorous imprisonment in case of default in payment of fine.

Consequently, this appeal.

It has been submitted that the entire evidence on record does not inspire evidence. Testimony of PW-1 and PW-2 is full of contractions. The date of the incident has not been mentioned either in the written report or in the statement of the aforesaid prosecution witnesses. The investigation is faulty. There is no proof that the appellant was ever involved in causing disappearance of the victim Shiv Shanker - son of the informant Munni Devi. The trial court erred in law while recording conviction and passing the sentence.

Per contra, it has been submitted in reply by the learned Additional Government Advocate that in this case, testimony on record is sufficient to establish charge and it is flawless and transparent and it inspires confidence. The trial court has acted on the wholesomeness of the testimony on record and has rightly recorded conviction against the appellant and has passed appropriate sentence.

Also considered the above rival submissions and taken into consideration rival claims. In view of above, the point for determination of this appeal specifically relates to fact whether the prosecution has been able to prove charge under Section 364 IPC beyond reasonable doubt against the accused and has sentenced condignly ?

Insofar as point of non-mentioning of the date of the incident is concerned, obviously the informant is an illiterate and rustic lady and is unaware of technicalities of law and she has simply informed the Senior Superintendent of Police, Bareilly by means of the written report Ext. Ka-1 that the appellant has caused disappearance of her son on the pretext of securing him a job at Delhi. The context under which, this application was made, establishes fact that after the disappearance of Shiv Shanker, Munni Devi enquired from the appellant about the whereabouts of Shiv Shanker whereupon she was assured that her son will return and he is engaged in some job at Delhi. This assurance worked as great hope of return of Shiv Shanker and caused delay in lodging the report and Munni Devi kept on waiting for returning of her son. That way, delay was occasioned in lodging the report and that too at a time when Munni Devi realized that her son is missing and his whereabouts are not yet known. In the backdrop of the aforesaid fact situation and particular circumstance of this case, obviously delay in lodging the first information report will be considered natural.

The informant being a rustic lady, it is not possible for her to mention the exact date of the incident and it can be easily seen that a rustic indian lady even does not remember date of birth of her child which does not mean that child was never born. But insofar as the time of the occurrence is concerned, the same is stated to have taken place around 1:30 p.m. to 2:00 p.m. on same day in the month of February, 1989.

On point of disappearance of the victim Shiv Shanker, both the witnesses namely Prem Prakash PW-1 and Munni Devi PW-2 have come out with innocuous and insurmountable version of the last seen that the victim Shiv Shanker was taken away by the appellant Santosh Kumar from his house and it was around 1:30 p.m. to 2:00 p.m. on the day of the incident. This specific piece of testimony has not been challenged. In this regard, the trial court has rightly visualized things in right perspective and has recorded categorical finding that the last seen theory of taking away of the informant's son by the appellant is established beyond reasonable doubt. This is one of the admitted facts that the victim Shiv Shanker - son of the informant Munni Devi - has not yet returned since his disappearance. Therefore, all the ingredients as contained under Section 364 IPC are very much attracted and are applicable in this case.

Insofar as other factual and legal aspects of this case are concerned, in that regard it may be observed that laches committed by the Investigating Officer would not overthrow the case of the prosecution. No doubt, both the witnesses of fact (PW-1 and PW-2) have stated that they did not point out the place of occurrence to the Investigating Officer from where the victim was taken away by the appellant. However, Vinod Kumar PW-4, the Investigating Officer has himself proved fact that the site plan Ext. Ka-5 was prepared by him at the instance of and on the pointing out of the informant and nothing adverse has emerged in his cross-examination which may create any doubt about the truthfulness of this specific testimony.

The informant Munni Devi being rustic lady is reasonable expected to berate from telling exact fact situation, but that would not make any difference in view of the categorical testimony of the Investigating Officer on the point of preparing the site plan Ext. Ka-5. There is no worthy reason as to why the informant will implicate the appellant instead of real culprit. No such circumstance and testimony exists on record which may create any doubt regarding occurrence that Shiv Shanker - aged 14 years - son of Munni Devi was not taken away by the appellant from his home around 1:30 p.m. to 2:00 p.m. on same day in the month of February, 1989 and the victim did not return home after that day. The trial court has rightly adjudged things in its compact form and has rightly appraised facts of this case vis-a-vis testimony on record. The conviction recorded by the trial court is found to be based on material on record and the sentence passed by it under circumstances is justified.

Accordingly, the judgment and order of conviction dated 25.03.2011 passed by the Additional Sessions Judge, Court No.13, Bareilly, in Session Trial No.715 of 2009 State of U.P. Vs. Santosh Kumar, arising out of Case Crime No.40 of 1989, under Section 364 IPC, Police Station- C.B. Ganj, District- Bareilly against the appellant is upheld.

In view of above, the appeal lacks merit and the same is dismissed.

Let a copy of this judgment be certified to the trial court for necessary information and follow up action.

Order Date :- 18.05.2018

rkg