Rambabu Nishad And Another vs State Of U.P.
2021 Latest Caselaw 3160 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 18.02.2021
 
Delivered on 05.03.2021
 
In Chamber
 
Case :- CRIMINAL APPEAL No. 5575 of 2018
 
Appellant :- Rambabu Nishad and another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Rahul Misra, Raghuvansh Misra, Ram Sagar Yadav,Yagyadhar Tripathi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Subhash Chand,J.

The instant appeal on behalf of accused-appellants under Section 374(2) Cr.P.C. is preferred against the judgment and orders dated 29.08.2018 passed by Additional Sessions Judge/Fast Track Court, Bhadohi, in Sessions Trial No. 27 of 2013, State vs. Rambabu Nishad and another, whereby the appellants have been convicted and sentenced as follows:

 
Appellants -Rambabu and Pandit Lal
 
363 IPC		:	Five years rigorous imprisonment with fine of Rs.3,000/- 				each and in default of payment of fine six months 					additional simple imprisonment to each.
 
366 IPC		:	Ten years rigorous imprisonment with fine of Rs.5,000/- 				each and in default of payment of fine one year's 					additional simple imprisonment to each.
 
1.	In the present appeal facts of the prosecution case may be summarized as under :-
 

Brief facts giving rise to this criminal appeal is that the informant Ram Vilas had moved application under Section 156(3) of the Code of Criminal Procedure with these allegations that on 25.05.2005 at 6.00 O'clock of evening he had gone to river Ganga to catch fish; his wife Smt. Sughara Devi had gone to the house of her relatives at District Mirzapur to attend a marriage invitation; his minor daughter Km. Reeta Devi, aged 15 years old and two children were at the house. At 10.00 O'clock in the night he came back to his house after catching fish. On the next day i.e. 26.05.2005 at 3.00 O'clock he woke up, opened the door of his house to have tobacco, in the light of torch he saw accused Pandit Lal inside the room, he caught hold the accused Pandit Lal and asked him the cause of his presence at his house, who told him that his daughter has called him, he fled away from there. The informant asked his daughter about accused Pandit Lal, she told him that accused Pandit Lal and one Nebu, both were bent upon to outrage her modesty and also persuaded her to get marry. The matter was pacified by the persons of locality On the very day i.e. 26.05.2005 at 6.00 O'clock of morning when he came back to his house from river Ganga, he found his daughter Km. Reeta Devi missing; his children told him that Rambabu father of accused Pandit had taken her with him. He went to the house of Rambabu, who hurled filthy abuse to him and told nothing in regard to his daughter. He made hectic search of his daughter but could not get her. Mewa Lal and Badakoo of the village had told him that they had seen Pandit Lal and Nebu accompanying Km. Reeta Devi going towards Gopiganj. On 2.6.2005 a panchayat was called, accused-Rambabu (father of accused Pandit Lal) and one Nebu assured in the panchayat that his daughter would be sent back to his house within two or three days. The time was prolonged either one pretext or the other. On 3.6.2005 he moved the complaint to the police station but no action was taken. Thereafter complaint was made to the Superintendent of Police, Bhadohi by registered post, no action was taken, ultimately the application under Section 156(3) Cr.P.C. was moved before the Magistrate concerned on 13.07.2005.

At the application moved under Section 156(3) Cr.P.C. by order of the Magistrate concerned, the case crime no. 568 of 2005 was registered under Sections 363, 366, 504, 506 IPC against accused Pandit Lal, Nebu and Rambabu with police station Gopiganj, District Bhadohi. The Investigating Officer after concluding the investigation on 16.9.2005 submitted the final report, against the same protest petition was filed on behalf of complainant and the Magistrate passed the order of further investigation. The Investigating Officer after having conducted further investigation filed chargesheet on 2.11.2011 against accused Rambabu Nishad and Pandit Lal, under Sections 363, 366, 504, 506 IPC before Magistrate concerned, who took cognizance on the chargesheet and committed the case to the court of sessions for trial.

2. The trial court framed the charge against accused Rambabu Nishad and Pandit Lal, under Sections 363, 366, 504, 506 IPC and same was read over and explained to the accused persons, who denied the charges and claimed to be tried.

3. On behalf of prosecution to prove the charge against the accused persons, in documentary evidence adduced, copy of the report sent to Superintendent of Police, Bhadohi Ext. Ka-1, photostat of postal receipt Ext. Ka-2, application under Section 156(3) Cr.P.C. Ext. Ka-3, affidavit in support of application under Section (3) Cr.P.C. Ext. Ka-4, check FIR Ext. Ka-5, GD entry Ext. Ka-6, charge-sheet Ext. Ka-7, arrest memo Ext. Ka-8 and final report Ext. Kha-1.

In oral evidence examined P.W.1 Ram Vilas, P.W.2 constable Laxman Prasad, P.W.3 Smt. Sughara Devi and P.W.4 Sri Mukut Bihari Singh.

4. The statements of accused persons under Section 313 Cr.P.C. was recorded, who denied the incriminating circumstances and evidence against them and stated that they have been falsely implicated in this case due to enmity.

5. On behalf of accused persons in defence evidence examined D.W.1 Mool Chandra.

6. Learned trial court after hearing the submissions advanced on behalf of the parties, vide judgment and order dated 29.08.2018 convicted the appellants Rambabu and Pandit Lal for the offences under Sections 363, 366 of IPC and acquitted them for the offences under Sections 504 506 IPC and awarded sentence to the appellants as above.

7. Aggrieved by the impugned judgment of conviction and sentence the instant criminal appeal has been preferred on behalf of the appellants Rambabu and Pandit Lal on the ground that the conviction and sentence passed by the court below is against the law and against the weight of evidence on record. The whole prosecution case is based on hearsay evidence, which is not admissible in evidence. The trial court did not consider the delay in lodging the FIR. Initially the Investigating Officer after conducting the investigation submitted the final report in case crime no.568 of 2005. As per the prosecution case the star witness Arvind the younger brother of the victim Km. Reeta Devi, who was very much present at the time of occurrence not examined during trial, who died on 29.08.2015 and during investigation the Investigating Officer did not interrogate him, even his name was not figured in the list of witnesses in charge-sheet dated 02.11.2011, accordingly, prayed to allow this appeal, set aside the judgment of conviction and acquit the appellants from the charges levelled against them.

8. I have heard Sri Ram Sagar Yadav, learned counsel for the appellants, learned AGA appearing for the State-respondent and perused the lower court record.

9. On behalf of prosecution in ocular evidence, examined P.W.1 Ram Vilas, P.W.3 Sughara Devi as witness of fact.

P.W.1 Ram Vilas, is the informant and father of the victim, who in his statement deposed that the occurrence is of 26.05.2005 in between 3.00 AM to 6.00 AM in the morning. On the date of occurrence, his wife along with two children had gone to attend the marriage invitation to her parental house. He, his son Arvind aged 8 years and his daughter Km. Reeta Devi, aged 15 years were at the house. On 25.05.2005 at 4.00 O'clock of evening, he along with his son Arvind had gone to catch fish in river Ganga. In the night after having food, he slept and in the early morning he woke up and he was preparing to go to catch fish in river Ganga, opened the door of his house to have tobacco and inside the room he saw Pandit Lal. He asked Pandit Lal about his presence in his house, he told that his daughter has called him to her house. At this, he called his daughter to know the reasons of his presence, in the meantime accused Pandit Lal fled away. His daughter told him that Pandit Lal had asked her to get marry with him and also to leave the house with him, He made a complaint of the same to Rambabu (father of accused Pandit Lal) and thereafter he proceeded towards river Ganga to catch fish as usual. When he came back to his house, he found his daughter Km. Reeta Devi missing from the house. His son Arvind told that Km. Reeta Devi was was taken way by Rambabu and Nebu Lal to their house. He made hectic search but whereabouts of his daughter could not be known. Thereafter, he made complaint to the police, when no action was taken by the police, he approached Superintendent of Police and requested for appropriate action in the matter but nothing has been done at the end of Superintendent of Police, then he moved the application under Section 156(3) of Cr.P.C. and by order of the Magistrate the above case crime was registered against the accused persons.

P.W.3 Sughara Devi is the wife of informant. She reiterated the same version as has been stated by P.W.1 informant. She has stated that on the date of occurrence she had gone to her parental house to attend the invitation; she got the information by her husband (P.W.1) about the missing and kidnapping of her daughter by Pandit Lal and Nebu Lal. On receiving the said information, she came to her house on the date of occurrence. She stated that her daughter Km. Reeta Devi was studying in class-8th class.

10. Learned counsel for the appellants has submitted that on behalf of prosecution two witnesses of fact has been examined, whose testimony is based on hearsay and same is not admissible in evidence.

11. As per prosecution version on the date and time of occurrence, P.W.1 Ram Vilas (informant) and the father of the victim Km. Reeta Devi and P.W.3 Sughara Devi (mother of the victim) both were not present at the house. P.W.1 Ram Vilas had gone to river Ganga to catch fish and his wife P.W.3 had gone to her parental house to attend the marriage invitation. When P.W.1 came to his house, his 8 years old son Arvind told him that his daughter Km. Reeta Devi was taken away by Rambabu and Nebu Lal, as such, the best eye witness of the occurrence. Admittedly, the Investigating Officer had not interrogated Arvind during investigation. The charge-sheet was filed by Investigating Officer on 02.11.2011. Till submission of the charge-sheet Arvind was alive, but from the evidence on record it is also established that Arvind died on 29.08.2015, as is evident from F.R. No. 44 of 2015 was filed in Case Crime No. 421 of 2015 (State Vs. Rambabu and others), under Section 302 IPC, P.S. Gopiganj, District Bhadohi, in which the Investigating Officer has submitted the F.R. stating that Arvind son of informant had committed suicide on some altercation with his father after having jumped before the running train on 29.08.2015. As such Arvind was alive till 29.08.2015. During this period no statement of Arvind was recorded by the Investigating Officer. Moreover, the evidence in S.T. No. 27 of 2013 (State Vs. Rambabu Nishad) was commenced on 30.05.2015 whereas P.W.1 Ram Vilas was examined on the same day i.e. 30.05.2015.

Therefore, the statement of P.W.1 Ram Vilas is based on hearsay and hence the same is not admissible in evidence.

12.So far as testimony of P.W.3 Sughara Devi is concerned, from her statement it is also proved that she was not present at her house on the date and time of the occurrence. She had gone to her parental house and she came to know in regard to the occurrence from his husband. She reached her house on the information of her husband. As such the testimony of P.W.3 is also based on hearsay and the same is not admissible in evidence.

The Hon'ble Apex Court in Subhash Harnarayan Ji Laddha Vs. State of Maharashtra, 2006(12) SCC 545 held in para-22 that where the statement of witness before the court was made on the basis of information received from her husband and had no direct knowledge, her statement was held in admissible in evidence.

13. The only testimony of P.W.1 Ram Vilas is relevant under Section 7 of the Evidence Act to the extent of showing the cause and state of things under which the offence was committed. This witness deposed that on the very day of occurrence i.e. 26.05.2005 at 3.00 O'clock of morning P.W.1 Ram Vilas had found Pandit Lal son of Rambabu inside the room of his house, who fled away from there and his daughter Km. Reeta Devi told that Pandit Lal wanted to outrage her modesty and persuaded her to flee away with him and to get marry. Thereafter P.W.1 Ram Vilas left the house to catch fish in river Ganga and when he came back at 6.00 O'clock at his house, found his daughter missing. In regard to kidnapping of his daughter was told by his son Arvind aged 8 years. Therefore, up to this extend the testimony of P.W.1 Ram Vilas is relevant to establish the fact in issue but there is no direct evidence in regard to kidnapping of his daughter Km. Reeta Devi by the accused persons.

14. The learned trial court in the impugned judgment also held that the star witness Arvind had died during trial and it was not possible for the prosecution to adduce in evidence, therefore, consequently the statement of P.W.1 Ram Vilas was not treated to be based on hearsay evidence.

15. As per prosecution case, P.W.1 Ram Vilas had come to know in regard to the kidnapping of his daughter by the accused persons from his own son Arvind aged 8 years old, who was present at the time of occurrence. The date of occurrence is 26.05.2005 and the Investigating Officer has submitted charge-sheet on 02.11.2011 in crime no. 568 of 2005. The Investigating Officer did not interrogate Arvind during investigation, who was the star witness of the occurrence. After commencing of trial and till date the examination of P.W.1 Ram Vilas, Arvind was alive, who died on 29.08.2015. Had the Investigating Officer recorded the statement of Arvind during investigation the same would have been admissible in evidence in view of Section 32 of the Evidence Act. Therefore, non recording of statement of Arvind under Section 161 of Cr.P.C. by the Investigating Officer and thereafter non examination of Arvind during trial, who was very much alive at the time of commencement of evidence in the trial. The testimony of P.W.1 Ram Vilas is not admissible evidence being based on hearsay under Section 60 of Evidence Act.

16. On behalf of accused persons in their statement recorded under Section 313 of Cr.P.C. defence plea has been taken that they had been falsely implicated in this case and this suggestion was also given by the defence counsel to the prosecution witness that there is no involvement of the accused persons in missing or kidnapping of victim Km. Reeta Devi.

17. From the prosecution evidence it is also proved that till date whereabouts of victim Km. Reeta Devi is not known and she has not been recovered till date from the date of missing i.e. 26.05.2005 and from the date of incident more than 15 years have passed but still the recovery of victim is awaited. The only testimony of P.W.1 Ram Vilas is that on the date of occurrence accused Pandit Lal was found inside the room of his house, who also fled away from there on being intercepted by P.W.1 Ram Vilas but his daughter was very much at the house. His daughter was missing only thereafter when P.W.1 had gone to catch fish in river Ganga and the only eye witness Arvind the son of the informant was present there, who was never interrogated by the Investigating Officer during Investigation and was also was not examined by the prosecution during trial, who was very much alive till the commencement of evidence. As such the testimony of P.W.1 Ram Vilas under Section 7 of the Evidence Act is also not connected with any circumstantial or other evidence on record to complete the chain of circumstance.

18. As per prosecution case on the date of occurrence the minor daughter of informant Km. Reeta Devi was also last seen along with Pandit Lal and Nebu Lal by Mewa Lal and Badakoo of the village, who had told to the informant that all were going towards Gopiganj. In this regard P.W.1 Ram Vilas has not made any statement in his examination-in-chief during trial. Moreover to corroborate this fact on behalf of prosecution neither Mewa Lal nor Badakoo were produced in evidence; while the Investigating Officer had recorded the statement of both these witnesses under Section 161 Cr.P.C. Although Mewa Lal and Badakoo both in their statement under Section 161 of Cr.P.C. had not supported the prosecution story and have stated that they have not seen Km. Reeta Devi going along with accused Pandit Lal and Nebu Lal. Here it is also noteworthy that P.W.4 Mukut Bihari Singh, the Investigating Officer in his statement has stated that he had also recorded the statement of Mewa Lal, Badakoo, Rama Shankar Tripathi and Pyare Lal Nishad.

19.Besides as per prosecution case the P.W.1 (informant) Ram Vilas has stated that on the very day a Panchayat was called in which Rambabu and father of Nebu Lal had assured him that his daughter would be at his house within two or three days. In this regard also none of the member of Panchayat or person of the village was examined on behalf of prosecution to corroborate this testimony of P.W.1 Ram Vilas regarding holding of Panchayat in the village and assurance extended by accused Rambabu and Nebu Lal. Therefore, the prosecution case as shown in the FIR which lodged by P.W.1 Ram Vilas, same is not corroborated by not adducing Mewa Lal and Badakoo in evidence and also any witness of the alleged Panchayat.

20. As such the best evidence in possession of the prosecution was withdrawn to prove its case, therefore, adverse inference would be drawn against the prosecution.

21. So far as non recovery of victim from the date of occurrence till date is concerned, for the same no presumption can be raised against the accused persons as there is nothing on record to prove that victim was kidnapped by the accused persons and this fact is also not proved from the evidence on record that victim was ever last seen in the company of accused persons. There is neither direct or circumstantial evidence on record to prove the role of the accused persons in commission of the offence. The only evidence against the accused persons is the statement of P.W.1 Ram Vilas, which is also in regard to the circumstantial evidence that on the date of missing of his daughter the accused Pandit Lal was seen by him inside the room of his house, who had told to the informant that his daughter had called him to her house; on verifying this fact from his daughter, by P.W.1 Ram Vilas and also on intercepting by informant the accused Pandit Lal fled away from the house of informant. To connect this circumstantial evidence, there is no other link evidence to complete the chain of circumstance to indicate that the perpetrator of crime are the appellants. Therefore, the prosecution has miserably failed to prove its case beyond reasonable doubts.

22. It is also settled law that if from the evidence on record there is evidence of two views, the one which is favourable to the accused should be adopted. In the present case, only the doubt has been raised on behalf of P.W.1 Ram Vilas against the accused persons in regard to commission of offence and it is also the settled law that suspicion however strong may be the same cannot take the place of proof and on the basis of suspicion no one can be convicted. The Hon'ble Apex Court in the case of State Vs. Mahender Singh Dahiyya, AIR 2011 SC 1017, held that in criminal trial suspicion no matter how strong cannot be permitted to take the place of proof.

23. The Hon'ble Apex Court in State of U.P. Vs. Munni Ram and others, AIR 2011 SC (Supplement) 573 and in Vithal Eknath Edlinge Vs. State of Maharashtra, AIR 2009 SC 2067, held that in criminal trial when the two views are possible on the evidence adduced on record, one pointing to the guilt of the accused and the other towards innocence . The view favourable to the accused should be adopted. In the present case except suspicion thee is no direct or circumstantial evidence to indicate the guilt of the accused, therefore, the cogent and plausible view is to give benefit of doubt to the accused.

24. In view of discussions made herein above, the present criminal appeal succeeds and is allowed. The conviction and sentence recorded by the trial court vide judgment and order dated 29.08.2018 is hereby set aside. The appellants are hereby acquitted from the charges levelled against them. They are in jail. They be released forthwith, in case, they are not wanted in some other case, provided, they furnish personal bonds and two sureties each in the like amount to the satisfaction of the court concerned in compliance of provisions of Section 437-A of Cr.P.C.

Office is directed to communicate this order to the court concerned forthwith to ensure compliance and further send back the lower court record.

(Subhash Chand, J.)

Order Date :- March 5th, 2021

Prajapati