Allahabad High Court
Smt. Santi Devi vs State Of U.P. And 4 Others on 12 April, 2022
Bench: Vivek Kumar Birla, Subhash Vidyarthi
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment Reserved on 08-03-2022
Judgment Delivered on 12-04-2022
Case :- CRIMINAL APPEAL U/S 372 CR.P.C No. - 342 of 2022
Applicant - Smt. Santi Devi
Opposite Party - State Of U.P. And 4 Others
Counsel for Applicant - Sanjay Kumar Dwivedi
Counsel for Opposite Party - G.A.
Hon'ble Vivek Kumar Birla,J.
Hon'ble Subhash Vidyarthi,J.
(Per: Hon'ble Subhash Vidyarthi, J)
1. Heard Shri Sanjay Kumar Dwivedi, the learned Counsel for the Appellant and Shri Ratan Singh, learned A.G.A. for the State.
2. The present criminal appeal has been filed by the informant against the judgment and order dated 30-07-2016 passed by the learned Additional Sessions Judge/Special Judge SC/ST Act, Kannuaj in S.T. No. 191 of 2009 (State Vs. Brijesh and others), arising out of case crime no. 471 of 2007, under Section 364 A I.P.C. and 3 (2) (5) of SC/ST Act, P. S. Tirva, District Kannuaj, acquitting the accused-respondent from the charges.
3. Prosecution case, briefly stated, is that the informant Smt. Santi Devi moved an application under Section 156 (3) Cr.P.C. (Exhibit A-1) stating that on 26-09-2006 at about 10:00 a.m. Brijesh @ Kaloo of her village took her son Srinath with him on the pretext that they will go to some relative's place and will return the following day. He took Srinath on the motorcycle of Lalit. On the same day Kallu, Ramdhar son of Baburam and Baburam son of Chetram also left their homes together. When her son did not return the following day, the informant made inquiries, but she could not get any information about her son. When Brijesh and Lalit came back to the village on 28-11-2006, she inquired from them, but they expressed ignorance about the whereabouts of the informant's son. In the evening on that day, Brijesh, Lalit, Kallu and Ramadhar consumed liquor sitting together and while in an intoxicated condition, Kallu said-"Saley ne ham logo par mukadama likhaya tha isliye jaan se hath dhona padah" which means he had instituted a case against us and he had to die.
4. The informant had lodged an F.I.R. in police station Tirva against Baburam, Ramadhar and Kallu and the aforesaid persons had abducted her son for ransom and they killed him due to animosity arising out of the aforesaid F.I.R. The informant had given an application in this regard to the Superintendent of Police, Kannuaj, but no action was taken on her application.
5. Upon the aforesaid application under Section 156 (3), the Magitrate passed an order dated 23-12-2006 directing the police to register the case.
6. After examining the evidence on record as well as the respective submissions made on behalf of the prosecution and the defense, the learned Court below recorded a finding that none of the witnesses had seen the incident. The informant had lodged a missing report one month after the incident. Had she known that the accused persons had taken away her son Srinath, she would have not lodged a missing report one month thereafter. Based upon the aforesaid findings, the learned Trial Court came to the conclusion that the prosecution could not prove the charges against the accused-respondents beyond any reasonable doubt. Accordingly, the learned Court below acquitted the accused personss.
7. We have examined the statement of witnesses, to ascertain whether the judgment and order dated 30-07-2016 is perverse and needs interference by this Court.
8. The informant PW-1 has reiterated the contents of her application under Section 156(3) Cr.P.C. She further stated that Brijesh Pandit had asked her to pay Rs.10,000/- and her son will return to her. She paid the money to Brijesh Pandit but her son did not return. She does not know as to where did her son go.
9. PW-2 Munshi Lal claimed that about five years ago at about 10:00 a.m. he had seen the accused persons taking Srinath away and they had said that they would take him to their relative's place and will return by the evening. In the evening the accused persons had shouted in an intoxicated condition that they had taken revenge of the case instituted by his mother, they had killed him and made the dead body disappear.
10. PW-5 Nand Kishore said that Srinath was abducted and killed about eight years ago. He did not see anyone taking him from his home. Neither he saw the accused persons taking the deceased away from his home nor did the accused persons told him that he had lodged a case against him and, therefore, he had to die.
11. Similar statements were given by PW-6 Mohan Lal and PW-7 Pooran Lal also.
12. After analysing the facts of the case, the learned Court below recorded that the incident occurred on 26-09-2006, but the informant lodged a missing report on 24-10-2006 stating that her son had gone away at 12:00 noon and he did not return.
13. The Investigating Officer was examined as PW-3 who stated that no witness had stated during investigation that the informant's son was taken away by the accused persons, therefore, he had filed a final report in the case.
14. The averments made by the informant in her complaint under Section 156(3) Cr.P.C. were not there in the missing report lodged by her.
15. In her cross-examination recorded on 24-10-2006, the informant PW-1 stated that all the averments made in the application dated 24-10-2006 were correct. This application was regarding her son having gone missing and no person was named in it as the accused. She has also stated in her cross-examination that when she submitted the missing report at the police station, the sub-inspector asked her to look for her son and he will also do the same.
16. Thereafter, she came to know in the village that the accused persons have made the dead body disappear.
17. She did not disclose the name of the person who was said to have seen her son being taken away by the accused persons.
18. PW-2 Munshi Lal who stated on oath that he had seen the accused persons taking the deceased away on the date of the incident at 10:00 a.m. and had told him that they were taking Srinath with them to their relative's place and who had said that in the evening the accused persons had shouted in an intoxicated condition that they had taken revenge of the case lodged by her son and had killed him and removed his dead body, said in his cross-examination that the informant went to lodge the missing report after one month and he did not go to the police station. This indicates that the statement of PW-2 is false. He has further stated that he searched for Srinath but he could not know as to where did he go missing. The informant Santi Devi is his Mausi (Mother's sister). This proves that PW-2 did not see anyone taking away Srinath. The other witnesses also did not support the incident and did not say that they saw the accused persons taking away Srinath.
19. In Jayamma v. State of Karnataka, (2021) 6 SCC 213, the Hon'ble Supreme Court has been pleased to reiterated the well settled law that the power of scrutiny exercisable by the High Court under Section 378 CrPC should not be routinely invoked where the view formed by the trial court was a "possible view". The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with.
20. In view of the discussion made above, it appears that the findings of the learned Court below that the prosecution could not prove the commission of the alleged offence by the accused persons is based on a thorough and proper scrutiny of the statement of the witnesses. It cannot be said that the view taken by the Court below was not a possible view and the findings of the Court below cannot be termed as ''perverse'. The appeal is, therefore, dismissed summarily at the stage of admission itself.
Order dated: 12-04-2022
pks/
