Uttarakhand High Court
Bittu Alias Pradeep vs State Of Uttarakhand on 28 December, 2023
Author: Alok Kumar Verma
Bench: Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
28th DECEMBER, 2023
CRIMINAL REVISION NO. 232 of 2011
Bittu alias Pradeep .....Revisionist
Versus
State of Uttarakhand. .....Respondent
Counsel for the Revisionist : Mr. Shashi Kant Shandilya,
Advocate.
Counsel for the State : Mr. Rakesh Negi, Brief
Holder.
Hon'ble Alok Kumar Verma,J.
Revisionist-accused was convicted and
sentenced to undergo rigorous imprisonment for a period
of two and a half years along with a fine of Rs. 10,000/-
under Section 365 of the Indian Penal Code, 1860. Against
the said judgment dated 22.01.2011, passed by learned
Chief Judicial Magistrate, Haridwar in Criminal Case
No. 166 of 2011, an Appeal (Criminal Appeal No. 24 of
2011) was filed. The said Appeal has been dismissed vide
judgment dated 05.08.2011, passed by learned Additional
Sessions Judge/IInd FTC, Haridwar.
2. The case of the prosecution is that the informant
Janeshwar (PW3) informed the police on 24.06.1998 that
his five year old son-Shubham Kumar was missing since
22.06.1998. A missing report was registered by the police.
On 25.06.1998, when the police party along with the
informant-Janeshwar (PW3), Babu Ram (PW1), Vinay
Pradhan (PW4) and one Sukkar were searching for the
missing child, they received a secret information that the
missing child could be recovered from a slum. Accordingly,
the police party along with the above mentioned persons
raided the said slum. Shubham Kumar was sitting scared
outside the said slum. The revisionist's mother Smt.
Sunita was standing outside the slum and the revisionist
and his father-Ramesh were present inside the said slum.
They were arrested by the police.
3. Upon conclusion of the investigation, a charge-
sheet (Ext. Ka 4) was filed by Mr. B.S. Bhakuni (PW5).
4. Ramesh confessed his guilt. Due to absence of
Smt. Sunita, the file of the revisionist was separated.
5. The charge was framed. Revisionist-accused
pleaded not guilty and claimed to be tried.
6. Prosecution, in order to establish the charge,
examined altogether five witnesses.
7. Statement under Section 313 of the Code of
Criminal Procedure, 1973 was recorded. Revisionist-
accused denied all the incriminating evidence, adduced by
the prosecution.
8. Mr. Shashi Kant Shandilya, Advocate, appearing
for the revisionist, contended that as per the prosecution
story, there were two eye-witnesses of the alleged
recovery other than the informant. The said eye-witnesses
have turned hostile and the evidence of other witnesses
are contradictory to each other, and, in the complete
story, no motive has been assigned.
9. Mr. Rakesh Negi, learned Brief Holder for the
State, has supported the judgments of the Trial Court and
the Appellate Court.
10. I heard learned counsel for the parties and
carefully assessed the evidence, adduced by the
prosecution.
11. According to the prosecution case, at the time
when the missing child was recovered, the revisionist was
also present in the said slum. Babu Ram (PW1) and Vinay
Pradhan (PW4) were present with the police party at the
time of recovery of the missing child. But, these two
witnesses have not supported the prosecution case. Both
these witnesses have been declared hostile by the
prosecution.
12. It has been deposed by Babu Ram (PW1) that
Bittu (revisionist) was not present inside the slum at the
time when the missing child was recovered, whereas, it
has been stated by Vinay Pradhan (PW4) that the missing
child was not recovered in his presence.
13. According to the prosecution, Ravindra Kumar
Chamoli (PW2) was posted in-charge at the police chowki
Har-ki-Pauri at the time of recovery of the missing child.
He had recovered the missing child from the slum. The
informant-Janeshwar (PW3), the father of the missing
child, was also present with him at that time, but, serious
contradictions are found in their statements due to which,
the case of the prosecution against the revisionist cannot
be said to be proved beyond reasonable doubt.
14. The prosecution's case is that when the slum
was raided, missing child-Shubham Kumar was sitting
scared outside the slum. Ravindra Kumar Chamoli (PW2)
stated that Shubham Kumar was recovered in front of the
slum, while, Janeshwar (PW3) stated that Shubham Kumar
was present inside the said slum. He had brought
Shubham Kumar out of the said slum.
15. The prosecution's case is that Smt. Sunita was
found standing outside the slum at the time of the raid,
whereas, it was stated by Ravindra Kumar Chamoli (PW2)
that Smt. Sunita was sitting inside the slum at the time of
the raid.
16. In Bhagwan Singh and others vs. State of
M.P., (2002) 4 SCC 85, the Hon'ble Supreme Court
observed that the golden thread which runs through the
web of administration of justice in criminal case is that if
two views are possible on the evidence adduced in the
case, one pointing to the guilt of the accused and the
other of his innocence, the view which is favorable to the
accused should be adopted.
17. It is also a basic rule of the criminal
jurisprudence that suspicion, however, strong cannot take
place of proof. In Sujit Biswas vs. State of Assam, AIR
2013 SC 3817, the Hon'ble Supreme Court held that
suspicion, however grave it may be, cannot take the place
of proof, and there is a large difference between
something that "may be" proved, and something that "will
be proved." In a criminal trial, suspicion no matter how
strong, cannot and must not be permitted to take place of
proof. This is for the reason that the mental distance
between "may be" and "must be" is quite large, and
divides vague conjectures from sure conclusions. In a
criminal case, the court has a duty to ensure that mere
conjectures or suspicion do not take the place of legal
proof. The large distance between "may be true" and
"must be true", must be covered by way of clear, cogent
and unimpeachable evidence produced by the prosecution,
before an accused is condemned as a convict, and the
basic and golden rule must be applied.
18. On a detailed examination and scrutiny of the
evidence, produced by the prosecution, it is considered
view of this Court that the prosecution has failed to
establish the commission of the alleged offence by the
revisionist beyond all reasonable doubt, therefore, he
deserves benefit of doubt.
19. As a result, this Court accepts the case of the
revisionist. Accordingly, the present Criminal Revision (No.
232 of 2011) is allowed.
20. The impugned judgment dated 05.08.2011,
passed by learned Appellate Court and judgment dated
22.01.2011, passed by learned Chief Judicial Magistrate,
Haridwar, are hereby set aside. The revisionist is acquitted
of the charge under Section 365 of the Indian Penal Code,
1860. Revisionist is on bail. His bail bonds are cancelled
and sureties are discharged.
___________________
ALOK KUMAR VERMA, J.
Dt: 28.12.2023
Shiksha
