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IN THE HIGH COURT OF ALLAHABAD
PRITINKER DIWAKER, RAJEEV MISRA, JJ.
Vaibhav Jain – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal Nos. 7044, 7672, 7957 of 2006, 106 of 2007
Decided On : 28-09-2020
Indian Penal Code, 1860 – Sections 149, 364, 302, 201, 120B and 427 – Code of Criminal Procedure, 1973 – Sections 313, 161 – Order of Acquittal – Criminal appeals arise out of a common judgment and order dated 09.11.2006 passed by Special Judge (E.C. Act)/Additional Sessions Judge, Rampur in Sessions Trial under Sections 364, 302, 201, 120B and 427 I.P.C. P.S. Bilaspur, District-Rampur arising out of Case Crime under Sections 302, 201, 427 I.P.C. P.S. Bilaspur, District-Rampur whereby four of the accused namely Vaibhav Jain, Kaushal Kishore Jain, Suresh Pal and Rajendra Vohra have been held guilty of the charges framed against them, whereas the fifth accused namely Sadab has been acquitted. – Accordingly aforesaid four accused have been convicted and sentenced under Section 302 I.P.C. readwith Section 149 I.P.C. – They have, therefore, been sentenced to life imprisonment alongwith fine of Rs. 5000/- each. – In case of default in payment of fine as noted above, each of four accused are to undergo one year additional rigorous imprisonment. – Aforesaid four accused have also been convicted under Section 120B I.P.C. – As such, they have been sentenced to life imprisonment alongwith fine of Rs. 5000/- each. – On failure to pay aforesaid amount of fine, they are to undergo one year additional rigorous imprisonment. – The above noted four accused have further been convicted under Section 364 I.P.C. – As such they have been sentenced to life imprisonment alongwith fine of Rs. 5000/- each. – On failure to deposit above mentioned amount of fine, they are to undergo one year additional rigorous imprisonment. – Above named four accused have further been convicted under Section 201 I.P.C. Accordingly, they have been sentenced to two years imprisonment alongwith fine of Rs. 1000/- each. – In case of default in payment of fine, above mentioned four accused are to further undergo additional imprisonment of three months each. – Lastly, above-noted four accused have been convicted under Section 427 I.P.C. and consequently, sentenced to six months rigorous imprisonment.
Finding of the court:
Offence of abduction is punishable under Section 364 IPC. – From the chain of circumstances coupled with the fact that accused-appellant Vaibhav Jain has failed to discharge the burden in terms of Section 106 IPC, inasmuch as he has neither deposed before the Court as a witness, nor adduced any witness, in support of his defence and except for a bald denial of the questions put to him under section 313 Cr.P.C. he has not offered any explanation of facts which were even in his special knowledge. – It has come in evidence of PW-1 whom we have held to be credible and reliable has clearly deposed that deceased was seen in the company of appellants at Sindhu Bar Restaurant at 8-8:30 pm when he went out to look for his brother Sanjeev Kumar Goel (deceased). – It has further come in his evidence that when Sanjeev Kumar Goel (deceased) did not return at his home, this witness made a search regarding his whereabouts and visited the house of accused at 10:30 p.m. to find out his brother but the accused Vaibhav Jain was not present at his home. – Therefore, by drawing adverse inference, the commission of offence punishable under Section 364 IPC is fully proved against Vaibhav Jain. – The conclusion drawn by Court below with regard to above requires no interference by us. We reiterate that deceased was abducted for committing his murder. – Court may state that three of the accused-appellants have already been acquitted by us for offences under Sections 120-B and 149 IPC. – There is nothing on record to conclude that accused-appellants are also guilty of an offence punishable under Section 427 IPC. – Once co-accused have been acquitted of the charges under Sections 120-B and 149 IPC, dictates of prudence compel us to acquit accused-appellant Vaibhav Jain of the charges under Sections 120-B, 149 and 427 IPC.
Result: Criminal Appeal Succeeds in Part
JUDGMENT :
RAJEEV MISRA, J.
1. These four connected criminal appeals arise out of a common judgment and order dated 09.11.2006 passed by Special Judge (E.C. Act)/Additional Sessions Judge, Rampur in Sessions Trial No. 76 of 2005 (State vs. Vaibhav Jain and Others) under Sections 364, 302, 201, 120B and 427 I.P.C. P.S. Bilaspur, District-Rampur arising out of Case Crime No. 315 of 2004 under Sections 302, 201, 427 I.P.C. P.S. Bilaspur, District-Rampur whereby four of the accused namely Vaibhav Jain, Kaushal Kishore Jain, Suresh Pal and Rajendra Vohra have been held guilty of the charges framed against them, whereas the fifth accused namely Sadab has been acquitted. Accordingly aforesaid four accused have been convicted and sentenced under Section 302 I.P.C. readwith Section 149 I.P.C. They have, therefore, been sentenced to life imprisonment alongwith fine of Rs. 5000/- each. In case of default in payment of fine as noted above, each of four accused are to undergo one year additional rigorous imprisonment. Aforesaid four accused have also been convicted under Section 120B I.P.C. As such, they have been sentenced to life imprisonment alongwith fine of Rs. 5000/- each. On failure to pay aforesaid amount of fine, they are to undergo one year additional rigorous imprisonment. The above noted four accused have further been convicted under Section 364 I.P.C. As such they have been sentenced to life imprisonment alongwith fine of Rs. 5000/- each. On failure to deposit above mentioned amount of fine, they are to undergo one year additional rigorous imprisonment. Above named four accused have further been convicted under Section 201 I.P.C. Accordingly, they have been sentenced to two years imprisonment alongwith fine of Rs. 1000/- each. In case of default in payment of fine, above mentioned four accused are to further undergo additional imprisonment of three months each. Lastly, above-noted four accused have been convicted under Section 427 I.P.C. and consequently, sentenced to six months rigorous imprisonment. All the sentences are to run concurrently. It may be noticed here that State has not filed any appeal against acquittal granted by Court below to accused, Sadaf.
2. We have heard Mr. Sushil Shukla, learned counsel for accused-appellants Vaibhav Jain and Kaushal Kishore Jain in Criminal Appeals No. 7957 of 2006 and 7044 of 2006 respectively, Mr. Abhishek Mishra learned Amicus Curiae for accused-appellant Rajendra Vohra in Criminal Appeal No. 106 of 2007, Mr. Amit Saxena, learned A.G.A. for State and Mr. K.M. Tripathi, learned counsel for complainant. No one appeared on behalf of accused-appellant Suresh Pal in Criminal Appeal No. 106 of 2007, even upon revision of cause list, though names of Mr. Vishnu Kumar, Mr. K.K. Mishra, Mr. Subhash Chandra Pandey and Mr. Awadesh Kumar Srivastava are duly published in cause list as counsel for aforesaid accused-appellant.
3. Prosecution of all the accused was set in motion when PW-1, Abhay Kumar Goyal, submitted a written report dated 07.05.2004 (Ext.Ka-1) at Police Station-Kotwali Bilaspur, District-Rampur regarding death of his brother, Sanjeev Kumar Goyal (deceased) in mysterious circumstances. Aforesaid written report was entered in General Diary of Police Station-Kotwali Bilaspur on 07.05.2004 at 9:35 a.m. by PW-7 C-256 Om Prakash. Thereafter PW-7 scribed check F.I.R. dated 07.05.2004 (Ext.Ka-61) which was registered as Case Crime No. 315 of 2005 under Sections 302, 201, 427 I.P.C. P.S. Bilaspur District-Rampur.
4. Prosecution story, as unfolded in F.I.R. dated 07.05.2004, can be gathered from F.I.R. itself. For ready reference same is quoted herein under:-
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