2022 Supreme(All) 166

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Arvind Kumar Mishra-I, Vikas Budhwar, JJ.
Pinkoo @ Jitendra – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 633, 25 of 2013
Decided On : 31-01-2022

The prosecution has not been able to prove charges under Section – 302/34 and 114 I.P.C. against accused- Pinkoo alias Jitendra and Ishwari Devi and charge under Section – 25 Arms Act against accused- Pinkoo alias Jitendra beyond reasonable doubt and serious question arises on point of their involvement in the commission of the offence.

Headnote:

The prosecution failed to prove the charges against the accused-appellants beyond all reasonable doubt. The judgment of conviction is illegal and perverse. The conviction of both the appellants recorded by the trial court is found to be perverse and illegal and it is not sustainable in the eye of law and the same is liable to be set aside.

Fact of the Case:

The incident took place in front of the house of informant, whereas, in the description of the prosecution witnesses, the incident is stated to have taken place at the corner of 'chabutra' of Devi Ram. The site plan of the place of occurrence has been changed as such. The house of the appellant has not been sketched or marked in the site plan (Ext. Ka-21). Besides, site plan is silent about specific positions of all the accused. The recovery of SBBL gun was planted by the police which is absolutely fake. The recovery memo contains description that SBBL gun when kept under seal was in working condition, whereas, at the time when the SBBL gun was received by the forensic laboratory the alleged gun was found to be not functional.

Finding of the Court:

The prosecution has not been able to prove charges under Section – 302/34 and 114 I.P.C. against accused- Pinkoo alias Jitendra and Ishwari Devi and charge under Section – 25 Arms Act against accused- Pinkoo alias Jitendra beyond reasonable doubt and serious question arises on point of their involvement in the commission of the offence.

Issues: 1. Whether the prosecution has been able to prove satisfactorily the charges against the accused-appellants beyond all reasonable doubt ? 2. Whether the F.I.R. is ante-timed and suspicious ?

Ratio Decidendi: 1. The testimony of both the prosecution witnesses of fact are highly improved and full of embellishments. This aspect of the case connotes to fact that it was not known up to and till the time of conduction of postmortem examination as to what weapon, in fact, has been used in committing the offence. 2. The manner of the assault has been contradicted by the defence by putting specific question to both the prosecution witnesses of fact (PW-1 and PW-2) to the ambit that the incident took place in manner that the accused tried to catch/over power the deceased, however he tried to save himself by running away and while he reached to the corner of 'chabutra' (terrace) of Devi Ram, he was surrounded by the accused and in the meanwhile, accused-appellant- Pinkoo alias Jitendra fired with licensed gun. Both the witnesses have denied any such statement given to the Investigating Officer. 3. The place of occurrence as claimed by the prosecution to be in front of the house of the informant at Nagla Mali in District – Aligarh, is not found to be in front of house of the informant, but it is found to be at the corner of 'chabutra' (terrace) of one Devi Ram of Nagla Mali. 4. The claim regarding inadvertence of the scribe remains a fact shrouded in intriguing mystery in the absence of non production of the scribe of the report before the trial court. 5. The informant nowhere says in his entire testimony that after the report had been written by the scribe it was either read by him or the scribe read over the contents of the same to him only then he appended his signature on the report. The report was not readover to him by the prosecution even in the trial court. 6. The F.I.R. is silent about any motive for the occurrence, but the testimony of P.W.1 and P.W.2 explicitly puts forth specific motive behind the occurrence alleging that the accused - Pinkoo alias Jitendra was a drunkard and he used to quarrel with the people of the locality and used to demand money from them which was opposed by the deceased Narendra Saini. But that aspect, except for the bald allegation / averment made by the informant (PW-1), this fact remains unfounded from any other testimony or circumstance that in fact, Pinkoo alias Jitendra used to demand money from the people of the locality and the deceased used to object to the same. 7. The informant has testified to the ambit that he had appended his signature on the Check F.I.R. No doubt, there is no necessity that after the report regarding any cognizable offence has been lodged, an endorsement should be made on the Check F.I.R. by the informant but the usual practice prevailing at the various police stations of the State of Uttar Pradesh would show that the signature/thumb impression of the informant is usually obtained by the police personnel on the Check F.I.R. or copy thereof and this common practice has fructified into rule. 8. The written report (Ext. Ka-1) was neither read over to the informant nor he himself read it while he gave it at the police station. Meaning thereby, that the informant was unaware of the facts as to what was stated or described in the written report itself. If the written report was not read over and explained to him and he did not read its contents but it was only signed by him, then this aspect in all fairness supplies clue to the magnitude that signature of the informant was obtained on the written report, whereas he did not know the particulars and the contents described in the Written Report (Ext. Ka-1). That way, as it may be, the very foundation of this case i.e., the written report becomes suspicious paper and it looses its legal significance and renders doubtful the whole prosecution story. 9. The prosecution has not been able to prove charges under Section – 302/34 and 114 I.P.C. against accused- Pinkoo alias Jitendra and Ishwari Devi and charge under Section – 25 Arms Act against accused- Pinkoo alias Jitendra beyond reasonable doubt and serious question arises on point of their involvement in the commission of the offence.

Final Decision: The impugned judgment and order of conviction dated dated 18.12.2012 passed by the Additional District and Sessions Judge, Court No.6, Aligarh in Session Trial No. 600 of 2006 (State vs. Pinkoo alias Jitendra and Smt. Ishwari Devi), concerning Case Crime No.04 of 2006, under Sections – 302/34, 114 I.P.C., Police Station- Gandhi Park, District – Aligarh and Session Trial No.601 of 2006 (State vs. Pinkoo alias Jitendra), concerning Case Crime No.10 of 2006, under Section – 25 Arms Act, Police Station – Gandhi Park, District – Aligarh, is hereby set aside. Accused-appellants are acquitted of aforesaid charges, as above.