The Allahabad High Court has acquitted two accused, including a woman, of the murder of a youth in Aligarh’s Gandhi Park area.
The Division Bench of Justice Arvind Kumar Mishra-I and Justice Vikas Budhwar passed this order while hearing a criminal appeal filed by Pinkoo @ Jitendra and a connected appeal.
The two criminal appeals arise out of judgment and order of conviction dated December 18, 2012 passed by the Additional District and Sessions Judge, Aligarh in Session Trial (State vs. Pinkoo alias Jitendra and Smt Ishwari Devi), concerning Case under Sections 302/34 and 114 IPC, Police Station- Gandhi Park, District–Aligarh and connected Session Trial (State vs. Pinkoo alias Jitendra), concerning Case under Section 25 Arms Act, Police Station Gandhi Park, District Aligarh, whereby the aforesaid two appellants have been sentenced to imprisonment for life, under Section 302 read with Section 34 IPC, coupled with fine against each to the tune of Rs 20,000/- and in case of default in payment of it, the concerned convict would have to suffer additional rigorous imprisonment for one year.
The appellant, Pinkoo alias Jitendra, has also been sentenced to three years rigorous imprisonment coupled with fine Rs 5,000/- with default stipulation to suffer additional rigorous imprisonment for four months under Section–25 Arms Act.
The factual matrix of the case as reflected from the FIR pertains to fact that the written report was lodged by the informant- Indrabhan Singh Saini, son of Ram Prasad, resident of Mali Ka Nagla (Shyam Bihari), Gandhi Park, Police Station–Gandhi Park, District–Aligarh on January 04, 2006 at 06:15 p.m at Police Station–Gandhi Park, District–Aligarh against four persons including the two appellants alleging therein that on January 04, 2006, it was around 05:30 p.m, the younger brother of the informant, Narendra Saini was standing in front of his house, when Pinkoo, Sonu, Monu, sons of Nem Singh arrived on the spot and Pinkoo, with intention to kill, fired on informant’s brother with licensed rifle, while Sonu and Monu each gripped one arm of the victim and the mother of the accused- Ishwari Devi-was exhorting her sons for firing. Sonu and Monu were also possessing illicit arms and they shot fire, due to which, the informant out of fear could not save his brother.
The written report also includes description that the incident was witnessed by Chandrabhan, son of Ramroop, and Vipin Kumar, son of Geetam Singh, and others of the locality. After committing the offence, the assailants being pressured by the locality secured their escape. The dead body was stated to be lying on the spot, while the informant came to lodge the report.
The Trial Court heard the accused appellants and the prosecution on the point of charge and it was prima facie satisfied with the case against the accused appellants, therefore, framed charges against both the accused- Pinkoo alias Jitendra and Smt Ishwari Devi under Sections 302 read with Section 34 IPC and 114 IPC.
Accused Pinkoo alias Jitendra was also charged under Section 25 Arms Act.
So far as accused Ishwari Devi is concerned, she refuted charges framed against her and claimed to have been falsely implicated in the case.
It has been vehemently claimed on behalf of the appellants that in fact, no one saw the occurrence. The informant in collusion with the police has concocted and set up a false story in order to falsely implicate the appellants in the commission of the offence in question.
The face value of the FIR itself is doubtful and it is suspicious on account of description in it of various aspects of the case, in particular that the informant is acquainted with specific weapons used in the commission of the offence.
The written report, describes, inter-alia, that accused- Pinkoo alias Jitendra fired with a licensed rifle, whereas two co-accused are stated to have been in possession of illicit country made weapons. The FIR is almost cryptic and silent about any motive being assigned to the accused-appellants. When the very import of the FIR is gathered from the above three dimensions, then things appear to have been cleverly articulated, fishy and managed in order to falsely implicate the accused-appellants in the case, the Court observed.
The Court noted that counsel for the appellants also explained various inconsistencies vis-a-vis facts and circumstances emerging in the case, which they claimed posed serious questions to the entire occurrence. The recovered gun was stated to have not been used in the commission of the crime.
The counsel for the appellant further proceeded to claim that the trial Judge failed to take stock of the aforesaid factual and legal aspects of this case which were very much apparent to it, but it erroneously recorded conviction against the accused-appellants, which finding of conviction is not based on material on record. The prosecution has failed to prove its case beyond all reasonable doubt. The judgment of conviction is illegal and perverse.
Per contra, Imranullah, counsel for the informant, while retorting to the aforesaid argument has claimed that so far as the testimony of both the prosecution witnesses of fact Indrabhan Saini and Chandrabhan is concerned- the same is pin pointing, consistent, unflinching and direct on the point of occurrence which gives coherence to the description about the manner and style of the occurrence as it took place on January 04, 2006 at 05:30 p.m. at Nagla Mali.
Now, insofar as the point of FIR being ante time as claimed by the defence is concerned, this much can be pointed out that the FIR is prompt one. No time was left for deliberation. Each prosecution paper, in particular the inquest report and the papers prepared on the spot bear case crime number. The FIR was lodged soon after the occurrence at 06:15 p.m at the police station concerned, which is one kilometer away from the place of occurrence.
In so far as point of charge in the use of weapon of assault is concerned, the same was licensed gun, which was inadvertently described as licensed rifle in the FIR and that aspect stood corrected by the informant at the first opportunity, when his statement was recorded in the same night intervening 04/05.01.2006 by the investigating officer and the fact stands substantiated even by the testimony of the investigating officer Jasvir Singh.
The Additional Government Advocate submitted that the eyewitness account testimony inspires confidence and there is no reason to disbelieve the same as that would amount to brushing aside cogent testimony merely on suspicion. It is established law that mistakes committed during investigation by the Investigating Officer would not be sufficient justifying to throw away the entire case of the prosecution. Evidence on record profusely indicates involvement of the accused-appellant in the occurrence. The trial court has taken correct view of law and facts and has justifiably recorded conviction against the accused-appellant.
The Court held that
In the backdrop of aforesaid fact situation, argument has been extended on behalf of the appellant- Pinkoo alias Jitendra that in fact, nothing has been recovered from his possession and police has planted false recovery of SBBL gun and he was arrested from his house, becomes relevant and worth consideration. How and why the police officers involved in the operation for recovery of SBBL gun refrained from asking names of such persons, who refused to become witnesses to the fact of recovery is beyond imagination. Inaction on that point in not observing precaution qua the recovery map dated February 21, 2006 throws lots of doubt on the claim of fair recovery.
In view of above, the proceeding pertaining to recovery of the SBBL gun stands vitiated as discussed above. One particular aspect of the case (Crime No 10 of 2006) needs to be addressed at this stage. It is quite surprising that in this case, the SBBL gun allegedly recovered was sent for forensic examination to the Vidhi Vigyan Prayogshala, Agra but this exercise was closed here by the prosecution.
In fact, a charge sheet was filed in the case, but no forensic examination report was obtained by the prosecution. The prosecution looked aloof to any forensic report. It is beyond reason to know the cause for avoiding the forensic report.
The Court further held that the entire record of this case makes it obvious that serious doubt is created in the prosecution story because of the various material abnormalities appearing in the testimony as well as the adverse circumstances working against the prosecution which, in the absence of proper explanation by the prosecution, are sufficient for throwing away its case.
The description of the occurrence as given in the FIR does not match with the entirety of this case and is inherently contradictory to the statement of Indrabhan Saini under Section 161 CrPC. The sequential coherence of occurrence becomes doubtful as one proceeds with the testimony of this case vis-a-vis prevailing circumstances of this case.
The Court said that, a cumulative analysis and scrutiny of the evidence qua facts and circumstances of this case lead us to conclude that the prosecution has not been able to prove charges under Section – 302/34 and 114 IPC 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.
The Court further said that, it is trite law and settled principle of criminal jurisprudence that guilty persons should escape the clutches of law, then one innocent should be punished. Therefore, 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.
“Consequently, impugned judgment and order of conviction dated dated December 18, 2012 passed by the Additional District and Sessions Judge, Aligarh in Session Trial (State vs. Pinkoo alias Jitendra and Smt Ishwari Devi), concerning Case under Sections– 302/34, 114 IPC, Police Station- Gandhi Park, District– Aligarh and Session Trial (State vs. Pinkoo alias Jitendra), concerning Case under Section– 25 Arms Act, Police Station– Gandhi Park, District–Aligarh, is hereby set aside. Accused-appellants are acquitted of aforesaid charges.
In this case, the appellant Pinkoo @ Jitendra is in jail. He shall be released forthwith unless and until he is wanted in connection with any other case, whereas, the appellant Smt Ishwari Devi is on bail, she need not surrender before the trial court. The appellants shall ensure compliance of Section- 437A CrPC,” the Court ordered.