Allahabad High Court
Nawal Singh vs State Of U.P. And 4 Others on 9 April, 2014
Bench: Amar Saran, Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 46 Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 177 of 2014 Applicant :- Nawal Singh Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Bhuwan Raj Counsel for Opposite Party :- Govt. Advocate Connected with Case :- CRIMINAL MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 176 of 2014 Applicant :- Nawal Singh Opposite Party :- State Of U.P. And Anr. Counsel for Applicant :- Bhuwan Raj Counsel for Opposite Party :- Govt. Advocate Hon'ble Amar Saran,J.
Hon'ble Harsh Kumar,J.
We are disposing of Criminal Appeals under section 372 Cr. P. C. against the judgements in S.T. No. 852 of 2007 and S.T. No. 1131/09 by a common order.
We have heard Sri Bhuwan Raj, learned counsel for the appellant and perused the Trial Court judgement and record.
This appeal against the acquittal has been filed by the complainant against the judgement of the Additional District and Sessions Judge, Court No. 4, Ghaziabad, dated 6.1.2014 in S.T. No. 852 of 2007 and S.T. No. 1131/09, whereby he has acquitted the accused-respondents of offences under sections 364, 504, 506 and 120 B I.P.C.
The prosecution case as disclosed in the application under section 156 (3) Cr. P. C. filed by P.W. 1 Nawal Singh was that the informant and his son the victim Pankaj and informant's wife had gone to attend the marriage of Kavita sister of Mamta, who was married to victim Pankaj to Kunwar Pal, his Samadhi's home, i.e. his daughter-in-law's "maika". on 3.3.2006. On 4.3.2006, when they were returning, the accused persons are said to have detained Pankaj in their house. The informant and his wife then returned home, but when Pankaj did not return for many days, then a missing report was lodged on 10.3.2006 at P.S. Sihani Gate, Ghaziabad. On 22.4.2006 and 17.5.2006 two applications were given to the S.S.P., Ghaziabad. The further allegation is that there were illicit relations of Smt. Mamta with Lakhmi, who was married to Brijpali the sister of Subhash, who was to be married, with Kavita. Kavita was the younger sister of Mamta. This allegation of illicit relations of accused respondent Mamta with Lakhmi has not been mentioned in the missing report or in the applications sent to the S.S.P. on 22.4.2006 and 17.5.2006 and even in the application under section 156 (3) Cr. P. C. dated 1.9.2006. In fact, no motive for the offence has been even mentioned at the stage of the application under section 156 (3) Cr. P.C. For the first time, when Nawal, father of the victim was examined as P.W. 1, the allegations of illicit relations between Mamta and Lakhmi have been made. P.W. 3 Smt. Omwati, mother of the victim Pankaj and P.W. 4 Kannoo, the father-in-law of Lakhmi and C.W. 1 Smt. Brijpali, the wife of Lakhmi are the other witnesses, who have been examined in this case.
Learned counsel for the appellant-informant Nawal Singh Sri Bhuwan Raj submitted that as the victim had been left behind at the house of the accused-respondents, the onus lay on the accused-respondents under section 106 of the Evidence Act to explain as to where he had disappeared. This aspect has not been taken into consideration by the Trial Court. As per evidence, there were illicit relations between the accused Mamta and Lakhmi, which was the cause for making Pankaj, the husband of Mamta disappear and that as per the evidence, Smt. Mamta had gone away with Lakhmi for one month and Lakhmi himself remained absconding for two years after the incident.
In the 313 Cr. P.C. statement, also the accused-respondents have not explained as to how the victim has disappeared except by making a simple denial.
It was also submitted that the testimony of P.W. 3 Kannoo, real father-in-law of the accused-respondent Lakhmi has been rejected in S.T. No. 852 of 2007, where Kunwar Pal, Amarpal, Smt. Bala and Smt. Mamta were tried by taking into consideration the fact that the P.W. 3 Kannoo has turned hostile, when he gave evidence in the separate trial No. 1131 faced by the accused respondent Lakhmi.
On a careful consideration of the evidence, we are of the opinion that the Trial Court has not arrived at a perverse or wholly erroneous finding in reaching a conclusion that there was insufficient material for connecting the accused-respondents with this offence. The Trial Court has held that no witnesses have seen the victim Pankaj going away in the company of the accused respondent at any stage. The Trial Court has further stated that the evidence of illicit relations, which has been belatedly raised can only cast a suspicion against the accused respondents but suspicion cannot take the place of proof. We also find that the informant, when he lodged the missing report on 10.3.2006, or thereafter when he made allegations to the S.S.P. on 22.4.2006 and 17.5.2006 and even when he made the application under section 156 (3) Cr. P. C. on 1.9.2006, made no mention of these allegations of the accused respondent Mamta and accused respondent Lakhmi having illicit relations. Also the allegations of illicit relations between the two accused-respondents, even if true, would not have provided any motive to the accused-respondents Kunwar Pal and Amar Pal and Smt. Bala to be a party with Mamta and Lakhmi, if they had nefarious designs against the victim Pankaj. Moreover, from the mere allegation that Pankaj and Smt. Mamta ran away, we cannot arrive at an irresistible conclusion necessary in a case of circumstantial evidence that the accused persons must have caused the death of Pankaj or made him disappear. The burden under section 106 of the Evidence Act is cast, when a fact is especially within the knowledge of accused and he had to submit an explanation as to the whereabouts of the victim or as to how the victim has died. The cases cited by the learned counsel for the appellant, State of Rajasthan vs. Kashi Ram, AIR 2007 SC 144 and Sathya Narayanan vs. State Rep. by Inspector of Police, JT 2012 (11) SC 57 are cases, where the dead body was found on the premises, where the accused-respondent used to reside and the case of Kashi Ram was also a case of murder of his wife. There the burden was cast on the accused as to how the death had been caused as the fact was especially within the knowledge of the accused. In the present case, it has come in evidence that Nawal and others after talking on the telephone with Smt. Mamta and her parents and on not getting any satisfactory answer about the whereabouts of Pankaj, visited her maternal house on 5.3.2006. After that Mamta, Kunwarpal and other accused persons searched for the victim, but he could not be found. Thereafter, at a very highly belated stage after six months, allegations of abduction have been made. We think that the chain of circumstances is too fragile to establish the fact that the accused-respondents have alone caused the death or disappearance of the victim. We have to keep in mind that this is an appeal against a judgement of acquittal and it cannot be said that the view taken by the Trial Judge is perverse or palpably erroneous. We find no merit in this application for leave to appeal under section 372 Cr. P.C. It is rejected. The Appeal is, accordingly, rejected.
Order Date :- 9.4.2014 HSM