Jhalku vs State Of U.P.

This appeal assails the correctness of the judgment and order dated 31.03.2017 passed by Learned Additional Sessions Judge/Fast Track Court, Lakhimpur Kheri, in Sessions Trial No.489 of 2007, Crime No.32 of 2002, whereby the Special Judge has convicted the appellant-accused namely, Jhalku and sentenced him to undergo rigorous imprisonment for 10 years under section 364 I.P.C. and also to pay a fine of Rs.10,000/-. If he fails to deposit the fine, he will undergo additional imprisonment for six months.

Narrated concisely, prosecution case against the appellant is that in the month of May, 2001 the appellant-Jhalku took the husband of the complainant alongwith him for waching a movie in Lakhimpur but her husband did not return back. On third day Jhalku came back home and upon query about her husband, he did not answer anything. She searched her husband everywhere but could not find him. She is of the firm view that accusedappellant had kidnapped her husband with the intention of murdering him. The name of Nathu Singh and Ram Pal Godia as last seen witnesses finds place in the first information report.

The F.I.R. was lodged on the premise of written report by the complainant on 26.01.2002 at 10:45 hrs, registered at Crime No.32 of 2002 under Section 364 I.P.C.

The case was investigated by Sri P. N. Sharma who submitted charge-sheet (Exhibit Ka-5) after completing the investigation. The charge was framed against the accused under Section 364 I.P.C. on 20.02.2008 by the trial court.

To bring home the guilt of the appellants, the prosecution has examined as many as four witnesses.

PW-1 complainant/Smt. Nanhi also the eye-witness of the said incident has categorically substantiated the entire incident which took place in the month of May, 2001 when the appellant took her husband along with him to watch a movie to Lakhimpur. She has further deposed that her husband was not inclined to go with the appellant but he insisted. Later on, her husband did not return till the evening when she inquired, till then even appellant has also not returned. On next day, she came to know that the appellant came in the night and left the village along with her daughter in the same night. This information was given to her by niece of the appellant namely, Jantri but the family members of the appellant did not answer properly. She approached the police station number of times but instead of lodging the report they asked her to search her husband. She kept searching for eight months then her report was lodged. She has specifically mentioned that there was no enmity between her husband- Pahadi and appellant-Jhalku.

P.W. 2 Chhotan has narrated the entire incident in the same manner establishing the prosecution case and the alleged incident which occurred in the month of May, 2001. He has further stated that at the time of incident, he was present at the spot along with his mother and the complainant (wife of the deceased).

P.W. 3 Head Constable Sri Puran Lal who has proved chik F.I.R. and carbon copy of G.D. in his oral testimony.

P.W. 4 Constable Anup Kumar Shukla has been examined as secondary evidence for proving site plan and charge-sheet (Exhibit Ka-4 and 5).

Incriminating evidence and circumstances were put to the appellant under Section 313 Cr.P.C. who denied all of them and stated that he has been falsely implicated in the present case. No evidence either document or oral has been adduced in defence by the accused-appellant.

The trial court held that the appellant committed the said incident and the prosecution established the circumstance, proving their guilt under section 364 I.P.C. and sentenced them to undergo rigorous imprisonment for ten years and a fine of Rs.10,000/-. Aggrieved by the verdict of conviction, the appellant preferred this appeal.

Heard Sri Rajiva Dubey, learned counsel for the appellant, Sri Balkeshwar Srivastava, learned AGA for the State and perused the record.

Learned counsel for the appellant submitted that the FIR has been lodged after an inordinate delay of eight months and no plausible explanation has been given by the prosecution on the delay. It has also been argued that as per legal provisions of Section 364 I.P.C. there is to be a motive behind the commission of such offence but neither any motive nor any enmity has either been stated in the FIR or deposed in the oral testimony of the witnesses adduced by the prosecution. It has also been argued that the witnesses mentioned in FIR, who saw the deceased- Pahadi accompanying appellant-accused on his request to watch movie in Lakhimpur, have not been produced in evidence. The alleged witness of last seen, i.e., P.W. 2 was not mentioned in the FIR and he is an interested witness being related to the complainant. Moreover, there are lot of discrepancies and contradictions in their evidence which falsify the prosecution case.

Per contra, learned AGA for the State, contended that the prosecution has established the guilt of appellant in the commission of crime in this case. The FIR version has fully been supported by ocular evidence, based on the said evidence, the court below rightly convicted the appellant and the impugned judgment warrants no interference.

I have considered the rival contentions and perused the impugned judgment and order of the trial court and material on record.

In the instant case, the complainant has admittedly lodged the FIR after a delay of eight months and the explanation forwarded is of searching her husband during this period. The said incident is substantiated by P.W. 2 in his oral testimony who is also said to be an eye-witness though, his name was not mentioned in the FIR in the category of last seen witnesses. The entire alleged commission of crime has been corroborated by P.W. 1 and P.W. 2 both of whom are related to each other.

Admittedly, the FIR was lodged by P.W.1 wife of deceased who has categorically stated that she was present when the appellant accused took her husband for watching a movie. She herself lodged the FIR and named the witnesses present at that time, namely, Nathu Singh and Ram Pal Godia but she did not mention the name of P.W. 2 Chhotan who has been adduced as last seen witness of the incident though he is family member of the complainant. There is no justification or plausible explanation as to why his name was not mentioned in the FIR as witness which has been lodged after an inordinate delay of eight months. It is pertinent to mention here that the last ween witnesses named in the FIR, have not been produced by the prosecution during the trial, such circumstance create a dent in a prosecution story.

Now, the question of motive is to be considered as it has been vehemently argued that there was no motive on the part of appellant to kidnap or murder the deceased (husband of the complainant). P.W. 1 and P.W. 2 both have emphasized in their statement that there was no enmity between the deceased and the appellant, instead they were on good terms and used to visit each others house. In view of their testimony, there appears no reason to believe that the appellant would have kidnapped the deceased, moreover, in the light of the fact that no recovery, as such, has been made during investigation which may indicate towards the commission of crime or its motive towards the appellant. The question as to why the appellant would kidnap the deceased is yet to be answered, as no reason has been subscribed by the complainant herself and other witnesses adduced during the trial.

The conviction of the appellant is entirely based on the fact that he was last seen with deceased, as such, it is for the appellant to explain as to where he parted with the deceased. Undoubtedly, it is obligatory on the appellant to explain as to where he parted with the deceased but this circumstance arises only when the last seen episode has been established beyond reasonable doubt by the prosecution, as the appellant has denied the entire prosecution story in his statement under Section 313 Cr.P.C. As far as the last seen episode is concerned, the above discussion has clarified or rather established that it cannot be said to be proved as the independent witnesses of the alleged incident have not been produced by the prosecution, though named in the FIR and the witness produced, i.e., P.W. 2 is family member of the complainant who was not named in the FIR as witness of the incident. This fact is also to be borne in mind that the FIR was lodged after a long delay of eight months and the complainant as alleged, was witness to the deceased and appellant leaving her house together but she did not doubt the appellant earlier and kept searching for her husband. Later on after eight months, she lodged an FIR against the appellant without assigning any motive as to why the appellant would kidnap her husband, thus, the theory of last seen does not appear to be tenable legally.

It has been vehemently argued by learned A.G.A. for the State that since the deceased was last seen with the appellant, as such, it is for the appellant to explain as to how and when he parted with the deceased. In the instant case, no explanation has been given by the appellant, as such it is bounden duty of the court to draw inference against the appellant, that he alone has disappeared the missing person. It is obligatory on the part of the appellant to explain the circumstances in which the missing person and the appellant parted accompany with as laid down in Sahadevan v. State; 2003 SCC (Cri.) 382 with reference to Section 106 Indian Evidence Act.

After giving a thoughtful consideration to the arguments placed by the learned A.G.A., I am of the opinion that before any inference is drawn by the court, it is the duty of the prosecution to establish its case beyond reasonable doubt based on reliable evidence that the missing person was last seen in the company of the appellant and was never seen thereafter. Even Section 106 Indian Evidence Act comes into picture after the prosecution discharges its burden.

As discussed above, the prosecution has utterly failed to establish beyond reasonable doubt that the missing person was last seen in the company of the appellant and never thereafter, therefore, no occasion arises for the appellant to explain as to when he parted company with the missing person. Thus, the contention of the learned A.G.A. for the State do not affect the merits of the case.

As is clear from the aforesaid discussion, as per prosecution case, the accused/appellant took the missing person with him on the said date and it was witnessed by the complainant PW-1 and PW-2. The prosecution contends that the PW-1 and PW-2 are the last seen witnesses as such, it is for the appellant to explain as to when he parted company with the missing person. The entire aforesaid discussion establishes that the last seen evidence has not been proved factum beyond reasonable doubt as alleged witnesses, last seen mentioned in the first information report, have not been produced without any cogent and tenable reason. One of the witnesses Nathu Singh has been discharged with no sufficient reason shown by the prosecution though he could have been produced before the court and his evidence could have been assessed by the Court as per legal provisions. The other witness, namely, Ram Pal has also not been produced in evidence. PW-2 was not mentioned as witness in the first information report though he was member of the same family and the first information report has been lodged after eight months. So, there was no reason as to why his name was not mentioned in the first information report. Moreover, both the witnesses PW-1 and PW-2 are of the same family and in absence of any motive or enmity there appears no reason as to why the appellant would kidnapped the husband of the complainant. The prosecution case qua then is found doubtful for the aforesaid reasons. Thus, the trial court has committed error in arriving at conclusion on the basis of prosecution evidence that the appellant was involved in the commission of crime and he kidnapped the deceased with intention to commit his murder. The finding of the trial court for convicting the appellant does call interference by this Court and conviction of the appellant is liable to be set aside.

In the result, appeal is allowed. Accused/appellant is acquitted for the offence punishable under Section 364 I.P.C. He is in jail. He shall be released forthwith, if not wanted in any other case.

The Senior Registrar is directed to ensure compliance by forwarding a certified copy of this judgement to the District Judge, Lakhimpur Kheri forthwith.