Krishna vs State of U.P.

Arvind Kumar Mishra-I, J.—The instant appeal has been preferred against the judgment and order dated 08.05.2014 passed by learned Additional Sessions Judge, Court No. 5, Mathura, in Sessions Trial No. 590 of 2011 State of U.P. Vs. Ram Lakhan and others arising out of Case Crime No. 242 of 2010 under Sections 366, 376 I.P.C., Police Station Barsana, District Mathura in so far as it relates to acquittal of accused respondents Vijay and Vishnu.

As per factual matrix of the case, NCR No. 82 of 2010 u/s 498 I.P.C. Police Station Barsana, District Mathura was entered against the accused Vijay and Rakesh at the instance of complainant Shivram, on 17.07.2010 wherein it was stated that the complainant''s son Kanhaiya had gone to Jungle for agricultural work on 13.07.2010 at 7:00 a.m. His wife Smt. Krishna aged about 24 years and her two sons Kapil aged about 31/2 years and Manish aged about 11/2 years were staying at home. Around 10:00 a.m., the complainant did not see Smt. Krishna and her two sons inside room whereupon he thought that they might have gone to Jungle. When the son of complainant Kanhaiya came from Jungle around 6:00 p.m. (the same day), the complainant enquired about his wife and sons. His son replied that he had left them in the house. This worried the complainant and his son.

Thereafter the complainant and his son Kanhaiya telephonically talked to their relatives and searched for Smt. Krishna and two sons but no trace of them could be made out. An inquiry was also made from neighbourhood Vijay @ Vijan son of late Radhey because he used to talk to Smt. Krishna on telephone but he (Vijay @ Vijan) told nothing. The friend of Vijay @ Vijan namely Rakesh also used to talk to Smt. Krishna on telephone. He too was asked about whereabout of Smt. Krishna but nothing could be known. Suspicion arose regarding above two persons that they might have abducted/kidnapped Smt. Krishna and her two sons.

Later on the matter was investigated into by S.I. Maan Singh when the victim Smt. Krishna was recovered. On the basis of the recovery of the victim Smt. Krishna, the case was converted u/s 366, 376 I.P.C. with Crime No. 242 of 2010. The matter was investigated into and statement of the victim u/s 161 Cr.P.C. was recorded. The statement of the victim u/s 164 Cr.P.C. was also recorded. Against four accused persons namely Ram Lakhan, Vijay @ Vijan, Vishnu and Rajju @ Raju Pandit, charges u/s 366, 376 I.P.C. were framed. Charges were read over and explained to the accused persons who denied charges and opted for trial.

The prosecution in all produced six prosecution witnesses namely Shivram PW-1 who has proved his complaint/first information report, victim PW-2, Lachhoo PW-3 is also witness of fact and he saw Rajjoo son of Vinod and Ram Lakhan Dwivedi in Tempo along with Smt. Krishna and her two sons. Dr. Geeta Chandra PW-4 medically examined the victim and prepared examination report Ext. Ka-3. She also prepared supplementary medical examination report Ext. Ka-4 and opined the age of the victim above 19 years. Head Constable Ram Dhani Yadav PW-5 proved entry made by him as NCR No. 82 of 2010 which has been proved as Ext. Ka-5. S.I. Maan Singh PW-6 initially investigated into the facts of NCR. No other ocular testimony was produced. The evidence of the prosecution was closed.

Thereafter statement of the accused respondents u/s 313 Cr.P.C. was recorded wherein the accused respondents imputed their implication false in the present case. In defence, accused Vishnu got examined Ramjeet Singh DW-1 and Shyam Sunder DW-2.

The trial court after examining all the material facts on record and after appraisal of the evidence acquitted accused respondents no. 2 and 3. Hence the appeal against acquittal.

The moot point involved for adjudication in this appeal is as to whether the trial court was not justified in acquitting the two accused respondents namely Vijay son of Radhey and Vishnu son of Nathi. In this context, we also perused the impugned judgment of the trial court.

As per the first information report, the incident took place on 13.07.2010 when the complainant''s son Kanhaiya had gone to Jungle for agricultural work, the complainant did not see his daughter-in-law Smt. Krishna and her two sons in the house then he thought that they might have accompanied Kanhaiya to Jungle but Kanhaiya himself inquired with Shiv Ram about whereabouts of Smt. Krishna and two sons the same evening at 6:00 p.m. According to the first information report, the complainant developed suspicion against Vijay son of late Radhey and his friend namely Rakesh son of Jaila because they used to talk to Smt. Krishna on telephone.

The whole prosecution story revolves around version of the victim Smt. Krishna. As per her testimony, she testified that on the fateful day i.e. 13.07.2010, she had gone to take medicines for her children near the Temple. It was around 9:00 a.m.-10:00 a.m. when she was returning home, Rajjoo, Ram Lakhan, Vijay @ Vijan and Vishnu met her on way. They forcibly made her board a Tempo along with her two sons. Her children were in custody of the accused Vishnu and Vijay. But testimony of Shivram PW-1 reveals that Vishnu was present in village after the incident and helped in searching the victim. The victim has not named Vishnu and Vijay-the two accused in her statement recorded u/s 161 Cr.P.C. whereas she named Vijay and Vishnu along with others in her statement u/s 164 Cr.P.C. As per statement of Investigating Officer (PW-6), he enquired about Vijay but the prosecutrix did not mention his name. Thus statement of victim as recorded u/s 161 and 164 Cr.P.C. on the face appears to be contradictory in relation to involvement of Vijay and Vishnu in the alleged incident.

Similarly Lachcho PW-3 has not named Vijay and Vishnu in his statement recorded u/s 161 Cr.P.C. Therefore, naming of Vijay and Vishnu u/s 164 Cr.P.C. by the victim appears to be tutored one and does not inspire confidence and her testimony to that extent is not credible.

Even no call detail or any cogent evidence has been produced which could establish fact of telephonic talk between Smt. Krishna on the one hand and Vijay and Vishnu on the other hand. Thus the view of the trial court is just, reasonable and based on material available on record-in so far as it relates to the acquittal of Vijay and Vishnu.

Before parting with the judgment, it would be relevant to observe that this being an appeal confined against acquittal of the two accused persons, we may record that presumption of innocence of the accused Vijay and Vishnu gets fortified on the ground that finding of acquittal recorded in relation to these two accused persons is based on material on record. The presumption of innocence of the accused persons is available even up to the appellate stage. Even if other view is possible, it would not be appropriate to substitute our own view in place of the finding of acquittal recorded by the trial court in so far as it relates to the acquittal of the accused Vijay and Vishnu. In cases where two views are possible then the view taken by the trial court has got to be affirmed. This mandate has been pronounced by Hon''ble Apex Court in the case of Bhadragiri Venkata Ravi Vs. Pubic Prosecutor High Court of A.P., Hyderabad reported in 2013 (4) Supreme 450. Thus the instant appeal preferred in so far as it relates to the finding of acquittal of the two accused Vijay and Vishnu is concerned, it needs no interference by this Court and that part of the judgment which relates to finding of acquittal of these two accused person is affirmed. The instant appeal is, accordingly, dismissed.

Thus, leave to appeal is refused.

Let a copy of this order be certified to the trial court concerned.