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2014 DIGILAW 249 (ALL)

KRISHNA KANAUJIA v. STATE OF U. P.

2014-01-21

RAMESH SINHA

body2014
JUDGMENT Hon’ble Ramesh Sinha, J.—Heard Sri Ram Raj Pandey, learned counsel for appellant and Sri Sudhir Mehrotra, learned Special Counsel for the High Court and the learned A.G.A. appearing for the State. 2. Sri Sudhir Mehrotra, learned Special Counsel for the High Court submits that in compliance of Court’s order dated 29.5.2013 Sri Mahendra Nath, C.J.M. Varanasi has submitted his explanation in pursuance of the Court’s order and filed an affidavit, from which it appears that the C.J.M., Varanasi has made his sincere efforts to trace out the appellant and he has also submitted his unconditional apology for the inconvenience caused to this Court and for an inadvertent incorrect report submitted by his predecessor in tracing out the appellant. 3. As the appellant has already been traced out and also appeared before this Court, hence the explanation submitted by Sri Mahendra Nath, C.J.M. Varanasi is accepted and it is made clear no adverse inference shall be drawn against him and no further action is required in the matter in this regard. 4. The present criminal appeal has been filed against the judgment and order dated 14.10.1982 passed by the Additional Sessions Judge, Varanasi, by which the appellant has been convicted and sentenced under Section 6 of the P.A.C. Act, till rising of the Court with a fine of Rs. 500/- and in default of payment of fine, the accused/appellant has been directed to undergo two months R.I. 5. The prosecution case in brief is that applicant was a Constable of P.A.C. being Constable No. 6498 and was posted to ‘E’ Company of 36th Battalion of P.A.C. at Ram Nagar, P.S. Ram Nagar, District Varanasi. On 3.10.1980 he proceeded to 6th Bn. P.A.C. Meerut from Ram Nagar as a Special Messenger under the orders of the Commandant. He reached the 6th Bn. of P.A.C. Meerut on 4.10.1980 and handed over the letter to the Commandant. Thereafter, he did not report to his company till 5.11.1980. The Company Commander Sri Jagarnath Pd. Upadhya got the enquiries made from the Commandant VI Bn. P.A.C. Meerut and also from the house of the accused. When he failed to get any information about the whereabouts of the accused, he lodged the F.I.R. with the local police of Ram Nagar Circle on 2.11.1980. A case was registered and was investigated by Sri Bahadur Yadav, S.I., who submitted charge-sheet against the accused. P.A.C. Meerut and also from the house of the accused. When he failed to get any information about the whereabouts of the accused, he lodged the F.I.R. with the local police of Ram Nagar Circle on 2.11.1980. A case was registered and was investigated by Sri Bahadur Yadav, S.I., who submitted charge-sheet against the accused. He further secured sanction from Sri Chaman Lal Commandant 36th Bn. P.A.C. Ram Nagar under Para 486(1) of Police Regulations for the prosecution of the accused. 6. The prosecution has examined 5 witnesses in support of its case which are as under : P.W.1 Head Constable Chandrika Sharma was posted as Head Constable at P.S. Ram Nagar on 2.11.1980. He has proved the check F.I.R. Ex.Ka-1 which he prepared on 2.11.1980 at 17.50 hours in terms of the written report submitted by Sri Jagannath Upadhya Company Commander ‘E’ Company 36th Bn. P.A.C. Ram Nagar. He has also proved the entry in the G.D. Report No. 26 of the same hour, copy of which is Ex. Ka-2. P.W.2 Sri Jagarnath Prasad Upadhya is Company Commander of ‘E’ Company 36th Bn. P.A.C. Ram Nagar. He has stated that the accused was posted as constable No. 6498 in the said ‘E’ Co. On 3.10.1980 he proceeded to 6th Bn. P.A.C. Posted as Meerut under oders of the Commandant of 36 Bn. P.A.C. Ram Nagar. His departure was noted in the G.D. Report No. 14 of the date at 9 hours. He did not return from Meerut within a reasonable time. Then the witness enquired about his whereabouts from Commandant 6th Bn. P.A.C. Meerut through radiogram. He was informed that the accused had left 6th Bn. P.A.C. after delivering letters on 4.10.1980. He then directed one of the constables proceeding on leave to make enquires at the residence of the accused. On return from leave the said constable informed the witness that the accused had not returned home as well. On being satisfied that the accused had deserted the service, he prepared the written report Ex.Ka-3 which he submitted at P.S. Ram Nagar. P.W.3 Sri Bahadur Yadav, then S.I. Ram Nagar is the Investigation Officer. He started investigation on 3.11.1980, recorded the statements of the witnesses on 5.12.1980. He found that the accused had returned to his Company. He then recorded his statement. He submitted charge-sheet Ex.Ka-4 against the accused. P.W.3 Sri Bahadur Yadav, then S.I. Ram Nagar is the Investigation Officer. He started investigation on 3.11.1980, recorded the statements of the witnesses on 5.12.1980. He found that the accused had returned to his Company. He then recorded his statement. He submitted charge-sheet Ex.Ka-4 against the accused. It was, however, returned from the office of S.P. For taking sanction for prosecution whereupon he obtained sanction from Sri Chaman Lal Commandant 36th Bn. P.A.C. Ram Nagar, which is Ex.Ka-5. 7. Head Constable Ram Nath is posted in 36th Bn. P.A.C. Ram Nagar. He has proved the G.D. Report No. 36th of P.A.C. Ram Nagar, copy of which is Ex. Ka-6. He has also proved the G.D. Report No. 26 of the said Battalion dated 5.11.1980 of 20.15 hours, copy of which is Ex.Ka-7. 8. P.W.5 Head Constable Noor Mohammad has stated that he was posted as a Constable in the said Battalion on 5.11.1980 and wrote the said G.D. No. 26 dated 5.11.1980 at the dictation of Ramnath, who was Head Constable clerk in ‘E’ Company. 9. The accused has admitted that he was employed as a constable in P.A.C. on the relevant date and that he went to 6th Bn. P.A.C. at Meerut under the orders of his Commandant. He has, however, stated that on 4.10.1980 while he was returning to Varanasi, he was abducted by an armed gang of dacoits near Begum Pul which kept him confined in a lonely place. He was released by the gang at a place near railway station Meerut. He then quietly proceeded to Moghalsarai and reached Ram Nagar on 5.11.1980. He then informed the Company Commander about his abduction and wrongful confinement. The letter did not make any enquiry and insisted upon his prosecution. The accused did not produce any defence. 10. It is not in dispute that the accused was employed as a constable in P.A.C. and was posted as a Constable in ‘E’ Company of 36th Bn. P.A.C. Ramnagar. It is also not in dispute that after delivering letter at 6th Bn. P.A.C. Meerut he should have immediately proceeded for Varanasi from Meerut on 4.10.1980. He reported 36th Bn. P.A.C. 5.11.1980. During this period there was no information about his whereabouts. In these circumstances, it is upon the defence to show that he for reasons beyond his control was unable to report at his Company within a reasonable time after 4.10.1981. P.A.C. Meerut he should have immediately proceeded for Varanasi from Meerut on 4.10.1980. He reported 36th Bn. P.A.C. 5.11.1980. During this period there was no information about his whereabouts. In these circumstances, it is upon the defence to show that he for reasons beyond his control was unable to report at his Company within a reasonable time after 4.10.1981. On his return he stated the story of his abduction which is entered in the relevant G.D. 11. Sri Ram Raj Pandey, learned counsel for appellant submitted that the appellant had been entrusted with the work to deliver the postal letter as Special Messenger from District Varanasi to District Meerut. He further submitted that the appellant had already delivered the said letter to the concerned person in District Meerut, but while returning he was abducted by some unknown miscreants and after great efforts he got himself released from the clutches of the said unknown miscreants for which the G.D. Entry was also made about the incident in Headquarters 36 Battalion P.A.C., Ramnagar, Varanasi. It was argued that the appellant has categorically stated in his statement recorded under Section 313 Cr.P.C. that he had given the information at his Battalion, P.A.C, Ramnagar, but the Commandant instead of inquiring into the matter only lingered on the inquiry and assured the appellant that the information regarding his abduction and wrongful confinement by the unknown miscreants would be inquired into, but no inquiry was done and the present F.I.R. was lodged against him for desertion of his duties. He further pointed out that the trial Court also in a most mechanical manner has recorded the evidence of the prosecution witnesses who are the Police personnel of his department and relying upon their statements convicted and sentenced the appellant which is too harsh against the appellant. He further urged that the trial Court had erred in recording a finding that the accused has not produced any defence in support of his case. He further submitted that the trial Court has recorded a wrong finding that when the appellant was released from the clutches of the miscreants then he should have lodged a complaint at the G.R.P. and further he could have taken the Investigating Officer at the spot where he was abducted and thereafter, at the place where he was left by the gang. The trial Court observed that if the Investigating Officer was not willing to go along-with him then he could have move to the higher authorities. He submitted that the finding of desertion from duty by the accused is absolutely against the evidence on record as the appellant as soon as released from the clutches of the dacoits, had reported to his battalion on 5.11.1980 and to his Company Commander about his abduction and wrongful confinement, but his superior officer did not make any inquiry and insisted upon his prosecution. He further submitted that the appellant has not absented himself from his service willfully and he has further drawn the attention of this Court towards letter of the Superintendent of Police dated 28.6.2013 by which he has been reported that appellant was remain posted at 36th Vahini P.A.C. Varanasi From 23.2.1977 to 20.7.1985, 10th Vahini P.A.C. Barabanki From 21.7.1985 to 5.6.1996, District Lucknow From 6.6.1996 to 28.3.2011, District Unnao From 29.3.2011 to 22.5.2011 and in District Hardoi From 23.5.2012 till date. 12. Learned counsel for appellant further submitted that the trial Court has misread the evidence on record and convicted the appellant as is evident from the record which should be set aside by the Court. 13. On the other hand, learned AGA has submitted that the trial Court has rightly convicted the appellant on the basis of evidence on record were sufficient against the applicant for his conviction. 14. Considered the submissions advanced by the learned counsel for the parties. 15. From perusal of the evidence on record it is apparent that the appellant was entrusted a job for delivering a letter under the orders of the Commander of 36th Bn P.A.C. at Ramnagar district Varanasi and on 3.10.1980 he as a Special Messenger had left his battalion from Ramnagar to 6th Bn, P.A.C., Meerut for delivering the said letter. On 4.10.1980 he reached Meerut and handedover the letter to the Commandant and while he was returning after delivering the letter he was abducted by some unknown miscreants and had wrongly been confined by them. On 4.10.1980 he reached Meerut and handedover the letter to the Commandant and while he was returning after delivering the letter he was abducted by some unknown miscreants and had wrongly been confined by them. While he was confined by unknown miscreants he was asked to prepare food and clean utensils for a month and when they have thought that the confinement of the appellant is no more required he was left by them as they thought that the appellant is of no use for them, the said fact has categorically been stated by the appellant in his written statement which was filed before trial Court on 12.10.1982, which is on record. 16. From the record it also transpires that as soon as the appellant was released by the miscreants he had reported for his duty on 5.11.1980 and reported about his abduction to his Company Commander who had directed the Constable Mohd. Noor Ahmed to the endorse about the returning of the appellant in the battalion, the said Constable did not endorse the full version of the appellant and directed the appellant to register his complaint at the Police Station who will note down the full particular. The appellant gave a statement to the Investigating Officer about his abduction and wrongful confinement and who further informed that he would enquire about incident from the Company Commander after visiting Meerut, almost 5-6 months lapsed but the Investigating Officer did not make any investigation about the abduction of the appellant and charge-sheet was submitted against him in the present case. Thus, it is apparent that appellant who himself was employed in the Police force, had reported about his abduction, but his superior officers ignored his complaint and did not make any further inquiry had proceeded ex parte and lodged the present F.I.R. for the prosecution of the appellant under Section 6 of P.A.C. Act. It further transpires that the trial Court also in a mechanical manner had recorded the evidence of the Police personnel against the appellant and convicted the appellant in the present case in a one sided manner without considering the version and the written statement filed by the appellant. It further transpires that the trial Court also in a mechanical manner had recorded the evidence of the Police personnel against the appellant and convicted the appellant in the present case in a one sided manner without considering the version and the written statement filed by the appellant. In the letter dated 28.6.2013 which has been issued by Superintendent of Police, Hardoi it has been stated by him that the appellant was employed on 28.6.1977 and he is working as Constable in P.A.C. till date, and the service record of the appellant further shows that he has been regularly performing his duties for the last 36-37 years and only for a period of one month for which he has been prosecuted he did not work from 4.10.1980 to 5.11.1980 during which period the appellant stated to have been wrongly confined by the unknown miscreants while he was on his official duty as he had gone to deliver the letter of his Commandant from Ramnagar, Varanasi to Meerut and he had delivered the said letter to the Commandant at Meerut and while he was returning he was abducted by the unknown miscreants and left by them after a month. The appellant had stated that the appellant has given explanation for his absence which was beyond his control, hence he could not join his service and the appellant has made informed about his abduction to his superior officer, but his superior officer did not make any proper inquiry about the complaint of the appellant though the same was endorsed in the G.D. of 36th Bn. P.A.C. Ramnagar, Varanasi, which is an admitted fact. 17. There is no complainant against the applicant during such long span of service except for a month for which the appellant has been prosecuted in the instant case. The trial Court has relied upon the evidence of the Police personnel who belonged to the battalion of the appellant where he was employed who were under an obligation to support the prosecution case which has been launched against the appellant under the orders of the Commandant which cannot be said to be voluntary deposition before the trial Court free from undue influence. There appears to be also laches on the part of superior officer of the appellant for not inquiring the matter and the version given by the appellant for being absent from his service for a period of one month, hence it cannot be said that the appellant has willfully deserted from service for a period one month and the evidence adduced against him by prosecution witness also does not appears to be credible one, thus, the conviction and sentence of the appellant cannot sustain in the eyes of law, hence the judgment and order passed by the trial Court convicting and sentencing the appellant deserves to be set aside. 18. In view of the above foregoing discussions, the impugned judgment and order passed by the trial Court is hereby set aside and the appellant is acquitted. He is on bail. He need not surrender and his bail bonds and sureties are discharged. 19. The appeal is allowed.