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2022 DIGILAW 1381 (ALL)

State of U. P. v. Mukhtar Ansari

2022-08-31

DINESH KUMAR SINGH

body2022
JUDGMENT : 1. The present appeal under Section 378 Cr.P.C. has been filed against the judgement and order dated 23.12.2020 passed by the Special Judge, MP/MLA/Additional Sessions Judge, Court No.19, Lucknow in Criminal Case No.970 of 2018, arising out of Case Crime No.126 of 1999, under Section 506 IPC, Police Station Krishna Nagar, District Lucknow, whereby the learned trial court had acquitted the respondents for the offence under Section 506 IPC. 2. The facts of the case, in brief, are that respondents, Mukhtar Ansari and Abhay Singh were imprisoned in Lucknow Jail as under trial. The complainant, S.P. Singh Pundir was serving in Uttar Pradesh Police as Additional Inspector General of Police (Prison). On 26.2.1999, a search operation was conducted in the Lucknow Prison and barracks were searched. It was alleged that respondent, Mukhtar Ansari, who was sitting Member of Legislative Assembly at that time and Abhay Singh, who are the Mafias, were unhappy with the search conducted by the police in the prison. Search was conducted on the order passed by Sri S.P. Singh Pundir, Additional Inspector General of Police (Prison). It was alleged that Mukhtar Ansari, respondent no.1 gave threat to kill Sri Sri S.P. Singh Pundir, Additional Inspector General of Police (Prison). 3. It was further said that on 27.2.1999 at around 10.30 P.M., Sri Manish Pundir, son of Sri S.P. Singh Pundir told the complainant that two persons were sitting on a motorcycle under the Eucalyptus tree near the house of the complainant and they were smoking cigarettes. They were staring towards the house of the complainant. When the complainant along with others came out of the house, two persons siting under the Eucalyptus tree had vanished from there. It was further alleged that out of two, one was well built of six feet height and the second one was of short height and fatty. 4. On 28.2.1999, again at 9.15 P.M. when the son of the complainant came out of the house with his dog for a walk, he noticed that a person jumping out from the vacant plot near the house of the complainant. One person of short height and well built wearing shirt and pant having stole was seen running towards eucalyptus tree. It was further said that two persons, who were seen under the eucalyptus tree on previous day, were also present near the eucalyptus tree. One person of short height and well built wearing shirt and pant having stole was seen running towards eucalyptus tree. It was further said that two persons, who were seen under the eucalyptus tree on previous day, were also present near the eucalyptus tree. Two persons present near the eucalyptus tree were giving signals to a third person. Thereafter, these persons sat on rickshaw and went from there. Son of the complainant told the complainant about this incident and they could see three persons going on rickshaw at a little distance. 5. On 1.3.1999 at around 12.15 A.M., two persons on a motorcycle were seen near the house of the complainant in suspicious condition, and when the complainant could see them, they went inside the Hydel Colony, which was situated near the house of the complainant. It was further said that Hydel Colony was not a thoroughfare. The complainant informed about these incidents through telephone to police control room and also to other officers. The complainant could gather information that on 27.2.1999 and 28.2.1999, the persons who were seen near the house of the complainant, were also seen near the house of his official driver. These persons were also seen on motorcycle near the office of the complainant. Two persons were on Yamaha Motorcycle having numbers UP32 W 5721 or UP32 K 5721. The complainant suspected that these persons were the men of Mafia, Mukhtar Ansari and they were being sent to kill the complainant, his family members, abduction or causing other damages to his family. It was further said that Mukhtar Ansari was trying to terrorise the complainant, so that he could flout the jail rules. Mukhtar Ansari by creating terror was interfering in the official work for the purpose of carrying out his illegal activities from the prison. 6. A written complaint was given on 1.3.1999 by Sri Sri S.P. Singh Pundir, Additional Inspector General of Police (Prison) and on the basis of written complaint, an FIR got registered at Case Crime No.126 of 1999, under Section 506 IPC. The Investigating Officer after conducting the investigation, filed the charge sheet against the Mukhtar Ansari and Abhay Singh under Section 506 IPC. Vide order dated 8.12.2003, the charge under Section 506 IPC was framed against the two respondents. The prosecution to prove its case examined as many as six witnesses. 7. The Investigating Officer after conducting the investigation, filed the charge sheet against the Mukhtar Ansari and Abhay Singh under Section 506 IPC. Vide order dated 8.12.2003, the charge under Section 506 IPC was framed against the two respondents. The prosecution to prove its case examined as many as six witnesses. 7. P.W.-1, S.P. Singh Pundir, in his examination-in-chief had reiterated the allegations in the FIR. He proved the complaint, which was marked as Ext.Ka-1. In his cross-examination, he said that as per the direction given by the Government, a search was carried out in the prison, in which District Magistrate, Senior Superintendent of Police, Lucknow and the Sub-Divisional Magistrate were present. This search was conducted under his supervision. On 26.2.1999, Abhay Singh was brought to the court to attend a case. He further said that neither Mukhtar Ansari nor Abhay Singh gave any threat to him during search operation. The persons, who were seen loitering around the house of the complainant on 27.2.1999 and 28.2.1999, were not seen by the complainant himself. On 1.3.1999 at around 12.15 A.M., he saw the suspicious persons. He said that on the basis of the suspicion, he gave the complainant, on which the FIR got registered. He said that the suspicious persons, who were seen near the house of the complainant, were never spotted with Mukhtar Ansari or Abhay Singh. 8. P.W.-2, Manish Pundir, in his extermination-in-chief supported the prosecution case. However, in his cross-examination, he said that his father did not tell him and other family members who were the persons unhappy by the search operation. He deposed that during discussion in the house, he and other family members got suspicious about the persons coming or going near their house. He further said that road in front of their house was a thoroughfare and people would come and go on that road. On the basis of suspicion, he noticed the suspects and their built etc. On 27th and 28th February, 1999, the suspects who were noticed by him, did not say anything to him or any other family member. It was further said that he did not tell any number of the motorcycle in his statement recorded under Section 161 Cr.P.C., and if such a number had been mentioned in the case diary, he was not in a position to tell how the said number of motorcycle was mentioned in the case diary. It was further said that he did not tell any number of the motorcycle in his statement recorded under Section 161 Cr.P.C., and if such a number had been mentioned in the case diary, he was not in a position to tell how the said number of motorcycle was mentioned in the case diary. He further said that no one had given any threat to him or any other family member in his presence. 9. P.W.-3, Saurabh Bhatnagar, in his statement said that motorcycle no.UP32 5721 mentioned in the statement of P.W.-1 under Section 161 Cr.P.C. was his motorcycle and at the time of incident, he was in Moradabad and on 1.3.1999 at around 12 hours, this motorcycle was standing in his house. He further said that he would only ride the said motorcycle. 10. P.W.-4, Prem Shanker Dixit, in his extermination-in-chief said that on 26.2.1999, he was posted as warden in the District Jail, Lucknow, and he was on duty from 12 hours to 4 P.M. On 14.2.1999, some persons had come to meet the prisoner, Mukhtar Ansari. There was no stamp on their hands and he asked these persons to show permission as seal was not stamped on their hands, which would be stamped on the hands of the persons coming to meet a prisoner. He further said that nobody gave direct threat to him. On 26.2.1999, the search operation was conducted under the supervision of Sri S.P. Singh Pundir, Additional Inspector General of Police (Prison) and he was on duty at the gate. He could not hear any threat given by anyone as he was around 200 meters away from where the search operation was being conducted. He himself was not threatened by anyone when he asked the persons coming to meet Mukhtar Ansari to show permission to meet him. This witness was declared hostile. He said that respondent, Mukhtar Ansari and Abhay Singh did not threaten the complainant to kill him or his family members in front of him. He did not give any such statement to the Investigating Officer. This witness was cross-examined by the prosecution. However, in his cross-examination also, he said that the Investigating Officer did not take any statement of him. 11. P.W.-5, Constable, Daya Shanker in his examination-in-chief proved the FIR, which was marked as Ext.Ka-2. 12. P.W.-6. He did not give any such statement to the Investigating Officer. This witness was cross-examined by the prosecution. However, in his cross-examination also, he said that the Investigating Officer did not take any statement of him. 11. P.W.-5, Constable, Daya Shanker in his examination-in-chief proved the FIR, which was marked as Ext.Ka-2. 12. P.W.-6. Javed Khan, Investigating Officer who conducted partial investigation and prepared the site plan, which was proved by him and marked as Ext.Ka-3. In his cross-examination, he said that he recorded the statement of the complainant, however, the complainant did not tell him about the persons, who were found loitering around his house on 26th and 27th February, 1999 and on 1.3.1999. He did not recover any motorcycle. 13. Learned trial court after analysing the evidence brought on record by the prosecution, was of the opinion that the prosecution had failed to bring on record any cogent and credible evidence against the respondents and the case was of no evidence. In view thereof, the respondents were acquitted for the offence under Section 506 IPC. 14. Sri Umesh Chandra Verma, learned AGA along with Sri Rao Narendra Singh, learned AGA for the appellant-State submits that the respondents were in prison in respect of the murder of Jail Superintendent, R.K. Tewari, who was brutally murdered near the Governor's House on a busy road in broad day light. He further submits that the respondents are Mafia Dons having several cases of committing heinous offences to their credit. Allegedly, murder of Jail Superintendent, R.K. Tewari was planned by the accused-respondents, who command rein of terror in the minds and hearts of the people including the officials. He also submits that the accused-respondents did not appreciate that any jail staff or any official would stop and search a person coming to meet them. They would like free entry of people coming to meet them in violation of Jail Manual and relevant Rules. The accused-respondents had guts and confidence to terrorise the jail staff and gave threats of killing the senior officer like the Additional Inspector General of Police (Prison) as search operation was conducted under his supervision in the prison on Government order. 15. Sri Umesh Chandra Verma, learned AGA further submits that threats were given in the prison, which was heard by P.W.-4. However, P.W. 4, out of fear and terror, turned hostile during his examination in the court. 15. Sri Umesh Chandra Verma, learned AGA further submits that threats were given in the prison, which was heard by P.W.-4. However, P.W. 4, out of fear and terror, turned hostile during his examination in the court. He also submits that P.W.-2, son of the complainant, soon after the search operation, on 26.2.1999 noticed suspicious persons loitering around the house of the complainant in the night to execute the threat. Testimony of the son of the complainant was not shaken during his cross-examination. Even P.W.-1 has supported the prosecution case in all respects. He, therefore, submits that considering the fact that the accused-respondents command, fear and threat in the minds and hearts of the general public as well as the officials, the trial court finding that the offence under Section 506 IPC was not proved against the respondents, is wholly erroneous. Soon after the complainant could come to know about the threats given by Mukhtar Ansari for his killing and abduction etc., suspicious persons loitered around his house were noticed by his son. If the testimony of P.W.-1 and P.W.-2 is considered together, offence under Section 506 IPC is clearly made out and, therefore, the impugned judgement and order passed by the trial court acquitting the accused-respondents for the offence under Section 506 IPC, is unsustainable and is liable to be set aside, and the accused-respondents should be convicted for offence under Section 506 IPC. 16. On the other hand, Sri Jyotindra Misra, learned Senior Advocate, assisted by Sri Sushil Kumar Singh, learned counsel for the accused-respondents has submitted that P.W.-1 in his evidence before the court, had said that he lodged the FIR on the basis of suspicion. He did not hear any threat given by the accused-respondents. He also submits that accused-respondents did not misbehave or utter anything when the search operation was conducted. However, he came to know that threats were given by the accused-respondents for his elimination. He, further submits that P.W.-2 in his evidence before the court, has said that road in front of their house is thoroughfare and people would use that road for commuting. However, he came to know that threats were given by the accused-respondents for his elimination. He, further submits that P.W.-2 in his evidence before the court, has said that road in front of their house is thoroughfare and people would use that road for commuting. After his father discussed about the perceived threat, he started suspecting people, who would come and go from the road in front of their house, and he himself said that it was a mere suspicion as those persons, who were suspected, did not commit any wrong or harm P.W.-2 or any of the family members. Even the motorcycle, which was said to be present on 1.3.1999 near the house of the complainant, was of P.W.-5. He has, therefore, submitted that on the basis of mere suspicion without there being any cogent and credible evidence, the respondents could not have been convicted and there is no evidence on record, which can be said to be cogent and credible to prove the offence under Section 506 IPC against the respondents. Merely on the basis of suspicion and general and perception image of the respondents, the conviction cannot be recorded for an offence, which on the basis of the facts and circumstances and the evidence, is not made out against the respondents. 17. I have considered the submissions advanced by the learned counsel for the parties and perused the record. 18. P.W.-1, the complainant in his cross-examination, had clearly said that merely on the basis of suspicion, he gave the compliant, on which the FIR in question came to be registered. From perusal of the evidence of P.W.-1 and P.W.-2, it would be evident that the complainant and his son had only suspicion about the perceived threat given by the accused-respondents and they believed that persons, who were noticed loitering around their house on 26.2.1999, 27.2.1999 and 1.3.1999, had come to execute that threat. It is further admitted that these persons did not commit any offence nor did they say anything to the complainant or his family members. 19. In view of the aforesaid facts and the evidence on record, this court is of the view that the prosecution case was based on suspicion without there being any cogent and credible evidence to connect the accused-respondents for commission of offence under Section 506 IPC. The prosecution is required to prove the charge by leading cogent and credible evidence. 19. In view of the aforesaid facts and the evidence on record, this court is of the view that the prosecution case was based on suspicion without there being any cogent and credible evidence to connect the accused-respondents for commission of offence under Section 506 IPC. The prosecution is required to prove the charge by leading cogent and credible evidence. A person cannot be convicted merely on the basis of suspicion if the suspicion is not otherwise proved by leading cogent and credible evidence. 20. Considering the aforesaid facts and circumstances and the evidence, I am of the view that the impugned judgement and order passed by the learned trial court does not require any interference by this Court and thus, the appeal gets dismissed. 21. Consigned to record.