99 Culprits Can Escape But One Innocent Shouldn't Be Punished: Allahabad High Court Sets Aside Life Sentence Of Murder Convicts

The Allahabad High Court set aside the life sentence of two murder convicts, including a woman in connection with the murder of a youth in Aligarh's Gandhi Park area while stressing that 99 guilty persons may escape the clutches of law but one innocent shouldn't be punished.

The judgment came from the division bench of Justice Arvind Kumar Mishra-I and Justice Vikas Budhwar on a criminal appeal filed by two murder convicts against a 2012 order of conviction passed by Additional District and Sessions Judge, Aligarh under Sections –302/34 and 114 I.P.C.

The case in brief

An FIR was lodged by one Inderbhan Singh Saini on January 4, 2006, against four persons (including the two appellants) for allegedly murdering the informant's younger brother, Narendra Saini.

It was alleged that the deceased was standing in front of his house when Pinkoo (appellant no. 1), Sonu, Monu,arrived on the spot and Pinkoo, with the intention to kill, fired on the informant's brother with a licensed rifle, while Sonu and Monu each gripped one arm of the victim and the mother of the accused- Ishwari Devi (appellant no. 2)-was exhorting her sons for firing.

The Trial Court, after appraisal of facts and circumstances of the case and after evaluating evidence on record and vetting merit of the case, returned a finding of conviction and passed sentence against the aforesaid two appellants to imprisonment for life, under Section - 302 read with Section – 34 I.P.C.

The trial court also sentenced the appellant – Pinkoo alias Jitendra to three years of rigorous imprisonment under Section – 25 Arms Act.

Court's observations

Hearing the connected appeals, the Court while evaluating the evidence, noted that there was no whisper as to when the special report, after the lodging of the FIR, was in fact sent to the Magistrate from the police station.

The Court also observed that the F.I.R. pertained to the lodging of a cognizable case but it does not bear signature of the informant on check F.I.R., whereas the informant- Indrabhan Saini claimed to have appended his signature on the check F.I.R.

Against this backdrop, the Court opined that this aspect created a series of discrepancies committed both by the police and the informant, and thus the F.I.R. became vulnerable and suspicious and is proved to be the result of deliberation and collusion with the police.

The Court further noted that the statements of prosecution witnesses of fact, as well as that of the investigating officers, were cryptic, contradictory and not inspiring confidence but they give way to a lot of confusion and irregularities. "The place of occurrence has also been substantially changed by the prosecution. Both the witnesses of fact are highly interested witnesses," the Court further added.

Importantly, opining that the entire prosecution testimony lacks corroboration of occurrence by an independent source of evidence, the Court observed thus:

"As per the F.I.R., the incident took place in front of the house of informant, whereas, in the description of the prosecution witnesses, the incident is stated to have taken place at the corner of 'chabutra' of Devi Ram. The site plan of the place of occurrence has been changed as such. The house of the appellant has not been sketched or marked in the site plan (Ext. Ka-21). Besides, site plan is silent about specific positions of all the accused. The recovery of SBBL gun was planted by the police which is absolutely fake. The recovery memo contains description that SBBL gun when kept under seal was in working condition, whereas, at the time when the SBBL gun was received by the forensic laboratory the alleged gun  was found to be not functional. It can be seen with convenience and ease that the houses of a number of persons were located in the neighborhood of the accused- Pinkoo alias Jitendra but not a single witness was obtained or tried to be obtained by the police to give thrust to the point of recovery of the SBBL gun." 

The Court also found a lot of contradictions in the testimony of the prosecution witnesses of fact qua their statements recorded under Section – 161 Cr.P.C. and remarked that they are indicative of fact that their testimony is full of improvement and embellishments and it would be hard to place reliance on the same. 

Lastly, the Court concluded that serious doubt hovers over the prosecution story because of the various material abnormalities appearing in the testimony as well as the adverse circumstances working against the prosecution.

"The description of the occurrence as given in the F.I.R. does not match with the entirety of this case and inherently contradictory to the statement of Indrabhan Saini PW-1 under Section 161 Cr.P.C. The sequential coherence of occurrence becomes doubtful as one proceeds with the testimony of this case vis-a-vis prevailing circumstances of this case. The weapon used though described in the F.I.R. as rifle was later on changed after the postmortem examination of the body was conducted at 01:00 a.m., the very same night of the occurrence (i.e. 04/05.01.2006), which reveals one wadding piece and seven pellets recovered from the body of the deceased. Thus, negating the possibility of use of rifle in the offence, the statement of both the prosecution witnesses regarding the occurrence are contradicting in material particulars with their version recorded under Section – 161 Cr.P.C. The inadvertence claimed to have been committed by the scribe of the report has not been clarified," the Court further observed as allowed the appeals and set aside their convictions.

Case title - Pinkoo @ Jitendra v. State of U.P. connected with Smt. Ishwari Devi v. State of U.P.
Case citation: 2022 LiveLaw (AB) 30

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