Allahabad High Court
Rinku Bhurji And Another vs State Of U.P. on 6 March, 2020
Equivalent citations: AIRONLINE 2020 ALL 511
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 09.12.2019
Delivered on 06.03.2020
Criminal Appeal No. 5902 of 2016
1. Rinku Bhurji
2. Ravindra -------- Appellants
Vs.
State of U.P. ---- Respondent
With
Criminal Appeal No. 5889 of 2016
1. Kaushal Kachi
2. Vinod Shakya
3. Mulayam Singh alias Sewak Ram
4. Hukumi alias Ganja
-------- Appellants
Vs.
State of U.P. ---- Respondent
With
Criminal Appeal No. 5890 of 2016
1. Awnesh Bhurji
2. Babloo alias Amod Kumar
-------- Appellants
Vs.
State of U.P. ---- Respondent
With
Criminal Appeal No. 6242 of 2016
Jitendra Kumar alias J.K. alias Bajrangi -------- Appellants
Vs.
State of U.P. ---- Respondent
For Appellants : Sri Kamal Krishna, Senior Advocate
Sri Ghan Shyam Das, Advocate
For Respondent/State : Sri J.K. Upadhyay, A.G.A.
Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Raj Beer Singh, J
1. These four appeals have been preferred against a common impugned judgement and order dated 15.10.2016 passed by Special Judge (Dacoity Affected Area)/Additional Sessions Judge, Court No. 3, Farukhabad in Session Trial No. 3 of 2015, (State vs. Rinku Bhurji and Others) arising out of Case Crime No. 321/2014, under Section 364-A IPC, Police Station Kamalganj, District Farukhabad, whereby accused-appellants, namely, Rinku Bhurji, Ravindra, Kaushal Kachi, Vinod Shakya, Mulayam Singh alias Sewak Ram, Hukumi alias Ganja, Awnesh Bhurji, Babloo alias Amod Kumar and Jitendra Kumar alias J.K. alias Bajrangi have been convicted under Section 364-A of IPC and sentenced to life imprisonment along with fine of Rs. 10,000/- each and in default of payment of fine, they have to undergo one year additional imprisonment.
2. Case of prosecution is that on 01.11.2014 at around 6:00 AM, PW-3 Raju Sharma alias Tenu, aged 35 years, has left his home for going to Mainpuri by his motorcycle to collect some papers. At around 7:30 AM, PW-3 has made a call from his mobile no. 7897114548 to his wife Rita, but after that his mobile phone has gone switched off. As PW-3 Raju Sharma did not return back to his home, his brother PW-1 Devendra Sharma and other family members made search for him, but in vain. On 05.11.2014, motorcycle of Raju Sharma was found near Daurara Bridge in unclaimed condition. Complainant/PW-1 suspected that his brother Raju Sharma alias Tenu has been kidnapped by some unknown persons with an intention to kill him and accordingly, on 05.11.2014, he reported matter to police by submitting written complaint Ex. Ka-1
3. On the basis of written complaint Ex. Ka-1, case was registered on 05.11.2014 at 11:00 am under Section 364-A of IPC against unknown persons vide FIR Ex. Ka- 5.
4. Investigation of case was taken up by PW-8 Yatendra Kumar, Station House Officer of police station Kamalganj, district Farukhabad. Meanwhile on 10.11.2014, PW-1 Devendra Sharma has submitted an application Ex. Ka-2 to police alleging that some miscreants were making call to the wife of Raju Sharma, namely, Rita from mobile number 7897114548 of Raju Sharma and that they were demanding ransom of Rs. 5 lakhs for release of Raju Sharma. It is further case of prosecution that on 10.11.2014, when PW-8 Yatendra Kumar along with other police officials, was going for patrolling and reached at Fatehgarh crossing, one Chunna Lal and Pramod Kumar, who are uncle and brother-in-law (Bahnoi) of Raju Sharma respectively, met him and told that they were going to deliver ransom amount to kidnappers and the said delivery of amount has to be made at 8:00 pm near Barrier Tiraha. On this information, PW-6 S.I. Brijesh Yadav, in charge Escort Team, was also called and as per plan, all these police officials took position around Barrier Tiraha by concealing themselves in nearby bushes. After half an hour, a safari vehicle no. HR17-3587 came there and Said Chunna Lal and Pramod Kumar went near the driver of the said vehicle and delivered amount to two persons, who were sitting on rear seat of the said car. As those two persons were counting money, police party conducted raid at around 9:00 pm and apprehended three occupants of the car. Identification of these persons was revealed as Rinku Bhurji, Babloo alias Amod Kumar and Awnesh Bhurji. One country made pistol of 315 bore and one packet of Rs. 500/- notes were recovered from accused-appellant Rinku Bhurji and one country made rifle, three cartridges and two packets of 500/- currency notes were recovered from accused-appellant Babloo alias Amod Kumar. These accused persons confessed that they along with co-accused persons have abducted Raju Sharma and they have demanded ransom for his release. They further disclosed that they can get the abductee recovered. On that disclosure, the said three accused persons were taken by police to a field at village Ggaia but there accused Jitendra Kumar alias J.K. alias Bajrangi, Vinod, Kaushal, Ravindra, Hukumi alias Ganja and Mulayam Singh alias Sewak Ram, who were looking after the abductee, have fired at police party, however, three of them, namely, Jitendra Kumar alias J.K. alias Bajrangi, Kaushal Kachi and Ravindra were apprehended by police at around 10:00 pm, whereas three other miscreants succeeded in running away from there. Illicit weapons were recovered from the three accused persons apprehended there and recovery memo Ex. Ka-4 was prepared. Abductee Raju Sharma was rescued from said field and after that, a case was also registered against accused persons under Section 307 of IPC.
5. After completion of investigation, all accused persons were charge-sheeted for the offence under Section 364-A of IPC.
6. Learned trial court framed charge under Section 364-A of IPC against all the accused persons. Accused persons pleaded not guilty and claimed trial.
7. So as to hold accused persons guilty, prosecution has examined nine witnesses. Statements of the accused persons were recorded under Section 313 Cr.P.C in which, they denied prosecution evidence and claimed false implication. However, no evidence was led in defence.
8. After hearing and analysing evidence, by the impugned judgment, trial Judge has convicted all the accused appellants under Section 364-A of IPC and sentenced them as mentioned in paragraph no. 1 of this judgment. Hence, this appeal.
9. Learned counsel for the appellants submits:
(i) that accused persons were not known to victim Raju Sharma alias Tenu (PW-3) since before the incident, but no test identification parade was conducted to fix their identity, which creates serious doubt about the involvement of accused appellants in the alleged incident.
(ii) that PW-3 Raju Sharma alias Tenu has not identified the accused persons even during his statement in Court and thus, the involvement of accused-appellants in the alleged incident is thoroughly doubtful.
(iii) that there are serious contradictions and inconsistencies in prosecution version. It was pointed out that as per prosecution version, when alleged Chunna Lal, uncle of abductee and Pramod Kumar, brother-in-law of the abductee, were going to pay ransom, police suddenly met them in the way and as per plan, a raid was conducted and accused persons were arrested, but alleged sudden meeting of uncle and brother-in-law of the victim with police, is absolutely unreliable. The witnesses have made improvement in their statements in Court and their statements are not consistent and cogent and thus, cannot be made basis for conviction.
(iv) that as per prosecution version, PW-3 Raju Sharma alias Tenu was rescued and got freed from the custody of accused persons, namely, Jitendra Kumar alias J.K. alias Bajrangi, Vinod, Kaushal, Ravindra, Hukumi alias Ganja and Mulayam Singh alias Sewak Ram, who have made fire at police party with an intention to kill them and in that regard, a case under Section 307 of IPC was registered, but after trial, that incident has not been found reliable and accused-appellants were acquitted in the said case registered under Section 307 of IPC.
10. On the other hand, supporting the impugned judgement, it has been argued by learned State counsel that victim Raju Sharma alias Tenu (PW-3) as well as other witnesses of fact, have made clear and consistent statements regarding implication of accused-appellants in the alleged incident. There is sufficient evidence on record to indicate that PW-3 was kidnapped for ransom. It was submitted that the conviction of accused-appellants is based on evidence and that the trial court has appreciated the entire evidence and accused-appellants were rightly convicted.
11. We have considered the rival submissions of learned counsel for the parties and perused the record.
12. PW-1 Devendra, brother of abductee Raju Sharma and informant of case, stated that on the day of occurrence Raju Sharma had gone to Mainpuri on motor-cycle to collect some documents and after that at around 7:00 - 7:30am, he has spoken on his wife Rita's phone using mobile no.7897114548 but after that his mobile phone went switched off. PW-1 Deverndra and his family members made search to trace PW-3 Raju Sharma alias Tenu but nothing could be known about him. After four days, he has submitted an application exhibit ka-1 at the police station. After that motorcycle of his brother was found at Darora Bridge and he took the motorcycle to police station. PW 1 further stated that another application exhibit ka-2 was submitted to police on the day the motorcycle was found. He further stated that wife of Raju Sharma got phone calls on her mobile number 8052271826, demanding ransom of five lakh rupees for release of her husband and she was threatened that if five lakh rupees were not paid, Raju @ Tenu would be killed. Phone call was recorded by his nephew Anuj. They have made arrangement of money and that Raju Sharma came back after 10-11 days of kidnapping/abduction
13. PW-2 Rita, is wife of the kidnappee Raju Sharma alias Tenu and she stated that her husband was working as a carpenter and that on 01.11.2014, he had gone to Mainpuri to collect motor-cycle's papers, but he did not return home. When she has called him on phone, he has told that he had stayed at Chhibramau and that he would return home by evening, but he did not return. Search were made to trace him but in vain. The motor-cycle, by which Raju @ Toni had left home, was found on 05.11.2014 near Darora bridge and on same day, her brother-in-law Devendra Sharma had submitted an application to the police station. PW 2 Reeta further stated that she was regularly receiving calls on her mobile since 03.11.2014, demanding ransom of Rs. 5 lakhs for release her husband and that some calls were recorded by her.
14. PW-3 Raju Sharma alias Tenu, who is the victim of the case, stated that on day of occurrence, he had gone to Mainpuri at 6:00 a.m. by motor-cycle for collecting documents of his bike no. UP 76 S 2311, which have fallen some where around 10-11 days before the occurrence. The person, who had found the papers of the bike, had made a phone call to him and that his phone number was 7897114548. After taking papers from Mainpuri, PW 3 came at Chhibaramau at around 3:00-4:00 p.m and visited his cousin Ramu. From there, when he was proceeding towards his house on his bike, after three kilometres' long ride, he overtook a TATA safari vehicle but said vehicle 'Safari' came behind him and near Darola that vehicle made PW 3 Raju Sharma to stop by overtaking his bike and the persons sitting there stated, "how are you driving the bike?" They were five persons in that vehicle and the person driving the vehicle was wearing khaki clothes and he told that their vehicle belongs to SOG police. PW 3 Raju Sharma apologised and on their demand, he gave papers of motorcycle to them, but they did not return the same. At the same time, 2-3 persons alighted from the vehicle and started beating him and they pushed him into the vehicle. PW 3 raised an alarm and one person came from a nearby grinding machine but the miscreants took out their weapons. Thereafter, those persons kept hitting him in the vehicle and an amount of eight thousands seven hundred rupees was snatched from him and they also took his Adhar Card and identity card etc. They hit PW 3 at his abdomen and he became unconscious and fell below the seat. When he regained consciousness after about 1½ hours, he found himself lying in the sugar-cane field at Kayamganj Katra. They tied him with a rope and asked him to contact with his family members for a ransom of Rs. 10 lakh and later they told him to ask for Rs. 5 lakh from his family members by stating that once they got the amount, they would make him free, otherwise they would not leave him alive. This episode continued for 10-11 days. PW 3 Raju Sharma further stated that from sugar-cane field, they took him to a tapu (isolated place) and warned that if he tried to flee, they would kill him. The alleged miscreants made demand of ransom by making calls from his phone at his house. They told him that if the money demanded was not given by the next day, they would kill him. Thereafter, his uncle Munnalal Sharma and brother-in-law Pramod Kumar Sharma reached there with money and they gave money to alleged miscreants and at the same time, police reached there. The exchange of fires took place between the police and the criminals, which continued for about 2 hours. Police was shouting uttering his name, "Raju, Raju" in the field. At that time, two persons from the criminals were present near him. The police arrested five to six persons from the spot and at around 10.00 PM, they get him freed from the captivity of said kidnappers. Those miscreants used to address one-another by names such as 'Gurjar Singh, Pauna, Manoj'. PW 3 Raju Sharma stated that among the accused persons, three are present in the court and he identified accused Mulayam, Jitendra @ 'Pauna' and Hakumi Singh, whom they used to call 'Gurjar Singh'. PW 3 stated that as his eyes were kept covered and he could not identify other accused persons by their names. He has identified his signature on memo exhibit ka-2 and ka-3. He has further stated that after 10th day of his abduction, police have apprehended some of the accused persons at Kayamganj and thereafter he was got recovered at their instance from a arahar (pigeon pea) field of village - Gagaiya within the limits of PS - Kayamganj.
15. PW-4 Anuj Kumar is scribe of tahreer exhibit ka-1 and he stated that Raju is his maternal uncle. After his abduction, his motorcycle was recovered from Daurara Bridge. Raju had departed from the home by this motorcycle
16. PW-5 Chunna Lal stated that Raju alias Teni is his real nephew and he resides in the same house. At the time of occurrence, Raju used to do the work as a carpenter. On day of incident of abduction, Raju met him at Sikandarpur, but he was abducted near Daraura bridge. A towel of Raju Sharma was found there. They kept searching him for 10-12 days, but he could not be traced. After that, a report was lodged. Wife of Raju alias Tenu had received a phone call, wherein abductors have demanded Rs five lakhs and asked to deliver this amount at Kayamganj trisection. Wads of fake notes were prepared by putting some original five hundred notes and this fact was in the knowledge of police. PW 5 Chunna Lal along with police team reached at the same trisection of Kayamganj. A car came there, in which three miscreants were aboard. As soon as they asked to give money, wads of notes were given to them and as they drove the car, police officials, who were lying hidden nearby, came out and caught the said three miscreants. They have confessed the crime and thereafter three more miscreants were apprehended after recovery of kidnapped Raju. From the spot some clothes, quilt, water bottle and some other items were recovered. Two-three miscreants succeeded in fleeing away from there. In that process, fires were exchanged between miscreants and police and some weapons like country made pistol, etc were recovered from the miscreants. PW-5 Chunna Lal has identified three of the accused-appellants, namely, Avnesh, Kaushal and Jitendra. He further pointed out accused-appellant Mulayam, Hukmi and Vinod by stating that they have fled from spot. He has also identified his signature on recovery memo of motor-cycle and of victim Raju @ Teni
17. PW-6 SI Brijesh Yadav stated that on 10.11.14, he was posted as in-charge Swat team. After receiving information that kidnapped Raju has been brought in the area, a plan was made with brother-in-law of victim and S.O. Yatendra Kumar and at 09.00 PM, three of the miscreants, who came at Virian T-point Kamalganj in vehicle, were caught and their names were revealed as Rinku Bhurji, Babloo @ Amod and Avnish. From Rinku @ Bhurji and Babloo @ Amod, country pistol of 315 bore, live cartridges and bundle of notes were recovered. Avnish Kumar was driving the vehicle and he told that vehicle is owned by him.
PW-6 stated that the nabbed miscreants have disclosed that they have kidnapped Raju in collusion with other miscreants namely Shivendra, Ravindra and Kaushal and that kidnapped Raju is lying in the field of pegion pea crop in village Gagaiya and that accused Shivendra alias Bajrangi alias J.K., Hukmi alias Ganja, Mulayam alias Sewakram and Vinod were guarding kidnapped Raju. On this information, police reached at Gagaria road on Madiya, at alleged spot, and after forming three parties, miscreants were challenged and asked to surrender, on which miscreants opened firing at police party, however all escaped unhurt. Three of the miscreants namely Shivendra, Kaushal and Ravindra were apprehended and one country made pistol each and three live cartridges were recovered from each of them. Hukumi alias Ganja, Mulayam alias Sevakram and Vinod have succeeded in fleeing from the scene. Police party have also fired some shots. Kidnapped Raju alias Tenu was recovered from the pigeon pea field. Memo and other written formalities were completed in the light of torch. Earlier some bundles were prepared by putting some currency notes of Rs 500/ on each side of them where as in between, plain papers of same size were inserted. PW 6 has identified his signature on the memo, which has been proved as Ex. Ka-4.
18. PW-7 SI Mahendra Kumar has recorded FIR and GD entries.
19. PW-8 Yatendra Kumar, S.O. Kamalganj, has conducted investigation of case. He stated that on 10.11.2014, he along with other police officials has reached at Fatehgarh crossing. Munnalal, uncle of kidnapee Raju Sharma and Promod Kumar have met him there and they told that they have been called by abductors with ransom amount. SI Brejesh Kumar, incharge of swat team also reached there and a plan was made. All police officials concealed themselves in nearby huts of viriyan trisection. After some time, three persons came in a safari vehicle and as soon as Munnalal and Promod Kumar handed over cash to them, police team encircled alleged safari vehicle and all the three occupants of car were apprehended. One of them was Rinku Bhurji and a country made pistol, three live cartridges and one packet of currency notes were recovered from him. Second one has told his name Bablu and a country made pistol, three live cartridges and one packet of currency notes were recovered from him. The identity of third accused was revealed as Avnesh Bhurji. The accused persons have disclosed that kidnapped Raju Sharma has been kept in a árhar' field at village Gagaiya and they have told names of other accused persons as Jitender @ Bajrangi, Kaushal, Ravinder and Mulayam. Police team reached at the alleged field of árhar' and challenged the miscreants. Fires were exchanged from both side. Three of the miscreants namely Jitender, Kaushal and Ravinder were apprehended, but their three companions succeeded in running away from there. Country made pistols were recovered from above stated three accused persons, who were apprehended there. The names of accused persons, who have fled from there, were revealed as Hukmi @ Ganja, Mulayam Singh @ Sewakram and Vinod Shakya. Kidnapped Raju Sharma was recovered from same filed. All the recovered weapons other incriminating articles were taken into possession vide recovery memo exhibit ka-4.
20. PW 9 Constable Narender Nath Dixit, has proved site plan prepared by SHO A K Singh as exhibit ka-13 and ka-14 by way of secondary evidence. He has also exhibited charge-sheet as ka-15.
21. At the very outset, it may be mentioned that accused persons were not known to the complainant or any of the witnesses since before the incident and no one was named in the FIR, but no test identification parade of any of the accused has been conducted to fix their identity and involvement in the incident. As per prosecution version, accused-appellant Hukmi @ Ganja, Mulayam @ Sewakram and Vinod were not apprehended at the spot by police in alleged incident of recovery of victim and their involvement was shown on basis of statements of co-accused persons, who were apprehended at the spot of alleged recovery of victim Raju @ Tenu. Thus, it was incumbent upon the Investigating Officer that their test identification parade must have been conducted, but it was not done. PW-3 Raju Sharma alias Tenu, in his cross-examination, has stated that no test identification parade has taken place. Similarly, Investigating Officer has also stated that no test identification parade was conducted. During his statement in court, PW 3 Raju has stated that accused-appellants Bablu @ Amod, Avnesh, Ravinder and Rinku Bhurji were not involved in this incident and he has given clean chit to them. He has stated that he did not tell the name of accused-appellant Ravindra to the police. Even after seeing accused-appellant Ravindra in Court, he stated that he was not involved in his kidnapping. In his cross-examination, he goes to state that accused-appellant Rinku Bhurji was also not involved in his kidnapping and he was also not present among miscreants, when PW-3 was rescued by the police. He stated that he has not told the name of accused-appellant Rinku Bhurji to police. PW 3 Raju @ Tenu has identified accused-appellant Mulayam @ Sewakram, Hukmi and Jitender, but in his further cross-examination, he stated that in earlier part of his statement, he has identified Mulayam @ Sewakram and Hukmi, but he has not made any such statement that they were involved in the incident. Further, these two accused were not apprehended at the spot, and thus their identification for the first time in court is not free from doubt. Here, it would be pertinent to mention that accused-appellant Vinod, who was also not apprehended at the spot, has not been identified by PW 3 Raju even during his statement in court. It has also to be kept in mind that alleged incident of recovery of Raju @ Tenu has taken place at 10.00 PM in night. In view of these facts, it would not be safe to rely alleged dock identification by this witness regarding identity of these three accused-appellants, namely Mulayam @ Sewakram, Hukmi. In view of statement of PW-3, doubt is created regarding involvement of accused-appellants Bablu alias Amod, Avnesh, Ravinder, Rinku Bhurji, Mulayam alias Sewak Ram, Hukmi and Vinod.
22. There was no witness of alleged kidnapping of PW-3 Raju Sharma alias Tenu and thus, being victim of alleged incident of kidnapping, PW 3 Raju @ Tenu, is most important witness of prosecution. As stated earlier, no test identification parade of any of accused has been conducted. In his statement, PW-3 has stated that police have apprehended six accused-appellants, when he was rescued by police and he also stated that miscreants used to call their names as Gurjar Singh, Pauna and Manoj, but during his statement in court, except accused-appellant Mulayam Singh alias Sewak Ram, Jitendra Kumar alias J.K. alias Bajrangi and Hukumi alias Ganja, he has not identified any of other accused during his statement in Court. In his cross-examination, PW-3 Raju Sharma alias Tenu stated that accused-appellant Bablu @ Amod Kumar was not involved among miscreants and he is seeing him for the first time in court. Similarly, he stated that he has not seen accused-appellant Avnesh Bhurji during entire incident and there was no miscreant of such name in the alleged incident. In his cross-examination, he has further stated that accused-appellant Ravindra was not involved in his kidnapping and he has not seen him in incident. PW 3 Raju, further stated that accused-appellant Rinku Bhurji was also not involved in his kidnapping and he was not apprehended by police and he was seeing him for the first time in court. Thus, in his cross-examination, PW 3 Raju @ Tenu has categorically stated that accused-appellants namely Babloo @ Amod, Avnesh Bhurji, Ravinder and Rinku Bhurji were neither involved in his kidnapping nor he has seen them in entire incident and he has ruled out their involvement in the incident in very clear terms. As stated earlier, being victim of alleged incident of kidnapping, statement of PW 3 Raju @ Tenu assumes considerable importance and thus, involvement of these four accused-appellants namely Babloo @ Amod, Avnesh Bhurji, Ravinder and Rinku Bhurji becomes doubtful. So far as accused-appellants are Kaushal Kachi is concerned, PW 3 Raju has not identified him during his statement in court. In fact, PW 3 Raju has neither identified accused Kaushal Kachhi nor he has given him a clean chit and thus, his involvement in incident also becomes doubtful. As far as accused Jitendra Kumar alias J.K is concerned, no doubt, as per prosecution version, he was apprehended at time of recovery of PW 3 Raju, but when identification of eight accused persons out of nine, is found doubtful, it would render involvement of all accused persons doubtful. Here, it may be stated that as per statement of PW 3 Raju Sharma, six accused were apprehended at the spot when he was recovered, whereas as per statements of PW-6 Brijesh Yadav and PW-8 Yatendra Kumar, three accused-appellants were apprehended at Virian trisection and at the time of recovery of victim Raju Sharma, three more accused were arrested, while three accused persons have succeeded in running away from there.
23. As PW-3 Raju Sharma alias Tenu is victim of alleged kidnapping and thus, his statement regarding identification of accused persons has to be given due weightage, but in view of above stated facts emerged in his cross-examination, identification of all the accused-appellants becomes highly disputed.
24. PW-1 Devendra and PW 2 Reeta are not eye witness of alleged incident of kidnapping or recovery of Raju. Similarly, PW-4 Anuj Kumar has scribe tahreer and he has also not witnessed alleged incident. These witnesses have not identified any of the accused-appellant. In her cross-examination, PW-2 has stated that police have not conducted any examination of voice of persons, who used to make ransom call and the accused persons, who were apprehended. She has further stated that her husband was not rescued in her presence and that her husband has never told her names of any of the accused
25. PW-5 Chunna Lal, who is uncle of victim Raju Sharma alias Tenu, has identified accused-appellant Awnesh Bhurji by saying that ransom amount was given to him, but as stated above, PW-3 Raju Sharma alias Tenu has denied involvement of accused-appellant Awnesh Bhurji in the incident. PW-5 has also identified accused-appellant Kaushal Kachi, Jitendra Kumar alias J.K. alias Bajrangi, Mulayam Singh alias Sewak Ram, Hukumi alias Ganja and Vinod Shakya, but as stated earlier, in view of statement of PW 3 Raju @ Tenu, the involvement of Mulayam Singh and Hukmi is doubtful. Further, PW 3 Raju has not stated anything regarding accused-appellant Kaushal Kachi, Jitendra Kumar alias J.K. and Vinod Shakya. PW-5 has stated that he has not given ransom amount to accused-appellant Babloo alias Amod Kumar, nor he has seen him in the incident. Similarly, he has stated that accused-appellant Rinku Bhurji was also not involved among the accused persons, to whom alleged ransom amount was given. Similarly, regarding accused-appellant Ravinder, he stated that he has not seen accused-appellant Ravindra.
26. Regarding incident dated 10.11.2014, wherein victim Raju Sharma alias Tenu was rescued from custody of accused persons, it would be pertinent to mention that as per statement of PW-6 Brijesh Yadav, accused-appellants Rinku Bhurji, Babloo alias Amod Kumar and Awnesh Bhurji, were apprehended at the spot and at their instance, police have reached at the place where the victim was lying confined and after an encounter with alleged miscreants accused-appellants Rinku Bhurji, Babloo alias Amod Kumar and Awnesh Bhurji were apprehended at the spot, whereas accused-appellants Hukumi alias Ganja, Mulayam Singh alias Sewak Ram and Vinod Shakya have succeeded in running away from the spot. However, as stated above, involvement of accused-appellant Awnesh Bhurji has been denied by the victim Raju Sharma alias Tenu (PW-3) himself, whereas another witness of alleged recovery PW-5 Chunna Lal has denied involvement of accused-appellant Babloo alias Amod Kumar and Rinku Bhurji.
27. It may further be mentioned that as per PW-5 Chunna Lal, he has given complaint Ex. Ka-2 to police at 8:00-9:00 pm and at that time, Pramod was also with him. PW-5 stated, in his cross-examination, that police have stopped them at police station by saying that they would apprehend the miscreants in night. PW-5 stated that he came back from police station, however, his nephew remained at police station. PW-5 remained at home in night and in the morning, he was called by the police and his signatures were obtained on paper Nos. 10-A/1, 10-A/2, 10-A/3 and 10-A/4 and similarly, signatures of Pramod were also obtained on these documents. PW-5 stated that after signing the said papers, he again returned back to his home. However, he again states that police have taken him for identification of miscreants and he has identified the victim. From this version of PW-5 Chunna Lal, it is doubtful that he has participated in alleged incident of paying of ransom and recovery of victim. The version of PW-5 raises serious doubt whether the recovery of victim PW-3 Raju Sharma alias Tenu has taken place in the manner as alleged by the prosecution. In view of these facts, it becomes doubtful whether PW 5 Chunna Lal has witnesses the alleged incident of paying alleged ransom amount at Virian trisection and the incident of recovery of victim Raju Sharma Sharma. As stated earlier, PW 5 Chunna Lal had admitted in his cross-examination that on that night he has returned from police station to his home and thereafter he was called by the police on next day at river culvert and his signatures were obtained on recovery memo and other documents. In view of these facts, any identification of accused persons by PW 5 Chunna Lal loses its efficacy. As per PW 5 Chunna Lal, his nephew Promod remained at the police station but was not examined by prosecution.
28. There are some other contradictions and inconsistencies in prosecution case. As per recovery memo exhibit ka-4, on 10.11.2014, PW 8 SO Yatender Kumar along with other police officials has come at Fatehgarh crossing and PW 5 Chunna Lal (uncle of victim Raju Sharma) and his nephew Promod met him there and told that they were going to deliver ransom amount for release of Raju Sharma, whereas version of PW 5 Chunnal Lal is that on that day, he has submitted tahreer exhibit ka-2 at police station at around 8.00-9.00 PM and he has reached at Kayamganj chauraha with police and thereafter accused were apprehended. However, as stated earlier, in his cross-examination, he has stated that after submitting tahreer exhibit ka-2 at police station, he came back to his house and thereafter, he was called by police on next day morning and his signatures were obtained on recovery memo and other documents. Further, as per PW 8 Yogender Kumar, after reaching at Virian tiraha, when PW 5 Chunnalal and his nephew Promod have met him, he has called SWAT incharge SI Brejesh Yadav (PW 6) there but no such fact is stated by PW 5 Chunna Lal. As per PW 6 SI Brejesh Yadav, accused Shivender, Kaushal and Ravinder were apprehended at the time of recovery of victim Raju Sharma, whereas as per PW 8 Yogender Kumar and recovery memo exhibit ka-4, accused-appellants Jitender @ Bajrangi @ JK, Kaushal Kachhi and Ravinder were apprehended at the time of recovery of victim Raju Sharma @ Tenu.
29. Though as per statements of PW 6 SI Brejesh Yadav and PW 8 SO Yatender Kumar, accused-appellant Rinku Bhrji, Bablu @ Amod and Avnesh Kumar were apprehended at Virian tiraha, Kamalganj, but their identity has been disputed by PW 3 Raju and PW 5 Chunna Lal. Similarly as per PW 8 SO Yatender Kumar, accused-appellant Jitendeder, Kaushal and Ravinder were apprehended from the spot of recovery of victim Raju Sharma @ Tenu, but in view of statements of PW 3 Raju @ Tenu and PW 5 Chunna Lal, it does not appears safe to rely upon the testimony of these witnesses regarding involvement of these accused-appellants in alleged incident. Here, it may be stated that PW 6 SI Brejesh Yadav has not stated about arrest of accused-appellant Jitender @ JK. Be that as it may, as stated earlier, in view of statement of PW 5 Chunna Lal, it is doubtful that recovery of victim Raju Sharma @ Tenu took place in the manner alleged by prosecution.
30. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread, which runs through the web of the administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. [Vide Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808; State of Rajasthan V. Raja Ram, (2003)8 SCC 180; Chandrappa & Ors V State of Karnatka, (2007) 4 SCC 415; Upendra Pradhan V. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain & Ors. V. State of Assam and Anr., (2015) 11 SCC 242]. In the instant case, considering the entire evidence on record and taking cumulative effect of entire facts and evidence, it is apparent that the prosecution has not come up with true version regarding alleged incident of arrest of accused-appellants and recovery of victim Raju Sharma and that identity of accused-appellants could not be fixed by cogent and reliable evidence and thus, all the accused-appellants deserve benefit of doubt. The net result of the above discussion is that the prosecution has not been able to prove its case against any of the accused-appellants beyond reasonable doubt. The trial Court has not appreciated evidence in correct perspective and committed error in convicting the appellants under section 364-A IPC. Accordingly, the conviction and sentence of the accused-appellants Rinku Bhurji, Ravindra, Kaushal Kachi, Vinod Shakya, Mulayam Singh alias Sewak Ram, Hukumi alias Ganja, Awnesh Bhurji, Babloo alias Amod Kumar and Jitendra Kumar alias J.K. alias Bajrangi under section 364-A IPC IPC is set aside and all the appellants are acquitted of the charge levelled against them. All the accused-appellants are stated to be on bail, thus, no further order is required in this regard.
31. All the four appeals are allowed.
32. A copy of this judgment be sent to Court concerned forthwith.
Dated: 06.03.2020
Anand
(Raj Beer Singh, J) (Pritinker Diwaker, J)