Allahabad High Court
Chakra Pal Singh & Another vs State Of U.P. on 27 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1453
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Court No. - 13 Case :- CRIMINAL APPEAL No. - 819 of 2011 Appellant :- Chakra Pal Singh & Another Respondent :- State Of U.P. Counsel for Appellant :- Sunil Kumar Singh Counsel for Respondent :- Govt. Advocate Hon'ble Mohd. Faiz Alam Khan,J.
Heard learned counsel for the appellants as well as Shri S.N. Bharadwaj, learned A.G.A. appearing for the State and perused the record.
This Criminal Appeal has been preferred by the appellants against the judgment and order dated 22.04.2011 passed in Session Trial No.706/2010 arising out of Case Crime No. 11/2006, under Section 364 I.P.C., Police Station Harpalpur, District Hardoi, whereby both the appellants were convicted of the charges framed under Section 364 I.P.C. and were sentenced to 03 years rigorous imprisonment and fine of Rs.1,000/- and to go further imprisonment of one month in default of fine.
The prosecution story, as emerges from the record of the Subordinate Court is that informant Neeraj Kumar submitted an application on 06.01.2006 to S.P. Hardoi stating therein that on 28.08.2005 at about 3:00 pm., Chakra Pal and Amar Pal (Appellants) took his father Vidyaram to the house of his In-law's namely Mahendra Singh, Guddu Singh and Vinod Singh. This incident was seen by Subhash Chandra S/o Ram Krishna and Bihari S/o Girwar. When his father did not return for 03 days, he, on 01.09.2005 at about 6:00 pm., went to the House of appellants and inquired about his father. Accused Chakra Pal informed him that, he do not know about the whereabouts of Vidyaram, as he might have gone somewhere and will return back on his own. It is also stated therein that the informant is having every doubt that his father Vidyaram had been murdered by above accused persons and his body has been disposed of. It is further stated that Appellants Chakra Pal and Amar Pal, in execution of a well-planned conspiracy, took Vidyaram at the house of their inlaws i.e. Mahendra Singh, Guddu Singh and Vinod Singh, situated at P.S. Kachauna, District Hardoi and in furtherance of their common intention, murdered him and disposed his dead body. He went to the Police Station for lodging of FIR, but only missing report was recorded and no further action has been taken.
Record further reveals that, on the same day, an order for registeration the FIR was passed by the S.P. concerned and on 14.01.2006, an FIR at Case Crime No. 11/06, under Section 364 I.P.C. was actually registered at P.S. Harpalpur, District Hardoi.
The investigation of the case was entrusted firstly to S.H.O., Kunwar Pal Singh and, thereafter, to Suresh Kumar Verma, K.C. Tiwari, Jaidan Singh, Awadhesh Pratap Singh and ultimately to S.H.O. Dharmraj Upadhyay, who submitted the charge-sheet only against the appellants, under Section 364 I.P.C. The trial Court framed charges, against both appellants, under Section 364 I.P.C. to which they denied and claimed trial.
In documentary evidence prosecution submitted Exhibit-Ka-1, Written report, Exhibit-Ka-2, Chick FIR, Exhibit-Ka-3, General Diary, Exhibit-Ka-4, Site Plan of the crime scene and Ka-5, charge-sheet.
Apart from the above documents, prosecution testified following prosecution witnesses to bring home the charges framed against accused-appellants.
1. P.W.-1/Neeraj Kumar-(Informant)
2. P.W.-2/Subhash Chandra - (Witness)
3. P.W.-3 Constable Shiv Kumar (Scriber of the chick FIR and G.D.)
4. P.W.-4/Bihari S/o Girwar- (Eye Witness)
5. P.W.-5/Sunil(Eye Witness/ Son of victim)
6. P.W.-6/S.I. Awadhesh Pratap Singh-( Investigating Officer )
7. P.W.-7/S.I. Dharamraj Upadhyay -( Investigating Officer )
8. P.W.-8/S.S.I. Krishna Chandra Tiwari-( Investigating Officer ) After completion of prosecution's evidence, the trial Court recorded the statement of the appellants, under Section 313 of the Cr.P.C wherein Both appellants denied to have committed the offence and further stated that prosecution witnesses have given false evidence against them on the basis of enmity and also that they are innocent and have been falsely implicated.
In their defence Accused-appellants, in documentary evidence, submitted a copy of order dated 27.01.2006 passed by District Magistrate, Hardoi whereby the proceedings of cancellation of gun license of Shri Vidyaram had been dropped. Appellants/accused persons also produced D.W.-1/Shiv Singh, D.W.-2/Lalaram as Defence witnesses.
The trial Court after appreciating the evidence produced by the prosecution as well as by the defence has come to the conclusion that the prosecution has proved its case beyond all reasonable doubt and thereby convicted the appellants under Section 364 I.P.C. and sentenced them in the manner mentioned in the first paragraph of this judgment.
I have heard learned counsel for the appellants as well as learned A.G.A. for the State in depth and perused record .
Learned counsel while pressing the appeal submits that, the appellants have been wrongly and illegally convicted by the Court below and the judgment and order, whereby the conviction has been held is bad in law.
It is further submitted that, there are material contradictions in the testimony of the eye witnesses, but the trial Court has not considered these contradictions in right perspective. It is further stated that, the conviction of the appellants have been made on the unreliable testimony of the 03 witnesses namely PW2 Subhash Chandra, PW4 Bihari and PW 5 Sunil. while none of these witnesses have seen Vidhya Ram going with Appellants. The presence of all these three witnesses at the scene is highly doubtful. Therefore the Court below has committed a great error in accepting the unreliabe testimonies of these witnesses.
It is next submitted that there is no motive of alleged kidnapping. The FIR is highly belated and has been lodged in suspicious circumstances. It has come in the testimony of P.W.-5 Sunil that, he had told the informant about the departure of his father with the appellants on the same day, but the FIR was not lodged on that day, rather the same has been lodged after 03 days, this throws a cloud of suspicion on the FIR. The witnesses Bihari and Sunil are Brother-in-law and Son of victim Vidyaram.
It is further submitted that, all the 03 witnesses, who claimed to have seen the departure of the Vidyaram with appellants have not stated that any force or deciet was practiced by the appellants rather their evidence is to the tune that, Vidyaram with his freewill accompanied the appellants. It is also proved on record that Vidyaram was having very good/friendly relations with the appellants, therefore, in absence of any motive or use of force by the appellants they cannot be convicted under Section 364 I.P.C.
It is further submitted that, the investigation of the crime is faulty and instead of the actual culprits, the appellants have been made accused, as they were soft targets. The body of the Vidyaram has never been recovered. There is no evidence that, anybody apart from these interested witnesses had seen the appellants with the victim Vidyaram. The story of the prosecution that, Vidyaram accompanied the appellants is totally false, concocted and manufactured had this been true, the FIR might have been lodged the same day, and there was no question of lodging a missing report. The lodging of missing report itself suggests that, the Vidyaram had not been kidnapped or abducted by the appellants on the day as alleged by prosecution. The trial Court has overlooked these material points/weakness which goes to the route of the prosecution and, therefore, has erred in convicting the appellants for the offence which they have never committed .It is submitted that, appeal of the appellant be allowed and the order of the trial Court be set-aside.
Learned A.G.A. on the other hand submits that, the victim Vidyaram went with Appellants in a jeep on the fateful day and this incident was seen by the 03 prosecution witnesses namely Subhash, Bihari and Sunil singh . It has also come in the testimony of these witnesses that, despite initial denial of the Vidyaram, they inisted him to accompany them and thereby took him to the house of their inlaws, where he might have been murdered.
It is further submitted that, the testimony of the witnesses recorded before the Court below is reliable, truthful and acceptable in the facts and circumstances of the case. The minor contradictions, which have erupted in the testimony of these witnesses are natural and provides extra strength to the testimony of these witnesses. All the 03 witnesses are consistent on the point that, Vidyaram had been seen in the company of appellants on 28.08.2005 at about 3:00 pm. and he went with them in a jeep and thereafter the whereabouts of the Vidyaram is not known. When this fact has been proved beyond reasonable doubt that, Vidyaram has been lastly seen in the company of the appellants, it is the duty of the appellants to tell, as to what happened to him. In absence of any satisfactory explanation, keeping in view the Principle, as contained under Section 106 of the Evidence Act , it will be persumed that appellants have abducted him to commit his murder. The crime committed by the appellants have been proved by the consistent, acceptable and reliable evidence of the prosecution.
There is no laxity in the investigation. Therefore, there is nothing illegal in the judgment and order of the trial Court, whereby the appellants have been convicted. The appellants have done a heinous offence and, therefore, they have been rightly convicted and sentenced by the trial Court and no interference is required in the judgment and order of the trial Court, and the Appeal is liable to be dismissed.
Having heard learned counsel for appellants and learned A.G.A, it will be fruitful, at this stage, to consider the substance of deposition of prosecution and Defence witnesses produced before the trial Court, so that the arguments of learned Counsel for the rival parties can be appreciated in a better way.
Prosecution witness No.1 namely Neeraj Kumar, who is the son of victim Vidyaram, has stated that, his father (Vidyaram) had gone to the market of Harpalpur on bicycle along with his younger brother (PW5 Sunil Singh) and after purchasing the household items, his father asked his younger brother to go home with bicycle and also that he will come afterwards. However, when his father did not return till evening, he searched him at various places including at the residences of his relatives. It was 03 days after, witnesses PW2 Subhash and PW4 Bihari told him that, his father, on the fateful day, was seen in the company of appellants at the market of Harpalpur, who (appellants) were insisting his father to accompany them to their in-law's house situated at Village Chanoiya, but Vidyaram was not inclined to accompany them. On being insisted forcefully, Vidyaram accompany them. He afterwards went to the house of appellant Chakrapal and inquired about his father, who told him that, his father might have gone somewhere and will return on his own. This witness has proved to have lodged the First Information report, but stated that, at first only a missing report was written at the concerned Police Station and when he submitted an application to the S.P., his F.I.R. was lodged.
Prosecution witness No.2/Subhash Chandra in support of the testimony of the P.W.-1/Neeraj Kumar stated that appellants are the residents of neighbouring village Bansi. His father Vidyaram use to visit at the houses of Appellants as he is having friendship with them. On the fateful day I.e. 28.08.2005, he (Witness Subhash Chandra) went to Harpalpur market at about 3:00-4:00 pm. and had seen the appellants with Vidyaram. Appellant Chakrapal, was insisting Vidyaram to accompany him to his in-law's house. At first Vidyaram resisted , but after being insisted hard, he accompanied appellants in their Jeep. He further stated that he was with Bihari son of Girwar(P.W.-4). He came to know afterwards that, Vidyaram is not traceable thereafter he informed the son of Vidyaram about the fact that on the fateful day he had seen his father Vidyaram with appellants.
Prosecution witness No.4/Bihari is also claiming himself to be an eye witness, who had seen victim Vidyaram with the appellants and also that the appellants were insisting and pressurizing the Vidyaram to accompany them to go to their in-law's village Chanoiya. This witness goes on to say that, the appellants forced Vidyaram to sit with them in the Jeep and also that, at the same time, another son of Vidyaram namely Sunil came there and he also witnessed his father going with the appellants in a Jeep. He stated that, Vidyaram was having friendship with appellants and there were 2-3 unknown persons in the Jeep along with Vidyaram and appellants. It is further stated by him that, he subsequently heard that the appellants have murdered Vidyaram.
Prosecution witness No.5/Sunil is the son of victim Vidyaram, who has stated to have accompanied Vidyaram to the market at Harpalpur and also that near the Bus Stand at Harpalur, Vidyaram met with the appellants,who insisted him to accompany them, but his father refused. It is further stated by him that on being insisted his father consented to go with them and asked him ( Sunil) to go home and that he will come afterwards, on this he returned back to his home, however, his father did not return back ?
P.W.-3/Constable Shiv Kumar has proved the General Diary as well as the Chick FIR, as S.I. Awadhesh Pratap Singh has proved the Site Plan Exhibit-Ka-4, while S.I. Dharamraj Upadhyay and S.S.I. K.C. Tiwari have proved various stages of investigation including the filing of charge-sheet, Exhibit-Ka-5.
The appellants have also produced 02 witnesses in their defence namely D.W.-1/Shiv Singh, D.W.-2/Lala ram, who have testified about the facts that, in the year 2005, Pramod Kumar Singh was the ''Pradhan' of the Village and appellants had supported the other candidate namely Ram Baran Singh and Pramod Kumar ''Pradhan' was instrumental in concocting and manufacturing this false case against appellants. They have further stated that, Pramod Kumar Singh and Ram Pratap Singh are closely related and P.W.-1/Neeraj Kumar is a Lease Holder of an Agricultural Land owned by Ram Pratap Singh. They have further stated that, there was no enmity of the appellants with Vidyaram and also that, a false case of abduction of the Vidyaram has been manufactured against appellants. D.W.-2 Lala Ram also goes on to say that, Vidyaram is having enmity with one Sandeep Singh, as he lodged an First Information Report about the missing of his licensed gun against this Sandeep Singh.
Keeping in view the evidence of the prosecution as well as of the defence, the main point for consideration before this Court is, as to whether on 28.08.2005 at about 3 - 4 pm. in the market of Harpalpur, victim Vidyaram was abducted by appellants for the purpose of committing his murder or with the intention that he will be disposed of so as to be put in danger of being murdered and whether trial Court has committed illegality in convicting the appellants as the prosecution could not prove its case beyond reasonable doubt ?
Section 134 of Evidence Act did not require any particular number of witnesses to prove any fact. Plurality of witnesses in a criminal trial is not the legislative intent, it is not the quantity but quality which matters. Therefore, if the testimony of a witness is found reliable on the touch stone of credibility, accused can be convicted on the basis of testimony of even single witness. This principle was highlighted in ''Vadivelu Thevar V/s state of Madras; AIR 1957 SC 614', wherein it is held by Hon,ble Apex Court that "The contention that in a murder case, the Court should insist upon plurality of witnesses, is much broadly stated. The Indian Legislature has not insisted on laying down that "no particular number of witnesses shall, in any case, be required for the proof of any fact" has enshrined the well recognized maxim that "Evidence has to be weighed and not counted." It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of single witness only could be available in proof of the crime, would go unpunished. It here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstance of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution."
"Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony.
Vadivelu Thevar case (supra) was referred to with approval in Jagdish Prasad v. State of M.P. (AIR 1994 SC 1251). It was held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
In Lallu Manjhi vs. State of Jharkhand, AIR 2003 SC 854 Hon,ble Supreme Court held that "The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable, nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness."
In State of Gujarat vs J.P Varu reported in 2016 Cr.L.J 4185 (Supreme Court) it has been propounded by the Supreme Court that, the burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favorable to the accused should be adopted.
In AIR 2013 SUPREME COURT 3150, Raj Kumar Singh alias Raju alias Batya v. State of Rajasthan Hon,ble Supreme Court held that "Suspicion, however grave it may be, cannot take place of proof and there is a large difference between something that 'may be' proved and 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the Court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
Therefore, the gist of the aforesaid law propounded by the Hon'ble Supreme Court is that every accused person is presumed to be innocent till the prosecution, through reliable and acceptable evidence, proves its case beyond all reasonable doubt. In other words, in criminal trial, it is the duty of the prosecution to prove its case beyond all reasonable doubt. However, it is not each and every doubt which can be termed as reasonable and benefit of only that doubt can be extended to the accused persons, which is reasonable in the facts and circumstances of the case and which grow out of the evidence, itself.
Instant case is based on the direct evidence of P.W.-2/Subhash Chandra, P.W.-4/Bihari and P.W.-5/Suneel, who have testified with regard to the fact that, Vidyaram on the fateful day at about 3-4:00 pm. went to the market of Harpalpur with his younger son Suneel (P.W.-5) to purchase household items and there he met with the appellants, who insisted him (Vidyaram) to accompany them to their in-law's house situated at Village Chanoiya, P.S. Kachauna, District Hardoi.
It is further stated by these witnesses that, despite resistance by Vidyaram, they insisted him to accompany them and on their insistence He ( Vidhyaram) sit in the Jeep with appellants and some other persons and, thereafter, the whereabouts of the Vidyaram could not be known, and it is apprehended that, appellants along with other non-charge-sheeted persons have murdered him. No motive of the crime has been alleged, per contra the evidence of the prosecution is on the line that appellants and Vidhya Ram were having very cordial and friendly relations. It is also an admitted case of the prosecution that the corpus of the Vidyaram has not been recovered yet , and the appellants have been tried for the offence of Section 364 I.P.C. only.
The FIR of the incident was lodged by P.W.-1/Neeraj Kumar by presenting an application to the S.P., Hardoi on 06.01.2006, while the incident is stated to have happened on 28.08.2005 at about 3:00 pm., therefore the F.I.R. has been lodged with a delay of about of more than 4 and half months. As per the submissions of learned counsel for the appellants, this delay in lodging of FIR has not been explained by the prosecution, and the only explanation which has been alleged is that the informant earlier submitted a written report in the Police Station and also submitted an application to other Higher Authorities, but no action was taken. Perusal of the prosecution evidence available on record, would reveal that P.W.-1/Neeraj Kumar has tried to explain the delay of almost 4 and half months , in lodging F.I.R., when he stated that, he submitted a written report in the Police Station, but no FIR was lodged and only a missing report was registered and, thereafter, he moved various applications to Higher Authorities and, ultimately, on 06.01.2006, he moved another application to S.P., Hardoi on which, an order was passed to lodge the report.
Perusal of the entire evidence placed before the trial Court during the course of trial reveals that, there is no evidence, made available before the Court below, which may prove the fact of submitting any written application by P.W.-1/Neeraj Kumar in Police Station concerned, pertaining to the allegations of abduction of Vidya Ram by appellants, prior to the FIR. No copy of any application, which was allegedly given in the police station concerned or even any copy of any missing report has either been brought on record, which may reflect that any previous application was given by P.W.-1/Neeraj Kumar in Police Station concerned against present appellants. The factum of not giving any information to the police of the occurrence on the same day i.e. on 28.08.2005 or even next day on 29.08.2005, appears to be fatal to the prosecution in the facts and circumstances of the case, as according to the evidence available on record PW 5 Sunil had told the fact of Vidhya Ram going with appellants on the same day i.e. on the day of incident, to P.W.-1/Neeraj Kumar. While, according to P.W.-1/Neeraj Kumar, the victim (Vidhyaram) went to the market of Harpalpur with his younger son Sunil (P.W.-5) and after 03 days, P.W.-4/Bihari and P.W.-2/Subhash Chandra informed him that, they had seen Vidyaram going with appellants in a Jeep, and the appellants were insisting Vidyaram to accompany them to their in law's house (Mahendra Singh, Guddu Singh and Vinod Singh's house situated at Village Chanuiya), and when he, after three days went to the house of appellant Chakrapal, he informed him that Vidyaram will come on his own. It is further stated by him that, he became suspicious and filed a written report at Police Station, but FIR was not lodged and only a missing report was registered. If the above testimony of the P.W.-1/Neeraj Kumar is taken correct, the natural reaction of not lodging the report by the police station concerned should be to approach the higher Police Authorities and in fact, this witness has deposed to have given applications to S.P. and D.M., Hardoi prior to the application dated 06.01.2006 which was alledgly given to the S.P., Hardoi on which, FIR was lodged. However, no copy of any missing report or any other evidence has been placed on record, which may substantiate the contention of P.W.-1/Neeraj Kumar that any missing report or any other application naming the appellants as the real perpitrators was given by him in the concerned police station soon after he was informed by P.W.-5 Sunil (on the evening of incident) that Vidyaram had gone with appellants and thereby, this factual matrix created a vacuum in the story of the prosecution that in spite of knowing the fact, on 28.08.2005, that Vidyaram had gone with the appellants, why any information was not given immediately to the police and even if the statement of PW1 Neeraj Kumar is believed, why any copy of the report allegedly given in police station, which was registered as missing report, was not produced in evidence.
One more important circumstance, which goes against the prosecution is that in the testimony of P.W.-1/Neeraj Kumar, it has come that Vidyaram on fateful day went to Harpalpur with his younger son Suneel (P.W.-5), and after purchasing household items, Vidyaram sent his son Sunil back and told him that, he (Vidyaram) will come afterwards. It is further deposed by him that, after 03 days of the incident P.W.-4/Bihari and P.W.2/Subhash Chandra told him that, Vidyaram had gone with appellants in a Jeep. This statement of P.W.-1/Neeraj Kumar, however, do not find support from other prosecution witnesses namely P.W.-4/Bihari and P.W.-5/Suneel, as these witnesses have stated that when Vidyaram was going with appellants in a Jeep, P.W.-4 Bihari and P.W.-5 Sunil were there and Vidyaram told P.W.-5 Sunil to inform at his home that he will come after a day or two. It has been categorically stated by P.W.-4/Bihari and P.W.-5/Sunil that, they were present at the market of Harpalpur, when Vidyaram went with appellants in a Jeep. P.W.-5/Sunil, who is younger son of Vidyaram has stated that, on the fateful day, his father met with appellants in his presence and asked him (Sunil) to go home with the household items purchased by them, and also that he (Vidyaram) will come afterwards. In his cross-examination, he admitted to have seen only Bihari. This witness has categorically stated that, he on the same day (28.08.2005) told this fact at his home that his father (Vidyaram) has gone with appellants. This witness has again stated at page No.2 of his cross-examination that, he on the same day i.e. 28.08.2005 had informed his brother Neeraj Kumar (P.W.-1) about the whole incident, which he saw at Harpalpur. If the testimony of this witness is believed, it transpires that he informed P.W.-1/Neeraj Kumar about the incident on the same day i.e. 28.08.2005 about the fact that, his father (Vidyaram) has gone with appellants and will come after 02 days. Keeping in view the above mentioned evidence of P.W.-5/Sunil, the whole evidence of P.W.-1/Neeraj Kumar and case of the prosecution as stated in the FIR is adversely affected, and cast a doubt on the story of prosecution about the incident. When it was known to P.W.-1/Neeraj Kumar on 28.08.2005 that his father Vidyaram had actually gone with appellants, there was no logic or necessity to search Vidyaram anywhere and after waiting for sometime, FIR should have been lodged against appellants. Therefore, the testimony of the P.W.-1/Neeraj Kumar, so far as it is connected with the fact that for 03 days, he searched his father here and there and, thereafter, he was informed by P.W.-2/Subhash Chandra, P.W.-4/Bihari that, they had seen the Vidyaram in the company of appellants at the market of Harpalpur, becomes doubtful.
The evidence of P.W.-1/Neeraj Kumar, with regard to the fact that, factum of abduction of his father by appellants was informed by Bihari and Subhash Chandra became highly unreliable in view of the categorical statement of P.W.-5/Sunil to have informed P.W.-1/Neeraj Kumar on the same day about the fact of abduction of his father by appellants. The only inference from this material contradiction in the testimony of P.W.-1/Neeraj Kumar and P.W.-5/Sunil is that, their evidence is not reliable, pertaining to the fact that P.W.-1/Neeraj Kumar was informed about the incident of abduction of Vidhya Ram by P.W.-4/Bihari and P.W.-2/Subhash Chandra and simply on suspicion, FIR appears to have been lodged after months of incident.
The other argument of learned counsel for the appellants is that, no motive of the crime has been suggested. Per contra, the case of the prosecution is that, the victim Vidyaram and appellants were having very friendly and cordial relations. In the statement recorded before the Trial Court, none of the witnesses of fact i.e. P.W.-1/Neeraj Kumar, P.W.-2/Subhash Chandra, P.W.-4/Bihari and P.W.-5/Sunil have stated a single word about the reason or motive for commission of the crime. No doubt, the prosecution is not obliged to prove the motive, when the case of prosecution rests on direct evidence, but when the direct evidence is shaky and is about only with regard to a single circumstance of seeing the appellants in the company of appellants, motive assumes importance.In the instant case only one circumstance i.e. of Victim going with the appellants, has been attempted to be proved against the accused persons which alone can not be sufficient to prove the case of prosecution unless prosecution proves, firstly that Vidhya Ram accompanied appellants and such company was the result of an Abduction either caused by means of force, or that they induced Vidyaram to do so by deceitful means and such abduction was in order that (a) Vidyaram might be murdered, or (b) he might be so disposed of as to be put in danger of being murdered. Therefore motive, in the facts and circumstances of this case, is having significance, however the same has neither been alleged nor proved by the prosecution before the Court below.
In Arjun Marik v. State Of Bihar reported in 1994 Supp (2) SCC 372, the Supreme Court explained that :
"...mere absence of proof of motive for commission of a crime cannot be a ground to presume the innocence of an accused if the involvement of the accused is otherwise established. But it has to be remembered that in incidents in which the only evidence available is circumstantial evidence then in that event the motive does assume importance if it is established from the evidence on record that the accused had a strong motive and also an opportunity to commit the crime and the established circumstances along with the explanation of the accused, if any, exclude the reasonable possibility of anyone else being the perpetrator of the crime then the chain of evidence may be considered to show that within all human probability the crime must have been committed by the accused."
It is fairly well-settled that while motive does not have a major role to play in cases based on eye-witness account of the incident, it assumes importance in cases that rest on circumstantial evidence. In the cases of Sukhram v. State of Maharashtra (2007) 7 SCC 502, Sunil Clifford Daniel (Dr.) v. State of Punjab (2012) 8 SCALE 670, Pannayar v. State of Tamil Nadu by Inspector of Police (2009) 9 SCC 152], this principle has been highlighted.
In the instant case only one circumstance has been alleged by the prosecution against appellants i.e. of seeing Victim accompanying appellants in a jeep and thereafter the Victim was not traceable . There is no evidence of either use of force or playing deceit or fraud with the Victim Vidhya Ram by the appellants which may persuade him to accompany the appellants. Therefore when the case of the prosecution rests only on one circumstance motive becomes significant. Motive in the instant case also assumes importance, because evidence has been tendered by the prosecution to the effect that appellants and victim Vidyaram were having cordial and friendly relations and in the whole of the evidence of prosecution, not a single fact has been either alleged or proved, which may reflect anything pertaining to the reason available to the appellant to commit such crime. After considering the evidence of all prosecution witnesses, there is nothing, which may reflect that, Vidyaram has been in any way deceived or forcefully taken somewhere by the appellants. As discussed earlier, the evidence of the prosecution witnesses, pertaining to the factum of last scene of Vidyaram with the appellants appears to be not reliable and in the facts and circumstances of the case is not acceptable. Apart from the circumstance of going with the appellants, there is nothing on record, which may attribute the appellants with the crime. No charge of murder had been framed against the appellants and the only circumstance of last scene with the appellants was alleged, and in the facts and circumstances of the case, the same has not been proved beyond all reasonable doubt, as the testimony of P.W.-1/Neeraj Kumar, P.W.-2/Subhash Chandra, P.W.-4/Bihari and P.W.-5/Sunil, claiming to be the eye witnesses of the alleged incident happened on 28.08.2005 is not truthful, reliable and acceptable.
It is to be stated here that since the prosecution had taken the burden to prove the crime by tendering direct evidence,the principle as contained under section 106 of Indian Evidence Act will not be applicable, as the case of the prosecution pertaining to taking away victim was resting on the direct evidence of eye witnesses. In the case of Murlidhar and Ors. v. State of Rajasthan, (2005) 11 SCC 133, the Court proceeded on the basis that the prosecution while taking upon itself the burden of proving the murder of the abducted boy by introducing eye-witnesses. It was held that the provisions of Section 106 of the Indian Evidence Act would have no application, as under:-
"In Mir Mohammad Omar (supra) it was established that the accused had abducted the victim, who was later found murdered. The abductors had not given any explanation as to what happened to the victim after he was abducted by them. The Sessions Court held that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt as there was "a missing link in the chain of events after the deceased was last seen together with the accused persons and the discovery of the dead body of the deceased at Islamia Hospital". Rejecting the said contention this Court observed (vide para 31):
"The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilized doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty."
This Court further observed thus (vide para 33):
"Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case."
21. The judgment of Vivian Bose, J. in Shambu Nath Mehra v. State of Ajmer, MANU/SC/0023/1956 : 1956CriLJ794 lays down the legal principle underlying the shifting of burden of proof under Section 106 of the Evidence Act thus (vide para 38):
"This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word 'especially' stresses that. It means facts that are pre-eminently or exceptionally within his knowledge."
22. In our judgment, the High Court was not justified in relying on and applying the rule of burden of proof under Section 106 of the Evidence Act to the case. As pointed out in Mir Mohammad Omar (supra) and Shambu Nath Mehra (supra), the rule in Section 106 of the Evidence Act would apply when the facts are "especially within the knowledge of the accused" and it would be impossible, or at any rate disproportionately difficult for the prosecution to establish such facts, "especially within the knowledge of the accused." In the present case, the prosecution did not proceed on the footing that the facts were especially within the knowledge of the accused and, therefore, the principle in Section 106 could not apply. On the other hand, the prosecution proceeded on the footing that there were eye witnesses to the fact of murder. The prosecution took upon itself the burden of examining Babulal (PW 5) as eye witness. Testimony of Ram Ratan (PW 7) and Isro (PW 10) shows that their agricultural land was situated in a close distance from the house of Khema Ram. As rightly pointed out by the High Court, it is highly unlikely and improbable that their kith and kin Ramlal would have been given beating resulting in his death by the accused-appellants while keeping lights of their house on and door of the room opened. It is also unlikely that the accused-appellants would have taken the risk of dragging Ramlal to the house of Khema Ram, which was situated in the vicinity of agricultural land and well of Isro (PW 10), the father of Ramlal. The evidence of Govind (PW 13) also appears to be unnatural, as he had not disclosed the incident to anybody. The High Court has correctly analysed that all the witnesses, namely, Babulal (PW 5), Ram Ratan (PW 7), Isro (PW 10) and Govind (PW 13) are wholly unreliable as their evidence is repeated with contradiction and inherent improbabilities.
23. In the result, we are of the view that the prosecution having put forward a case that, what transpired after Ramlal was dragged away by the assailants was within the knowledge of witnesses, utterly tailed in proving the said facts. Once this is established, it was not open for the High Court to have fallen back on the rule of burden of proof under Section 106 of the Evidence Act. In fact, as we notice, it was nowhere the case of the prosecution that Section 106 of the Evidence Act applied to the facts on record. The High Court seems to have brought it out on its own, but without any justification. We are, therefore, of the view that the conviction of Murlidhar, Chhaju Ram and Babu Lal s/o Chhaju Ram under Section 364 IPC is justified and liable to be confirmed, but their conviction under Section 302/34 IPC cannot be sustained and they are liable to be acquitted of the said charges."
Therefore keeping in view the aforesaid law the prosecution could not get any benefit of Section 106 of the Indian Evidence Act, as even to attract Section 106 Evidence Act, the duty of prosecution was to discharge burden by proving initials facts, on the basis of which presumption can be drawn, but in the instant case the prosecution has taken the burden of proving facts by tendering direct evidence of P.W.-2 Subhash Chandra , P.W.-4 Bihari and P.W.-5 Sunil that Vidhya Ram was abducted by appellants with the intention of murder or with the intention that he will be so disposed as to be put in danger of being murdered. Therefore these facts could not be presumed with the aid of Section 106 of Evidence Act.
Coming to the next submission of learned counsel for the appellants that, all witnesses of fact of the prosecution namely P.W.-1/Neeraj Kumar, P.W.-2/Subhash Chandra, P.W.-4/Bihari and P.W.-5/Sunil are related witnesses and their testimony could not be believed. Keeping in view the submission of learned counsel for the appellants, the law, pertaining to appreciate the evidence of related witness is well-settled, and it has been established by a Catena of Decisions of the Hon'ble Supreme Court that the evidence of a person, who is related to the victim could not be rejected only on the basis that, he or she is related to the complainant or victim, however, the testimony of such witness (s) should be appreciated with care and caution.
Keeping in view the aforesaid principle, the prosecution evidence tendered before the Court below reveals that, it is admitted to the prosecution witnesses in their cross-examination that, witness P.W.-2/Subhash is having good relations with Vidyaram and his sons and P.W.-4/Bihari is the brother-in-law of the victim Vidyaram and real uncle of P.W.1-Neeraj Kumar and P.W.-5/Sunil, while PW-1/Neeraj Kumar is the son of Vidya Ram. Therefore, the evidence of both these witnesses is to be appreciated and scrutinized with care and caution. In FIR, it has been stated that incident of victim Vidyaram while going in a jeep, with the appellants, was seen by P.W.-2/Subhash P.W.-4/Bihari and also by PW-5 Sunil, there is no mention of the fact in the FIR that, P.W.-5/Sunil also went to Harpalpur market with the Vidyaram at the fateful day, nor there is any narration about the fact that incident had been witnessed by P.W.-5 Sunil. In the First Information Report, no over act or any act of forcefully compelling the victim Vidyaram to accompany the appellants or any fact which may reflect on the alleged intention of the appellants or inducement has been mentioned, which may attribute any intention on the part of the appellants to abduct the victim Vidyaram with the intention of murder. Coming to the testimony of prosecution witnesses P.W.1-Neeraj Kumar, who in his cross-examination has stated at Page No.4 that, when his father( Vidhya Ram) did not return, many persons of his ''Mohalla' went to police station to lodge the report, but only ''Gumshudgi (Missing Report)' was lodged. It has been stated by him that, there were many persons with him and they went about 08 days after the incident, while in his Examination-in-chief, he stated that he went on the third day of the incident to lodge FIR. P.W.-2/Subhash Chandra in his testimony has stated that he could not recollect, whether he (Subhash) accompanied P.W.1-Neeraj Kumar to police station or not, while it is further admitted to him that, he is a neighbour of P.W.1-Neeraj Kumar. P.W.-4/Bihari is stated by P.W.1-Neeraj Kumar to reside at a village, which is situated about 15 kms. away from his village. The character of P.W.-4/Bihari apart from being related to the deceased and P.W.1-Neeraj Kumar and P.W.-5/Sunil is also of a chance witness. P.W.-2/Subhash in his cross-examination at Page No.2 has stated that, P.W.1-Neeraj Kumar and P.W.-5/Sunil were at their home on the day of abduction of Vidyaram. He had seen both of them at their houses. It is worth remembering that, P.W.-2/Subhash Chandra is a neighbour of P.W.1-Neeraj Kumar and is residing about 100 meters away from the House of P.W.1-Neeraj Kumar. It is also stated by P.W.-2/Subhash Chandra at Page No.3 of his cross-examination that appellants at that point of time did not own any Jeep. He further stated that on the fateful day, he proceeded to go to his relatives at 4:00 pm. by motorcycle and reached at his relatives house at about 5:30 pm. It is further stated that, he reached Harpalpur at 4:20 pm and remained at his relative's house for 03 days. Per contra, P.W.-4/Bihari stated that, after a week from the incident, he told the incident of abduction to the family members of Vidyraram. This part of his evidence appears to be patently false, as the case of the prosecution is based on the facts that after 03 days of the incident, Subhash Chandra (P.W.-2) and he (P.W.4/Bihari) told the incident of abduction to P.W.1-Neeraj. In the facts and circumstances of the case and keeping in view the character of evidence of these witnesses, their evidence do not inspire confidence. More so, in the background of the statement of the P.W.-5/Sunil, when he stated that at the time of incident, P.W.-2/Subhash was not having any motorcycle nor he ever seen Subhash driving a motorcycle. He (P.W.-5/Sunil) significantly stated at Page No.2 of his cross-examination that, in the evening of the fateful day of abduction, he saw P.W.-2/Subhash at his village, as well as in the morning. This statement of P.W.-5 also puts the testimony of P.W.-2/Subhash and P.W.-5/Sunil in the category of not reliable. P.W.-2/Subhash in his cross examination has stated that he do not know as to when Vidhya Ram was Abducted. P.W.-8/S.S.I-K.C. Tiwari has also stated that, P.W.-2/Subhash told him that he informed P.W.1-Neeraj the same day about the incident of abduction, and also that, he witnessed the incident by going to Harpalpur on foot, while P.W.-2/Subhash stated to have gone there on motorcycle. P.W.8/S.S.I.-K.C. Tiwari further stated in his cross-examination that, witness P.W.4/Bihari has also told him to reach Harpalpur on foot and not on bicycle, while P.W.-4/Bihari in his statement has stated to have reached the market of Harpalpur on bicycle. It is to be noted here that P.W.-2/Subhash and P.W.-4 Bihari who claimed their presence at the spot are chance witnesses except PW5 Sunil, who has stated to have accompanied Vidhya Ram to the market of Harpalpur but his name has not found place in the F.I.R.There are material contradictions in the testimony of these witnesses and net result of these material contradictions occurring in the testimonies of these witnesses make their testimony not reliable so far as their claim to have seen the Victim Vidhya Ram going with the Appellants in a jeep is concerned.When PW5 Sunil was at the market with Vidhya Ram and he was asked to inform at home that Vidhya Ram will come after a day or two and this was communicated by him to PW1 Neeraj Kumar than why Neeraj Kumar searched Vidhya Ram here and there or at the houses of relatives, on 28.08.2005 or even after two days.
In instant case the Charge on the appellants has been framed under 364 IPC, which deals with kidpapping or abduction in order to murder and the same is reproduced below for convenience:
'Section 364 IPC: Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine'.
A careful perusal of Section 364 IPC reflects that in order to bring home a charge U/S 364 IPC the prosecution must prove :
(i) Kidnapping by the accused,
(ii) that he so kidnapped the person in question in order (a) that such person might be murdered , or (b) that such person might be so disposed of as to be put in danger of being murdered.
Or prove for abduction--
(i) that the accused compelled the person to go from the place in question,
(ii)that he so compelled that person by means of force, or that he induced the person to do so by deceitful means,
(iii) that he so abducted the person in question in order that (a) such person might be murdered , or (b) such person might be disposed of as to be put in danger of being murdered.
Abduction is compelling any person to go from one place to another place by deceitful means or by inducement. As per literal meaning ' inducement ' is an act or process of enticing or persuading another person to take a certain course of action. Inducement may amount to bargain or allurement in given facts and circumstances. Inducement may be by criminal intimidation, abuse of authority or by other means Abduction simplicitor is not an offence under the Indian Penal Code, however, abduction with certain specified intention has been made punishable. What prosecution was obliged to prove, in this case, was that accused persons enticed a person by forcible compulsion or by deceitful means to accompany them or to go away from any place with an intention that such person might be murdered, or might be disposed of so as to be put in danger of being murdered. The prosecution evidence has to be appreciated to see whether victim voluntarily accompanied the accused persons or was subjected to force, compulsion, inducement or deceit, in accompanying the accused persons. The gist of offence u/s 364 I.P.C is kidnapping or abduction with intent to murder. So, in order to sustain conviction u/s 364 IPC there must be an intention also on the part of accused person/s either to murder or have the victim murdered, or to dispose of or to have him disposed of with the knowledge that such disposal would put him in danger of being murdered. Existence of the intention is a matter to be inferred from acts and conduct of accused person at or before the time of commission of offence and there after and also from the proved circumstances.
In State Of West Bengal vs Mir Mohammad Omar & Ors (2000 )8 SCC 382 Honble Supreme Court hold as under:-
"Abduction takes place when a person is compelled by force (or such person is induced by any deceitful means) to go from any place. In this case Mahesh was dragged away by the accused from two places, first at Chittaranjan Avenue and when he escaped from the grip of the abductors and perched himself in a hide out selected by him at Giri Babu Lane, from there also he was hauled out. Section 364 IPC says, whoever abducts any person "in order that such person may be murdered or disposed of as to be put in danger of being murdered" he commits the offence punishable under the Section. So the important task of the prosecution was to demonstrate that abduction of Mahesh was for murdering him. Even if the murder did not take place, the offence would be complete if the abduction was completed with the said objective. Conversely, if there was no such objective when the abduction was perpetrated, but later the abductors murdered the victim, Section 364 IPC would not be attracted, though in such a case the court may have to consider whether the offence of culpable homicide (amounting to or not amounting to murder) was committed."
Calcutta High Court in Dhiren Ghata and Ors. vs. State of West Bengal,MANU/WB/0208/2005 ,while deliberating the ingredients of section 364 of IPC, in a case having similar factual background opined as under :-
" 9-.....................All that has come from the evidence of the witnesses is that the accused persons came to the house of P.W.1 at night. They wanted Sannyashi to go with them. However, Sannyashi was not allowed to go with them that night and next day again in the morning, the accused persons went to the house of P.W.1 and then Sannyashi accompanied them since the accused persons claimed that nothing could be done for the damage caused by Sannyashi and that he should resume his work. None of these witnesses has ever claimed that there was any force practised against Sannyashi or there was any deceit practised against him. Nobody has claimed that Sannyashi did not want to go or that he was made to go because of the false representation of the accused-persons or at least any force shown by them. On the other hand, all the witnesses have very clearly stated that the accused persons said that there was now nothing to be done and the loss caused should not now be retrieved and therefore Sannyashi should, as usual, work with them and therefore, Sannyashi went with the accused persons. If this is the state of affairs, it cannot be said that the important ingredient of the offence under Section 364 IPC was proved by the prosecution. Abduction by itself is not made punishable. The abduction if done using force or deceit with a particular motive of punishing or harming the person abducted, then alone it becomes an offence. Section 362 IPC defines 'abduction' and suggests that if a person is compelled to go from a place as a result of force or by deceitful means, then the said person is stated to be abducted. However that by itself is not an offence and the offence is to be found only in Section 364 IPC where it is proved that when any person is abducted in order that he may be murdered or may be so disposed of as to be put in danger of being murdered, then such person would be guilty of abducting in order to murder. Now when we see the judgment, such finding is sadly wanting. The Trial Court has simply written a finding that Sannyashi accompanied the accused persons from his house in the morning. There is no proper finding or any finding at all that any force was practised against him or that he was deceitfully induced to accompany them or that all this was done in order to either murder him or to endanger his life. The Trial Court has not even bothered to sift the evidence to find out as to whether such inference could be drawn that the accused persons had firstly practised force or had induced Sannyashi by deceitful means to accompany them and that they had the objective to commit murder of Sannyashi. Beyond stating that a particular witness has stated something, the Trial Court has not bothered to appreciate the evidence. Under such circumstances, it is very difficult to uphold the conviction for an offence under Section 364 IPC. Beyond saying that the accused took the deceased along with them and the deceased accompanied them in the morning, nothing has been stated by any of the witnesses named above."
As said earlier the intention with which a person is kidnapped or Abducted may be gathered from the evidence of the witnesses who have actually seen the incident as well as circumstances attending prior to, at the time of and subsequent to the commission of the offence. Though it has been held herein before that it is doubtful that PW2 Subhash Chandra, PW 4 Bihari or PW-5 Sunil have actually seen the occurrence but if for the sake of arguments the case of prosecution is accepted on its face, it is alleged by the prosecution that accused persons were known to the Victim from before the incident and in fact, he (Vidyaram) was having very friendly relations with Appellants and on the alleged invitation of appellants, Vidhya Ram accompanied them in their private vehicle. It has been categorically stated by all witnesses of fact that no force or threat was used by the appellants against Vidhya Ram. Per contra the evidence is that Vidhya Ram was having very cordial and friendly relations with Appellants. "Abduction" implied application of force or deceitful means inducing victim to accompany them. Even if the story of prosecution is believed for a moment there is no element of application of force or application of deceitful means, neither alleged nor proved by the prosecution, on the part of accused persons .None of the witnesses has ever claimed that there was any force practiced against Vidhya Ram or there was any deceit practiced against him. No prosecution witness has claimed that Vidhya Ram was made to accompany the appellants forcefully or he joined their company because of any false representation of the accused-persons or some inducement was given to him by them. On the other hand, all the witnesses in very clear and specific terms have stated that the accused persons only insisted him and on their insistence he went with the accused persons. If the act of Vidhya Ram going with the accused persons is seen in the background that they were having very friendly relations and so much so, as claimed by PW 5 Sunil Singh, Vidhya Ram told him to communicate at home that he will return afterwards , the only circumstance of going with the Appellants in absence of any previous enmity, motive or ill will or intention could not prove any ingredient of the offence charged against the appellants. Moreso when Vidhya Ram is having exremely good relations with appellants. No one has also seen the Appellants in the company of Vidhya Ram at village Chunaiya (Village, where in-laws of appellants reside). If this is the state of affairs, it cannot be said that the important ingredients of the offence under Section 364 IPC was proved by the prosecution. Abduction by itself is not made punishable. The abduction if done using force or deceit with a particular motive of punishing or harming the person abducted, then alone it becomes an offence. Section 362 IPC defines 'abduction' and suggests that if a person is compelled to go from a place as a result of force or by deceitful means, then the said person is stated to be abducted. However that by itself is not an offence and the offence is to be found only in Section 364 IPC, where it is proved that when any person is abducted in order that he may be murdered or may be so disposed of as to be put in danger of being murdered, then such person would be guilty of abducting in order to murder but in the judgment of the Subordinate/Trial Court such findings are sadly wanting. The Trial Court has simply written a finding that Vidhya Ram accompanied the accused persons from the market of Harpalpur. There is no proper finding or any finding at all that any force was practiced against him or that he was deceitfully induced to accompany them or that all this was done in order to either murder him or to endanger his life. The Trial Court has not even bothered to sift the evidence to find out as to whether such inference or intention as required for the offence of section 364 IPC, could be drawn from the facts and circumstances of the case that the accused persons had induced Vidya Ram by deceitful means to accompany them and that whether they had any objective/Motive to commit murder. Beyond stating that a particular witness has stated something, the Trial Court has not bothered to appreciate the evidence, in right perspective. While as per the evidence appreciated by this Court herein before, it is evident that the testimony of all the witnesses of fact pertaining to have seen the factum of abduction of Vidyaram on 28.08.2005, has not been found sufficient, acceptable and truthful and ingredients of Section 364 I.P.C. have also not been found proved. Under such circumstances, it is very difficult to uphold the conviction for an offence under Section 364 IPC. Beyond saying that the accused took the deceased along with them and the deceased willfully accompanied them and they are only apprehending that appellants might have murdered him, nothing has been stated by any of the Prosecution witnesses. At the cost of repetition it is worthwhile to emphasize that Honble Supreme Court in State Of West Bengal vs Mir Mohammad Omar & Ors (2000 )8 SCC 382 has held that Section 364 IPC says, whoever abducts any person "in order that such person may be murdered or disposed of as to be put in danger of being murdered" he commits the offence punishable under the Section. So the important task of the prosecution was to demonstrate that abduction of victim was for murdering him. Even if the murder did not take place, the offence would have been completed if the abduction has been done with the said objective. Conversely, if there was no such objective or intention when the abduction was perpetrated, but later the abductors murdered the victim, Section 364 IPC would not be attracted, though in such a case the court may have to consider whether the offence of culpable homicide (amounting to or not amounting to murder) was committed. In the instant case the Appellants have not been tried for the charge of culpable homicide amounting or not amounting to murder and the evidence produced before the trial court was certainly not of the character on the basis of which appellants could be convicted under Section 364 I.P.C. Therefore, the trial Court has materially erred in resting the conviction on unreliable testimony of prosecution witnesses of fact, ignoring that ingredients of the offences have also not been proved by such evidence. Therefore the prosecution has miserably failed to prove the charge of Section 364 framed against the Appellants and for the reasons mentioned herein before, the Judgment and order of the Court below could not be allowed to stand and the same is liable to be set aside.
For the fore-going conclusions instant appeal deserve to be allowed and the appellants are entitled to be acquitted.
In the result this criminal appeal is allowed and consequently the conviction of appellants as recorded by the learned Additional Sessions Judge vide judgment dated 22.04.2011 passed in Session Trial No. No.706/2010, arising out of Case Crime No. 11/2006, under Section 364 I.P.C., Police Station Harpalpur, District Hardoi is set aside. Appellants are acquitted of the charges of Section 364 I.P.C., framed against them. They are on bail. Their bail bonds stand discharged. They need not to surrender. However they are directed to submit bail bonds subject to the satisfaction of the Trial court concerned as provided under Section 437A of the Cr.P.C., within 15 days from today. Lower court record, along with a copy of this judgment be transmitted to the trial Court, at the earliest.
Order Date:- 27.08.2019 Praveen