Rajasthan High Court - Jodhpur
Pradeep & Ors vs State on 24 November, 2016
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas, Dinesh Mehta
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
D.B.CRIMINAL APPEAL NO. 742 / 2013
SANJAY KUMAR S/O SHRI RESHAM KUMAR, BY CASTE
DHANAK, R/O 12 QUARTER ROAD, NEW YOG NAGAR,
HISSAR (HARYANA)
(AT PRESENT LODGED IN CENTRAL JAIL,
SRIGANGANAGAR)
----Appellant
Versus
STATE OF RAJSTHAN
----Respondent
Connected With
D.B.CRIMINAL APPEAL No. 700 / 2013
1. PRADEEP S/O SHRI OM PRAKASH, BY CASTE
DHANAK, R/O 825, NAVDEEP COLONY, AZAD
NAGAR, HISSAR (HARYANA)
2. RAJVEER @ RAJU S/O BAHADUR SINGH, BY
CASTE DHANAK, R/O 825 NAVDEEP
COLONY,AZAD NAGAR, HISSAR, HARYANA.
3. KRISHAN KUMAR S/O SHRI BIRBAL, BY CASTE
CHHINPA, R/O JAKHOD KHEDA, PS HISSAR, AT
PRESENT R/O KIDWANA, PS SURAJGARH,
JHUNJHUNU.
----Appellants
Versus
STATE OF RAJASTHAN
----Respondent
__________________________________________
Mr. M.K.Garg & Mr. Deepak Aggarwal ]
Mr. S.K. Saini, ], for appellants.
Mr. C.S.Ojha, PP.
_________________________________________
(2 of 23)
[CRLA-742/2013]
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE DINESH MEHTA
JUDGMENT
(PER MR. JUSTICE GOPAL KRISHAN VYAS) DATE OF JUDGMENT:- 24th NOVEMBER, 2016 Both above appeals are filed under Section 374(2) Cr.P.C. against the judgment dated 25.07.2013 passed by Addl. Sessions Judge, Bhadra District Hanumangarh in Sessions Case No.31/2011 whereby all the accused appellants were convicted for offences under Sections 364A, 394 and 120B IPC and following sentence was passed against them, which reads as under:-
U/S 364A IPC Life Imprisonment with fine of Rs.5,000/-, in default of payment of fine, further to undergo one year's R.I. U/S 394 IPC. 10 year's rigorous imprisonment with fine of Rs.2,000/-, in default of payment of fine, further to undergo 6 months' RI.
120B IPC 10 year's rigorous imprisonment with fine of Rs.2000/- in default of payment of fine, further to undergo 6 months' RI.
(All the sentences were ordered to run concurrently).
Brief facts of the case are that on 08.07.2011, PW-3 Suresh Kumar submitted a missing report (3 of 23) [CRLA-742/2013] (Ex.P/21) at Police Station Bhadra in which it is reported that my brother Ram Niwas S/o Shri Lichi Ram by Caste Mahajan R/o Ward No.16 went in the night to make payment to the driver at 8:30 pm but did not come back. He further stated that his brother Ram Niwas is having two mobiles and numbers of those mobile phones are 9461312805 & 9414500963 but he is unable to contact him, therefore, action may be taken to search my brother Ram Niwas.
On 11.07.2011, the complainant Ram Niwas (PW-6) himself appeared before the Police Station Bhadra and submitted a hand written report (Ex.P/8) in which following allegations were levelled by him against the accused appellant which reads as under:-
**esjh nqdku vxzoky fcYMhax lIyk;lZ xkPph I;kÅ ds utnhd dLck Hkknjk esa gSA esjh nqdku ij iznhi iq= vkse izdk'k /kkud fuoklh eaxkyh gky Hkknjk [kqyh etnwjh djrk gSA fnukad 07&07&2011 dks lk;a ds le; eq>s esjs eksckbZy ij iznhi us vius eksckbZy uŒ 9785917175 ls Qksu djds dgk fd esjs edku ij vkvks vkils dke gS eSaus dgk fd vkrk gw¡ eSa ?kj ij [kkuk [kkys yxk mlh njE;ku nqckjk Qksu vk;k fd vki vk;s ugha t:jh dke gSA rks eSaus dgk fd eSa [kkuk [kkdj vkrk gw¡A brus esa esjs eksckbZy ij cydj.k Vªd okys dk Qksu vk;k fd eSa fnYyh tk jgk gw¡ iSls Hkstsa rks eSaus dgk fd eSa xkPph I;kÅ ij iSls ysdj vk jgk gw¡ eSa iSls ysdj xkPph I;kÅ ij igq¡pk o iSls nsus yxk rks Jh xksiky th (4 of 23) [CRLA-742/2013] v/;kid vk x;s muds lkeus gh eSaus Vªd okys dks iSls ns fn;s Fks iSls nsdj eSa o xksiky th jokuk gks x;s rc eSaus okil iznhi dks ?k.Vh dh o mldks dgk fd eSa okfYedh pkSd ij vk jgk gw¡A fQj eSa o xksiky th okfYedh pkSd ij igqapAs xksiky th vius ?kj pys x;s eSaus iznhi dks ?k.Vh dh mlus dgk fd eSa okfYedh pkSd ds ikl gh gwa rFkk ?k.Vh dkVdj edku ds Åij ls vkokt nh eSa fl<+h;ksa ls Åij mlds ikl x;k rks iznhi ds ikl ,d vkneh vkSj [kM+k Fkk iznhi us eq>s crk;k fd ;g esjk ykyk jktohj gSA mlh dk edku gSA jktohj dks ns[kdj eq>s 'kd gqvk fd ;g dkSu gSA eSaus dgk fd D;k dke gS rks dgk fd cSBks esa Nr ls fups mrjus yxk rks lkeus ls isfM+;ksa ij pkj vkneh ,dne lkeus vk x;s rFkk esjs e¡qg ij diM+k nsdj dejs esa /kdsy fn;k rFkk esjk eksckby tcjnLrh fNu fy;k muesa ls frukas ds gkFk esa fiLrksy FkhA lHkh feydj eq>s ekjihV djus yxs eq¡g esa diM+k Bwl a fn;k o gkFk iSj cka/k fn;s rFkk vka[kksa ij lkQk cka/k fn;k rFkk fiLrksy yxk dj /kedkus yxs fd vHkh ik¡p djksM+ :i;s eaxk ojuk tku ls ekjsx a sA eSaus euk dj fn;k fd ekjuk gS rks ekj nks esjs ikl brus :i;s ugha gSA djhc nks ?k.Vs rd iVdk j[kk o /kedkrs jgs fQj fl<+h;ksa ij pn~nj esa cka/kdj ykdj xkM+h dh fMXxh esa Mkydj iznhi dks NksM+dj jokuk gks x;s djhc 1½ ?k.Vs ckn xkM+h #dh eq>s fMXxh ls ckgj fudkyk eSaus lkQk ds fups ls ns[kk rks xkM+h bf.Mxks lQsn dyj dh Fkh rFkk <k.kh esa djhc ,d ?k.Vs rd #ds eq>s dgk fd :i;s eaxk ys eSaus euk fd;k rks lHkh us eq>s mBkdj fMXxh esa Mky fn;k rFkk jokuk gks x;s lqcg vkB cts nqljs fnu xUus ds [ksrksa esa ys tkdj Mky fn;k rFkk fru vkneh j[kokyh djus ds fy;s gfFk;kj ysdj [kM+s gks x;s eqag esa ls diM+k fudky fn;k FkksM+h nsj esa okil nksuksa vkneh vk x;s eq>s dgk fd vHkh rsjs ?kjokyksa ls ikap djksM+ :i;s eaxok ns ugha rks tku ls ekjsx a s eSaus euk (5 of 23) [CRLA-742/2013] fd;k rks dgk fd ?kjokyksa ds uEcj crk eSaus euk dj fn;k rks lHkh eq>s ixFkyh ij] iSjksa ij o dqYgs ij vkSa/kk iVd dj ekjihV djus yxs fQj esjh ,d lksus dh vaxqBh ftl ij Qwy dk fu'kku gSA tsc ls cVqvk ftlesa ernkrk igpku i= nqdku dh pkch o ikap gtkj :i;s fNu fy;s rFkk dgk fd vHkh ikap djksM+ eaxok ns ugha rks rqEgkjs cPpksa dks mBkdj yk;sx a sA jktohj ds vykok ekjihV djus okykssa esa pkj vU; O;fDr vkil esa uke lat;] d`".k mQZ dUkS;k jktq o ujsUnz o ljiap ys jgs Fks rFkk gfj;k.kk o ;w-ih- dh Hkk"kk cksy jgs FksA eq>s ckj&ckj txg Hkh cnyrs jgrs FksA frljs fnu eq>s fQj xkM+h esa cSBkdj 2 - 2 ½ ?k.Vs pydj ,d dejs esa ys x;s rFkk dejs esa Nr ls ,d jLlh yVdh gqbZ Fkh ftldks fn[kkdj Qkalh yVdkus dh /kedh nh o dgk fd vfUre ckj dg jgs gSaA vius ?kj ij Qksu djds ikap djksM+ #i;s eaxok ys ugha rks tku ls ekjsx a s eSaus dgk fd ekj nks eSajs ikl #i;s ugha gSA fQj vUnj ls rkyk cUn dj fn;k fru tus gfFk;kj okys ogha ij jg x;s o 2 vkneh pys x;s vkt lqcg lkr cts nksuksa vkneh okil vk;s rFkk esjs ikl okys vkneh;ksa dks f/kjs ls dgk fd iqfyl dks irk yx x;k gSA bldks NksM+uk iM+x s k fQj eq>s xkM+h esa Mkydj lHkh tus jokuk gks x;s djhc nks cts esjB ds ikl gkbZos ij esjh tsc esa esjk eksckbZy cSVjh o ,d lhe o 500 #i;s Mky fn;s rFkk lkQk vka[kksa ij ca/kk gqvk gh /kDdk ns fn;k rFkk dgk fd iqfyl dks crk;k rks Bhd ugha jgsxk rFkk LihM+ ls xkM+h ?kqekbZ eSaus lkQk mrkjdj ns[kk rks ogh lQsn bfUMxks xkM+h Fkh rFkk mu ikapksa dks eSaus vPNh rjg ns[kk Fkk ftldks ns[kdj eSa igpku ldrk gw¡A fQj eSaus esjB cl vM~Mk igqapdj u;h pEiy [kjhn dj iguh esjs pEiy o p'ek xkM+h bfUMxks esa gh fxj x;s Fks esjB cl vM`Ms ij fnYyh dh cl essa cSBdj eksckbZy esa fle o cSVjh Mkydj esjs lkys jktq dks fnYyh igqapus dh lwpuk nh ftl ij jktw] (6 of 23) [CRLA-742/2013] vt; pkpku o iqfyl xkM+h ysdj fnYyh igqaps ftuds lkFk eSa Hkknjk vk;k gwa fjiksVZ is'k djrk gwa fd dkuwuh dk;Zokgh dh tkdj eq>s U;k;k fnyk;k tkosA** Upon the aforesaid written report, after registration of FIR No.392 dated 11.07.2011 at Police Station Bhadra District Hanumangarh under Sections 364A, 394 and 120B IPC, the investigation was commenced by the police. During investigation, the accused appellant Pradeep was arrested vide arrest memo (Ex.P/26) on 12.07.2011 at Bhadra. The accused appellant Sanjay was arrested vide arrest memo (Ex.P/27) on 12.07.2011 at 5:00 pm. Both these appellants were arrested in presence of two police officials i.e., Rajesh Singh, FC (No.273), Police Station Bhirani, and Ramesh Kumar, FC (No.358) Police Station Bhirani. Other two accused appellants Rajveer @ Raju was arrested on 01.08.2011 at about 7:15 pm at Azad Nagar, Hissar in front of witness Constable Sahiram (No.344) of Police Station Bhadra.
The accused appellant Krishan Kumar was arrested on 13.08.2011 at about 2:15 pm at Surajgarh District Jhunjhunu vide Ex.P/12. The accused appellant Sanjay, Rajveer @ Raju and Krishan Kumar were arrested but their identity was not disclosed to anyone (7 of 23) [CRLA-742/2013] for the purpose of identification by the complainant.
In the investigation, an identification parade was conducted on 27.09.2011 for the purpose of identification of the accused appellant in the Sub Jail, Bhadra in presence of Tehsildar-cum-Executive Magistrate, Bhadra, in which the complainant Ram Niwas (PW-6) identified all the three accused appellants.
The site plan (Ex.P/2) from where the complainant was forcibly kidnapped, was prepared on 12.07.2011 by the SHO Police Station Bhirani in presence of two witnesses Suresh Kumar and Aditya Kumar. After completion of investigation, the investigating officer filed charge sheet against the accused appellants in the Court of Addl. Chief Judicial Magistrate, Bhadra for offences under Sections 364A, 394 and 120B IPC from where the case was committed to the Court of Addl. District & Sessions Judge, Bhadra for trial.
The learned trial court after providing an opportunity of hearing to the accused-appellants framed charge under Sections 364A, 394 and 120B IPC against the accused appellants Rajveer @ Raju (8 of 23) [CRLA-742/2013] Krishan Kumar and Sanjay whereas charge for offences under Sections 364A/120B IPC and 394/120B IPC was framed against the accused appellant Pradeep but all the accused denied the charges levelled against them and prayed for trial.
In the trial, oral statements of 19 witnesses were recorded and 13 documents were exhibited from prosecution side. The learned trial court after recording evidence of prosecution proceeded to record statement of accused appellants under Section 313 Cr.P.C in which the accused-appellants denied all the allegations made by the prosecution and prayed that they have been falsely implicated in the case on the basis of false and concocted story framed by the complainant Ram Niwas and did not produce any evidence in defence.
After recording evidence, the learned trial court finally heard the arguments of the case and passed the judgment dated 25.07.2013 in Sessions Case No.31/2011 whereby the accused appellants were convicted for offences under Sections 364A, 394 and 120B IPC.
(9 of 23) [CRLA-742/2013] In both the appeals, the appellants are challenging the validity and legality of the judgment and sentence passed against them by the learned trial court. Learned counsel for the appellants submitted that the judgment impugned is totally illegal, improper and against the basic principle of law because the story which is narrated by the complainant Ram Niwas is far from the truth more so based upon a concocted facts.
The learned counsel for the appellants argued that there is no friendship, enmity or relationship with the complainant and the accused appellants. It is best known to the complainant why he has falsely implicated all the accused appellants in this false case without any evidence because there is no eye-witness of the incident. The whole case is based upon the testimony of the complainant Ram Niwas, which is evident from the fact that the identification parade was conducted after a delay of two months which is sufficient to hold that prosecution story is totally false.
Learned counsel for the appellants while inviting our attention towards written complaint (Ex.P/8) filed by the complainant Ram Niwas submits that, no offence under Sections 364A, 394 & 120B IPC is made (10 of 23) [CRLA-742/2013] out because ingredients of the alleged offences are completely missing, therefore, the findings arrived at by the learned trial court for conviction deserves to be quashed and set aside.
Learned counsel for the appellants submits that in the statement of all the prosecution witnesses, there are material contradictions, improvements and omissions, therefore, no reliance can be placed on such type of evidence which is contrary to each other. It is also argued that no specific role is assigned to the accused Krishan Kumar. As per facts Ram Niwas who was alleged to be kidnapped for ransom himself appeared before the police and gave detail report about the incident. Upon perusal of story narrated by him, it is apparent that all allegations are false because it is beyond imagination that if a person is kidnapped for ransom of Rs. Five crores can be released by kidnapper while giving mobile sim, battery and five hundred rupees to go home, therefore, the judgment impugned deserves to be quashed because no conviction can be based upon such type of story which is far from the truth.
Per contra, learned Public Prosecutor submits that although there is no eyewitness in this case but (11 of 23) [CRLA-742/2013] the complainant Ram Niwas himself stated in FIR that he was forcibly kidnapped by the accused appellants for the purpose of ransom, therefore, it cannot be said the appellants are falsely implicated in this case on the basis of concocted story framed by the complainant.
As per the complainant, he was forcibly kidnapped by the accused appellants for ransom and threat was given to him to manage five crores rupees for his release but he refused to accept their demand, therefore, they forcibly taken his mobile, sim and rupees five thousand but later on due to fear, release the complainant near Merrut highway of the State of U.P. while putting mobile, battery, one sim alongwith 500/- rupees in his pocket and gave threatening that if you will give any information to the Police then you will face the consequences. The complainant specifically stated before the Court that during the period when he was in the custody of accused appellants they put turban upon his eyes and assaulted him but after removing turban, I saw that the vehicle in which he was forcibly kidnapped by the appellants was white indigo car. Further, it is stated that he can identify the accused. It is also submitted (12 of 23) [CRLA-742/2013] by the complainant that after release, he went to bus stand at Merrut and gave information on mobile phone to his brother-in-law Raju and asked him to reach Delhi. Upon aforesaid information received from the complainant Ram Niwas (PW-6), Raju Ajay Chahan and Police immediately reached Delhi. Thereafter the complainant came back to Bhadra. All these facts narrated by the complainant loudly speaks that he was deliberately and intentionally kidnapped for ransom of rupees five crores but later on when the complainant refused to satisfy their demand, under fear of police, the appellants left the complainant on the highway near Merrrut. Except accused appellant Pradeep, all the three accused appellants were identified by the complainant Ram Niwas in sub jail before Tehsildar, therefore, there is no error in the judgment rendered by the learned trial court whereby appellant were conviction of alleged offence under Section 364-A, 394 and 120-B IPC.
After hearing learned public prosecutor and counsel for the appellants, we have perused the entire evidence. First of all, it is required to be observed that in this case there is no eye witness. The entire prosecution case is based upon the testimony of the (13 of 23) [CRLA-742/2013] complainant Ram Niwas stated by him in writing to the Police Station Bhadra vide Ex.P/8. Before registration of FIR, a missing report was registered at PS Bhadra upon information given by one Suresh Kumar S/o Shri Lichi Ram, brother of complainant Ram Niwas on 08.07.2011 but later on the complainant himself appeared Police Station on 11.07.2011 and filed written complaint in which above allegations were levelled against the appellants that they forcibly kidnapped the complainant for the purpose of ransom of five crore rupees. It is very strange that neither the Police recovered the complainant nor any ransom was paid for his release and as per the complainant himself, the accused appellant Pradeep made a phone call upon his mobile No. 9785917175 and called him to meet at his residence, due to some urgent work. The complainant replied that after taking meal, I will come there but it is very strange that no investigation was made by the Investigating Officer with regard to phone call so also no evidence is produced in the trial to prove the fact that any communication was arrived in between the accused appellant and the complainant on telephone. As per basic principle of law, if the specific allegations (14 of 23) [CRLA-742/2013] are levelled that conversation was made on mobile in between the parties or at telephone, then it was the duty of the prosecution to collect evidence from the concerned to ascertain the correctness of the fact. Here in this case, no evidence of mobile details is produced by the prosecution so as to prove the conversation in between the accused appellants with the complainant, therefore, finding of the trial court which is based solely on the testimony of the complainant cannot be treated to be proved without any independent evidence.
We have perused specific allegation made by the complainant with regard to threat and to release him when ransom was not paid, in the fear of the police by the appellants. The complainant specifically stated in his statement that :- "vkt lqcg lkr cts nksuksa vkneh okil vk;s rFkk esjs ikl okys vkneh;ksa dks f/kjs ls dgk fd iqfyl dks irk yx x;k gSA bldks NksM+uk iM+x s k fQj eq>s xkM+h esa Mkydj lHkh tus jokuk gks x;s djhc nks cts esjB ds ikl gkbZos ij esjh tsc esa esjk eksckbZy cSVjh o ,d lhe o 500 #i;s Mky fn;s rFkk lkQk vka[kksa ij ca/kk gqvk gh /kDdk ns fn;k rFkk dgk fd iqfyl dks crk;k rks Bhd ugha jgsxk rFkk LihM+ ls xkM+h ?kqekbZ eSaus lkQk mrkjdj ns[kk rks ogh lQsn bfUMxks xkM+h Fkh rFkk mu ikapksa dks eSaus vPNh rjg (15 of 23) [CRLA-742/2013] ns[kk Fkk ftldks ns[kdj eSa igpku ldrk gw¡A** In our opinion, if five persons intentionally kidnapped the complainant for ransom of five crores rupees then how it is possible to accept the contention of the complainant that he was released after putting Rs.500/-, Mobile, battery, sim in his pocket to go back to home in the fear of police.
In our opinion, the entire story as stated by the complainant in his complaint is not supported by any corroborative evidence. It is true that identification parade was conducted in sub jail Bhadra before Tehsildar cum Executive Magistrate, Bhadra but this Court cannot lose site of the fact that accused appellant Rajveer was arrested on 01.07.2011. The accused Krishan Kumar was arrested on 13.08.2011 and accused Sanjay was arrested on 12.07.2011 but identification parade was conducted in the jail on 27.09.2011 after a long delay and there is no evidence about any investigation made with regard to mobile or call details.
In the cross examination, PW-1 Manish Kumar, owner of the Mahesh Electronics Company, from where the accused appellant Rajveer purchased the (16 of 23) [CRLA-742/2013] sim turned hostile and did not support the case of the prosecution.
PW-2 Aditya Kumar Sharma and PW-3 Suresh Kumar are the witnesses before whom site plan was prepared.
PW-4 Moti Lal is the witness of recovery of voter ID Card of the complainant Ram Niwas at the instance of accused appellant Sanjay Kumar. The said witness further stated that as per the information given by accused appellant Rajveer @ Raju one ring was recovered in front of him from the house of Rajveer situated in Azad Nagar, Bhadra and recovery memo Ex.P/5 was prepared by the SHO. Upon information given by the accused appellant Krishan Kumar, one sim and leather purse was recovered by the SHO and memo Ex.P/7 was prepared. Meaning thereby, PW Moti Lal is the witness before whom the articles which were said to be forcibly taken by the appellants were recovered. In the cross examination, PW-4 Moti Lal did not identify the accused appellant Sanjay. With regard to recovery from Rajveer, it is stated in the cross examination that I do not remember whether any recovery was made from Rajveer or not. Upon assessing the statement of this witness, we are of the (17 of 23) [CRLA-742/2013] opinion that it is not safe to accept the testimony of this witness for the purpose of recovery of these articles which are said to be forcibly taken by the appellants from the complainant Ram Niwas.
PW-5 Gopal Krishan is the witness before whom Rs.9500/- were given by the complainant Ram Niwas to the Driver but there is no allegation of him against the accused appellants.
PW-6 Ram Niwas, complainant has reiterated the allegations made by him in the complaint. In cross examination, he made allegation that he was kidnapped for ransom of five crore rupees but later on, he was released in the fear of police by the appellants.
PW 8 Balkaran is the witness to whom Rs.9500/- were given in the evening of 07.07.2011. The said witness categorically stated before the Court that I had a talk with Ram Niwas on 15th & 16th July and that I do not know whether he narrated the names of the accused appellants or not.
PW-8 Rajesh Kumar stated before the Court that on 11.07.2011, a phone call was received by him from complainant Ram Niwas who has informed him that he (18 of 23) [CRLA-742/2013] is sitting in the bus coming from merrut to Delhi. No other fact was disclosed by him on telephone. But when he reached Delhi, at that time, the complainant Ram Niwas informed us that five persons kidnapped me and after beating released me in State of U.P. in the field of sugarcane.
PW-9 Sahiram FC of Police Station Bhadra is the witness before whom recovery of ID card was made.
PW--10 Jaswant Kumar turned hostile and did not support the prosecution case.
PW-11 Manohar Lal Swami was working as Tehsildar, stated before the Court that identification parade was conducted in front of him in the sub jail Bhadra. In his cross examination a specific question was put to him whether any letter was given to him for identification parade. He replied that I do not have any letter or order of the Court for the purpose of identification parade but I conducted identification parade upon the request made by the Investigating Officer of Police Station Bhadra.
PW-12 Dharam Pal Singh is the witness before whom the written complaint (Ex. P-8) was submitted by the complainant.
(19 of 23) [CRLA-742/2013] PW-13 Dinesh Rajora is the Police Inspector who was working as SHO at PS Bhadra. The said witness has given statement with regard to the investigation conducted by him.
PW-14 Ajay Chachan is the witness who went to Delhi upon receiving information from the complainant Ram Niwas on 11.07.2011. The said witness categorically stated before the Court that accused appellant Pradeep called complainant Ram Niwas in his room thereafter his brother in law Rajveer and four five others persons kidnapped him and demanded five crore rupees as ransom.
PW-15 Dr. Jaswant who gave medical report after examination of complainant Ram Niwas stated that on 11.07.2011 while working as Medical Officer, upon requisition made by Police Station Bhadra, the complainant Ram Niwas was medically examined by him. During medical examination, three simple bruises were found upon his body.
PW-16 Fateh Singh who was working as ASI on 08.07.2011 is the witness before whom the missing report (Ex.P-21) was submitted. The said witness stated that I went to Delhi alongwith Raj and Ajay (20 of 23) [CRLA-742/2013] Chachan to take complainant Ram Niwas upon his phone call.
PW-17 Balwant Ram was the incharge of the Malkhana of Police Station Bhadra.
PW-18 Indra Kumar was working as SHO of Police Station Bhirani on 12.07.2011. The said witness recorded the statement of Manish Kumar, Ram Niwas, and Gopal Krishan and further arrested the accused appellants Pradeep and Sanjay and prepared arrest warrant (Ex.P/26 & Ex.P/27) and conducted the investigation of the case.
PW-19 Rajendra Kumar arrested the accused appellant Krishan Vide Ex.P/28 and whereby information was given for the recovery of mobile by the accused appellant Krishan Kumar and in pursuance of that recovery was made vide Ex.P/7.
Upon consideration of entire evidence in the light of allegation made by the complainant himself, we are unable to accept the story narrated by the complainant that he was kidnapped for ransom of five crores rupees and after three days, he was released without any ransom by the accused appellants. The entire evidence on record loudly speaks that there is (21 of 23) [CRLA-742/2013] no corroboration by the independent witness of the allegations made by the complainant that he was kidnapped for ransom of five crore rupees because he himself stated right from beginning that he was released by the accused appellants while putting five hundred rupees, sim, battery, mobile in his pocket at Merrut.
It is settled law that allegation of complainant with regard to incident requires corroboration and in absence of any corroboration, no conviction can be based. Here in this case, first of all, missing report was submitted by Suresh Kumar, brother of complainant Ram Niwas. Thereafter, after three days, Ram Niwas himself appeared before the Police Station and submitted a written complaint. Meaning thereby, the day on which FIR was registered, the complainant was not in detention and narrated a story of kidnapping for ransom. Upon perusal of the hand written report (Ex.P/8) submitted by complainant Ram Niwas (PW-6) it reveals that number of facts were to be established by the prosecution by leading trustworthy evidence, but none of the witness produced before the court to prove the allegation made by the complainant, so also, the very relevant (22 of 23) [CRLA-742/2013] evidence, which is call details of the mobile and ownership of the mobile not established by the prosecution, but the learned trial court convicted the accused appellant without reliable evidence of corroboration. Under these circumstances, we find it difficult to accept the prosecution case as correct, true and sufficient for ordering conviction. In our opinion, if we confirm the conviction without corroboration, it may lead to erroneous confirmation and the consequence of an erroneous conviction is serious for accused person and the society at large.
In our opinion, the entire prosecution story is doubtful and beyond imagination because if five persons having any common intention to kidnap a person for ransom of five crore rupees, will not release a person in a very casual manner, as narrated by the complainant. The prosecution is hiding the correct story. The investigating officer has failed to collect the details of mobile calls of the complainant as well as of the accused appellants. In absence of any evidence, with regard to details of mobile call, we are of the opinion that finding of the learned trial court suffers from patent illegality because whole prosecution story does not acquire confidence so as to hold accused (23 of 23) [CRLA-742/2013] appellants guilty.
Consequently, while giving benefit of doubt to the accused appellants, the both the criminal appeals are hereby allowed and the accused appellants are hereby acquitted from the charges levelled against them and the judgment dated 25.07.2013 passed by learned Addl. Sessions Judge, Bhadra District Hanumangarh in Sessions Case No.31/2011 is hereby quashed and set aside. The accused appellants may be released forthwith, if not required in any other case.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellants are directed to forthwith furnish personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
(DINESH MEHTA)J. (GOPAL KRISHAN VYAS)J. sudhir