Prempal And 2 Others vs State Of U.P. on 3 August, 2022

[Cites 13, Cited by 1]

Allahabad High Court

Prempal And 2 Others vs State Of U.P. on 3 August, 2022

1. This appeal is against the judgment and order dated 04.03.2016 passed by the Special Judge (Dacoity Affected Areas)/Additional Sessions Judge, Court No.3, Farrukhabad in S.S.T. No.37 of 2015 (arising out of case crime no.553 of 2014, P.S. Kayamganj, district Farrukhabad) connected with (i) S.T. No.135 of 2015 (arising out of Case Crime No.562 of 2014, P.S. Kayamganj, district Farrukhabad); (ii) S.T. 136 of 2015 (arising out of Case Crime No.563 of 2014, P.S. Kayamganj, district Farrukhabad); and (iii) S.T. No.137 of 2015 (arising out of Case Crime No.565 of 2014, P.S. Kayamganj, district Farrukhabad), whereby the appellants Prem Pal, Sipahi Lal and Omveer have been convicted under Sections 364-A/120-B and 368 IPC in connection with Case Crime No.553 of 2015 (supra) and, in addition to above, Prem Pal and Omveer have also been convicted under Section 25 of the Arms Act in connection with Case Crime Nos.563 of 2014 and 565 of 2014 (supra), respectively. Sipahi Lal, Prem Pal and Omveer have been sentenced as follows:- Imprisonment for life as well as fine of Rs.20,000/- to each of the three, coupled with a default sentence of two years, under Section 364-A read with Section 120-B IPC; and 7 years R.I. as well as fine of Rs.10,000/- to each of the three, coupled with a sentence of two years, under Section 368 IPC. Whereas, Prem Pal and Omveer have also been sentenced to imprisonment of three years R.I. as well as fine of Rs.5,000/-, coupled with a sentence of two years each, under Section 25 of the Arms Act. All sentences to run concurrently. As all these appellants were in jail during the course of trial, it was observed that the time spent in jail by the appellants shall be counted/adjusted against the sentence awarded.

2. In S.S.T. No.37 of 2015, seven persons, namely, Sipahi Lal (appellant no.2), Prem Pal (appellant no.1), Omveer (appellant no.3), Ramu alias Raju, Ram Kishore, Smt. Malti and Smt. Santoshi were tried in connection with Case Crime No.553 of 2014 (supra). Out of those seven persons, four, namely, Ramu alias Raju, Ram Kishore, Smt. Malti and Smt. Santoshi, were acquitted. Whereas, in S.T. No.135 of 2014, arising out of Case Crime No.562 of 2014 (supra), four persons, namely, Prem Pal (appellant no.1), Ram Kishore, Ramu alias Raju and Omveer (appellant no.3) were tried. All four were acquitted. This appeal, therefore, is confined to the judgment and order of conviction of the appellants to the extent indicated above in S.T. No.37 of 2015, arising out of Case Crime No.553 of 2014 (supra); S.T. No.136 of 2015, arising out of Case Crime No.563 of 2014 (supra); and S.T. No.137 of 2015, arising out of Case Crime No.565 of 2014( supra).

INTRODUCTORY FACTS

3. On 12.12.2014, at 12.30 hours, Chheda Khan (PW-1) submitted a written missing report (Ex. Ka-1) alleging that in the night of 11/12.12.2014 his son Salman and Kunwarpal son of Siyaram, at about 2 am, had gone to village Amaliya Mukeri on their tractor but they did not return. (Note: Kunwarpal is real brother of Prempal- appellant no.1). A GD entry of the missing report was made vide Report No.27 (Ex. Ka-2), at P.S. Kayamganj, district Farrukhabad. On 15.12.2014 information was given by PW-1 that his son (Salman) and Kunwarpal appear to have been abducted. Consequently, vide GD Entry No.45, at 17.45 hours, the missing report was converted into Case Crime No.553 of 2014 under Section 364 IPC. On 16.12.2014, investigating officer (I.O.) Meghnath Singh - PW-6 recorded the statement of Chheda Khan (PW-1) and on his instructions prepared a site plan (Ex. Ka-6) of the place from where the two missing persons were allegedly abducted. The I.O. also recorded the statement of Rajeev (not examined) and Subhash Chandra (not examined) and went to village Amaliya Mukeri where he recorded statement of Master Janmajay Singh (not examined) and his son Dhananjay Singh (not examined) and also enquired from Prempal (the appellant no.1) and obtained his phone number. On 21.12.2014, the I.O. with his fellow Sub-Inspector, Ravindra Kumar (not examined) and Constables Awadhesh Kumar (not examined), Sunil Kumar (not examined) and Shadab (not examined) left the police station in a private vehicle with government issued weapons to investigate the case in respect whereof entry was made in the general diary vide Report No.20, at 10.35 hours (morning). When the police party reached industrial area Papri, they met Chheda Khan (PW-1) and Rajesh Kumar son of Agya Ram (not examined). These two witnesses informed the police party that they have been required to arrange for ransom amount of twenty lacs (ten lacs each for release of Salman and Kunwarpal). They also informed the police party that they suspect Prempal (appellant no.1) and his family members of cheating them. Apart from that they also informed the police party that they are poor persons and are not in a position to arrange the ransom money. On getting this information, PW-6 (I.O.) contacted Brijesh Kumar Yadav (PW-7) i.e. incharge SWAT. The SWAT team headed by PW-7 arrived and a plan was hatched to trap/arrest the abductors. As per the plan, two wads of plain papers, with currency notes of Rs.1,000/- denomination at the top and at the bottom, were prepared so as to pass off as two bundles of notes of Rs.1 lac each. After preparing these wads of notes they were handed over to Chheda Khan (PW-1) and Rajesh Kumar to proceed to the designated spot to trap the abductors. According to the prosecution case, the police team along with SWAT lied in ambush awaiting arrival of ransom money collector; after 10-15 minutes, a person arrived there, took the two wads of notes from Chheda Khan (PW-1) and started to count them; on being satisfied that that person had arrived to collect the ransom money, the team, lying in ambush, emerged and arrested that man with two wads of notes; on interrogation, that person disclosed his name as Sipahi Lal (appellant no.2); on further probe, it was found that Samsung mobile instrument IMEI No.356126054535450 used by Salman for no.9616681877, which was on surveillance, had been used by Sipahi Lal's No.8853359413 and from that number, on 15.12.2014, call of 174 seconds was made on No.9026053760 at 18:27:59. When Sipahi Lal was interrogated in respect of No.9026053760, he informed that Prempal has used this number to call him (Sipahi Lal). The team thought that as Salman's mobile had been missing since the date of his abduction, the abduction must have been planned by Prempal and, therefore, he got his brother Kunwarwal abducted to mask the entire operation. On further interrogation, Sipahi Lal told the police team that Prempal had planned the abduction of Salman along with his brother Kunwarpal, Ram Kishore, Ram Kishore's wife Santoshi and his mother Malti along with Raju and Omveer because Salman's father (Chheda Khan) had sold his land for Rs.22,00,000/- and therefore, they thought, he would be having enough money. Sipahi Lal confessed that he had to pay off his tractor's instalments therefore, he also participated in the plan. As a part of that plan, in the night of 11/12.12.2014, Kunwarpal drove the tractor to Salman's house to fetch him from his house thereafter he was abducted and kept blind folded. According to prosecution case, after getting information from Sipahi Lal that Salman, in furtherance of that plan, is being detained in the sugarcane field of Prempal, the police team including SWAT team proceeded to the spot on separate vehicles along with PW-1 and Rajesh Kumar (not examined). There, in a police action, after facing resistance in the shape of firing at the police party, the police team with the help of SWAT team apprehended Prempal (appellant no.1), Jitendra (who was later found juvenile and his trial was separated), Omveer (appellant no.3) and Kunwarpal (who was later found juvenile and his trial was separated). Whereas, three persons, namely, Raju (acquitted by the trial court), Ram Kishore (acquitted by the trial court) and Sarjeet (found juvenile) were successful in escaping from the spot. The arrested accused led the team to the spot where Salman was detained. The spot was in the shape of a ditch, about 10 feet deep, and was covered with leaves etc. When leaves etc were removed, Salman son of Chheda Khan was found tied in a chain. In connection with this entire operation six memorandums were prepared on 21.12.2014 namely, Ex. Ka-7 to Ex. Ka-12. These memorandums reflected seizure of various articles from the spot such as chain, mattress, notes, etc including (a) country made pistols/ cartridge from Prem Pal (appellant no.1), Jitendra and Omveer (appellant no.3); (b) Samsung mobile, alleged to be of Salman, from Jitendra; and (c) a ransom letter, making a demand of Rs.10,00,000/- for release of Salman and Kunwarpal, from Omveer (appellant no.3).

4. On the basis of the aforesaid police action and recoveries, on 21.12.2014, at 19.30 pm, four separate cases were registered at P.S. Kayamganj, namely, Case Crime No.562 of 2014 under Section 307 IPC; Case Crime No.563 of 2014 under Section 25/27 of the Arms Act; Case Crime No.564 of 2014 under Section 25/27 of the Arms Act; and Case Crime No.565 of 2014 under Section 25/27 of the Arms Act. GD entry with regard to the registration of Case Crime Nos.562 of 2014 to 565 of 2014 was made by constable Prakash Narayan Pushkar (PW-5), vide report No.34, at 19.30 hours (Ex. Ka-5) of which Chik FIR was also prepared by him (Ex. Ka-4).

5. At this stage, it be clarified that though, as per the chik FIR (Ex. Ka-4), Case Crime Nos.562 of 2014 to 565 of 2014 were registered against seven persons in total, namely, Prempal, Jitendra, Omveer, Ram Kishore, Raju, Sarjeet and Kunwarpal but since co-accused Jitendra, Sarjeet and Kunwarpal were found juvenile their cases were separated.

6. After investigation, the investigating officer submitted charge sheets in the following manner:-

(i) In respect of Case Crime No.553 of 2014, the investigating officer submitted two charge sheets: (a) charge sheet dated 22.01.2015 (Ex. Ka-17) against Sipahi Lal (appellant no.2), Prempal (appellant no.1), Omveer (appellant no.3), Ramu, Ram Kishore, Malti, Jitendra, Kunwarpal and Sarjeet; and (b) charge sheet dated 30.05.2015 (Ex. Ka-18) against Smt. Santoshi. Both charge sheets were submitted under Section 364-A/368/120-B IPC Note:- In Case Crime No.553 of 2014, on the basis of said two charge sheets, Special Sessions Trial No.37 of 2015 was instituted in which only Sipahi Lal (appellant no.2); Prempal (appellant no.1); and Omveer (appellant no.3) have been convicted whereas, Ramu @ Raju, Ram Kishore, Smt. Malti and Smt. Santoshi were acquitted. In so far as the accused Jitendra, Kunwarpal and Sarjeet are concerned, they being juvenile, the inquiry against them was separated.

(ii) In respect of Case Crime No.562 of 2014 charge sheet dated 22.01.2015 (Ex. Ka-21) was submitted against Prempal (appellant no.1), Ram Kishore, Ramu alias Raju and Omveer (appellant no.3) giving rise to S.T. No.135 of 2015, under Sections 147, 148,149, 307 IPC.

Note:- Kunwarpal, Jitendra and Sarjeet, who were also implicated in this case, upon being found juvenile were deleted from the charge sheet and their matter was referred to the Juvenile Justice Board for enquiry. It be noted that in this case all the accused persons have been acquitted by the trial court. And there is no appeal against the order of acquittal.

(iii) In respect of Case Crime No.563 of 2014, charge sheet dated 22.01.2015 (Ex. Ka-24) was submitted against Prempal (appellant no.1), under Section 25/27 of the Arms Act, giving rise to S.T. No.136 of 2015.

Note:- In this case Prempal (appellant no.1) has been convicted under Section 25 of the Arms Act.

(iv) In respect of Case Crime No.565 of 2014, charge sheet dated 22.11.2015 (Ex. Ka-27) was submitted against Omveer (appellant no.3), under Section 25/27 of the Arms Act, giving rise to S.T. No.137 of 2015.

Note:- In this case Omveer (appellant no.3) has been convicted under Section 25 of the Act by the order of the trial court.

7. On the basis of the material placed in the police reports/ charge sheets, the trial court famed charges accordingly. On denial of the charges and claim for trial by the accused, trial commenced. By order of the trial court dated 15.12.2015, the aforesaid four sessions trial were consolidated. S.T. No.37 of 2015 was made the leading sessions trial in which the evidence was laid by the prosecution.

PROSECUTION EVIDENCE

8. The prosecution in support of its case apart from the documentary evidence which we shall refer to at the appropriate stage, examined 10 witnesses. Their testimony, in brief, is as follows:-

9. PW-1- Chheda Khan - the informant of Case Crime No.553 of 2014 - father of abductee Salman. PW-1 stated that he and his son Salman worked as labourers to earn their livelihood; that accused Kunwarpal and Prempal are real brothers, they used to visit PW-1's village in connection with transportation of sand/mud on their tractor trolley. In respect of the incident, PW-1 stated that it was winter night; Prempal and Kunwarpal contacted his son (Salman) and told him that sand has to be unloaded at a particular place; that in connection therewith, Prempal and Kunwarpal came and took his son to unload sand at village Amaliya Mukeri. His son (Salman) did not return that night. Despite hectic search, when his son could not be found, PW-1 gave a missing report (Ex. Ka-1). Fifth day thereafter, Prempal contacted PW-1 to inform PW-1 that his son has been abducted and if Rs.10,00,000/- is paid, his son would be released. On getting this information, PW-1 told Prempal that he does not have the money. After stating as above, PW-1 reverted to the date when his son did not return that night. He stated that when his son did not return that night, he visited village Amaliya Mukeri. There, he noticed the tractor trolley, which was owned by Kunwarpal, standing in the field of Raghunandan; that day, he searched for his son at village Amaliya Mukeri and also visited the house of Janmejay Singh Master from where he learnt that Salman after unloading the sand/mud had left at about 2 am in the night. PW-1 stated that thereafter, he went to Pradhan Narendra Singh who confirmed the information given by Janmejay. There, he also met Prempal (appellant no.1), brother of Kunwarpal, who joined PW-1 in his search for the two missing persons. Only when PW-1 failed in his endeavour, written report was submitted.

In respect of the police action leading to recovery of the abductee, PW-1 stated that 9 days after the incident, while he was with co-villager Rajesh (not examined), he met the police at village Papri industrial area. He informed the police that for release of his son and Kunwarpal a demand of Rs.10,00,000/- each has been raised. On that information, the police team prepared two wads of notes. Each wad had 98 plain cut papers and two notes of Rs. 1000/- denomination, one on the top and the other at the bottom of the wad. The police personnel thereafter parked their vehicles to lie in ambush. After some time, Sipahi Lal came from Mangaliyapur to collect the ransom money. The police arrested him. On his arrest, he told the police that since PW-1 had sold his land for Rs.22,00,000/-, to extract the money, Salman was abducted. Sipahi Lal told the police team that he can get Salman recovered. PW-1 stated that the police team took Sipahi Lal with them in the vehicle along with the cash. Sipahi Lal led the team to the spot and pointed towards the field of Prempal. The police surrounded the place. There was exchange of gunshots. Six persons were arrested. Immediately thereafter, he clarified that only four persons were arrested. Rest three had escaped from the spot. The persons arrested were Prempal, Jitendra, Omveer and Kunwarpal. PW-1 stated that he knew all four of them from before. Those arrested informed that three persons who escaped were Raju, Ram Kishore and Sarjeet. PW-1 stated that from the arrested accused, country made pistol, etc was recovered and from the pocket of the trouser worn by Omveer, a parcha (i.e. ransom letter) was recovered in which the ransom demand of Rs.10,00,000/- for release of Salman and Kunwarpal was mentioned. At this stage, PW-1 was shown the memorandum/papers prepared by the police. He identified his signatures thereon and stated that they were all prepared at the spot. PW-1 stated that he had got information to hand over the ransom money at a nursery between village Papri and village Bhagaliyapur and it was at that place where the police had arrested Sipahi Lal. At this stage, the witness was also shown the recovery memo of the ransom letter, the recovery memo of the mobile phone, recovery memo of the wads of notes and recovery memo of clothes etc. The witness identified his signatures present on those recovery memos and stated that they were prepared at the spot. The witness also stated that his son Salman was recovered from a ditch at the spot. The wads of notes that were sealed at the time of recovery were opened before the court. There were two wads of notes each having 98 plain papers with one currency note of rupee 1,000/- at the top and the other of the same denomination at the bottom. The genuine currency notes were marked material Ex.-1 to material Ex.4 and the plain paper placed in those wads of notes were marked as material Ex. 5 to 200. Another sealed bundle containing a black colour samsung mobile was opened which was identified as that of Salman. The same was made material Ex.-201. A third bundle was opened which contained a ransom letter which was marked material Ex.202. Material Ex.-202 read as follows:-

^*lyeku dks vxj NqM+kuk pkgrs gS rks nl yk[k :i;s ysdj iiMh ds [kqnZ ds ikl ysdj vk tkuk dqWojiky ds ?kj okyks dks Hkh crk nsuk nl yk[k :i;s ysdj vk tk;s ugha rks nksuks dks ekj fn;k tk;sxkA iqfyl dks Hkh crkvksxs rks Hkh ekj fn;s tk;saxsA :i;s vkt 12 o 1 cts ds chp igqWpkus gSA 21-12-2014 dks igWqpkus gSA rqEgkjk 'kqHk fpUrd^* The envelops containing the wads of note were also exhibited and were marked material Ex.203 to 205. Another sealed bag (potli) was opened which contained Tirpal (canopy), tiffin box, bottle, rope, chain etc including Angauchha, Tala, quilt and mattress. Those were made material exhibits 206 to 222.

PW-1 stated that Salman was tied with a chain which was locked and was blind folded with cotton plugged in his ears.

During cross examination, PW-1 stated that neither he nor his son Salman owns a tractor; they do not mine sand or have Theka relating thereto. On the date of the incident, Kunwarpal had come to his house to take Salman. He took Salman from the house at 1 am. Salman used to work as a labourer. In respect of his financial condition, PW-1 stated that he did not sell any property; he does not own a bank account; he just has two thousand rupees.

In respect of the time of the operation leading to recovery of Salman, PW-1 stated as follows:-

^*ftl fnu esjk yM+dk cjken gqvk ml fnu iqfyl jkf= esa vkB cts ges feyh FkhA ml jkf= vkB cts eSa yM+ds dks ryk'k esa tk jgk FkkA ml vkB cts rd ges ;g ugha ekyqe Fkk fd esjk yM+dk dgk gSA ftl le; jkf= esa iqfyl vkB cts ges feyh Fkh ml le; esjs lkFk jkts'k FkkA ml fnu rkjh[k chl FkhA yM+ds ds xk;c gksus dh fjiksVZ eSus ckjg rkjh[k dks dh FkhA^* As to when PW-1 was interrogated by the I.O, PW-1 stated as follows:-

^*ckjg rkjh[k dks njksxk th us gels Fkkus esa iwWNrkWN dh FkhA esjk njksxk th us C;ku pkSng] iUnzg] lksyg] l=g o vB~Bkjg rkjh[k dks C;ku fy;s FksA In respect of ransom demand, PW-1 stated as follows:-

^*ges rhu ckj fQjkSrh dh fpV~Bh izseiky us nh FkhA ,d fpV~Bh iUnzg rkjh[k dks 'kke dks nh Fkh nwljh fpV~Bh l=g dh lqcg dks rhljh fpV~Bh mUuhl dks 'kke dks nh FkhA fpV~Bh;ksa esaa fy[kk Fkk ^*lyeku o dqWojiky nksuks dks ?kj okys dkyh unh lfdlk ds ikl cnek'k 'kke dks lkr cts ikWp&ikWp yk[k :i;s djysA ugha nksxs rks tku ls ekj fn;s tk;saxsA^* izseiky ds lkFk ryk'kus vius iq= dks lfdlk dkyh unh ij fd;k x;k FkkA rkjh[k ges ;kn ugha og fpV~Bh;kW geus izseiky dks okil dj nh FkhA After stating as above, PW-1 stated as follows:-

^*eSus njksxk th dks izseiky ds }kjk fpV~Bh nsus okyh ckr crk;h FkhA izseiky ds ikl ls gh rhuks fpV~Bh;kW cjken gq;h FkhA ftl fnu idM+k Fkk mlh fnu iqfyl us fpfV~B;kW yh FkhA izseiky dks fnukad mUuhl dh 'kke dks idM+k FkkA mlh ls fpfV~B;kW o eksckby cjken gq;s FksA Thereafter, in respect of recovery of his son, PW-1 stated as follows:-

^*esjk cPpk chl rkjh[k dks lqcg ikWp cts feyk FkkA tc esjk cPpk feyk Fkk rc jktw ekStwn FkkA jktw o eSa cPps dks [kkstus ds fy;s x;s FksA jktw esjs lkFk FkkA jktw ls iqfyl us iwWNrkWN dh Fkh rFkk C;ku fy;s FksA At this stage, the witness was given a suggestion that his son was never abducted and the entire prosecution story has been developed in collusion with the police. The witness denied those suggestions.

To extract the reason for false implication, when cross examined, PW-1 stated that in his village, Asharam was once elected as Pradhan. At the time of the incident, Asharam's nephew was the Pradhan. He was very influential and had links with politicians and officers. The police personnel often visited his house. On further probe, PW-1 feigned ignorance as to whether Asharam supported Ajeet Kateriya in the last assembly election. He also feigned ignorance as to whether Asharam was a supporter of Samajwadi party. PW-1, however, admitted that Asharam and his son Rajesh Gangwar were very helpful and Rajesh Gangwar is also a witness in this case.

In respect of the conduct of PW-1 when his son went missing, PW-1 stated that he went to search for his son in the morning at 5 am and during search, when he reached Bhaisa Tiraha, he noticed that the tractor was parked in the sugarcane field of Raghunandan Gangwar. He stated that the police had arrived at the spot, near the tractor, at 8 am and they took away the tractor to the police station. The relevant extract of his statement in this regard is as follows:-

^*frjkgs ls VªSDVj iqfyl Fkkus ys x;s Fks gedks Hkh iqfyl Fkkus ys x;s FksA iqfyl VªSDVj ds ikl lqcg vkB cts vk x;h FkhA iqfyl okys ikWp FksA iqfyl okys ljdkjh thi ls vk;s FksA iqfyl dks lwpuk pkSdhnkj us nh FkhA pkSdhnkjh xkWo esa ppkZ gksus ds ckn ekSds ij igqWpk x;k ge jksus /kksus yxs blh nkSjku mlus iqfyl dks Qksu dj fn;kA VªSDVj Fkkus esa izseiky pykdj ys x;k FkkA Fkkus djhc 12 cts igWqp x;s FksA vkB cts ls 12 cts rd iqfyl ekSds ij jgh rFkk b/kj m/kj xUus ds [ksr o ljlks ds [ksr ryk'k djrh jghA^* At this stage, the witness again reiterated that his son was recovered on date 20.12.2014. He stated that at the time of the recovery from the spot a canopy (Tirpal) was recovered. When questioned about the colour and dimensions of the Tirpal recovered, PW-1 stated as follows:-

^*frjiky fdl jax dk Fkk ges ugha ekyqeA frjiky fdruk yEck vkSj fdruk pkSM+k Fkk gesa ugha ekyqeA fVfQu Hkh cjken gqvk Fkk fVfQu LVhy dk FkkA fVfQu rhu fMCcs okyk Fkk fd pkj fMCcs okyk Fkk ges ugha ekyqe [kqn dgk fd fVfQu ij uke fy[kk Fkk vkSj mlds lkFk xn~nk o [kknh 2 yaxksV ,d vaxksNk ,d cksry ikuh dh rFkk vkSj gfFk;kj ckjg cksj 315 cksj dk dV~Vk ok ns'kh cUnwd rFkk esjk yM+dk cjken gq;s FksA^* ^*vaxksNk dk jax gedks ekyqe ugha gSA lwrh diM+s okyk VsjhdkV dk Fkk ekyqe ughaA cksry IykfLVd dh Fkh jax ;kn ugha cksry ,d yhVj dh FkhA xn~ns ds jax dk /;ku ugha xn~ns ij doj p<+k Fkk ges /;ku ugha gSA jtkbZ fdl jax dh Fkh /;ku ugha jtkbZ dk doj p<+k gqvk Fkk o fdl jax dk Fkk /;ku ughaA^* In respect of the place where the memorandums of recovery were prepared, PW-1 stated that the recovery memorandums were prepared at the spot and not at the police station and it took about 4 hours in its preparation. On further questioning as to how much time was spent in preparation of the papers, the witness stated that he does not exactly remember the time but when they had left the spot, the night had set in. He further stated that at that time, with him, Rajesh Gangwar was there. They arrived at their house by about 11 am. When questioned as to how many persons were there when the recovery was made and the place where the wads of notes were arranged, PW-1 stated as follows:-

^*ftl fnu esjs yM+ds dks Fkkus ij cjkenxh gq;h ml fnu xkWo ds chl ckbl yksx x;s FksA uksVks dh xM~Mh eSus vius ?kj ij rS;kj dh Fkh jkts'k Hkh lkFk x;s FksA uksVks dh xfM~M;kW rS;kj djus dh lykg jkts'k us nh FkhA uksVks dh nks xM~Mh cuk;h FkhA xM~Mh ysdj ?kj ls 'kke dks lkr cts pys FksA eksVj lkbZfdy ,d gh Fkh mlh ij ge o jkts'k FksA eksVj lkbZfdy jkts'k dh FkhA uksVksa dh xfM~M;kW ysdj ge yksx iiMh o exfy;kiqj ds chp ckx esa igaqWps FksA^* After narrating as above, on being questioned as to how the trap was laid to recover the victim, PW-1 stated as follows:-

^*ckx esa jkf= ds ukS cts igaqp x;s FksA ml le; vW/ksjh jkr FkhA ?kj ls VkpZ ysdj ugha x;s Fks eksckby Qksu FksA eksckby esjs o jkts'k ds ikl FkkA eksckby ls geus iqfyl dks Qksu djds cqyk;k FkkA iqfyl ds vkus ds ckn geus iqfyl okyksa dks uksVksa dh xfM~M;kW fn[kk;h FkhA iqfyl okys djhc vkB yksx FksA During cross examination, on 20.01.2016, to a question whether Prempal was there when PW-1's son was taken from home, PW-1 stated that Prempal had arrived in the night but was not driving the tractor. He was lying in the tractor. When his son left that night, before leaving he had informed PW-1 that Kunwarpal is waiting outside and is calling him. His son told PW-1 that he is going to Amaliya Mukeri and would return in half an hour. PW-1 stated that he waited till 5 am in the morning and then when his son did not return, he went to search for him.

In respect of how the police was called on the date of the recovery, PW-1 stated that he had called the police on phone and they arrived within 20 minutes.

In respect of the spot where the ransom money had to be paid, PW-1 stated that it was a nursery kind of Bagh (grove) measuring four bigha which had no access to a chakroad.

In respect of the time when the accused arrived for taking the ransom money, PW-1 stated as follows:-

^*ml ckx esa fQjkSrh dh jde ysus ds fy;s cnek'k djhc 10 cts vk;s FksA cnek'k nks Fks ;k rhu Fks vW/ksjs dh otg ls ge ugha ns[k ik;s FksA^* In respect of light condition at the time of operation, PW-1 stated as follows:-

^*ml le; dkQh vW/ksjk Fkk ,d nwljs ds psgjs fn[kk;h ugha nsrs FksA okguksa ds ikl iqfyl okys fy[kk i<+h djrs jgs vkSj eq>s vius ?kj yM+dk cjken gksus dh [kcj nsus ds fy;s Hkst fn;k FkkA eSa tc xkWo igWqpk Fkk rc mtkyk gks x;k FkkA^* After stating as above, PW-1 stated that the I.O. had called him on telephone to come to the police station with 10-20 villagers and at the police station he recognized the accused and his signatures were also obtained on the papers. The statement to that effect is extracted below:-

^*Fkkus ls njksxk th us Qksu fd;k Fkk fd xkWo ds nl chl yksx vk tkvksA eSa Fkkus nks cts nl chl yksxksa dks ysdj igaqp x;k FkkA Fkkus esa igaqpus ij fnu ds mtkys esa eSaus ogkW ekStwn lHkh cnek'kksa ds psgjs ns[ks rFkk mUgsa igpkuk Fkk vkSj ogha ij Fkkus esa gh esjs gLrk{kj djok;s x;s FksA xokg us QnZ cjkenxh fpV~Bh cjkenxh uksVksa dh xM~Mh cjken ,d vaxkSNk o nqiV~Vk vkfn o cjkenxh vi~g`r cjkenxh eksckby lSelu dh QnksZ dks ns[kdj dgk fd ;g gh izi= gS ftu ij iqfyl Fkkus esa esjs gLrk{kj djok;s x;s Fks rFkk jkts'k dqekj dks Hkh gLrk{kj djok;s x;s FksA^* At this stage, to show that there were political reasons for the implication of accused persons, questions were put to PW-1, upon which, PW-1 stated as follows:-

^*eqfYteku yks/kh tkfr ds gSaA ;gkW ds Hkktik lkaln eqds'k jktiwr Hkh yks/kh tkfr ds gSaA ;g lHkh eqfYteku Hkkjrh; turk ikVhZ ds leFkZd gSaA At this stage, PW-1 denied the suggestions: that at Kayamganj one Kallu Yadav, who is a member of Samajwati party, has large scale mining operation and since the accused were also in the same business therefore, they have been falsely implicated by wielding influence; and that there was no abduction or recovery.

10. PW-2- Salman- abductee/victim. PW-2 stated that the incident is of 12.12.2014; to unload sand, Prempal (appellant no.1) had called PW-2; to fetch him from his house, Prempal sent his brother Kunwarpal; whereafter, he went on the tractor of Kunwarpal to village Amaliya Mukeri to drop sand at the house of Janmejay Master; after unloading the sand, on the way return, near the Tiraha, Kunwarpal stopped the tractor; there, one person arrived; that person hit him with a butt; upon which, PW-2 scuffled with him; then, 6-7 armed men came and pulled him down from the tractor; thereafter, PW-2 was tied with a chain and taken to the sugarcane field of Prempal; PW-2 was kept there and used to be assaulted and threatened by saying that if he raises his voice, he will be killed. PW-2 stated that he was detained by Prempal, Kunwarpal, Ram Kishore, Ramu alias Raju, Sipahi Lal, Omveer, Jitendra and Sarjeet. PW-2 used to be fed by Prempal's mother and wife, namely, Malti and Santoshi, respectively. PW-2 stated that he was abducted for ransom. In his presence, Prempal wrote the letter demanding ransom. He stated that he remained in the custody of the accused for about 9 days. Thereafter, police arrived. There was exchange of fire between police and the accused. Police arrested Omveer, Prempal, Kunwarpal, Jitendra, Sipahi Lal and Raju at the spot. He identified the accused in the court and stated that the I.O. prepared the papers in his presence. He also stated that at that time his father Chheda Khan and village Pradhan's son Rajesh were there. After stating as above, PW-2 stated that the accused Jitendra had snatched his mobile phone and the same was seized at the time when he was recovered. The mobile was unsealed from a bundle. The witness identified the mobile and the same was marked as material exhibit.

During cross examination, PW-2 stated that he is a poor person and is a student of B.Sc final year, which he is doing from a private college. In respect of going to the institution for his course, PW-2 stated that he leaves for his college by noon and returns by 5 pm. But he was not regularly going to the college. When questioned as to when he last went to the college, PW-2 stated that he does not remember. When questioned about his roll number, PW-2 stated that he does not remember. Thereafter, PW-2 stated that he has passed B.Sc final.

In respect of financial status, PW-2 stated that his father has four bigha land; his elder brother is in service and an engineer, who stays separate. His mother is receiving old age pension. At this stage, the witness stated that he does not work as a labourer but goes outside to work. Then, he clarified that he was not working outside since before the incident. PW-2 stated that he does not have any mining Theka.

In respect of the incident in which he was abducted, PW-2 stated that the night was dark. There was mist/fog. He did not have a torch. As soon as the tractor had stopped, miscreants had arrived and one of them had hit him on the head with butt. After he fell, he was blind folded. His blind fold was opened only when his father arrived. The relevant extract of his statement to that effect is extracted below:-

^*?kVuk okyh jkr vW/ksjh Fkh dksgjk fxj jgk FkkA dksgjs esa vkneh dks pkj ikWp fQV dh nwj ls igpkuk tk ldrk FkkA esjs ikl VkpZ ugha FkhA VªSDVj :dus ds rqjUr ckn cnek'k vk x;s FksA cnek'kksa us esjs flj esa cV ekjdj fxjk fn;k FkkA fxjkus ds ckn gekjh vkW[kksa esa iV~Vh ckW/k nh FkhA iV~Vh esjh vkW[k dh rc [kqyh tc esjs ikik vk x;sA iV~Vh ckW/kdj cnek'k eq>s ?klhVrs gq;s ys x;s Fks ckn esa eksVj lkbZfdy ls ys x;s FksA cnek'k dkSu ekSVj lkbZfdy pyk jgk Fkk D;ksa fd esjh vkW[k ij iV~Vh cW/kh gq;h FkhA dkuksa esa :bZ ugha yxk;h Fkh vkW[k o dku ij iV~Vh ckW/kh FkhA iV~Vh yky o lQsn jax dh FkhA ;g iV~Vh flikgh yky us ckW/kh FkhA^* After stating as above, the witness stated that he did not know Raju from before and only when Raju was arrested by the police, he came to know that he was Raju. He stated that the police got him examined for the injuries on his body.

In respect of the date and time when he received injuries, PW-2 stated as follows:-

^*eq>s esjs ikik feyus ls igys cnek'kksa us eq>s pkj fnu igys ekjk ihVk FkkA^* In respect of the place and time when the memorandums were prepared, PW-2 stated as follows:-

^*fy[kk i<+h izseiky ds [ksr esa gq;h FkhA ;g fy[kk i<+h lqcg 8&9 cts ds djhc gq;h FkhA^* During cross examination at the instance of accused Malti Devi and Santoshi Devi, who have been acquitted by the trial court, PW-2 stated as follows:-

^*eq>s iV~Vh ckW/kdj jD[kk x;k Fkk fdlh ls feyus tqyus ckrphr djus ugha fn;k tkrk FkkA iV~Vh cW/kh gksus ds dkj.k ugha ns[k ikrk Fkk dkSu vkrk gS dkSu tkrk gSA^* On 22.01.2016 when PW-2 was further cross examined in respect of the time taken by him to unload sand at Janmejay's place in the night when he was abducted, PW-2 stated as follows:-

^*veyS;k eqdsjh eas ckyw tuosn xaxokj ds ?kj esa ckyw Mkyh FkhA igys tkus esa nl feuV dk le; yxk FkkA ckyw iyVus esa rhu feuV dk le; yxk FkkA izslj okyh Vªkyh Fkh vkSj vkVks eSfVd flLVe ls og Vkyh myV tkrh gSA Vkyh ls ckyw mrkjus esa fdlh etnwj dh t:jr ugha iM+rh gSA eSus ckyw ugha mrkjh Fkh ckyw vkVks eSfVd flLVe ls Lo;a gh uhps fxjk nh x;h FkhA^* After stating as above, the witness stated that Kunwarpal used to pay him rupee 100 per trolley and this deal with him continued for last one year. The relevant statement in this regard is extracted below:-

^*dqWojiky ,d nks Vªkyh ij ges 100 :i;s izfr Vªkyh dh nj ls iSlk nsrk FkkA gekjk blds lkFk ckyw ij deh'ku dk dk;Z pyrk FkkA yxHkx ,d o"kZ ls deh'ku dk dk;Z mlds lkFk py jgk FkkA {ks= o vkl ikl ds yksxks dks ckyw dh vko';drk gksrh Fkh rc ge budks Qksu djds ckyw eWxok nsrs FksA tc gels dksbZ ckyw eaxokus ds fy;s crkrk Fkk rHkh ge muls Qksu ls ckyw ykus ds fy;s dgrs FksA igys ckyw eSa vius ;gkW ij eWxokrk Fkk fQj tgkW ckyw igWqpkuh gksrh Fkh ogkW ij ge VªSDVj ds lkFk tkdj ds ckyw igWqpkrs FksA ckyw fdlds ;gkW igWqpkuh gSA fdlls iSlk ysus gSA lkjh ftEesnkjh esjh gksrh FkhA eSa Qksu ls izseiky dqWojiky dks dsoy ;g crk;k Fkk fd ,d Vªkyh o nks Vªkyh ckyw esjs ;gkW igWqpk nks vkSj ckyw dgkW igWqpkuh gS mldh tkudkjh eq>s jgrh Fkh vkSj vius ;gkW ckyw vkus ij tgkW ckyw igWqpkuh gksrh Fkh ge ckyw dks igWqpok nsrs FksA ?kVuk okys fnu gels Qksu ls vius ?kj ckyw eWxok;h Fkh vkSj tc ;g ckyw ysdj vk x;s rc eSus izseiky ls dgk fd ckyw veyS;k eqdsjh tuest; ekLVj ds ;gkW ys pyksA ml fnu og vdsyk FkkA^* When questioned in respect of political reasons for the implication of accused, and about his relationship with Agya Ram, Rajesh and Kallu Yadav, PW-2 stated as follows:-

^*eS vius xkWo ds vkKkjke iz/kku dks tkurs gS vkSj muds yM+ds jkts'k xaxokj dks Hkh tkurs gSA vkKkjke igys iz/kku jg pqds gSA ?kVuk ds le; mudk Hkrhtk iz/kku FkkA vkKkjke iz/kku ds ;gkW vDlj iqfyl okys o vU; vf/kdkjh deZpkjh vkrs jgrs gSA ckgj ds usrk vkrs gS og buds ;gkW vkrs tkrs jgrs gSA dYyw ;kno lektoknh ikVhZ ds usrk dks ge tkurs ugha gSA mudk uke geus lquk gSA gesa ugha ekyqe fd vkKkjke iz/kku o muds Hkrhtksa dk dYyw ;kno ds ;gkW vkuk tkuk gSA ges ;g ugha ekyqe fd mudk dk;e xat esa reke dkjksckj gS vkSj muds ikl reke VªSDVj o ts0lh0ch0 eh'ku gSA gesa ;g Hkh ugha irk fd og ckyw feV~Vh dk dk;Z djrs gSA ges ;g irk gS fd jkts'oj ;kno Q:Z[kkckn ls yksdlHkk dk pquko yM+s Fks ijUrq ges ;g ugha ekyqe fd dYyw ;kno o jkts'oj ,d nwljs ds fj'rsnkj gSA jkts'oj orZeku esa fo/kk;d vyhxat {ks= ls gSa Hkkjrh; turk ikVhZ ls yksdlHkk dk pquko eqds'k jktiwr yM+s FksA ges ;g ugha ekyqe fd eqds'k jktiwr yks/kh tkfr ds gSA ;g ekyqe gS fd eqds'k jktiwr Hkh fdlku gS vkSj vfHk;qDrx.k Hkh fdlku tkfr ds gSA ges ;g ugha ekyqe fd eqfYteku Hkkjrh; turk ikVhZ ds leFkZd gSA gesa ugha ekyqe fd eqfYteku o dYyw ;kno ckyw dk /kU/kk djrs gksA ges ugha ekyqe fd eqfYteku dYyw ;kno ds ckyw ds /kU/ks esa ck/kk igaqpkrs gksA bl fy;s dYyw ;kno buls jaft'k ekurs gksA vkKkjke o muds yM+ds jkts'k us gekjh bl eqdnesa esa cgqr lgk;rk dh gS vkSj cjkcj lkFk jgs gSA^* In respect of the place where PW-2 was detained, PW-2 stated as follows:-

^*cnek'kksa us gesa xUus ds [ksr esa tehu ij Mky fn;k FkkA mUgksaus gesa vks<+us ds fy;s jtkbZ nh FkhA tc iqfyl igaqph rc esjs gkFk ca/ks gq;s Fks rFkk iSj Hkh ca/ks gq;s FksA vkW[kks ij iV~Vh ca/kh gq;h FkhA tc iqfyl igWqph rc iqfyl us esjs gkFk iSj [kksys vkW[kksa dh iV~Vh [kksyh vkSj eq>s eqDr djkus ds ckn xkM+h esa fcBk;k vkSj xkM+h ls ges rqjUr Fkkus igaWqpk;k Fkkus tc igWqps Fks rc lcsjk gks x;k FkkA Fkkus esa esjs firk th o xkWo okys igWqps FksA xokg jkts'k xaxokj Hkh Fkkus igWqps FksA Fkkus esa esjs firk th o xokg jkts'k ls dqN dkxtksa ij iqfyl okyksa us gLrk{kj djok;s FksA^* PW-2 concluded his deposition by denying suggestions: that there were business transactions between the accused and him and that he had not given proper accounts to the accused; that because of the business dispute with the accused, he started his independent business under the protection of Kallu Yadav; that the accused were creating hindrances in the illegal mining conducted by Kallu Yadav therefore, Kallu Yadav in collusion with his father and the local police got the accused implicated falsely in the case.

11. PW-3- Udaiveer Singh- the person who prepared GD entry of the missing report. PW-3 stated that he was posted at P.S. Kayamganj on 12.12.2014 when Chheda Khan had submitted a written missing report at the police station which was entered at 12.30 hours vide GD Entry No.27. The carbon copy of the GD entry was marked Ex. Ka-2.

During cross examination, PW-3 stated that to lodge the missing report, Chheda Khan had come alone. Investigation was assigned to S.I. Meghnath Singh. He stated that he is not aware whether the photograph of the missing person was published. He stated that ordinarily the information of the FIR is given on R.T. set to higher officers but whether information of the missing report was given or not he does not remember.

12. PW-4- Dr. Rajeev Kumar. He stated that on 22.12.2014 he was posted at C.H.C. Kayamganj as Medical Officer. That day, he examined Salman son of Chheda Khan for his injuries at 10.30 am. He stated that following injuries were noticed:-

1. Multiple abrasion plus contusion on right wrist;

2. Multiple abrasion plus contusion on left wrist;

3. Multiple abrasion plus contusion on right ankle; and

4. Multiple abrasion plus contusion on left ankle.

PW-4 stated that all of the above injuries were from a hard object; simple in nature. Some of the injuries were a week old and some were a day old.

During cross examination, PW-4 stated that in injury no.1 some injuries were a week old and some were not. Similarly, the same position is for injuries 2, 3 and 4. He stated that these kind of injuries can be caused by tightly tying hand and foot with rope made out of a coconut husk. Such marks can also be a result of being tied by plastic or jute made rope including a chain. PW-4 specifically stated that these injuries were not caused on account of beating a person.

13. PW-5- Constable Prakash Narayan Pushkar. He stated that on 21.12.2014 he was posted as clerk at P.S. Kayamganj. That day, S.I. Meghnath Singh had submitted report on the basis of which Case Crime Nos.562 of 2014 to 565 of 2014 were registered. He proved the Chik FIR of those cases, which was marked Ex. Ka-4. He also proved GD entry of the said written report, which was marked Ex. Ka-5.

During cross examination, PW-5 stated that he made the GD entry at 19.30 hours. He stated that Case Crime Nos.562 of 2014 to 565 of 2014 were registered in the presence of S.I. Meghnath Singh who returned to the police station at 19.30 hours. He could not tell as to how many other police personnel were there with him. He stated that he was only given the fard baramdagi, a sealed bundle of articles seized and the custody of accused and the abductee. He stated that he is not in a position to disclose as to when articles seized were deposited in the Malkhana. He denied the suggestion that the entire police action was bogus and fabricated.

14. PW-6- Meghnath Singh (investigation officer of Case Crime No.553 of 2014). He stated that on 12.12.2014, Chheda Khan gave a missing report at 12.30 hours at P.S. Kayamganj. On 15.12.2014, the case was converted to Case Crime No.553 of 2014 under Section 364 IPC. Whereafter, the investigation of the case was assigned to him. On 16.12.2014, he recorded the statement of Chheda Khan and inspected the spot with the informant and prepared site plan (Ex. Ka-6). He visited village Amaliya Mukeri and recorded statement of Master Janmejay Singh as well as his son Dhananjay Singh and also interrogated Prempal (appellant no.1) and obtained his mobile number. On 21.12.2014, vide GD Entry No.20, he left police station at 10.35 hours in a private vehicle with a team of police officers. While they were on their way, they met Chheda Khan and Rajesh Kumar at Industrial Area Papri. There, they informed him that for release of Salman and Kunwarpal a ransom demand of Rs.10,00,000/- has been raised upon them. The informant also informed the police team that he suspected Prempal and his family of cheating the informant. PW-6 stated that on getting above information he contacted SWAT team S.I. Brijesh Kumar and called them for assistance. The SWAT team arrived and with their help a plan was prepared for apprehending the culprits. In furtherance of that plan, two wads of notes were prepared. Each wad contained 98 cut plain paper with currency note of 1,000/- denomination on top and at the bottom. Thereafter, they visited the specified place where a person came and took those wads of notes from Chheda Khan. As soon as he started counting the notes, on being satisfied that the said person had come to collect ransom money, the team arrested him at about 1 pm. When that man was searched, two wads of currency notes were recovered from him. On inquiry, that person disclosed his name as Sipahi Lal (the appellant no.2). When the mobile number of Sipahi Lal was matched with mobile number of Salman (the abductee) it was noticed that on 15.12.2014 a call of 174 seconds at time 18:27:59 hours was exchanged. When informant was asked about the mobile number, he told him that Prempal had called him from that mobile. As Salman's mobile was missing, the team was satisfied that Prempal was involved in the abduction and he showed abduction of Kunwarpal to hoodwink others. When Sipahi Lal was formally interrogated, he confessed that abduction was planned because Salman's father (Chheda Khan) had sold his land for Rs.22 lacs and therefore it was thought that he is a rich person. PW-6 stated that Sipahi Lal disclosed to the team that he can lead the police team to recover Salman. PW-6 stated that on information received from Sipahi Lal the police team after parking the vehicles at a distance from the spot, went on foot to the sugarcane field of Prempal. When the police team claimed that they have surrounded the accused and the accused must surrender, no response came. Thereafter, the police team was divided into three parts and they started combing operations. At that stage, three shots were fired at the police team. The police team escaped by providence and returned fire. In that operation, by about 2 pm, four persons were arrested, namely, Kunwarpal; Prempal (appellant no.1), from whose possession one country made pistol with two live cartridges and one empty cartridge was recovered; Jitendra, from whose possession one country made pistol with an empty cartridge stuck in its barrel, two live cartridges and one Samsung mobile instrument, which was claimed to be of Salman, was recovered; and Omveer (appellant no.3), from whose possession one country made pistol with one live cartridge stuck in its barrel and two live cartridges and a piece of paper bearing a demand of Rs.10,00,000/- for release of Salman and Kunwarpal was recovered. From the spot, quilt, mattress, Tirpal, tiffin box etc were recovered. Three accused, namely, Raju, Ram Kishore and Sarjeet escaped from the spot. When those arrested accused were interrogated, they led them to the place where Salman was detained. It was noticed that Salman was kept in a 10 feet deep ditch which was covered with leaves. When leaves were removed, it was noticed that Salman was tied with a chain. Chheda Khan, who was there with the team, identified Salman. Salman was taken out of the ditch and his chains were untied/unlocked. Salman narrated the story to the police team. The entire operation was recorded in a memorandum, which has been exhibited. The recovered articles were also exhibited. PW-6 stated that he recorded the statement of the victim as well as the accused on 21.12.2014 and on 23.12.2014 after recording the clarificatory statement of Chheda Khan, he arrested Malti Devi. He stated that on 19.01.2015, he arrested the accused Ram Kishore and Sarjeet. On the basis of School Transfer Certificate (T.C.), Sarjeet was found juvenile. Similarly, accused Kunwarpal and Jitendra were found juvenile as per their T.C. On 22.01.2015, he arrested Santoshi. Charge sheet was thereafter submitted against Sipahi Lal, Prempal, Omveer, Raju, Ram Kishore, Malit, Jitendra, Kunwarpal and Sarjeet, whereas investigation against Santoshi was pending. The charge sheet was exhibited as Ex. Ka-17.

During cross examination, PW-6 stated that on the basis of orders of Circle Officer, Kayamganj, the investigation of case was handed over to A.K. Singh Parihar. He admitted that parcha No.15 dated 22.01.2015 was written in his handwriting. He denied the suggestion that the charge sheet was submitted by him without the consent of the then investigating officer. PW-6 stated that the investigation of this case was assigned to him on 15.12.2014. He recorded the statement of Chheda Khan on 16.12.2014. Chheda Khan had not disclosed to him the name of Raju. On 12, 13 and 14.12.2014, no investigation took place. On 17, 18, 19 and 20.12.2014, there was no investigation in the case and that on those dates statement of Chheda Khan was not recorded. PW-6 specifically stated that the abductee was not recovered on 20.12.2014. He denied the suggestion that the abductee was recovered on 20.12.2014 and that the entire police action of 21.12.2014 is bogus and false. PW-6 stated that the abductee was recovered at 2 pm day time on 21.12.2014. He stated that the accused who escaped from the spot were not recognized by him but their names were told to him by the accused who were arrested. He stated that on 21.12.2014, statement of Chheda Khan was not recorded, rather, statement of the abductee was recorded. When the abductee was recovered, neither there was a cloth stuffed in his mouth nor there were ear plugs, though he was chained. In respect of the colour of the chain in which the abductee was tied, PW-6 stated that the colour of the chain was black. At this stage, the witness was confronted with the colour of the chain produced in court, which was of white colour though rusted at places.

On further cross examination, PW-6 denied the suggestion that Salman was recovered between 8-9 am on 21.12.2014. PW-6 rather categorically stated that he was recovered at 2 pm. On being questioned as to who brought the wads of notes, PW-6 stated that these papers, of which wads were prepared, were brought by constable Awadhesh Kumar and the wads were also prepared by him. He denied the suggestion that the wads of notes were brought by Chheda Khan. At this stage, PW-6 was questioned in respect of Chheda Khan being a witness of the abduction of Salman and Kunwarpal. In response to this question, PW-6 stated that Chheda Khan was not a witness of the abduction though he had prepared site plan at his instance. He stated that when he prepared the site plan, tractor/trolley was not at the spot. But, it was shown in the site plan as its position was disclosed to him by the informant. He admitted that the tractor trolley was not noticed at the spot and that no possession of such tractor trolley was taken by him. He stated that the owner of tractor trolley was Prempal though he had not seen the papers of that tractor trolley. He also stated that on 16.12.2014 apart from making the site plan he had recorded the statement of Chheda Khan as also of Dhananjay and Janmejay Singh. He admitted that when the statement of Chheda Khan was recorded on 16.12.2014, the informant was not aware that his son had been abducted. He stated that between 16.12.2014 and 20.12.2014 no investigation took place in the case.

In respect of use of private vehicles in the operation on 21.12.2014, PW-6 states that probably it was a Xylo vehicle. When questioned about the owner and registration number of that vehicle, PW-6 stated that he is not aware as to who was the owner and what was its registration number. PW-6 stated that there was no private driver of that vehicle though it was being driven by one Awadhesh. He also stated that he had not paid rent for that vehicle. When questioned as to whether fuel was filled in the vehicle, PW-6 stated that he got Rs.400/- worth fuel filled but that expense was not noted in the case diary.

In respect of the time when Chheda Khan met him on 21.12.2014, PW-6 stated that Chheda Khan (the informant) met him between 11.30 and 11.45 hours. Both Chheda Khan and Rajesh were together and they met the police team at industrial area Papri, 6-7 km from police station, when the police team was going in a private vehicle. On being questioned whether the arrest memo of Sipahi Lal was prepared, PW-6 stated that he did not prepare an arrest memo of Sipahi Lal though he prepared a recovery memo.

On being questioned as to when SWAT team came in contact with him, PW-6 stated that the SWAT team was contacted at about 11.30 hours. They were called through phone. At that time, SWAT team was at Fatehgarh. SWAT team arrived at the spot in about half an hour. On being questioned about distance between industrial area Papri and Fatehgarh, PW-6 stated that the distance would be 30-35 kms. When questioned as to the time spent at Papri, PW-6 stated that the team stayed between 11.30 hours to 12.30 hours. During this time, informant Chheda Khan and Rajesh were also with them and the plan was hatched. On being questioned as to who prepared the wads of notes, PW-6 stated that wads of notes were prepared by the team and those wads had plain paper in between two currency notes. In respect of time taken to prepare wads of notes, PW-6 stated that it took hardly 5 minutes. When he was questioned as to from where paper was arranged, PW-6 stated that paper was brought by Awadhesh. He took 10-15 minutes to get the papers. On being questioned as to who cut the papers, PW-6 stated that papers were already cut. On being questioned as to where the recovery memo of the wads of notes was prepared, PW-6 stated that recovery memo was prepared at the spot from where the abductee was recovered at about 2 pm. On being questioned about the distance between the place from where Sipahi Lal was arrested and the place where the abductee was recovered, PW-6 stated that the distance must be 7-8 kms. PW-6 admitted that at the spot where Sipahi Lal was arrested neither arrest memo nor seizure memo of wads of notes was prepared. PW-6 stated that from Pipri industrial area to the spot, from where Salman was recovered, Chheda Khan and Rajesh were with the team. They took about 1 hours 10 minutes to reach the spot. With them, SWAT team was also there. On being questioned whether a disclosure statement of Sipahi Lal was separately recorded, PW-6 stated that there was no separate recording of the disclosure statement of Sipahi Lal but his statement was incorporated in the seizure memo.

In respect of the ransom letter allegedly recovered, PW-6 stated that the handwriting of the accused was not compared with the handwriting on the letter. He stated that the ransom letter was not provided to him by the informant. The informant had, however, informed him about the demand for ransom. PW-6 stated that information about the demand of ransom was given at the spot when he met the informant at Pipari. On being questioned as to how he got the information on that day, PW-6 stated that he does not remember whether that information was received on mobile or otherwise.

At this stage, the witness was cross examined in respect of the exchange of gunshots. This part of the statement we do not propose to notice as the accused have already been acquitted of the charge of firing at the police.

In respect of recovery of mobile instrument of Salman from Jitendra, PW-6 stated that he did not verify as to in whose I.D. the mobile was issued. At this stage, the witness stated that the SIM of that mobile was removed and the other SIM was used by accused Sipahi Lal for using that instrument. He also stated that he did not verify the number of Prempal. He further stated that there was no voice recorded call therefore the voice was not matched. At this stage, the witness was given suggestions that the abductee was involved in illegal mining and was also charged for illegal mining and was hand in glove with mining mafia. PW-6 stated that he is not aware whether Ram Prakas @ Kallu is involved in illegal mining. He stated that he is not aware whether Ram Prakash alias Kallu has tractor and JCB machine. He, however, admitted that they are members of Samajwadi Party, whereas the accused are of Lodhi caste. He stated that he is not aware that the accused are supporters of BJP party. He denied the suggestion that Ram Prakash alias Kallu, an influential leader in Samajwadi Party, wanted to punish the accused as they were causing disruption in his business and, therefore, got them falsely implicated in collusion with the police. PW-6 also denied the suggestion that operation to recover Salman was bogus. He also denied the suggestion that Salman was never abducted.

15. PW-7- Brijesh Yadav- Incharge of the SWAT Team. He stated that on 21.12.2014 he was incharge of the SWAT team. S.I. Meghnath Singh (PW-6), who was posted at P.S. Kayamganj, had called him. PW-7 met him near Pipari Khurd Industrial Area. He stated that with Meghnath Singh, Chheda Khan and Rajesh were there. Chheda Khan informed them that a demand of Rs.10,00,000/- for release of Kunwarpal and Salman has been raised and the abductors have required the payment of ransom money on the way leading to Mangaliyapur. On getting this information, he accompanied the police team with his team members to Papri Khurd. There, S.I. Meghnath Singh told him that he has arranged for two wads of notes including fake paper with currency notes at the top and at the bottom. When they arrived at the spot, a person came near Chheda Khan and Rajesh. He was handed over those two wads of notes. When that man started counting those notes, the team upon being satisfied that he was there to collect ransom money, arrested him. At that time, it was 1 am in the night. The arrested person disclosed his name as Sipahi Lal. He carried a mobile phone. On that mobile phone a call from mobile instrument having IMEI of Salman's instrument had come. When Sipahi Lal was interrogated, he told that this call was made by Prempal using the instrument of Salman. Sipahi Lal disclosed the entire plan relating to abduction and ransom as also the place where the abductee was kept. PW-7 disclosed about the police action on similar terms as disclosed by PW-6 but was diametrically opposite in respect of the time. PW-7 specifically stated that the four accused persons were apprehended at 2 am in the night.

During cross examination, PW-7 was specifically asked whether he knows the difference between time am and pm. To this query, PW-7 stated as follows:-

^*jkr okys ,d cts dks ,0,e0 dgrs gS fnu okys ,d cts dks ih0,e0 dgrs gSA blh izdkj nks cts dh Hkh fLFkfr gksrh gSA^* On further questioning, PW-7 stated that when S.I. Meghnath Singh had called him, his team's location was in Shamshabad area. Meghnath Singh had called him at 12.15 a.m. On receiving information, he took 15-20 minutes to arrive at the spot where Meghnath Singh was. When specifically queried as to the date of the night, he stated that it was the night of 20/21.12.2014. He stated that he remained with Meghnath Singh till 5-6 am and returned back from Thana Kayamganj to police lines. He stated that he returned back to police lines by 7-8 am on 21.12.2014. PW-7 again reiterated that Sipahi Lal was arrested in the night and at the spot, from where he was arrested, there was no light. The team members, however, had torches. He again reiterated that Sipahi Lal was arrested in the intervening night of 20/21.12.2014 at 1 am and the other accused were arrested in the intervening night of 20/21.12.2014 at 2 am. He stated that the night when the recovery was made was a dark night and nothing was visible without artificial light. He denied the suggestion that no one was arrested that night and that the entire operation is bogus and that he is telling lies. He stated that S.I. Meghnath Singh had prepared 5-6 memos and he does not remember in how many of them his signatures were obtained. He denied the suggestion that Salman was not recovered in the intervening night of 20/21.12.2014.

On being questioned about the vocation of abductee Salman, PW-7 stated that Salman was not engaged in mining but was operating as a commission agent. He feigned ignorance about the rivalry between mining mafias. He stated that he knows Ram Prakash alias Kallu Yadav. He also stated that on the basis of information gathered from this case, he learnt that Salman was working as a commission agent for delivery of sand. He denied the suggestion that Salman was not recovered in police action and that no country made pistol etc was recovered from the accused. He also denied the suggestion that the accused have been implicated to suppress their protest against sand mafias belonging to Yadav caste. On further cross examination, PW-7 stated that when Salman was recovered, he was blind folded.

16. PW-8- Ashok Kumar Singh. He stated that on 22.01.2015 he was posted as Prabhari Nirikshak at P.S. Kayamganj. He took over investigation of Case Crime No.553 of 2014 from Meghnath Singh on that day. That day itself, he submitted charge sheet (Ex. Ka-17) against Sipahi Lal, Prempal, Omveer, Ramu, Ram Kishore, Malti, Jitendra, Kunwarpal and Sarjeet.

During cross examination, he denied that CD Parcha No.15 was prepared in the handwriting of S.I. Meghnath Singh. Similarly, the charge sheet was also in the handwriting of Meghnath Singh because he had pain in his hand. He stated that before submission of the charge sheet he had verified the investigation conducted by the earlier investigating officer as papers relating thereto were being sent to him from time to time. He stated that whether any separate memo regarding confessional disclosure of Sipahi Lal was made or not is not there in the case diary. He denied the suggestion that he had not properly perused the case diary and signed the charge sheet prepared by Meghnath Singh.

17. PW-9- S.I. Harish Chandra Singh. He stated about recording of statement of Santoshi in connection with Case Crime No.553 of 2014. As Santoshi has been acquitted by the trial court, we do not propose to notice her statement in detail.

18. PW-10- S.I. Kunwarpal Singh- Investigating Officer of Case Crime Nos.562 of 2014 to 565 of 2014. He stated that he took over investigation of the above cases on 21.12.2014 while he was posted as Sub-Inspector, Kotwali Kayamganj. He sought to prove the various stages of investigation of those cases as also the submission of charge sheet in those cases.

During cross examination, PW-10 stated that Raju had surrendered in court. The statement of Meghnath Singh was recorded on 25.12.2014. He stated that he could not record the statement of Meghnath Singh because PW-10 was at Chowki Kunwa Khera. He stated that Meghnath Singh could not recognise the faces of those who ran away from the spot. He denied the suggestion that he did not carry out the investigation and submitted charge sheet under direction of higher officers.

On further questioning as to when he took over investigation of the case, PW-10 stated that he does not remember the time. He reiterated that none of the witnesses told him that they could recognise the accused who had escaped from the spot in the darkness of night. He also stated that during the course of investigation he could not find any source of light at the spot. He stated that because there was no source of light at the spot therefore the persons who escaped from the spot could not be identified. He admitted that there was no independent witness of the incident. He stated that he had not verified the spot where Sipahi Lal was arrested. In the site plan prepared by him he had also not shown the spot from where gun shots were fired. He admitted that information regarding arrest of the accused was not given to their family members. He stated that the torches used in the operation were not seized. The statement regarding the source of light is as follows:-

^*ftl jks'kuh ds lk/ku esa fxjQ~rkjh o cjkenxh dh dk;Zokgh dh x;h gS og VkpZ dh jks'kuh Fkh VkpksZa dks dCts esa ugha fy;k x;k fdruh VkpsZa Fkh vkSj fdlh Fkh irk ughaA ^*fdldh VkpZ dh jks'kuh esa QnZ fy[kh x;h gesa ugha irkA^* He denied the suggestions that the recovery of Salman, arrest of the accused, recovery of country made pistol etc was fake and bogus and the charge sheet was submitted without a fair investigation.

Statements under section 313 CrPC

19. After closure of the prosecution evidence, the incriminating circumstances appearing therein were put to the accused for recording their statement under Section 313 CrPC. As this appeal is confined only to three accused, namely, Prempal, Sipahi Lal and Omveer, we propose to notice, in brief, the statement of only these three accused.

Statement of Prempal under Section 313 CrPC

20. Prempal denied the incriminating circumstances put to him; claimed that the report is absolutely false; false statements have been given by the witnesses; and that a false charge sheet has been submitted. In respect of question as to why case was instituted against him, he stated that it was due to enmity. In response to question No.14, Prempal stated that he did not plan abduction of Salman and that there was no recovery. The entire story is fabricated.

Statement of Sipahi Lal under Section 313 CrPC

21. Sipahi Lal also denied the incriminating circumstances appearing against him in the prosecution evidence. He claimed that the report was false. Even the medical examination report is false; that there was no fair investigation and false charge sheet was submitted; that he was implicated due to enmity. In response to question No.14, he stated that he belongs to Lodhi caste and is a supporter of Mukesh Rajput. Kallu Yadav of Samajwadi Party had been indulging in illegal mining of which he used to make complaints therefore, he has been falsely implicated.

Statement of Omveer under Section 313 CrPC

22. Omveer also denied the incriminating circumstances appearing against him in the prosecution evidence and claimed that the entire prosecution story is bogus and false; that he has been implicated due to enmity; and that a false charge sheet was submitted. In response to question No.14, Omveer stated that there was no abduction of Salman; a false recovery has been shown.

TRIAL COURT FINDING

23. The trial court accepted the prosecution evidence and the recovery operation in which the abductee Salman was recovered. As the accused Raju alias Ramu, Ram Kishore, Smt. Malti and Smt. Santoshi were not involved in abduction and were not arrested at the spot in the recovery operation, the benefit of doubt was extended to them. The trial court also acquitted the appellants of the charge of firing at the police but convicted the appellants for offences punishable under Section 364-A read with Section 120-B IPC and Section 368 IPC. In addition to above, Prempal and Omveer were also convicted and sentenced under Section 25 of the Arms Act.

24. We have heard Sri Vinay Saran, learned Senior Counsel, assisted by Sri Pradeep Kumar Mishra and Sri Ghan Shyam Das, for the appellants; and Sri Amit Sinha, learned AGA, for the State.

Submissions on behalf of the appellants

25. Assailing the judgment and order of the trial court, the learned counsel for the appellants, at the outset, submitted that there is complete variance between the documentary evidence and the oral testimony in respect of the timing of the operation in which the accused were apprehended leading to recovery of the abductee Salman. The documentary evidence (Ex. Ka-4 and Ka-7) would reflect that the entire police action leading to recovery of the abductee Salman was a day time operation conducted on 21.12.2014 reported as a separate case giving rise to Case Crime Nos.562 of 2014, 563 of 2014, 564 of 2014 and 565 of 2014 at 19.30 hours on 21.12.2014, whereas, the oral testimony would suggest that the entire operation was carried out in the intervening night of 20/21.12.2014 and completed by about 2 am in the night regarding which, papers were prepared in the morning of 21.12.2014. This irreconcilable contradiction between the documentary evidence and the oral testimony renders entire operation doubtful and probabilises the defence claim that the prosecution story is bogus and imaginary and the accused appellants were implicated with the help of police on account of political/business rivalry.

26. It was next submitted that the prosecution story in respect of demand of ransom is unacceptable because PW-1 confessed that he and his son (the abductee) used to work as labourers and did not have sufficient means. PW-1 stated that he just had Rs.2,000/- with him. Interestingly, in the confessional disclosure of Sipahi Lal, the demand for ransom was made because PW-1 had recently sold his land for Rs.22 lacs whereas, interestingly, PW-1 stated that he did not sell his land. In such circumstances, there was no occasion to demand ransom from a person who had no means. Moreover, recovery of ransom letter from one of the accused persons clearly shows that the demand was not raised upon the complainant party. Further, the writing on that ransom letter is not proved to be of any of the accused. The entire prosecution story is therefore bogus. Moreover, from the suggestions put to the witnesses examined by the prosecution it could be gathered that the appellants were supporters of BJP, whereas the informant party supported Samajwadi Party and had the backing of leaders of Samajwadi Party and they implicated the accused by utilising their position.

27. It was submitted that the court below did not test the prosecution testimony and accepted the same as gospel truth despite there being several contradictions and weaknesses. It was urged that even if PW-2 is taken as a person injured but the fact is that he was throughout blind folded therefore, he was not in a position to recognise his abductors, if any. Moreover, once the reason for his confinement is not proved, his testimony cannot be made basis to record conviction under section 364-A read with 120 B IPC. Further, from his testimony it appears that there was some dispute relating to accounts. Hence, the story of demand of ransom money is not proved. In so far as the alleged recovery of mobile instrument is concerned, the same is totally bogus and cannot be accepted when the entire operation leading to recovery appears bogus.

28. It was submitted that the trap laid for recovery of ransom money from Sipahi Lal on the face of it appears bogus and false because how could one arrange for plain papers of the cut size of a note to prepare wads in that short time. Moreover, there is contradiction amongst the prosecution witnesses as to who brought those wads of notes. According to the police witnesses, the wads of notes were arranged by them; whereas, according to the complainant, wads of notes were prepared by him with the help of Rajesh who has not been examined. All these things would suggest that the prosecution story is nothing but false and therefore the appellants are entitled to be acquitted.

Submissions on behalf of the State

29. Sri Amit Sinha, learned AGA, submitted that the key witness of the prosecution story is PW-2 (the abductee). He has been examined for his injuries; multiple abrasion marks plus contusions of different durations were noticed. The doctor had opined that they could be a result of being tied/chained. Such injury marks of different durations cannot be self inflicted and therefore it has been proved beyond reasonable doubt that PW-2 was kept in detention and was chained. Thus, PW-2 falls in the category of an injured witness and his testimony has to be accepted as reliable. Assuming that there was discrepancy in between documentary and oral evidence in respect of the time of recovery operation but the statement of PW-6 is in sync with the documentary evidence therefore, the same is liable to be accepted and has rightly been accepted. Further, various articles were recovered from the place where the abductee was kept and these recovered articles were made material exhibits. They fully corroborate the prosecution story set up by PW-2, which is supported by PW-6. A ransom letter was also recovered from the pocket of one of the accused suggesting that ransom demand was made. Even assuming that PW-1 had not been able to disclose his financial status to meet the kind of ransom demanded from him but that by itself does not falsify the prosecution story with regard to the ransom demand because from the suggestions given to PW-2 it is established that PW-2 was a commission agent and there was a dispute relating to accounts. It could thus be possible that PW-2 was abducted to settle the disputed account. Abduction of a person to raise a demand for any purpose whatsoever would be an offence punishable under Section 364-A IPC and therefore, in any view of the matter, the judgment and order of the trial court does not call for any interference. He thus prayed that the appeal be dismissed.

ANALYSIS

30. Having noticed the rival submissions and the entire prosecution evidence, before we proceed to evaluate the prosecution evidence in the context of the submissions made, it would be useful to cull out the key features of the prosecution story. The prosecution story has three parts. The first part is in respect of abduction in the night of 11/12.12.2014 of two persons i.e. Salman (PW-2) and Kunwarpal (accused, who was declared juvenile), brother of Prempal (appellant no.1). The second part is in respect of demand of ransom of Rs. 10 lacs for release of Salman. The third part is in respect of police action dated 21.12.2014 resulting in release and recovery of Salman and arrest of the appellants.

31. In so far as the first part (i.e. relating to abduction) is concerned, there are two witnesses, namely, PW-1 (Chheda Khan) and PW-2 (Salman). According to PW-1, his son Salman worked as a labourer. In the night of 11/12.12.2014, Prempal and Kunwarpal contacted the abductee Salman and told him that sand / mud had to be unloaded at a particular place. They, therefore, came and took away Salman in their tractor. Salman thereafter did not return, hence a missing report was lodged. In this part of the story, PW-1 is not consistent. At one part he says that to fetch Salman only Kunwarpal had come and at another part he states that Prempal was also there though lying in the tractor. We fail to understand if Prempal had also been there why this fact was not disclosed in the missing report. Further, from the testimony of PW-1 it is clear that in the morning of the following day, the abandoned tractor was found in a field and Prempal drove the tractor to the police station. Further, it appears from the testimony of PW-1 that Prempal had joined him to search out both Salman and Kunwarpal who were allegedly missing. Interestingly, no statement of Prempal was recorded by the I.O. on the day the missing report was lodged. In fact, there is no investigative step till 15.12.2014, that is, till the case of abduction was registered. All of this would suggest that PW-1 was not sure whether his son had been abducted or he had just gone missing. In any view of the matter, the testimony of PW-1 fails to establish beyond reasonable doubt the presence of Prempal in that tractor in the night of 11/12.12.2014. In so far as PW-2 is concerned, in his examination in chief, he states that Prempal had called for his services and had sent his brother Kunwarpal with the tractor to take him. However, during cross examination, PW-2 takes up an altogether different story. He states that he had a commission deal with Prempal, which is, that PW-2 used to place orders on Prempal for supply of sand/ mud. Once those supply orders were placed by him, loaded tractor used to be sent by Prempal. The unloading of the supply at the specified place was to be PW-2's job with which Prempal had no connection. On those orders when supply was made, PW-2 used to get Rs.100/- per trolley. All of this would suggest that PW-2 used to be in touch with the buyer of sand etc. Once buyer placed order on him, PW-2 used to request Prempal for supply. When supply arrived, the same was taken to the specified place for unloading for which, PW-2 used to get commission on per trolley basis. PW-2, during cross-examination, stated that in the night of the incident, he had called for the tractor trolley with sand. When the tractor trolley arrived, he directed that it had to be taken to Amalia Mukeri to the house of Janmajay Master. This statement of PW-2 completely falsifies the prosecution story that in the night of the incident, Prempal had called Salman and had sent Kunwarpal to fetch him. Rather, it appears to be a case where PW-2 called for supply of sand. When supply came on a tractor, tractor was taken. When we read the statement of PW-2 in its entirety it appears to be a case that when, after dropping sand, PW-2 was returning on the tractor with Kunwarpal, their tractor was stopped and they were abducted. In light of the statement of PW-2, the prosecution story that PW-2 was taken from home under a plan to abduct him falls to the ground because from his statement it appears that PW-2 had called for the tractor and the supplies.

32. Now, we shall examine as to who abducted Salman (PW-2) in the night while he was returning. According to PW-2, the night was dark and misty, they did not have torches; they were surrounded by miscreants; some one hit PW-2 with a butt and he was caught and blind folded; and that his blind fold was removed when his father arrived. All of this would suggest that since the time he was abducted, he was kept blind folded till he was set free. Thus, there was no occasion for him to see as to who abducted him. In these circumstances, there is no reliable evidence to prove beyond reasonable doubt that it was the appellants who had abducted Salman in the night of 11/12.12.2014. Thus, the first part of the prosecution story is not proved against the appellants.

33. In so far as demand of ransom of 10 lacs is concerned, according to the prosecution story, the ransom demand of Rs. 10 lacs was raised under the belief that PW-1 had sold land worth Rs. 22 lacs therefore, it was thought by the accused that abduction of PW-1's son Salman would result in bumper profit. Interestingly, PW-1 himself claims that he had no money and that he had not sold his land. In such circumstances, ransom demand of the amount indicated is inexplicable. The question that now arises is whether abduction was for ransom or for some other reason. In this regard, we notice from the statement of PW-2, made during cross-examination, that he worked as a commission agent of Prempal. He used to get cut (commission) on every supply order that he placed. From PW-2's statement, it appears, that there existed some account dispute between him and Prempal. This statement of PW-2 creates a wedge between the prosecution story and the evidence led. This should have put the trial court on guard to carefully scrutinise and test the prosecution evidence in respect of demand of ransom. Unfortunately, the trial court made no effort to test the prosecution evidence while evaluating the same. On careful scrutiny of the prosecution evidence, we notice that suspicion with regard to abduction was not expressed in the missing report or in the initial statement of the informant, probably, because PW-1 was well aware of his financial status warranting abduction for ransom. In respect of alleged ransom demand, PW-1 states that Prempal gave him three letters demanding ransom. First was given in the evening of 15th, second was on 17th and the third was on 19th. Interestingly, on 15.12.2014 the informant Chheda Khan (PW-1) gave information to the police expressing suspicion regarding abduction of his son. Notably, on this information, case was not registered under section 364-A IPC though, vide report No.45, at 17.45 hours, the case was registered under section 364 IPC as Case Crime No.553 of 2014, which means that information with regard to demand of ransom was not given to the police. Further, from the statement of PW-6, made during cross examination, we notice that in between 16.12.2014 and 20.12.2014 no investigative step was taken in the case. This would suggest that no information of ransom demand was passed on to the police till 20.12.2014. Admittedly, no ransom letter was given to the I.O. by PW-1. To explain non-production of the ransom letter, PW-1 comes up with a case that the ransom letter was handed over to Prempal, because his brother too, namely, Kunwarpal, was abducted. To lend credence to this explanation a story has been weaved that Prempal was trying to cheat the informant PW-1. We fail to understand that when PW-1 admits his financial condition as that of a labourer, with cash of only Rs.2000/- in his hand, and he also denies selling his land to sit on a pile of cash, where was the occasion to raise a ransom demand from him.

34. In so far as the ransom letter alleged to have been found in the pocket of Omveer being in the handwriting of Prempal is concerned, there is no cogent or reliable evidence that it was in Prempal's writing. No doubt, at one place, PW-2 in his testimony states that Prempal wrote that letter in his presence, but at another place PW-2 states that he was kept blind-folded through out and his blind fold was removed only when he was released in that police action. If PW-2 remained blind folded there was no opportunity for him to notice as to who wrote the letter. In such circumstances, the I.O. ought to have taken the help of an expert to prove that the letter was in the hand writing of one of the accused persons. Notably, the recovery of ransom letter and other incriminating circumstances appearing in the prosecution evidence including the statement of PW-2 have been denied. For all the reasons above, we discard the prosecution story that a ransom demand of Rs. 10 lacs was made upon PW-1 for release of his son Salman.

35. Now, we come to the third limb of the prosecution story, which is, with regard to the police action resulting in release of abductee Salman (PW-2). According to PW-6 (the main I.O.), in connection with the matter, on 16.12.2014 he prepared a site plan of the place where the tractor was left abandoned and from where two persons, namely, Salman and Kunwarpal, went missing. But, in between 16.12.2014 and 20.12.2014, PW-2 took no investigative steps in the case. As per PW-6, on 21.12.2014, after arranging for a private vehicle, vide GD Entry No.20, at 10.35 hrs, he left with his team of officers to investigate the matter. During their course of travel, the team met Chheda Khan between 11.30 to quarter to 12 hrs near industrial area Papri. There, Chheda Khan (PW-1) informed the team members about the ransom demand and with regard to a person coming at a specified place to collect it for release of Salman and the other abductee Kunwarpal. It was then, for the first time, PW-6 was apprised about PW-1's suspicion in respect of the involvement of Prempal. In furtherance whereof, as per the testimony of PW-6, the entire police operation was planned, SWAT team was beckoned and in that police action the accused appellants were arrested and the abductee was got released. In our view, this entire police operation does not inspire confidence for the following reasons:-

(a) PW-1, PW-2 and PW-7, who all had a role to play at different stages of that police operation, have disclosed that the operation was conducted in the night of 20/21.12.2014, whereas PW-6, and the papers prepared in connection therewith, speaks of it being a day time operation conducted on 21.12.2014. Notably, PW-7 is not a public witness who may lie or be won over. He was the in-charge of the SWAT team. He specifically stated that it was a night operation. Despite gruelling cross-examination on that issue PW-7 stuck to his stand that it was a night operation. Once this is the position, the entire record prepared in connection with that operation comes under suspicion;

(b) Leaving the police station in a private vehicle with the entire police team for investigating a case without any prior paper work in that regard, creates a serious doubt with respect to the genuineness of that operation. Notably, there is no prior paper work such as a GD Entry or report from an informer requiring police team movement towards Papri Industrial area. As per PW-6, while the police team was moving, by chance, they met the informant and his fellow companion Rajesh. At some place it is mentioned that police team was contacted on phone but documentary evidence in that regard is lacking. This creates a strong suspicion with regard to the bona fides of the exercise. This suspicion gets deeper when the prosecution witnesses falter as regards the mode and the manner in which the trap money was arranged/ prepared. Notably, as per his claim, the informant had no money except Rs.2,000/- whereas, according to the informant as well as the police, two wads of notes, carrying 98 plain papers in between two currency notes of Rs.1,000/- denomination, were prepared, which means Rs.4000/- were arranged. Where those plain papers were arranged from and how those papers were cut and how much time it took to prepare those wads of notes, during cross examination, the witnesses contradict each other. PW-1 stated that the wads of notes were arranged by Rajesh. PW-6 stated that it was arranged by police i.e. a constable. Notably, according to PW-6, Sipahi Lal was caught with trap money at about 1.00 pm whereas, Salman was got released from his abductors at 2 pm from a place which was at some distance from the spot from where Sipahi Lal was arrested. It be noted that according to the prosecution evidence the team after preparing the wads of notes proceeded to a grove where Sipahi Lal was caught and, thereafter, proceeded to the sugarcane field of Prempal to free Salman. As per testimony of PW-6, information about demand of ransom was received between 11.30 and 11.45 hrs. Meaning thereby that in a span of about 2 hours 15 minutes the entire operation was planned and executed. In that short time, arranging for cut papers to pass on as notes, thereafter, proceeding to grove, making payment to Sipahi Lal, then arresting him and taking his disclosure, thereafter, proceeding to sugarcane field exchanging gun shots and completing the entire exercise by 2 pm, appears highly improbable, if not impossible. This entire exercise therefore appears bogus more so, when we take into consideration the testimony of PW-1, PW-2 and PW-7 which speaks of the operation being a night time event;

(c) If we take the operation to night hours, as is the case of all the witnesses except PW-6, then it was a winter night, admittedly, a dark night; there was no source of light at the spot or in the vicinity, as is admitted to the prosecution witnesses including PW-10 i.e. the I.O. who investigated that operation. If the operation was conducted with the help of torch light, there is no mention of use of torch light in the seizure memo. Further, neither there is a seizure memo nor a custody memo of any of the torches used. PW-10, the other investigating officer, admits this position. During his cross examination, PW-10 also admits that S.I. Meghnath Singh, in his statement made during investigation, has not disclosed that he was able to recognise those other accused who had allegedly escaped from the spot. Once this is the position, and from the testimony of prosecution witnesses including PW-2, it appears, PW-2 was kept blind folded, not only the entire operation of search and seizure, resulting in recovery of the abductee, becomes doubtful but even the possibility of abductee being in a position to recognise his abductors also becomes doubtful;

(d) According to PW-1, papers in respect of the operation were prepared at the police station whereas, according to PW-6 he got them prepared at the spot. When we take a conspectus of each of the circumstances/ reasons noticed above, we come to the conclusion that the prosecution has miserably failed to prove the genuineness of the search operation conducted on 21.12.2014 which resulted in the arrest of the accused appellant and release of the abductee.

36. In addition to above, there are other reasons also, which render the entire story of demand of ransom by the accused including recovery of ransom letter from Omveer doubtful. Notably, the ransom letter was recovered from the pocket of Omveer (appellant no.3). Though, PW-1 states that this letter was first shown to him on 15.12.2014 and he handed the letter back to Prempal but, this statement of PW-1 does not inspire our confidence for the reasons that, firstly, if there had been any such letter what was the occasion to return it back, and, secondly, if any such letter had been served upon PW-1 then why information in respect thereof was not given to the I.O. on 15.12.2014. Notably, when abduction was suspected, the missing report was converted into Case Crime No.553 of 2014 under Section 364 IPC and not under Section 364-A IPC. Meaning thereby that there was no ransom demand till then. All of this would suggest that the prosecution story kept changing to suit the operation. The operation was not after recording credible information in the case diary or General Diary. Rather, CD parchas followed the operation. Moreover, the ransom letter is not proved to be in writing of Prempal. It be noted that PW-2 stated that Prempal wrote the ransom letter in his presence. But, he admits that he was kept blind folded throughout the period of his captivity. If it was so, how could he have noticed Prempal writing the ransom letter. All of this when put together would suggest that something is seriously wrong with the prosecution case.

37. No doubt, there were injury marks found on the body of PW-2 which may suggest that he was tied or chained. But that by itself is no guarantee that he was tied or chained by the accused. It goes without saying that the burden is on the prosecution to prove its case beyond doubt. If the prosecution fails to prove beyond doubt that the incident occurred in the manner alleged by the prosecution then the court is left guessing as to in what other manner the incident occurred. Hence, in such a situation, the benefit of doubt would have to go to the accused. Assuming that PW-2 was incarcerated and was detained, but who incarcerated him and for what purpose is a matter which has to be proved beyond doubt. It could be possible that PW-2 was incarcerated and detained by his business rivals or by political rivals of the accused appellants and his incarceration/detention was used for framing the accused appellants. Notably, PW-2 has admitted during cross examination that he was working as a commission agent in supply of sand. He did not have a mining permit. In such circumstances, his operations might have been illegal. Suggestions have been put to the prosecution witnesses regarding involvement of a mining mafia and regarding making of complaints by the accused appellants against them and with regard to the accused appellants being framed at the instance of that mining mafia. Though, these suggestions do not partake the character of proof but they do help in evaluating the evidence as to rule out possibility of a false implication, particularly, where the prosecution story/evidence does not inspire confidence. Suggestions have not been refuted that police had been on visiting terms with the political rivals of the appellants. The clout of those rivals to use the police machinery cannot be ruled out, particularly, when the prosecution has failed to successfully demonstrate that the recovery operation was conducted on the date and time as reflected by the memorandums in that regard.

38. There is another important aspect, which is, that PW-2 was allegedly abducted in the night of 11/12.12.2014. He admits that night was dark and he was hit by a butt and thereafter 6-7 persons came and took him away on a motorcycle. He stated that he was blind folded. From his testimony it appears that he was kept blind folded throughout and was recovered blind folded. Once this is the position, who abducted him and who was involved may not be known to PW-2. In such circumstances, the possibility of PW-2 being used as a tool to make a case against the accused appellants cannot be ruled out, particularly, when we notice a clear cleavage in the statement of the prosecution witnesses with regard to the time of the search and recovery operation.

39. In so far as the recovery of mobile and country made pistols are concerned, once we doubt the entire search and seizure operation, the alleged recoveries are to be discarded. Moreover, there is no CDR on record to demonstrate that the mobile instrument of the abductee was used by the accused.

40. For all the reasons above, we are of the considered view that this is a case where the prosecution has failed to prove its case beyond reasonable doubt. The appellants are therefore entitled to the benefit of doubt. Consequently, the appeal is allowed. The judgment and order of the trial court convicting and sentencing the appellants is liable to be set aside and is hereby set aside. The accused-appellants are acquitted of the charge for which they have been tried and convicted. The appellants are reported to be in jail. They shall be released forthwith unless wanted in any other case, subject to compliance of the provisions of Section 437-A CrPC to the satisfaction of the trial court.

41. Let a copy of this order be forwarded to the court below along with the record for information and compliance.

Order Date :- 3.8.2022 AKShukla/-

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Allahabad High Court