Allahabad High Court
Ram Naresh And Another vs State Of U.P. on 20 February, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 15 Case :- CRIMINAL APPEAL No. - 1131 of 1986 Appellant :- Ram Naresh And Another Respondent :- State Of U.P. Counsel for Appellant :- R.L. Bhardwaj,Himanshu Counsel for Respondent :- A.G.A Hon'ble Arvind Kumar Mishra-I,J.
By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgement and order dated 03.04.1986 passed by Special Judge (Anti Dacoity), Etawah in Special Case No.101 of 1984, (State Vs. Ram Naresh and another), police station- Auraiya, district Etawah, whereby the appellant- Ram Shanker s/o Kali Charan- has been convicted and sentenced to undergo 4 years R.I., under Section 365 IPC.
Appropriate to mention that during the course of appeal, appellant no.1 Ram Naresh expired, therefore, his appeal stood abated against him, vide order of this Court dated 13.10.2017.
Brief facts of the prosecution case, as discernible from record, is that a written report was handed over to the police by the informant- Sri Ram Pal s/o Chabinath Pal, r/o village- Daspur, police station- Auraiya, district Etawah in police station- Auraiya at 7.20 A.M. on 7.10.1981, wherein, it was alleged, inter alia, that informant's son- Shiv Kumar- was playing near his house. It was around 7 P.M., when Mahesh s/o Bachay Lal Nai, who was living in the village, took with him (Shiv Kumar) and proceeded towards the field, where they came across two miscreants, one of them caught- Shiv Kumar (informant's son) and the other caught- Mahesh; and after making some inquiry from them, Mahesh was let off; and Shiv Kumar was taken away by them. This information was conveyed to the informant by Mahesh. The informant searched for his son (Shiv Kumar) whole night, but could not trace whereabouts of his son. Informant was apprehensive that there is conspiracy of Mahesh in the kidnapping of his son- Shiv Kumar. He went to the police- station and lodged the missing report, Exhibit K-1 (18.4.1985).
Initially, this information was not entered at any case crime number, but an entry in the General Diary was made at rapat no. 13 on 7.10.1981 at 7.20 A.M., true copy of the concerned G.D. is on record as Ex. Ka.2 and thereafter aforesaid missing report was treated an FIR.
The genesis of the entire episode has its base in the tip off information to the I.O. on 17.10.1981 regarding presence of the miscreants in the jungle. This information was received during investigation by the Investigating Officer- Chhote Lal Verma- P.W.4. It was informed that the kidnapped boy- Shiv Kumar- has been captivated in a field along with two miscreants in the forest of village- Maghgawan- within the vicinity of Police Station- Ajeetmal. Investigating Officer- Chhotey Lal Verma (P.W.4) along with S.I. B.D. Sharma and other police personnels rushed to the spot where he came to know that the miscreants had left the spot and had proceeded towards Dibiapur. When the raiding party chased the miscreants on a metador van, the miscreants under pressure of police freed the kidnapped boy- Shiv Kumar- from their truck. The kidnapped boy- Shiv Kumar- was sighted by the raiding party by the side of canal in Dibiapur. He (kidnapped boy- Shiv Kumar) told the police party that the miscreants freed him from their truck on this place, whereafter, the police party came back to the police station along with the kidnapped boy and relevant entry of the same was entered at Serial No.36 on 17.10.1981 at 8.45 P.M., which G.D. Entry has been proved as Exhibit Ka-3.
As the investigation progressed, the Investigating Officer also prepared the site plan, Exhibit Ka-4, of the place of the incident where initially kidnapped boy was kept and detained by the accused. Upon completion of the investigation, charge-sheet (Exhibit Ka.5) was filed against the appellants.
The committal proceeding took place and the case of the appellant was transferred to the court of Special Judge (Anti Dacoity), Etawah after numbering the case of the appellants as Special Case No.101 of 1984 for offence under Section 364 IPC.
The appellant was heard on the point of charge and he was charged under Section 364 IPC. Charges were read over and explained to the appellant, who abjured the charge and opted for trial.
The prosecution produced in all four witnesses. A brief sketch of the same is herein under:-
Sri Ram P.W.1 is the complainant/informant in this case. He has proved his written report, Exhibit Ka-1.
Shiv Kumar P.W.2 is the victim boy. He has detailed about the occurrence.
Head Constable Sri Rajjan Lal P.W.3 is the formal witness, he has proved the G.D. of information as Exhibit Ka-2 besides proving the G.D. Entry regarding conversion of the case as Exhibit Ka-3.
S.I. Sri Chhotey Lal Verma P.W.4 is formal witness and the I.O. of the case. He has prepared the site plan and proved the same as Exhibit ka-4 and after completing the necessary formalities, he filed the charge-sheet against the appellant, which is Exhibit Ka-5.
Evidence for the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C., wherein they have claimed to be not guilty and termed their implication false due to enmity and parti-bandi.
No other testimony was adduced, therefore the evidence for the defence was closed and arguments heard and after considering the entire facts and circumstances of the case and evaluating the testimony on record, the trial court entered finding of conviction and sentenced the appellant under the aforesaid section of Indian Penal Code, which paved way for this appeal before this Court.
Heard Sri Himanshu, learned counsel for the appellant and Sri B.D. Nishad, learned AGA for the State and perused the record of this appeal.
Learned counsel for the appellant vehemently urged that in this case, the stream of coherence, which was required to prove the case within four corners of under Section 364 IPC, is missing from very beginning itself. The genesis and the origin of the episode revolves around Mahesh, a co- villager and relative of the informant have expressed clear cut apprehension about his involvement in disappearance of Shiv Kumar, however, he has not been examined by the prosecution for reasons best known to it, therefore, the origin and genesis of the offence itself becomes doubtful. It is established tenet of criminal jurisprudence that if the origin of an offence is found to be cryptic and clandestine, then the whole case becomes doubtful. There is no worthy evidence/testimony, which may inspire confidence to the ambit that infact the kidnapping was done by the accused. Accused had no specific motive to commit the crime. Factum of kidnapping is not supported either by any independent circumstance or any independent witness. Moreso, the written report itself is doubtful and it is ante- timed and cannot be believed to have been given at the time and on the date, as claimed to have been given and it was never given at the police station on 7.10.1981. No recovery, whatsoever, was effected from Dibiapur by the side of the canal as claimed by the I.O. Things have been manipulated by the informant in- collusion with the police for the reason that parti- bandi between 'Nai' and 'Pal' caste of the village is on high stream in the village. Lastly, learned counsel for the appellant submitted that assuming it to be that kidnapped was done, which matured on the recovery of th victim boy, then the factum of recovery loses significance, in view of fact that no site plan of the very place of recovery was ever prepared by the Investigating Officer, that way entire case, on the face of it, appears to be false, therefore, conviction so recorded by the trial court becomes perverse against the material existing on record and on the contrary the apparent circumstances point and establish innocence of the appellant.
Learned AGA has supported the judgement and has submitted that the evidence on record justifies conviction and the sentence imposed cannot be interfered with, consequently, the appeal lacks merit.
Also considered the rival submissions.
The moot point that crops up for adjudication of this appeal relates to fact whether the prosecution has been able to prove the charge levelled against the appellant beyond reasonable doubt?
Bare perusal of the written report, Exhibit Ka-1, is indicative of fact that a missing report was lodged at the police station- Auraiya on 7.10.1981 at 7.20 A.M., whereupon, relevant entry was noted in the concerned GD and the investigation was taken and carried out by the Investigating Officer- S.I. Sri Chhotey Lal Verma P.W.4. After receiving the tip off information to be effect that the kidnapped boy has been captivated in the jungle of village- Maghgawan within the Police Station- Ajitmal, a raiding police party was constituted by the Investigating Officer, thereafter the police party reached to the spot from where they came to know that the miscreants had left the place along with the kidnapped boy for another destination towards Dibiapur. The police party gave hot chase to the miscreants, who were fleeing away with the kidnapped boy in a truck. They (accused) became apprehensive of their arrest, therefore, they freed the victim by the side of the canal at Dibiapur. After 15-20 minutes, the police party arrived on the spot and recovered the boy- Shiv Kumar- from the side of the canal where the victim told the raiding party that the accused had gone after freeing him. Thereafter, Shiv Kumar was taken to the police station- Auraiya. Returning of the recovered boy along with the police party at police station Auraiya was noted in the G.D. as Rapat No.36, Exhibit Ka.3. Statement of the recovered boy was also recorded. At this juncture and a crime number was allotted to the case as Crime No. 503 of 1981 at police station- Auraiya, under Section 364 IPC. Thereafter the I.O. prepared the site plan (Exhibit Ka-4) of the place where initially the kidnapped boy was detained in the field.
In so far as the factum of kidnapping is concerned, obviously, the things started with the intervention of Mahesh, who took the kidnapped boy with him and he was intercepted on way by two miscreants though not named by Mahesh. Mahesh was relative of the accused. Ram Naresh also did not name any accused and a suspicion was raised in the written report by the informant against Mahesh alone that his behaviour is intriguing on the disappearance of his son Shiv Kumar.
It is admitted fact that prosecution has not examined and produced Mahesh to prove the factum of accompanying Shiv Kumar with him, though he is said to be responsible for disappearance of Shiv Kumar, as claimed by the informant in the FIR. As to how and why, if the claim of the informant was laid to the ambit that the kidnapped boy went in company with Mahesh, then Mahesh did not spell name of the accused, though, both the accused belong to the same village. Therefore, contention to the extent that the genesis and origin of the offence has been concealed, appears to be genuine; and withdrawal of Mahesh from being a prosecution witness in trial court also strengthens the claim of the appellant. Appearance of Mahesh on the scene was basically the starting point which ordained and facilitated kidnapping, but he was not produced in the trial curt in support of claim made by the informant himself.
In so far as demand of ransom is concerned, there is nothing on record that may reflect and convince this Court that and any such letter was handed over to the I.O. during the course of investigation by the informant- Sri Ram Pal P.W.1, by which any ransom was demanded by the accused. Sri Ram Pal P.W.1 himself has produced, these, letters before the trial court, which also exposes hollowness of the claim so made, as to how and why when the kidnapped boy had already been recovered, trial commenced and yet he found the appropriate opportunity only at the time of his examination before the trial court and only then he produced the letters in court, is intriguing. These letters also do not establish anything as such and are not of any significance as the fact was never proved to the magnitude that the same was ever sent or was managed by the appellant himself.
In view of above, the claim of demand of any ransom does not inspire confidence and appear to be not established in this case against the appellant, therefore, the allegation of demand of ransom cannot be taken to have been reasonably proved.
In so far as point of testimony of the victim Shiv Kumar P.W.2 is concerned, he has testified in clear- cut terms that the present appellant- Ram Shanker- remained present throughout with him for all the 11 days and he used to notice the face of the appellant stealthily by removing part of the strip wrapped around his eyes. He has recognized the appellant before trial court as the same person.
If this testimony is taken to be correct and to be acted upon, then this does not conforms to the point of recovery of the kidnapped boy, and this Court may conveniently switch over to the testimony of S.I. Chhotey Lal Verma P.W.4. As per his testimony, the site of the canal in Dibiapur- the place of recovery- has not been satisfactorily proved by any cogent evidence or circumstance that he was recovered and a number of persons had gathered on the spot. The Investigating Officer S.I. Chhotey Lal Verma P.W.4 did not prepare any site plan of the place of recovery. This gives vital blow upon the prosecution case. In the absence of site plan concerning the place of recovery of the victim, the claim so raised by the prosecution is falsified and the fact of recovery of the boy is not proved. The trial court was oblivious of the aforesaid particular aspect of this case as well as the legal position and it wrongly and erroneously appreciated the facts, vis a vis, circumstances of this case and recorded perverse finding of conviction under Section 365 IPC and awarded sentence.
Consequently, the judgement and order of the trial court dated 03.04.1986 passed by Special Judge (Anti Dacoity), Etawah in Special Case No.101 of 1984, (State Vs. Ram Naresh and another), police station- Auraiya, district Etawah is hereby set aside and the appeal succeeds. The appellant is exonerated of the charge and the sentence awarded is quashed.
Appellant is on bail. He need not surrender. His bail bonds are hereby cancelled and sureties discharged. However, he will comply with the provisions of Section 437-A Cr.P.C.
Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.
Dt.20th February, 2018 Raj