Allahabad High Court
Basant Chaurasiya vs State Of U.P. on 16 April, 2018
Bench: Amreshwar Pratap Sahi, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved On: 27.3.2018 Delivered on: 16.4.2018 Court No. - 40 Case :- CRIMINAL APPEAL No. - 883 of 2015 Appellant :- Basant Chaurasiya Respondent :- State Of U.P. Counsel for Appellant :- Rajendra Prasad Tiwari,Yogesh Kumar Srivastava Counsel for Respondent :- Govt.Advocate Connected with Case :- CRIMINAL APPEAL No. - 479 of 2015 Appellant :- Bably Respondent :- State Of U.P. Counsel for Appellant :- D.K.S. Rathor,Anand Prakash Pandey Counsel for Respondent :- Govt. Advocate Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajeev Misra,J.
(Delivered by Hon'ble Rajeev Misra, J.)
1. Challenge in these criminal appeals is to the judgement and order dated 14.1.2015 passed by the Additional Sessions Judge, Special Judge, Dacoity Affected Area at Jhansi , in S.S.T. No. 124 of 2007 (State Vs. Basant Chaurasiya and others), arising out of Case Crime No. 1270 of 2007 (State Vs. Basant Chaurasiya) under sections 364A, 120B IPC, P.S. Sipri Bazar, District Jhansi. Consequently, both the criminal appeals have been heard together and are being decided by this common judgement.
2. By means of the impugned judgement and order dated 14.1.2005, the Court below has convicted the accused appellants under section 364A IPC and consequently sentenced them for life imprisonment along with fine of Rs.10,000/- each. In case of default in the payment of fine, the accused-appellants are to further undergo imprisonment for six months. The accused-appellants have also been convicted under section 120-B read with section 364A IPC and consequently sentenced for life imprisonment along with fine of Rs.10,000/- each. In case of default in the payment of fine, the accused-appellants are to further undergo imprisonment for six months each.
3. We have heard Mr. V.P. Srivastava, the learned Senior counsel assisted by Mr. Anand Prakash Pandey, Advocate for the accused-appellant Bably, Mr. R.P. Tewari, Advocate and Mr. Noor Mohammad Advocate for the accused-appellant Basant Chaurasiya and Mr. Saghir Ahmad, the learned A.G.A for the State.
4. The facts giving rise to the present criminal appeal lie a very narrow compass which are as follows:-
5. Manoj Kumar Agarwal, the informant and father of the victims Yash and Vaibhav, is the owner of a house situate in Mohalla Mission Compound, Jhansi. He is also the owner of a Petrol Pump situate in Rath-Jhansi which is at a distance of few kilometers away from main Jhansi city. On account of the business establishment at Rath, Manoj basically resides at Rath to look after and effectively manage the Petrol Pump owned by him. However, as the family resides at Jhansi, Manoj used to frequently visit Jhansi, where his family comprising of his wife Jyoti Agarwal and two children namely, Yash Agarwal and Vaibhav Agarwal lived in the house mentioned above.
6. About 2 - 2 ½ months before the occurrence, one Babloo Tewari a man of close acquaintance of Manoj Kumar Agarwal came to meet him along with accused-appellant Basant Chaurasiya. Babloo Tewari introduced Basant Chaurasiya to Manoj Kumar Agarwal and requested him to give a portion of the house at Mission Compound, Jhansi on rent to Basant Chaurasiya. Basant Chaurasiya is stated to have married one Bably Pandey, the other accused-appellant, which is an inter caste marriage, and that was a cause for strained relationship between Basant Chaurasiya and his family. As such, Babloo Tiwari requested Manoj Kumar Agarwal to give a portion of his house on rent to Basant Chaurasiya. Seeing no reason to doubt Babloo Tewari or to suspect the credibility of Basant Chaurasiya, Manoj Kumar Agarwal readily gave a portion of his above mentioned house on rent to Basant Chaurasiya. As such Basant Chaurasiya became a tenant of Manoj Kumar Agarwal.
7. Bably Pandey with whom Basant Chaurasiya was alleged to have made a love marriage, used to frequently visit Basant Kumar Chauraisa. As such Bably Pandey was believed to be the wife of Basant Chaurasiya. Bably Pandey lastly left the tenanted house of Basant Chaurasiya at Jhansi on 2.8.2017 and went to Jabalpur. Having gained affinity and confidence of the family of Manoj Kumar Agarwal, Basant Chaurasiya hatched a conspiracy to kidnap the children of Manoj Kumar Agarwal for ransom. In furtherance of his evil objective, on 5.8.2017 at about 8:30 am when Manoj Kumar Agarwal was at his petrol pump at Rath, District Jhansi, Basant Chaurasiya suggested Jyoti Agarwal that her children needed hairdressing and if she permits he could take them on his motorcycle to the Barber's shop for a hair cut. Having nothing in her mind to doubt the character and credibility of Basant Kumar Chauraisa she readily agreed to send both of her children along with him to have a hair cut. Taking advantage of the confidence posed in him by the innocent mother of the minor children namely, Vaibhav Agarwal and Yash Agarwal Basant Chaurasiya took them on his motor cycle for the purported reason of getting their hair dressed, but ultimately kidnapped them for ransom. Feeling perturbed as the children did not return even after a long wait, Jyoti Agarwal gave a mobile call to her husband Manoj at 12 noon explaining the absence of the children. Immediately, Manoj Kumar Agarwal out of impatience and curiosity gave a all to Basant Chaurasiya to know the whereabouts of his children. Sensing danger Bansant Kumar Chaurasiya engineered another story stated that the tyre of the motorcycle has burst and therefore, he will return after getting it replaced. At last at 4 p.m. the true reason behind the entire episode was disclosed when Basant Chaurasiya called Manoj Kumar Agarwal on his mobile to arrange a payment of Rs. 50,00,000/- as ransom for the safe release of his two minor children, failing which the children would be killed.
8. P.W. 1 Manoj Kumar Agarwal accordingly returned from Rath to Jhansi city and after being acquainted with the facts of the case lost no time in going to the Police Station. He lodged a written report dated 5.8.20107 (Ext. Ka 1) at the Police Station Sipri Bazar. On the basis of the aforementioned written report an F.I.R. dated 5.8.2007 was registered at P.S. Sipri Bazar, Jhansi as Case Crime No. 1270 of 2007, under section 364 A IPC (Ext. ka-6).
9. A perusal of the said F.I.R. will go to show that the same was lodged on 5.8.2007 at 8.30 a.m. Basant Chaurasiya was named as an accused. The place of occurrence was shown as the house of Manoj Kumar Agarwal situate at Mission Compound, Jhansi and the distance between the place of occurrence and the Police Station was shown as 1 ½ Km.
10. After the lodging of the aforesaid F.I.R. the police of Police Station Sipri Bazar, District Jhansi swung into action. The Investigating Officer namely S.I. Balbir Singh Gaur (P.W. 5) recorded the statements of various witnesses under Section 161 Cr.P.C. He prepared the site plan of the place of occurrence (Ext Ka-3). From his testimony, it is apparent as to how he searched for the missing children from 05.08.2007 to 11.08.2007 and ultimately succeeded in getting them recovered on 11.08.2007. The Investigating Officer during the course of investigation has prepared the call details of the Mobile Phone of the first informant Manoj Kumar Agarwal in respect of the various calls made on his mobile phone regarding the demand of ransom by the accused-Basant Kumar Chaurasiya. He has duly entered in the case diary his activities regarding the search of the missing children and the various places visited by him alongwith the information gathered regarding the accused-appellants.
11. Upon completion of the investigation, the Investigating Officer namely Balbir Singh (P.W. 5) submitted the charge sheet dated 15.9.20107 (Ext. Ka 10) whereby not only Basant Chaurasiya the named accused but also Bably, Dinkar Prasad Pandey, Bablu, Munnu, Smt. Rajjo, Smt. Ranu Kriplani, Mahesh Kriplani, Uttam Kumar Tewari were charge sheeted under sections 364A, 368, 120B and 420 IPC.
12. Thereafter, cognizance was taken by the Special Judge D.A.A. Act, Jhansi vide order dated 9.10.2007. As such Special Sessions Trial No. 141 of 2007 (State Vs. Basant Chaurasiya) came into existence.
13. The Trial Court vide order dated 2.5.2007 framed the charge under section 364A IPC against one of the accused namely, Basant Chaurasiya. Thereafter vide order dated 25.11.2007 charges were framed against the other accused for the offences under section 120B read with Section 364 A, 368 IPC as well as independently under section 368 IPC.
14. The accused persons denied the charges and demanded trial.
15. The prosecution in support of it's case adduced 5 witnesses namely, P.W.1 Manoj Kumar Agarwal, P.W. 2 Smt. Jyoti Agarwal, P.W.3 Yash Agarwal, P.W.4 Manoj Kumar and P.W.5 S.I. Balbir Singh.
16. P.W.1 Manoj Kumar Agarwal the first informant on deposition proved the written report dated 5.9.2007 (Ext. Ka 1) tendered by him at P.S. Sipri Bazar, Jhansi regarding the occurrence. This witness in his statement in chief which was recorded on 12.8.2010, categorically narrates how Basant Chaurasiya was introduced by Babloo Tewari to him and on his request he was inducted as a tenant in the house situate at Mission Compound, Jhansi. He also narrated the occurrence which was disclosed to him by his wife Jyoti Agarwal and the mobile calls made by the accused Basant Chaurasiya demanding ransom. He also disclosed the Mobile Numbers from which the calls were made by the accused Basant Chaurasiya and on the basis of the same a frantic search was made by the police at different locations for the kidnapped children and how ultimately the kidnappers were recovered. This witness was virtually grilled in his cross examination on 9.11.2010, 23.11.2010, 7.12.2010 and 11.2.2011, but the defence could not dislodge his testimony. As such, the testimony of this witness stood intact regarding the demand of ransom and the recovery of the children Vaibhav Agarwal and Yash Agarwal by the police in his presence from the house of Diwakar Prasad Pandey at Village Bhekampur, P.S. Niwas, District Mandla, M.P.
17. Smt. Jyoti Agarwal, wife of Manoj Kumar Agarwal and the mother of the two minor children Vaibhav Agarwal and Yash Agarwal deposed as P.W. 2. In her statement in chief she clearly stated how Basant Chaurasiya had taken her two children in the garb of getting their hair cut and how honestly she believed in him. She also denied the suggestion of having sent her children along with Basant Chaurasiya for sight seeing to any other place. She further categorically stated that when the children had not returned upto 12 noon, she had informed her husband Manoj Kumar Agarwal. It is, thereafter, Manoj Kumar Agarwal, P.W. 1 contacted Basant Chaurasiya, whereupon the false plea of the tyre of the motorcycle having burst was raised by Basant Chaurasiya was concocted. Thus this witness categorically proved that the two minor children namely Vaibhav Agarwal and Yash Agarwal were taken by Basant Chaurasiya from the custody of their mother namely Jyoti Agarwal, P.W. 2. on the false pretext of getting their hair cut. Thus the abduction and mens rea behind such abduction was clearly stated by this witness in her examination in chief. The defence cross examined this witness on 10.2.2012 and 12.2.14. Various questions were put to her to dislodge her testimony, but the defence could not succeed in even making a dent in her testimony. Her cross examination remained consistent with her statement in chief and no contradiction could be established from her cross examination. Thus, the testimony of this witness was found to be intact beyond doubt.
18. P.W.3. Yash Agarwal is one of the kidnapee. His statement was recorded on 6.7.2012 and he stated his age as 13 years. The occurrence took place on 5.8.2007 i.e. five years before the date on which his testimony was recorded in the court. As such, the age of this witness on the date of occurrence was 8 years. This witness in his statement-in-chief has categorically stated that at the time of occurrence he was a student of Class IV and was studying in M.L.M School. He has categorically stated that Basant Chaurasiya was a tenant in his home along with his wife whom he addressed as Bably Pandey. He has further categorically stated how Basant Chaurasiya himself came to his mother and stated that his brother Vaibhav has fairly grown up hairs which need to be dressed. On this Vaibhav resisted going alone. Thereupon, his mother Jyoti Agarwal asked Vaibhav to accompany his brother and he need not take a hair cut. Thereafter, Basant Chaurasiya took both of them on his motorcycle on the pretext of getting their hair cut. Basant Chaurasiya then bluffed them that there is no good shop and therefore, they shall go to Bassantpur which is a good place full of lovely animals. Thereafter they reached Basantpur where they met Bably aunty and another aunty whom he does not recognize. At his juncture, Basant Chaurasiya came with a four wheeler and took them to Bhopal. He then elaborates the dialogue which took place between Basant Chaurasiya and Bably Aunty and also states about the exchange of money which took place between the two. This witness further states that from Basantpur they were taken to Jabalpur. He then describes the dialogue which took place between Basant Chaurasiya and Others and also about his stay at Jabalpur. From Jabalpur the kidnapees were taken to Bhikamur village in a Maruti Car. At this place, Basant Chaurasiya had a talk with Manoj Kumar Agarwal father of the kidnapees. He then states that they stayed at Bhikampur for two days and during this period, Basant Chaurasiya talked to his father on phone regarding money. On the next day, the police came and recovered them.
19. This witness is like an injured witness. P.W.3 is one of the kidnapped children and therefore, his testimony carries a greater weight and credibility. The same cannot be ignored or discarded on trivial grounds. This witness in his testimony has clearly described the entire episode right from his being taken on 5.8.2007 step by step along with his brother for a hair cut by Basant Kumar Chaurasiya upto his recovery. His testimony stands corroborated with the testimony of P.W.2 Smt. Jyoti Agarwal, the mother of the kidnappees who has also narrated the same story. Secondly, the demand of ransom by Basant Kumar Chaurasiya from Manoj Kumar Agarwal father of P.W.3 stands corroborated by the testimony of this witness which fact was also stated by P.W.1 Manoj Kumar Agarwal. The defence has cross-examined this witness on different dates but the defence could not dislodge this witness. The aforesaid witness has been consistent all through out and secondly the defence in his cross-examination could not cull out any such circumstance which could make his testimony doubtful.
20. P.W.4 Manoj Kumar is the scribe of the F.I.R. He has proved the F.I.R. dated 05.08.2007 and other exhibits.
21. P.W.5, S.I., Balbir Singh is the Investigating Officer of Case Crime No. 1270 of 2007 under Section 364A I.P.C., P.S. Sipri Bazar, District- Jhansi. This witness has conducted the investigation of the aforesaid case crime from 05.08.2007 up to the recovery of the kidnapped children on 11.08.2007. He has proved the memo of recovery of the kidnapped children (Ext. Ka.-2), the recovery of the handset of Mob. Phone No. 9977189009 belonging to one of the accused Basant Kr. Chaurasiya , the site plan Ext. Ka. -3, the recovery of the Mob. Phone on the pointing out of Basant Chaurasiya Ext. Ka.-9 and the charge-sheet submitted by him against the accused persons (Ext. Ka.-10).
22. Apart from adducing the aforesaid witnesses, the prosecution has also relied upon certain material evidence which are tabulated herein below:-
Ext. Ka-1 Written report dated 5.8.2007 Proved by P.W. 1 Ext. Ka-2 Recovery memo of two kidnapped children Proved by P.W. 5 Ext. Ka-3 Recovery memo and Supurdaginama dated 17.8.2017 of Mobile set and Sim Card. Proved by P.W. 5 Ext. Ka-4 Search and Recovery Memo dated 11.8.2007 of Nokia Mobile with Airte Sim Card. Proved by P.W. 5 Ext. Ka-5 Recovery memo of Nokia Mobile and Sim dated 11.9.2007.
Proved by P.W. 5 Ext. Ka-6 F.I.R.
Proved by P.W. 4 Ext. Ka-7 Government Diary Proved by P.W. 4 Ext. Ka-8 Site Plan with Index Proved by P.W. 5 Ext. Ka-9 Recovery memo of Nokia Mobile and two sims Proved by P.W. 5 Ext. Ka-10 Charge-sheet Proved by P.W. 5
23. After the completion of the prosecution evidence all the incriminating material and circumstances were disclosed to the accused persons for their version as provided under section 313 Cr. P. C. All the accused persons execp Basant Chaurasiya either denied the questions put to them or they pleaded ignorance as is evident from their reply to the questions put under section 313 Cr.P.C. In reply to question No. 11 the accused Diwakar Prasad pleaded false implication. The accused Uttam Kumar Tewari pleaded that he has nothing to say. The accused Rani Devi Kriplani also pleaded that she has nothing to say. The accused Babloo Pandey pleaded that he is innocent. Similar was the answer give by the accused Mahesh Kripalani. The accused Bably Pandey denied her status as the wife of Basant Kumar Chaurasiya and pleaded false implication. The accused Rajjo Pandey pleaded her innocence, the accused Munnu Pandey pleaded false implication. Lastly, the accused Basant Chaurasiya pleaded that he shall file written submissions.
24. We may observe at this stage that only one of the accused Basant Chaurasiya came out with his version of the occurrence. Rest of the accused persons did not come out with their version of the occurrence. However, none of the accused adduced any witness in proof of their innocence, nor they themselves appeared as a witness to explain their innocence. Thus the only defence set up by rest of the accused persons as is also discernible from their statements under section 313 Cr. P. C. is that the accused persons are innocent and they have been falsely implicated. All the material relied upon by the prosecution is false and obtained against the accused, out of conspiracy. Thus the logical conclusion of the aforesaid is that the prosecution has to prove its own case and that too beyond reasonable doubt.
25. The accused Basant Chaurasiya filed his written contention Paper No. 412A/27 and pleaded that he is the body guard of the first informant Manoj Kumar Agarwal. He further stated that he used to reside in the house of the first informant and was also involved in the chemical trade of the first informant. A sum of Rs. 40,000/- is due to him from the first informant towards wages and for the activity involving preparation of adulterated diesel from kerosene. On account of the demand raised by him regarding the aforesaid and with the motive that the aforesaid amount may not be paid by him coupled with the fact that the first informant had doubt that his wife has illicit relations with him, and further to evict him from the tenanted premises he has been falsely implicated in the case.
26. In the trial which commenced before the court below, the prosecution supported the charge alleged against the accused persons that the minor children of the first informant have been kidnapped for ransom by the accused persons. In pursuit of the aforesaid, a conspiracy was hatched in which Basant Kumar Chaurasiya and his wife Bably Pandey became tenants of the first informant Manoj Kumar Agarwal and thereafter developed affinity with the children of the first informant. In furtherance of the aforesaid conspiracy, the accused Basant Kumar Chaurasiya sent his wife Bably Pandey to Jabalpur two days before the occurrence i.e. on 2.8.2007. Thereafter, in the garb of getting the hair cut of the two minor children of the first informant, the accused Basant Kumar Chaurasiya kidnapped them for ransom to the tune of Rs. 50,00,000/-. After the children had been kidnapped on 5.8.2007, they were taken from Jhansi to Basantpur where Bably Pandey the co-accused joined Basant Kumar Chaurasiya. From this place, Basant Kumar Chaurasiya took the kidnapees in the company of Bably Pandey to Bhopal in a Marshal Vehicle. Then the kidnapees were taken to Jabalpur and thereafter to Bhikampur village in a maruti car. All this time, there was a continuous demand of ransom by Basant Kumar Chaurasiya as is evident from the material collected by the Investigating Officer. The Investigating Officer found that Basant Kumar Chaurasiya had called Manoj Kumar Agarwal the first informant thrice, on 5.8.2007 regarding the demand of ransom. On 6.8.2007, the accused Basant Kumar Chaurasiya called Manoj Kumar Agarwal five times demanding ransom. On 7.8.2007, Basant Kumar Chaurasiya called the first informant Manoj Kumar Agarwal five times regarding the demand of ransom. On 8.8.2007, the accused Basant Chaurasiya called the first informant Manoj Kumar Agarwal ten times, demanding the ransom towards the release of his minor children. On 9.8.2007 the accused Basant Chaurasiya called the first informant once again demanding the payment of ransom for the safe release of his children. The aforesaid calls were made from mobile nos. 9877189009, 9927806780, 9826179663 and 9936337097. The call details referred to above, were relied upon by the prosecution on the basis of call details obtained by the Investigating Officer namely, S.I. Balbir Singh P.W.5. It has further come in evidence that the mobile number of the first informant Manoj Kumar Agarwal is 9450853443. The calls were made on this mobile number, details of which have been given herein above. Basant Chaurasiya was having mobile number 9977189009 which had a sim registered in the name of Mr. Munnu Pandey father of Bably Pandey. On the date of the recovery of the kidnapped children, the Investigating Officer prepared the recovery memo pertaining to the two kidnapped children (Ext. Ka-2). The Investigating Officer also recovered a Nokia mobile hand set with airtel sim bearing no. 9977189009. The recovery memo of the same was prepared and is marked as Ext Ka-4. On 17.8.2007, the Investigating Officer recovered the mobile phone of the first informant along with the sim bearing no. 94508533443 and gave the same in the supurdagi of the first informant. The same is marked as Ext Ka-3. Subsequently, on 25.8.2007, on the pointing out of the accused Basant Chaurasiya the Investigating Officer recovered a Nokia mobile hand set with two sims bearing nos. 9827806780 and 9936337097. The same is marked as Ext. ka-9. On 11.9.2007, the Investigating Officer recovered another Nokia hand mobile set along with a sim bearing no. 9450853443 belonging to the first informant. The same is marked as Ext. ka-5. Thus, the call details, followed by the recovery of the hand set and the sims used in the making of calls by the accused Basant Chaurasiya to the first informant namely, Manoj Kumar Agarwal stood proved beyond doubt.
27. On behalf of the accused Basant Chaurasiya it was pleaded before the court below that he was an employee of the first informant Manoj Agarwal and a partner in the business of the first informant wherein chemical was mixed in kerosene to make it adulterated diesel. The first informant had neither paid his salary of the last six months nor a sum of Rs. 40,000/- which was due to him. The accused used to reside in the house of the first informant but did not have illicit relations with the wife of the first informant. It was only a mistaken belief of the first informant that he has some illicit relations with his wife. It is on account of the aforesaid that the first informant wanted to evict the accused Basant Chaurasiya from the tenanted portion of his house. It is on account of the aforesaid that the first informant himself sent his minor children with the accused persons and thereafter, engineered this false story that his children have been abducted by him. On the basis of this false story the accused has been falsely implicated. It was pleaded that it has come in the statement of the kidnapee that they were kept comfortably and were not subjected to cruelty. The logical conclusion of the aforesaid was that the accued Basant Chaurasiya had taken the minor children of the first informant for a joy ride with the consent of their mother Jyoti Agarwal wife of the first informant.
28. This defence set up by the accused Basant Chaurasiya was a self engineered defence for which there exists no factual foundation proved by the defence evidence. The accused Basant Chaurasiya did not even have the courage to appear in the witness box and state on oath the facts stated by him in his written contentions (paper no. 462A/27). No witness was adduced by the accused Basant Chaurasiya to prove the defence set up by him nor any documentary evidence was filed to substantiate the facts stated by him in his aforesaid written contentions. Consequently, the defence set up by the accused Basant Chaurasiya was a rope of sand totally unsubstantiated and rightly discarded by the court below.
29. It was then pleaded before the court below that the statements of the prosecution witnesses are contradictory and therefore, the occurrence in question is false. The trial court having examined and evaluated the testimony of the three prosecution witnesses of fact, namely, P.W.-1-Manoj Kumar Agarwal, P.W.-2-Smt. Jyoti Agarwal and P.W.-3- Yash Agarwal one of the kidnappees found that all the three prosecution witnesses have remained consistent throughout their statement-in-chief as well as also during their cross-examination. The basic prosecution case remains the same in the testimony of the aforesaid three witnesses. Minor variations in statement of the witnesses is very natural and on that basis alone it cannot be said that the occurrence is false. The defence, in the cross-examination of the aforesaid witnesses of fact, could not dislodge them nor could the defence cull-out any such fact in their cross-examination so as to make their testimony not worthy of trust. The trial court thus having found the three prosecution witnesses of fact to be credible and reliable and thus concluded that their testimony is trustworthy. Thus the trial court held the occurrence to be proved.
30. The accused-appellants in furtherance of the defence set up by them alleged that the recovery of the minor children from the house of Dwarika Pandey/Bablu @ Tika Ram Pandey in village Bhikampur is false as the alleged recovery has not been evidenced by any public witness. The court below seriously and diligently dwelled into this question as once the recovery is proved to be doubtful the entire prosecution case would fail. Admittedly, the recovery of the kidnapped minor children was made from a private house in village Bhikampur. The said house is owned by Dwarika Pandey. Therefore, the presence of a public witness who will readily come forward and testify their recovery is a remote possibility. However, the recovery of the minor children from the place of recovery stands clearly proved by the testimony of P.W.-3 Yash Agarwal one of the kidnapees P.W.1 Manoj kumar Agarwal father of the kidnapped children and P.W.-5 S.I. Balbir Singh, who recovered the kidnapped minor children. These three prosecution witnesses, i.e., P.W.1 Manoj Kumar Agarwal, P.W.-3, Yash Agarwal and P.W.-5, S.I. Balbir Singh clearly stated the recovery from the house of Dwarika Pandey at Village Bhikampur. Their testimony stood intact and could not be dislodged on this issue even when the defence had virtually grilled the aforesaid witnesses on this issue. As such the trial court rightly concluded the recovery to be proved.
31. Lastly, it was contended on behalf of the prosecution that the accused Basant Chaurasiya had kidnapped the minor children of the first informant, out of a conspiracy. The trial court found that the abduction of the minor children of the first informant was the outcome of a well planned conspiracy hatched by Basant Kumar Chaurasiya of which the co-accused Bably Pandey had full knowledge. The trial court found that it is on account of the aforsaid conspiracy that the accused Basant Chaurasiya sent his wife Bably Pandey two days prior to the occurrence to Jabalpur, MP. After the children had been abducted they were taken to Narsinghpur from Jhansi where Bably Pandey joined them. All these facts form part of the same transaction and therefore relevant under Section 6 of the Indian Evidence Act.
32. On the findings as detailed herein above the trial court concluded and rightly so that the prosecution has proved its case beyond doubt and consequently, convicted the accused-appellants of the charges levelled against them. The trial court having examined the entire prosecution evidence and upon judicious evaluation of the same rightly concluded that the rest of the accused persons were not part of the conspiracy hatched by Basant Chaurasiya in connivance with Bably Pandey nor they have abetted in any manner in the criminality committed by Basant Chaurasiya alongwith Bably Pandey. Consequently, the trial court convicted the accused-appellants of the charges alleged against them but acquitted the rest of the accused persons.
33. Before we proceed to consider the varied submissions urged by Mr. V.P.Srivastava, the learned Senior Counsel on behalf of the accused-appellant Bably Pandey assisted by Sri A.P. Pandey, Mr. R.P. Tewari, Advocate and Mr. Noor Mohammad Advocate for the accused-appellant Basant Chaurasiya , it will be prudent to summarize the proved facts of the present case.
1. First informant Manoj Kumar, Agarwal is the owner of a house bearing No.191/A situate near Varsa Marriage Garden Misson Compound, Jhansi.
2. First informant Manoj Kumar, Agarwal is also an owner of a petrol pump at Rath, District-Jhansi which is situate few Km's away from Jhansi.
3. The family of the first informant Manoj Kumar, Agarwal comprises of himself, his wife Jyoti Agarwal and two sons, namely, Yash Agarwal and Vaibhav Agarwal.
4. First informant Manoj Kumar, Agarwal normally resides at Rath where his petrol pump is situate but frequently visits Jhansi where the family resides permanently.
5. The accused Basant Kr. Chaurasiya was introduced by one Bablu Tiwari to the first informant Manoj Kumar Agarwal with a request to let a portion of the house on account of love marriage with Bably Pandey that had caused strained relations with his family.
6. The first informant Manoj Kumar Agarwal had no reason to doubt the credibility of Basant Km. Chaurasiya on accout of his being introduced by Bablu Tiwari with whom Manoj Kumar Agrawal had close acquaintance and intimacy.
7. As a result of the aforesaid, Basant Km. Chaurasiya was inducted as a tenant by the first informant Manoj Kumar Agarwal in his house situate at Mission Compound, Jhansi.
8. The other accused- Bably Pandey used to frequently visit Basant Kumar Chaurasiya in his tenanted house. As such the family of the first informant reasonably presumed Bably Pandey to be the wife of Basant Km. Chaurasiya.
9. The other accused Bably Pandey left the tenanted house of Basant Km. Chaurasiya at Jhansi on 02.08.2007 and went to Jabalpur.
10. On 05.08.2007, the accused Basant Km. Chaurasiya took the two children on his motorcycle in the garb of getting their hair cut but ultimately abducted them for a ransom of Rs. 50 lacs.
11. The information of the said incident was given by P.W.-1, Manoj Km. Agarwal vide written report dated 05.08.2007 (Ext. Ka.-1). On the basis of the said written report an F.I.R. dated 05.08.2007 (Ext. Ka.-6) came to be registered with the police station Sipri Bazar, Jhansi as Case Crime No. 1270 of 2007, under Sections 364A I.P.C. P.S. Sipri Bazar, District-Jhansi.
12. In the F.I.R. dated 05.08.2007, only Basant Km. Chaurasiya was named as an accused.
13. Pursuant to the F.I.R. dated 05.08.2007 the investigation of the case was conducted by S.I., Balbir Singh (P.W.-5).
14. The Investigating Officer, namely, S.I., Balbir Singh (P.W.-5) found that the accused Basant Kumar Chaurasiya has made phone calls on the mobile phone of the first informant, namely, Manoj Kumar Agarwal having Mob. No. 9450853443 in the following manner:
05.08.2007- three times, 06.08.2007- five times, 07.08.2007- five times, 08.08.2007- ten times, 09.08.2007- once.
16. The other accused Bably Pandey joined Basant Chaurasiya at Basantpur and remained in his company continuously even when she knew that the two minor children belong to Manoj Kumar Agarwal.
17. It has further been proved from the evidence on the record that in the presence of Bably pandey, Basant Chaurasiya made phone calls to Manoj kumar Agarwal, the father of the kidnapped children regarding the demand of ransom but no opposition to the same was raised by Bably Pandey.
18. The kidnapped minor children were ultimately recovered on 11.08.2007 from village Bhikampur, District Jabalpur from the house of Dwarika Prasad Pandey son of Chhote Lal Pandey.
34. In the light of the aforesaid proved facts, the learned Senior Counsel, Mr. V. P. Srivastava submitted before us that the case in hand involves three parts. According to him, the first part relates to kidnapping, the second part relates to recovery and the third part relates to the call details of the Mob. Number of the first informant, Manoj Km. Agarwal.
35. The learned Senior Counsel in challenge to the conviction awarded by the court below began by submitting that the accused-appellant Bably Pandey is not involved in the first part of the crime in question inasmuch as she was not present alongwith the other accused Basant Km. Chaurasiya on the date of the abduction of the two minor children namely Yash Agrawal and Vaibhav Agarwal. Elaborating of the aforesaid submission it is submitted that Section 120 comprises of two parts. Section 120 A speaks of participation without conspiracy whereas, Section 120 B speaks of participation with conspiracy. According to the learned Senior Counsel, the involvement of Bably Pandey in the crime in question as per the evidence on record comes into picture only after the minor children had been abducted from Jhansi and she joined Basant Kumar Chaurasiya at Basantpur. He further submits that the accused-appellant Bably Pandey had already left the tenanted house of Basant Kumar Chaurasiya belonging to the first informant Manoj Kumar Agarwal on 2.8.2007 which is two days prior to the occurrence. In continuation of the aforesaid, it is next contended by the learned Senior Counsel that at no point of time the accused-appellant Bably Pandey ever made a phone call to the first informant Manoj Kumar Agarwal regarding the demand of ransom. He, therefore, vehemently urged before us that once there is no participation with conspiracy on the part of the accused appellant Bably Pandey the conviction awarded by the court below is liable to be set aside, on this ground alone. To lend support to his arguments, the learned Senior Counsel relied upon the following judgements;-
(i) Bhagwan Swarup Vs. State of Maharashtra, AIR 1965 SC 682.
Paras 8 and 10.
(ii) Kehar Singh and others vs. The State (Delhi Admin.), 1988 (3) SCC 609.
Para 268
(iii) State of Maharashtra and others Vs. Som Nath Thapa and Others, 1996 (4) SCC 659. Paras 7 to 24
(iv) Baldev Singh Vs. State of Punjab, (2009) 6 SCC 564.
Paras 17, 18, 19, 20
(v) R. Venkatakrishnan Vs. Central Bureau of Investigation, (2009) 11 SCC 737. Paras 69 to 81
(vi) Mir Nagvi Askari Vs. C.B.I., (2009) 15 SCC 643.
Paras 59 to 66
36. The arguments raised by the learned Senior Counsel at the first flush appeared to be attractive. However, at this stage we may refer to the statement of Bably Pandey recorded under Section 313 Cr.P.C. In reply to question No. 11, she has categorically stated that she is not the wife of Basant Kumar Chaurasiya and she has been falsely implicated. This is an important circumstance and also has a material bearing.
37. P.W.1 Manoj Kumar Agarwal in his testimony has clearly stated that Basant Kumar Chaurasiya was introduced by Babloo Tiwari to him and on his request, the house was given on rent. The request to give a portion of the house on rent to Basant Kumar Chaurasiya was made by babloo Tiwari on the ground that Basant Kumar Chaurasiya has entered into made an inter caste marriage with Bably Pandey, and therefore, his relations with the family have become strained. This fact was not disputed by Basant Kumar Chaurasiya at any point of time. Secondly, if Bably Pandey was not the wife of Basant Kumar Chaurasiya then what prompted her to stay with Basant Kumar Chaurasiya at his tenanted home and leaving the tenanted home on 2.8.2017 which is two days prior to the occurrence. The statement of P.W.3 Yash Agarwal, who is one of the kidnapees, clearly suggest that she had developed affinity and intimacy with the family of the first informant along with Basant Kumar Chaurasiya and the family of the first informant treated her as the wife of Basant Kumar Chaurasiya. Lastly, what prompted the co-accused Bably Pandey to join Basant Kumar Chaurasiya at Basantpur and remain in his company even when the children had been abducted, has not at all been explained in her statement under section 161 Cr.P.C. The silence on the part of the accused-appellant Bably Pandey in not elaborating on the aforesaid questions even when these facts were in her special knowledge clearly speak the truth. Therefore, in the light of the aforesaid incriminating facts, the submission made by the learned counsel for the appellants that the co-accused Bably Pandey has participated in the conspiracy without her having any knowledge of the same is wholly misconceived. From the evidence on record, it is established that the co-accused Bably Pandey had joined Basant Kumar Chaurasiya at Basantpur and continued in the company of Basant Kumar Chaurasiya upto the time of recovery of the two minor children on 11.8.2007. P.W. 3 Yash Agarwal in his testimony has categorically stated that the accused Basant Kumar Chaurasiya had called his father Manoj Kumar Agarwal from a mobile phone and demanded ransom in the presence of the co-accused Bably Pandey. P.W.3 gave his statement-in-chief on 6.7.2012 and was cross-examined on 6.10.2012, 3.1.2013 and 12.12.2014. However, in her cross-examination no attempt was made on on behalf of the co-accused Bably Pandey to dislodge this part of the testimony of P.W. 3. It is an undisputed fact that Bably Pandey was residing along with Basant Kumar Chaurasiya at his tenanted house owned by the first informant Manoj Kumar Agarwal. She left the house of Basant Kumar Chaurasiya on 2.8.2007. The minor children of the first informant were abducted on 5.8.2007 and thereafter, she joined the abductor Basant Kumar Chaurasiya at Basantpur and continued with him upto the day date, time and place of the recovery of the two minor children on 11.8.2007. All these facts and circumstances form part of the same transaction, and therefore relevant under section 6 of Indian Evidence Act.
38. The same are also relevant circumstances and can be looked into against the accused in terms of section 8 of the Indian Evidence Act provided there is no evidence to the contrary. Admittedly, no evidence has been adduced by the accused Basant Kumar Chaurasiya or Bably Pandey to explain the circumstances as noted herein above to come out of the rigours of section 8 of the Indian Evidence Act. Consequently, we repel the argument raised by the learned Senior Counsel Mr. V.P. Srivastava that the co-accused Bably Pandey had participated in the crime without knowledge of the conspiracy. In the light of the aforesaid facts, non of the case law relied upon by the lerned counsel in support of his aforesaid contention are applicable in the facts and circumstances of the present case.
39. It was next contended before us that the recovery of the minor children on 11.8.2007 as well as the recoveries of the material exhibits are wholly doubtful. The submission raised before us is in two parts. We shall deal with the recovery of the minor children first. P.W. 5 S.I Balbir Singh, the Investigating Officer on the basis of the information collected by him during the course of investigation searched for the minor children at different places and ultimately, opined that they are present in village Bhikampur and accompanied by the first informant reached village Bhikampur, District Jabalpur. The two abducted minor children were recovered from the house of Dwarika Prasad Pandey S/o Chote Lal Pandey and were found in the company of Basant Kumar Chaurasiya and Bably Pandey. One of the grounds urged in disputing the recovery of the minor children is that the said recovery is not evidenced by any independent public witness. Admittedly, the recovery of the minor children was made in a remote village in the presence of P.W.1 Manoj Kumar Agarwal, the father of the kidnapped children and also the first informant of this case. One of the kidnapee Yash Agarwal was adduced as P.W.3 whereas the first informant Manoj Kumar Agarwal was adduced as P.W.1. The Investigating Officer namely, S.I. Balbir Singh was adduced as P.W.5. The testimony of all the three witnesses in respect of the recovery of the kidnapped children is almost the same and has remained intact even in the cross-examination of these three prosecution witnesses by the defense. The defense could not dislodge their testimony on this issue. Admittedly, P.W.3 is one of the kidnapeee himeslf and therefore, his evidence in respect of recovery is like that of an injured witness which cannot be discarded easily. Once the defense doubted the recovery, the burden shifted upon the defense to explain the presence of the kidnapped children in the company of the accused persons at the place of recovery. It is in such circumstances that the accused Basant Kumar Chaurasiya took up the defense that the minor children had been by taken him for a joy ride on the request of Jyoti Agarwal wife of the first informant which defense stood shattered by the testimony of P.W.2 as well as her cross-examination. The court below also delved into this question but in a summary manner. Accordingly, we have given our anxious consideration to this issue and find that the recovery of the minor children from the custody of accused appellant at village Bhikhampur, District Jabalpur is proved beyond doubt.
40. Regarding the recoveries of the material exhibits, we may only note that the recovery memo of such recoveries were duly prepared and were marked as exhibits. Section 293 Cr.P.C. provides for the admission/denial of any document and Rule 27 of the General Rules Criminal provides for the marking of exhibits. At no point of time any objection was raised by the accused-appellants to the aforesaid and it is for the first time in appeal that the issue has been raised. As already noted herein above, the accused-appellants have neither adduced any witness to prove their defense or dislodge the prosecution case nor they have themselves appeared as a witnesses in proof of their innocence. Therefore, the challenge raised to the recoveries of material exhibits, is a half-hearted attempt on behalf of the appellants for which their does not exists any foundation.
41. Mr. V. P. Srivastava in continuation of his challenge to the conviction awarded by the court below to the accused-appellant Bably Pandey challenged the call details of Mob. No.9450853443 in the light of the provisions contained in Section 65B of the Indian Evidence Act. However, the said argument was given up in view of the order of the Apex Court dated 30.1.2018 in the case of Shafi Mohammad Vs. State of Himachal Pradesh , Special Leave Petition (Crl) No. 2302 of 2017.
42. Lastly, we may conclude by stating that the present case falls in the category of direct evidence. Therefore the success /failure of the prosecution case will primarily depend upon the nature of the prosecution witnesses namely, P.W.-1 Manoj Kumar Agarwal, the first informant, P.W.-2, Smt. Jyoti Agarwal, the mother of the kidnapped children and PW.-3, Yash Agarwal one of the kidnapped child. These three prosecution witnesses are witnesses of fact. Lastly, P.W. 5 S.I. Balbir Singh is the witness who recovered the kidnapped children. Therefore until and unless it is held that the aforesaid four prosecution witnesses are neither credible nor reliable and therefore, their testimony is unworthy of trust, the conviction so awarded, cannot be sustained.
43. Learned counsel for the accused-appellants took us through the entire testimony of the aforesaid prosecution witnesses. However, except for pointing out some minor variations nothing serious could be pointed out in the testimony of the aforesaid prosecution witnesses. Minor variations are bound to occur as no two persons can give the same account of an incident similar in words. The Apex Court has time and again considered this question and has observed that variations do not fall in the category of contradictions. Even if some minor variations exist, that is not a ground to doubt the testimony of the prosecution witnesses if all the prosecution witnesses remain consistent in respect of the core of the prosecution story which the prosecution set out to prove. In the present case all the prosecution witnesses of fact as well as P.W. 5 S.I Balbir Singh who recovered the kidnapped children and also obtained the call details of the mobile numbers have remained consistent throughout. Their testimony has remained intact during the course of cross-examination. The defence has miserably failed to dislodge their testimony or cull-out any such fact so as to make them incredible or unreliable witnesses and consequently, their testimony unworthy of trust.
44. Mr. R. P. Tiwari, learned counsel for the accused Basant Kumar Chaurasiya substantially adopted the arguments of Mr. V.P.Srivastava, learned Senior Counsel. However, in addition to the arguments advanced by Mr. V.P. Srivastava, he challenged the credibility of the three prosecution witnesses and the recovery of the kidnapped children also which we have already considered and discussed above.
45. In view of the discussions made herein above, we find no infirmity in the conviction awarded by the court below to the accused-appellants. The appeals therefore fail, and are accordingly dismissed. The accused-appellants are in jail. They shall continue to remain in jail to serve out the sentences awarded to them by the court below.
46. The appeals are accordingly dismissed.
Order Date :- 16.4.2018 HSM