Allahabad High Court
Rakesh Kumar vs State on 19 November, 2019
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 42 Case :- CRIMINAL APPEAL No. - 592 of 1992 Appellant :- Rakesh Kumar Respondent :- State Counsel for Appellant :- O.P. Singh Counsel for Respondent :- A.G.A. Hon'ble Chandra Dhari Singh,J.
1. Present criminal appeal is directed against the judgment and order dated 17.03.1992 passed by II Additional Sessions Judge, Kanpur Nagar in S.T. No.90 of 1990, by which the appellant-accused was convicted for offence punishable under Section 364 I.P.C.. He was sentenced to undergo imprisonment for ten years' R.I. and pay fine of Rs.2000/-, in default of payment of fine to undergo further imprisonment for one year R.I.
2. Brief facts of the case are that on 04.05.1989 in between 12 and 1 O'clock the appellant-accused had kidnapped a minor child namely Dhiraj Kumar son of Ram Shanker Gupta from Naughara while he was returning from his school within police station Badshahinaka and thereafter he is stated to have been murdered and his body was found at Barabanki Nala. At the time of the recovery of the dead body of the deceased boy, he was in unconscious condition and he was taken in the District Hospital on 05.05.1989 at 3.00 P.M. During treatment, he died in the hospital on 06.05.1989 at 3.00 A.M.. An F.I.R. was lodged on 09.06.1989 by one Sri Krishan Gupta (P.W.9) against unknown persons. After investigation the Investigating Officer filed charge-sheet on 08.01.1990 (Ext.Ka 12). After filing chargesheet the court below took cognizance against the appellant for the offence punishable under Section 364 read with Section 302 I.P.C.. Charges were framed against the appellant on 26.10.1990.
3. During the trial, 11 proseuction got examined as many as 11 witnesses and documentary evidence. After completion of prosecution evidence, the statment of the accused appellant was recorded under Section 313 Cr.P.C; wherein he denied his involvement in the commission of the offence.
4. The trial Court after consideration of the rival submission and the evidences on record convicted and sentenced the accused appellant as indicated above. Hence this appeal.
5. Ram Janki Gupta (P.W.1), mother of the deceased boy Dhiraj Kumar, has stated that her son Dhiraj Kumar, who was student of River Bank Cantt. School in Nursery Class, had gone to the school on 04.05.1989 and thereafter, he had not returned. Her husband was working at Naugaon (Assam). She had received a telegram from Assam about illness of her husband. Thereafter, she left to visit him along with her brother-in-law (Jeth) Sri Krishna Gupta after leaving her son Dhiraj Kumar and daughter Pinki at their maternal home (Nanihal). Dhiraj Kumar had gone to school from his Nanihal and then he was kidnapped. Having received a telegram about the kidnapping of Dhiraj Kumar, she returned alongwith her husband to Kanpur and started searching her son at various places. It is submitted that her daughter Pinki had informed that two or three days before kidnapping of her son the appellant-accused Rakesh Kumar gave toffee to her son. She further deposed that in the month of October she came to know from a person that in a newspaper 'Qaumi Awaz' the photo of her son was published. On this information, the said newspaper was seen by her. The photograph, which was published in the newspaper, was related to her son Dhiraj Kumar. After seeing news and photographs she along with her husband rushed to the District Hospital, Barabanki where her son was admitted. She identified the cloths of her son. With regard to the motive of the incident she stated that the accused Rakesh Kumar had also gone with her husband to Assam for work but he had ran away after having a cash amounting to Rs.17,800/- for which a report was lodged by her husband at the concerned police station in Assam. The payment of the said amount was insisted by her husband which was bluntly refused by the appellant. Her husband demanded the said amount continuously from the accused-appellant. Due to demand of the said money, the accused-appellant started having enmity with the family of the deceased. She has also stated that the accused-appellant had threatened to her husband that he will certainly take revenge from her family.
6. Maikulal, P.W.2, has stated in his deposition that on 04.05.1989 while he was coming to Naughara he saw that the deceased Dhiraj being taken by the accused Rakesh Kumar, who was well known to him. In the cross examination it was stated that he has become a saint for the last 10-12 years and he has no permanent place to live.
7. Km. Pinki, P.W.3 is daughter of P.W.1 and sister of the deceased Dhiraj. He stated in his deposition that deceased Dhiraj used to go to school by Rickshaw. She also supported the statement of P.W.1 and submitted that before leaving Assam both she and her deceased brother were kept in the Nanihal. She also supported the version made by P.W.1 that two three days before the date of occurrence of kidnapping of Dhiraj, the accused person stopped him and gave some toffee to him and that facts were narrated by his brother to her.
8. Dr. Chandra Kant Gupta, P.W.4 has stated that the deceased was brought in the hospital in semi conscious state. He had enquired about the deceased and he was told that boy was found in the Nala and he had been taken out from the said Nala. The deceased was referred to the District Hospital, Barabanki. He was examined by the doctors. During treatment he died.
9. Ram Gopal, P.W.5 has stated that in the month of May, 1989, the inquest report was prepared of the deadbody of the deceased.
10. Munnalal, P.W.6 is Nana of the deceased and he stated that he had enquired from the Rickshawala about the incident and he had also enquired that whether Rickshawala had dropped the deceased in the school or not. He supported the prosecution story and statements of P.W.1 and P.W.2.
11. Dr.V.P.Azad, P.W.7 stated that on 07.05.1989, he had conducted the post mortem of the deadbody of the deceased Dhiraj which was brought by the Constable Ashok Kumar of P.S. Kotwali Barabanki along with the papers. He did not find any ante mortem injuries on his body. he found a healed scar 07.0 cm. x 05.0 cm. over front of right leg lower part but cause of death was not ascertained by the Doctor.
12. Jaswant Singh, P.W.8 is Sub Inspector of P.S. Kotwali, District Barabanki that he had invested the case. He recorded the statements of the witnesses and collected the material evidences.
13. Sri Krishan Gupta, P.W.9, who is brother of Ram Shanker Gupta, had lodged the F.I.R. In the F.I.R. he had not disclosed the name of the accused. He has also not explained the delay in lodging the F.I.R.. He stated that Ram Shanker Gupta, father of the deceased was working in Asam. In the year 1989, after receiving a telegram from him he rushed to Assam along with the wife of his brother Ram Shanker Gupta, after leaving deceased Dhiraj and Pinki at their Nanihal. He has also supported the statement of P.W.1 and P.W.3.
14. Daya Shanker Pandey, P.W.10 stated that the first information report of Sri Krishan Gupta was received at the police station, the entry of which was made by him in the G.D. which was proved as Ext.Ka 6.
15. Ramesh Kumar Singh (P.W.11), who was Investigating Officer, has stated that he started investigation on 20.07.1989 by interrogating Sri Krishna Gupta. On 28.07.1989 he interrogated one Munnalal and Ramoo. He prepared Panchnama. On 04.10.1989 he had sealed clothes of the deceased. He made Fard (Ext.Ka 2). The site plan of the place where the deceased was found in a semi conscious state as (Ext. Ka 8), of the place from where Basta and bottle were recovered at the instance of the accused-appellant (Ex.Ka9) and of the place from where the accused is said to have been kidnapped (Ex.Ka.11), had been prepared by the S.O. and same was proved by him. He has also proved the chargesheet (Ex.Ka12).
16. Viscera report dated 21.04.1990 to the effect that the element of opium poison found therein is also on record.
17. The accused-appellant in his defence has examined his brother Rajesh Kumar (D.W.1). He stated that the accused-appellant is his brother, who was taken by the police personnel on 12.10.1989. In the night of 8.00 P.M. when he returned to his house he came to know that Rakesh has been taken away by the police of police station Badshahi Naka. He went there and tried to know the reason for taking away of his brother by the police but nothing has been informed to him by the police personnel.
18. Learned counsel for the appellant submitted that there is extraordinary delay in lodging the F.I.R. which was not explained too.
19. He further submitted that with regard to motive P.W.1 in her statement stated that since the accused-appellant ran away from the Aasam after having a cash of Rs.17,800/- and her husband pressurized the accused-appellant to return back the said money, therefore, he has taken revenge. It cannot be said that the motive has been proved by commission of this offence.
20. It is submitted that last seen theory has also not been proved because as per the post mortem report, time and date of the death of the deceased was 06.05.1989 but as per the prosecution story, the deceased was lastly seen with the accused-appellant was 04.05.1989 at about 12.30 to 1.00 P.M.
21. It is next submitted that the trial court has held the accused-appellant guilty for commission of offence punishable under 364 I.P.C. but on other side disbelieving the evidence of the last seen theory as well as evidence of recovery, the trial court acquitted the appellant for the offence punishable under Section 302 I.P.C. Therefore, if the present appellant is acquitted from the offence under Section 302 I.P.C., on the same set of evidence, he may not be held guilty for the offence punishable under Section 364 I.P.C. on the basis of the said set of evidences.
22. Learned counsel for the appellant has relied upon some statement made by prosecution witnesses and submitted that depositions of witnesses cannot be said to be proved the guilty of the accused-appellant beyond reasonable doubt. The prosecution has failed to prove its case against the appellant beyond resonable doubt.
23. It is submitted that in the instant case, there is no eye witness of the incident but only circumstances coupled with the facts that the deceased had been last seen with the appellant. In the present case, the complete chain having not been established, therefore, the appellant is entitled for acquittal. The gap between the time when the appellant was last seen with the deceased and the recovery of his deadbody is quite long and the possible infrerence would be that the accused appellant is not responsible for commission of offence. Medical report is also not supporting to the last seen theory.
24. Per-contra Ms.Manju Thakur, learned A.G.A. vehemently opposed the submission made by learned counsel for the appellant and submitted that as per the statement given by P.W.1-Ram Janki, motive has been proved for commission of kidnapping of the deceased by the accused-appellant. P.W.1 has categorically stated in the deposition that the accused-appellant has threatened her husband to take revenge.
25. She further submitted that P.W.2 had seen the deceased accompanied with the accused-appellant. Basta and bottle were recovered on the pointing out of the appellant Rakesh.
26. It is submitted by learned A.G.A. that delay in lodging the F.I.R. has been properly explained. It has been stated that father of the deceased was working in Aasam and mother of the deceased went to Aasam, after receiving the telegram about his illness. When they came back at Kanpur, they started searching but they did not find out the deceased. They received information that one photograph was published in the newspaper and after seeing the photograph, they identified the boy and went to the District Hospital, Barabanki from where they saw clothes and identified the same. Then the FIR was lodged to the police station. So, delay in lodging the FIR was duly explained.
27. I have heard learned counsel for the appellant and learned A.G.A. for the State.
28. P.W.1, P.W.2, P.W.3 and P.W.9 are important witness of facts. P.W.1 has stated about the motive of the accused-appellant. She further stated in the deposition that her husband was threatened by the accused person. P.W.2 has narrated that he saw the person accompanied with the deceased on the date of incident in between 12.30-1.00 P.M. P.W.3 Pinki stated that two three days before the incident the accused-appellant offered toffee to the deceased. P.W.9 has lodged the F.I.R. after more than one month but no explanation of delay in lodging the F.I.R. has been made. As per the statement of P.W.7 Dr.V.P.Azad and post mortem report, incident took place on 06.05.1989 at 3:00 A.M. Therefore, the medical report does not support the last seen theory.
29. In the instant case, there is no eye witness of the occurance The case in totality is depends on the last seen theory. Application of last seen theory requires a possible link between the time when the person was last seen alive and the fact of the death of the deceased coming to light. There should be a reasonable proximity of time between these two events. This proposition of law does not admit of much excuse but what has to be seen is that this principle is to be applied depending upon the facts and circumstances of a given case. The Hon'ble Supreme Court in the case of Mohd. Azad alias Samim Vs. State of West Bengal; (2008) 15 SCC 449, held as under:
"The last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible."
30. The reasonableness of the time gap is, therefore, of some significance. If the time gap is very long, then it is not only difficult but may even not be proper for the Court to infer that the accused had been last seen alive with the deceased and the former, thus, was responsible for commission of the offence.
31. In view of above, the criminal appeal is allowed. The conviction and sentence recorded by Trial below vide order dated 17.03.1992 passed in Sessions Trial No. 90 of 1990, under section 364 I.P.C., P.S. Badshahi Naka, District Kanpur is set aside. The accused-appellant is acquitted from the charge under Section 364 I.P.C. The appellant is on bail. His bail bonds are hereby cancelled and sureties are discharged. The appellant need not surrender, in case, he is not wanted in some other case.
32. Office is directed to communicate this order forthwith to the court concerned to ensure compliance and further send back the lower court record.
Order Date :- 19.11.2019 Asha