Allahabad High Court
Rakesh vs State Of U.P. on 7 September, 2022
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED AFR Court No. - 29 Case :- CRIMINAL APPEAL No. - 8168 of 2008 Appellant :- Rakesh Respondent :- State of U.P. Counsel for Appellant :- D.S. Parmar,Asharfi Lal,Ashok Pandey,Brijesh Sahai,Gopal Singh,Sushil Kumar Dwivedi,Usha Srivastava Counsel for Respondent :- Govt. Advocate Hon'ble Manoj Misra,J.
Hon'ble Syed Aftab Husain Rizvi,J.
(Delivered by Manoj Misra, J.)
1. This appeal is against the judgment and order dated 19.11.2008 passed by the Special Judge (Dacoity Affected Area), Hamirpur in Special Sessions Trial No. 70 of 1997 connected with Special Sessions Trial No. 29 of 1998, arising out case crime no.64 of 1997, P.S. Kurara, district Hamirpur, convicting and sentencing the appellant-Rakesh under Section 364-A IPC to imprisonment for life coupled with fine of Rs. 5,000/- and a default sentence of three months additional R.I. It be noted that the appellant was also tried for offence punishable under Section 326 I.P.C. but he was acquitted thereunder.
INTRODUCTORY FACTS
2. Dev Singh (PW-1) submitted a written report (Exb. Ka-1), dated 27.03.1997, scribed by Rihal Singh (not examined), at PS Kurara, district Hamirpur, on 27.03.1997, at 11 am, against unknown persons, giving rise to case crime No. 64 of 1997, under Section 364-A I.P.C. The GD entry of that report was made vide report no. 16 (Exb. Ka-4) and a Chik FIR (Exb. Ka-3) was also prepared. According to the FIR, in the evening of 26.03.1997 while informant's son Virendra Singh (PW-3) and informant's younger brother Guman Singh (PW-2) were returning from their field on their tractor, near Jalla canal culvert, the tractor developed a snag, as a result, PW-3, left PW-2 near the tractor, came to his house for help; thereafter, PW-3 and his uncle (Tau-Man Singh) (not examined) took another tractor, at about 10 pm, to tow-chain the other tractor. It is alleged that when they did not return, the informant went to look for them in the morning. At about 7 am, on 27.03.1997, informant found the two tractors parked near the culvert. He also noticed that there was no tow-chain lock put on the tractor that had developed a snag whereas the other tractor was standing with tow-chain on it. By narrating the above story and by alleging that despite hectic search the three persons could not be found, the FIR was lodged suspecting that informant's two brothers and his son have been abducted by unknown criminals for ransom.
3. After the FIR was lodged combing operation was conducted by the police but none could be found. On 29.03.1997, at Kasba Kurara in the Clinic of doctor Prajapati (not examined), two of the abductees, namely, Man Singh (not examined) and Guman Singh (PW-2) were noticed by the first investigating officer (I.O. - Sri Vijay Varma-PW-8). According to the first I.O. (PW-8), from the statement of Man Singh and Guman Singh, he could gather that Man Singh was released by the abductors in the night of 27.03.1997 to fetch Rs. 1.5 lacs for release of the other two abductees. Man Singh informed the first I.O. that Balram Khangar, who was known to him from before, with a rifle; a short-statured person, with rudimentary moustache, having a country made pistol, called once by Balram Khangar as Rakesh; and one dark complexion person with good height, having a country made rifle, called by the name Saka, were responsible for his abduction. Man Singh also informed the first I.O. that Balram Khangar, addressed the other two persons by the name of Raka and Saka; and that as the money could not be paid, Guman Singh's (PW-2's) left hand fingers, except thumb, were chopped off and he was released in the evening of 28.03.1997 on a condition that he would get Rs. 1.5 lacs or else his nephew (Virendra Singh - PW-3) would be cut into pieces. PW-8 disclosed that all the above facts were confirmed by Guman Singh (PW-2) whose statement he recorded. PW-8 also disclosed that Guman Singh had informed him that the ransom money had to be paid on 29.03.1997 between 9 and 11. On 29.03.1997, the first I.O. inspected the spot from where the abductees were abducted and prepared a site plan (Exb. Ka-8). On 30.03.1997 Virendra Singh (PW-3) earned his freedom. According to the first I.O., on 01.04.1997 the statement of the third abductee, namely, Virendra Singh was recorded.
4. In the meantime, medical examination of the two abductees, namely, Guman Singh (PW-2) and Virendra Singh (PW-3), was carried out. PW-2 was medically examined on 30.03.1997 by doctor R.S. Gupta (PW-6) at 3 pm. As per the injury report (Exb. Ka-5), PW-2 - Guman Singh was brought for medical examination by CP No. 195 Ravindra Singh of PS. Kurara. Injuries noticed were as follows:-
"Chopped wound in area of 10 cm x 10 cm x bone deep on the back of left hand with traumatic amputation of fingers of hand except thumb. All through metacarpal bones and tendons exposed. Wound infected with puss. Clotted blood present. Advise X-ray left hand.
OPINION Above injury is caused by sharp edged weapon. Grevious in nature. Duration about two days old. Advise X-ray left hand."
5. Injury report of Virendra Singh (PW-3), which has been exhibited as Exb. Ka-6, was prepared by doctor R.S. Gupta (PW-6). It reveals that PW-3 was brought by CP No.195 Ravindra Singh and was medically examined on 30.03.1997 at 2.45 pm. Injuries noticed were as follows:-
"Complain of pain on the right arm. Complain of pain on the left side of chest. No external injury mark seen during examination time."
6. A supplementary injury report (Exb. Ka-2) of Guman Singh dated 31.03.1997 was obtained, which suggested that a radiological examination of the left hand was carried out. As per the report, 2, 3, 4th metacarpal bones were found cut/fractured. Fifth metacarpal bone was found missing. All the fingers except thumb were found missing.
7. The first I.O. (PW-8) conducted investigation and recorded statement of the witnesses including the abductee till he was transferred. Interestingly, during the course of his cross-examination, PW-8 stated as follows:-
^^xokgku nso flag] vksdkj flag] f'ko flag] guweku 'kju eku flag xqeku flag ohjsUnz flag ftuds eSus c;ku fy;s gS us eq>s cyjke [kaxjk ds vykok fdlh vfHk;qDr dk uke irk ugh crk;k Fkk cfYd ;g crk;k Fkk fd lkeus vkus ij igpku ldrk gwaA fdlh vig`r O;fDr;ksa us eq>s cyjke ds vykok fdlh cnek'k dh ofYn;r o 'kdwur ugh crkbZ FkhA^^
8. On 30.09.1997, the investigation was taken over by PW-7. According to his testimony, the appellant Rakesh was arrested on 15.01.1998 by police of P.S. Khanna. Upon information, PW-7 went there to record his confessional statement. It is interesting to note that charge sheet against the appellant was submitted on 20.10.1997 by PW-7 vide Ex. Ka-7. What is also interesting is that PW-7 confirmed that neither Dev Singh (informant) nor the witnesses Man Singh, Guman Singh and Virendra Singh had disclosed the parentage of Rakesh or that Rakesh was known to them. PW-7 also stated that the witnesses had only told that Balram Khangar was calling one person by the name of Rakesh. After transfer of PW-7, the investigation of the case was taken over by Satish Chand Sagaun (PW-9). According to his testimony, he took over investigation of Case Crime No. 64 of 1997 on 30.03.1998. He took police custody remand of co-accused Sattideen and arranged for identification parade of Sattideen on 02.04.1998. He took the statement of Sattideen on 03.04.1998 and submitted charge-sheet No. 71-A/98 against Sattideen under Sections 364-A and 326 I.P.C which was marked Exhibit Ka-10. During cross-examination, PW-9 stated that when he took over investigation of the case, Sattideen was already in jail since 21.08.1998 and if he had been in jail since before, he was not aware of it. He stated that he had taken the witnesses to identify Sattideen in jail. He also admitted that the name of Sattideen had surfaced during the course of investigation conducted by the previous I.O. He stated that he had not recorded the statement of the Magistrate in whose presence the identification was carried out.
9. At this stage, it would be relevant to observe that the third accused, namely, Balram Khangar was killed in an encounter and, therefore, he was not put to trial. Whereas, the appellant Rakesh and Sattideen were separately charge-sheeted giving rise to two special sessions trials, namely, 70 of 1997 and 29 of 1998, against Rakesh and Sattideen, respectively, which were consolidated. Charges were framed against the appellant accused on 15.06.1998. On denial of the charges, trial commenced. In these two trials, a common set of evidence was led by the prosecution.
PROSECUTION EVIDENCE
10. The prosecution examined as many as nine witnesses, namely, Dev Singh (PW-1 - informant); Guman Singh (PW-2, one of the abductees); Virendra Singh (PW-3, another abductee); Doctor Sita Ram Gupta (PW-4, radiologist who proved the supplementary report - Exb. Ka-2, already noticed above); Kishan Lal (PW-5 - constable who made GD entry of the written report and prepared Chik FIR thereof); Doctor R.S. Gupta (PW-6 who conducted medical examination of PW-2 and PW-3 and proved injury reports - Exb. Ka-5 and Exb. Ka-6, already noticed above); Harish Chand - PW-7 (the second investigating officer who submitted charge-sheet against the present appellant; relevant part of his testimony has already been noticed above); Vijay Verma (PW-8, the first investigating officer- relevant part of his testimony has already been noticed above); and Satish Chand Sagaun - PW-9, who submitted charge-sheet against co-accused Sattideen after carrying test identification parade, as already noticed above.
11. At this stage, it would be useful to notice the testimony of PW-1, PW-2 and PW-3 i.e. the witnesses of fact.
12. PW-1 - Dev Singh. (His statement in chief was recorded on 14.10.1998). He is the informant. He reiterated the allegations made in the first information report and proved the written report, which was marked Exhibit Ka-1. Apart from above, he stated that on the date of the incident, his son Virendra Singh had taken the tractor at 2 pm and had returned at 8.30 p.m. to inform PW-1 that he is going back with the other tractor to tow-chain the faulty tractor.
During cross-examination, PW-1 stated that after his son and brothers were abducted, he had searched for them but could get no information about them. When he did not get any information about them, he came to believe that they have been abducted. Interestingly, in his entire deposition, PW-1 made no statement with regard to the demand of ransom for release of the abductees.
13. PW-2 - Guman Singh. (His statement in chief was recorded on 31.08.1999). He stated that in the night of 26.03.1997, he and his brother Man Singh and his nephew Virendra Singh were abducted. Prior to that, on 26.03.1997, at about 5 pm, Virendra Singh had loaded his tractor with "Laakh" (a kind of crop). On way, the tractor developed a fault. Virendra (PW-3) went home to fetch another tractor. PW-2 stayed with the tractor. At quarter to 10 in the night, Virendra came with the other tractor. Along with him, Man Singh (not examined) was also there. With the help of the other tractor, an effort was made to tow-chain the tractor which had developed fault. At that moment, three criminals came. They were Balram Khangar, Raka and Saka. They abducted PW-2, PW-3 and Man Singh. They took the abductees to the jungle and kept them in the jungle through out the day. In the night, at about 9 pm, near the Naala adjoining the Betwa river, Man Singh (not examined) was released on a condition that he would get Rs. 1.5 lacs for release of the remaining two abductees. Then Balram left. The remaining two abductees were taken to another place by Raka and Saka awaiting return of Balram. When Balram returned, he gave strict instructions that only when money is received, the abductees should be released. After giving such instructions, Balram left again. Raka and Saka took the two abductees to Bajeraha jungle, near Sher Mata temple. At this stage, it would be appropriate to extract relevant portion of the statement of PW-2 made during the course of trial:-
^^bruk dgus ds ckn cyjke pyk x;k FkkA rFkk jkdk o mldk lkFkh lkdk ge yksxks dks ysdj vk/kh jkr ds le; ctsgjk ds taxy es 'ksj ekrk ds eafnj ds if'pe igqWaps Fks vkSj vkWa[kks esa iV~Vh cka/k dj o iSjks dks cka/k dj ge yksxks dks Mky fn;k FkkA jkr dks dqN Hkh [kkuk ugh fn;k FkkA fnukad 28-3-97 dks cyjke ugh ykSVk FkkA nksuks cnek'kks us gekjh iV~Vh [kksyh Fkh rFkk fuxjkuh djrs jgs FksA fQj 'kke dks 5 cts ds djhc taxy es ge yksxks ds ikl ykSVk Fkk vkSj vkrs gh dgk Fkk fd bu lkyks dks cka/k nks vkSj vHkh xksyh ekjrk gwaA vkSj dgk fd blds HkkbZ us /kks[kk fn;k gS vkSj iSLkk ugha fn;k gS vkSj iqfyl ls fey x;k gS eS fdlh rjg iqfyl ds idM+us ls cp x;k gwaA fQj cyjke dks ekjus ohjsUnz dk nkfguk gkFk dU/ks ls dkVus ds fy;s dgk rc eSus dgk Fkk fd esjk gkFk dkV yks ij esjs Hkrhtk dk gkFk er dkVksA bl ij VSªDVj ij j[kk gekjk QlkZ dks cnek'k mBk dj ys vk;s Fks mldks cyjke us ysdj esjs cka;s gkFk dh Åaxyh VqdM+ks es dkVuk 'kq# dj fn;k FkkA vkSj yEck okyk cnek'k esjs ihB ds ihNs jk;Qy lVk;s dgrk Fkk fd 'kksj fd;k rks xksyh ekj nwaxkA rFkk cyjke dg jgk Fkk fd ;g esjh rhljh vnkyr gS ,d vnkyr mij gS nwljh uhps gS vkSj rhljh esjh vnkyr gS eS tks dgrk gwa ogh gksrk gS vkSj esjs nka;s gkFk ds vaxwBs dks NksM+dj Åaxfy;ks lesr iats dks dkV Mkyk FkkA vkSj ml dkVus ds ckn cyjke us dgk fd dy rsjs Hkrhts dh cksVh cksVh dkVdj csrok unh es fQadok nwaxk rks eSus cyjke ls dgk Fkk fd mldks ekjuk ihVuk ugha eS iSlk ykdj nwaxk] eq>s NksM+ nks rc cyjke us dgk Fkk ,d fnu es viuh iV~Vh djk ysuk o nwljs fnu ;kfu 29 rkjh[k dh jkr dks 9 cts Ms<+ yk[k #i;k ysdj rqe cSyxkM+h es cSBdj vkSj mldh ckal cYyh fudyk dj cka;s rjQ ifg;s ds ikl iVhys ij tyrh gqbZ VkpZ dks uhps dh rjQ djds vdsys vkuk fdlh dks lkFk ysdj ugha vkukA fQj eq>s tkus ds fy;s dgkA eS fdlh rjg vk/kh jkr dks 12 cts vius ?kj igqapkA^^ After stating as above, PW-2 stated that after reaching home at midnight, he went with his son Bhupa Singh (not examined) to have his hand bandaged. Thereafter, PW-2 stated as follows:-
^^fQj esjk Hkrhtk fnukad 30-3-97 dks cnek'kks ds paxqy dks fdlh rjg NwV dj vk;k FkkA tc cnek'k idM+dj ys x;s Fks mu cnek'kks es ls eS cyjke [kaxkj o jkds'k dks igys ls tkurk FkkA cyjke xSax xzke tYyk ds ikl vkrk tkrk FkkA o tYyk es esjh [ksrh gSA rHkh eSus jkds'k o cyjke dks dbZ ckj ns[kk o igpkuk gSA rhljs cnek'k dh f'kuk[r djus eS ftyk dkjkxkj gehjiqj x;k FkkA vkSj ogak mldh lgh f'kuk[r dh FkhA og vkt gkftj vnkyr es gSA xokg us vfHk;qDr lRrhnhu dks ns[kdj U;k;ky; es f'kuk[r dh vkSj dgk fd ;g ogh vfHk;qDr gS ftldh eSus ftyk dkjkxkj es f'kuk[r dh FkhA ,oa nwljs gkftj vnkyr vfHk;qDr dks ns[kdj fd ;g jkds'k gS ftldh lgh f'kuk[r dhA During cross-examination at the instance of Sattidin, PW-2 stated that accused Balram Khangar called the other two accused by the name of Raka and Saka. PW-2 clarified that he was released on 28.03.1997 whereas his nephew was released on 30.08.1997; he met the I.O. on 29.03.1997; that day, his statement was recorded. On that day, statement of his brother Man Singh was also recorded. On 30.03.1997, he again went to Balram and delivered ransom. He went there alone. He stated that he, Man Singh and Virendra Singh were all abducted on 26.03.1997. When they were abducted, the abductors had only tied their hands. He stated that when the accused had taken them to the jungle, they had not blind folded them. Immediately thereafter, he stated as follows:-
^^jkr dks psgjk ugha fn[krk Fkk fnu ds iV~Vh ck/kh FkhA eS f'kuk[r ds gehjiqj ,d ckj vk;k FkkA ;g dguk xyr gS fd eS f'kuk[r ds fy;s nks ckj vk;k FkkA fnukad 25-3-98 dks ge yksx f'kuk[r ds fy;s gehjiqj ugh vk;s FksA ;g dguk xyr gS fd eS mDr rkjh[k dks vnkyr gkftj vk;k gwa o mDr rkjh[k dks eSUks vnkyr es eqfYtekuks dks ns[kk gSA ?kVuk ds rhu eghuk ckn ges irk py x;k Fkk fd eqfYte idM+ x;k gS ftldh ges f'kuk[r djuk gSA f'kuk[r djus ds fy;s tkus okyh ckr eq>s njksxk th us crykbZ FkhA njksxk th us ;g crk;k Fkk fd lRrhnhu dh f'kuk[r djus tkuk gSA njksxk th ds crkus ds ckn eSus f'kuk[r dh FkhA^^ On further cross-examination at the instance of the counsel representing Sattideen, PW-2 stated as follows:-
^^;g dguk xyr gS fd vfHk;qDr lRrhnhu dks igys ls tkurk FkkA ;g Hkh dguk xyr gS fd njksxk th us eq>s vfHk;qDr lRrhnhu dks igys ls igpuok fn;k gksA vt [kqn dgk fd esjk HkkbZ eku flag o njksxk th fQjksrh ysdj Ms<+ yk[k #i;k ysdj vk jgs Fks og iSlk ugha vk ik;k Fkk rc nqckjk eS iSlk ysdj x;k FkkA vxj njksxk th us esjs C;ku es fQjkSrh nsus okyh ckr u fy[kh gks rks eS mldh otg ugh cryk ldrkA^^ During cross-examination, at the instance of accused Rakesh (the appellant), PW-2 specifically stated that after March 29, 1997, the I.O. did not record any further statement of PW-2 though he had met the I.O. thereafter. At this stage, the witness was confronted with an omission in his earlier statement, made during the course of investigation, wherein he had not stated that he knew Rakesh from before. Upon this, PW-2 stated as follows:-
^^ jkds'k dks igys ls igpkuus okyk C;ku eSUks njksxk th dks fn;k Fkk ;fn mUgksus u fy[kh gks rks mldh dksbZ otg eS ugh cryk ldrkA^^ The witness denied the suggestion that what he has stated in Court is for the first time, on being tutored.
At this stage, the witness was confronted with another piece of his previous statement, under Section 161 Cr.P.C. The extracted portion of the previous statement and PW-2's response is reproduced below:-
^^ eSus njksxk th dks ;g c;ku fd ^^,d cnek'k tks dkys jax dk Fkk] eawN fudy jgh Fkh tks dV~Vk 315 cksj fy;s Fkk ftldk uke jkds'k ekywe gqvkA cyjke mldsk jkdk ds uke ls iqdkjrk FkkA^^ eSus njksxk th dks ugha fn;k Fkk] njksxk th us irk ugha dSls fy[k fn;kA^^ After stating as above, PW-2 stated that he knew Balram from before. Balram used to visit his village though he did not know the name of Balram's father. He stated that sometimes there were four and sometimes six persons accompanying Balram. Amongst them, he knew Rakesh but he did not know anybody else. He stated that he has seen Rakesh at Hamirpur and he had informed the I.O. about having seen Rakesh at Hamirpur but if that had not been mentioned by the I.O., he cannot give reason for the same. He stated that Rakesh is a resident of Mohar Purwa. He does not know whether Mohar Purwa is 15 km east of Sumerpur. He stated that Shivpal Singh is his relative in Chandpurwa. But he is not aware whether Rakesh has relations at Chandpurwa. At this stage, the witness stated that 2-3 months after the incident, Balram was killed in an encounter in village Khaderi Lodhan and with him six persons of his gang, namely, Kariya, Chote Lal, Smt. Guddi, Smt. Rekha and Bhura were killed. After stating as above, the witness stated that now the entire gang of Balram has been killed. The witness also stated that few months after the encounter of Balram, he got information that Rakesh has been chalaned under Section 25 Arms Act. He, however, denied the suggestion that after challan of Rakesh under Section 25 Arms Act, he came to know that there is an associate of Balram by the name of Rakesh. He denied the suggestions that accused Rakesh and Sattideen were not involved in the abduction; that Balram and his associates had not assaulted them; that he falsely implicated Rakesh at the instance of his relations in village Chandpurwa.
14. PW-3 - Virendra Singh - another abductee. (His statement in chief was recorded on 31.08.1999). After narrating the FIR story, he stated that he arrived at the spot, at about 10 pm, with Man Singh. When he was tow-chaining the faulty tractor, his uncle Guman Singh and Man Singh were present. Then criminals came from village Jalla and started abusing and threatening the abductees by saying that if they run, they will be killed. One criminal was wearing black Pathani suit with red bandana on head. He was Balram Khangar, whom PW-3 knew from before. The other was a short height man, wearing pant shirt, his name was Raka; and the third was a tall person, whose name he did not know. He stated that he knew Raka from before. He identified the accused Rakesh in court and stated that he is Raka, who was involved in his abduction. He stated Raka is the alias name of Rakesh. He stated that initially he saw the accused in the back light of the tractor and, thereafter, he saw them again while they were in the jungle and the temple. PW-3 stated that criminal Balram had a rifle. In so far as the other two criminals were concerned, one was having a country made pistol whereas the other was having a country made rifle. He stated that he visited district jail Hamirpur to identify one of the two accused and could identify him. He stated that the accused whom he had identified, is not currently present in Court. His name is Sattideen. He stated that Balram used to call Sattideen as Saka and Rakesh as Raka. He stated that the accused had snatched lathi of his uncle and had assaulted him. Thereafter, the accused took them to the jungle. The entire night they roamed in the jungle. Next day morning, at about 4-5 am, they brought them (abductees) near a temple. The abductees were dumped in a Naala (ditch). At that time, their hands were tied and they were blind folded. PW-3 stated that the accused had kept them there till night and in the night of 27.03.1997, took them to the banks of a river. There, the accused, released Man Singh and asked him to fetch Rs. 1.5 lacs for release of the other two. The accused had warned that if the money is not brought, they will kill the other two. He stated that, at that time, it must have been 9-11 pm in the night. Thereafter, the accused took the remaining two abductees including PW-3 to Barauli Ghat and after crossing it, they took them to Baraitha Jungle. At Baraitha jungle, the abductors waited for Man Singh to arrive; at that time, there were just two abductors. The third abductor, namely, Balram, after instructing Man Singh to fetch ransom money, had left the spot and had instructed the other two abductors to keep the other two abductees in the jungle till he returns. When Balram returned, he told his other two associates that Man Singh has not kept his promise and appears to have informed the police, as a result, the abductors assaulted the two abductees and threatened to cut their hand. When the abductees were being assaulted, PW-2 pleaded that they should leave his nephew (PW-3) unscathed though they may chop off his hand. On this suggestion, the abductors, cut four fingers of the left hand of PW-2 with the aid of a farsa. At this stage, PW-3 informed the Court that at the time when his uncle's fingers were chopped, accused Rakesh had caught hold PW-3 and was having a country made pistol to threaten him. PW-3 stated that when his uncle (PW-2) was released by the abductors, Balram had instructed that if he does not get the money, then his nephew would be cut to pieces, which would be thrown in the village. Abductor Balram had also instructed PW-2 as to how he should the get money. PW-3 further stated that after his uncle (PW-2) was released, the accused, at about 8 pm, had taken him to Sahurapur village jungle where they kept him in a vacant field. The statement made by PW-3 in this regard, as stated in Court, is being extracted below:-
^^pkpk dks NksM+us ds ckn cnek'k eq>s jkr es vkB cts ds djhc mDr taxy ls lqrkekiqj ds taxy es ysdj vk;s FksA tgka [kkyh [ksr es cnek'k eq>s dkQh le; rc fcBkys j[[ksA ckn esa [kkyh [ksr es eq>s nkSM+krs jgs vkSj eq>ls fn'kk;s iwNrs jgsA ckn es eq>s lgqjkiqj xkao ds taxy es ys x;sA vkSj ckn es eq>s okil eksjk dkMj xkao ds taxy es ys vk;sA^^ After stating as above, PW-3 stated as follows:-
^FkksM+h nsj ckn cnek'kks us vkil es ckrphr djrs gq, dgk fd yxrk gS fd iqfyl vk jgh gSA vkSj eq>s NksM+dj Hkkx x;sA FkksM+h nsj ckn esjs pkpk us vkdj esjs gkFk o iSj [kksys vkSj vius lkFk ?kj fyok yk;sA cnek'k eq>s NksM+dj djhc vk/kh jkr ds ckn Hkkxs FksA lgh le; eS ugha tku ik;k FkkA^^ During cross-examination, PW-3 stated that at the time of abduction, the night was dark; it must have been 9-10 pm; in the darkness one could not recognise a person from a distance; when the accused had arrived, the light of both the tractors were on; crop was loaded on the tractor of PW-3; the other tractor was brought by Man Singh; the accused wore turbans but had not covered their faces.
PW-3 also stated that the accused had not blind folded him though had tied him. He stated that he knew Balram from before; he used to sell Chana (grams); that the entire gang of Balram has been finished off; that accused Sattideen was arrested by the police but he does not remember as to how many days after the incident he was arrested. In respect of identification exercise, PW-3 stated that persons to be identified were standing in one line; there were 7-8 persons; and none had covered their faces; that S.O. Kurara had brought him to the jail to identify the accused; and at the place of identification, S.O. Kurara was also sitting.
On further cross-examination, he stated that his sister is married to Gulzar Singh in village Pipreda; that he used to visit that village and had learnt that Sattideen was a resident of that village. He denied the suggestion that Sattideen was not involved in the abduction. He also denied the suggestion that he identified Sattideen at the instance of the police.
During cross-examination at the instance of accused-appellant Rakesh, PW-3 stated as follows:-
^^esjk c;ku njksxk th us ?kVuk ds nwljs fnu fy;k FkkA bl oDr eq>s njksxk th dk uke ;kn ugh gSA c;ku ,d njksxk th us fy;k FkkA nksckjk fdlh nkjksxk us ?kVuk ds ckjs es esjk c;ku ugha fy;kA eqfYte jkds'k dk uke cyjke ds crkus ij fy;k Fkk jkds'k ds cki dk uke o xkao dk uke ugh ekyweA jkds'k dk uke ;fn cyjke u crkrk rks eq>s mldk uke irk u pyrkA bl ?kVuk ds igys esjh jkds'k ls dHkh eqykdkr ugh gq;h u eSus mls dgh dHkh ns[kk lqukA eSus vius c;ku es eqfYTke jkds'k dk uke ugha crk;k FkkA^^ At the fag end of his cross-examination, the witness stated as follows:-
^^;g ckr lgh gS fd eSUks U;k0 es jkds'k dk uke ?kVuk es 'kkfey gksus ds ckcr igyh ckj dgh gSA eS cyjke o lRrhnhu dks igys ls tkurk FkkA^^ STATEMENT U/s 313 CrPC
15. The incriminating circumstances appearing in the prosecution evidence against the appellant were put to the appellant for recording his statement under Section 313 Cr.P.C. The appellant denied the incriminating circumstances and claimed that he has been falsely implicated by the police to show their good work.
TRIAL COURT FINDING
16. The trial court convicted the appellant-Rakesh on the basis of the testimony of PW-2 and PW-3 as well as dock identification. However, co-accused Sattideen was acquitted upon finding that the test identification parade was not in accordance with law.
17. We have heard Sri Ashok Pandey for the appellant and Ms. Kumari Meena, learned A.G.A. for the State and have perused the record.
SUBMISSIONS ON BEHALF OF THE APPELLANT
18. The learned counsel for the appellant submitted that admittedly the FIR was against unnamed accused; during the course of investigation, on 29.03.1997 the statement of eye-witnesses PW-2 and PW-3 as well as Man Singh (who has not been examined during trial), were recorded; in their statement they had not disclosed the name with parentage and place of residence of any of the accused except Balram; they had only stated that if those accused are produced before them, they can identify them therefore, on what basis, the charge-sheet was submitted against the accused-appellant, even before his arrest, is a mystery. None of the investigating officers, who were examined by the prosecution, has stated as to when he could fix the identity of the accused Raka, as called by the main accused Balram, as Rakesh (the present appellant). It was submitted that if the other co-accused Saka @ Sattideen was charge-sheeted only after identification, what was the reason to charge-sheet Rakesh without putting him for identification. This by itself casts a serious doubt on the truthfulness of the prosecution case as against the appellant.
19. Learned counsel for the appellant submitted that as per prosecution story coming through eyewitnesses PW-2 and PW-3, the abductees were abducted on 26.03.1997 in the night, which was dark, and, thereafter, were taken to a jungle in the night; next day, they were dumped in a Naala; whereafter, one abductee, namely, Man Singh (not examined) was released in the evening of 27.03.1997 with instructions to get ransom money; when Man Singh did not get money, other abductee, namely, PW-2, was released, after chopping fingers of his left hand. PW-2 too, was released in the night. At one stage in the testimony of PW-3, it has come that the abductees were blind folded and at another stage it has come that they were not blind folded but their hands and feet were tied. It was submitted that from the statement of PW-3 it appears that when the second abductee was released, PW-3 was taken to a field where he was asked to run and tell the directions. This statement of PW-3 would suggest that PW-3 was kept blind folded otherwise, there was no occasion for the abductors to ask him to tell the direction in which he was running. The circumstances of the case suggest that the abductors abducted the abductees in the night, which was dark; the abductors thereafter traveled across the jungle with the abductees who were kept blind folded; thereafter, one of the abductee, namely, Man Singh was released in the night of 27.03.1997; the second abductee was released in the night of 28.03.1997, after his fingers were chopped; and the third abductee was not released by the abductors but could manage to escape, either on his own, or with the effort of the police, or otherwise. The sequence of events and the manner in which the abductees were kept clearly suggest that the abductors had taken due precaution to hide their identity.
20. It was submitted that from the statement of PW-3 it appears he could somehow escape from the clutches of the abductors. It also appears from his statement that the accused had left him by saying that the police has arrived and only when he was abandoned by the abductors, his uncle had arrived to untie his hands and feet. According to PW-3, he was abandoned by the abductors at about midnight. It was submitted that from the statement of PW-3 it does not appear that ransom was paid. Moreover, the date of PW-3's release is not specifically there in his statement but as PW-3 was examined for his injuries at 2.45 pm on 30.03.1997, it appears he must have been released on or about midnight of 29/30.03.1997. All these circumstances would suggest that all relevant events took place in the darkness of night, which is indicative of the fact that the abductors took precaution to hide their identity.
21. Learned counsel for the appellant also submitted that from the statement of PW-8, it appears, the statement of PW-3 was recorded on 01.04.1997 and, thereafter, no statement of PW-3 was recorded. Interestingly, PW-8 stated that except for the name of Balram Khangar, none of the abductors' name was disclosed by PW-3 or any of the eye-witnesses. They had only disclosed that they could recognise the accused if produced before them. Thus, in absence of test identification parade, there appears no basis for the investigating officer to make the appellant an accused. It has been submitted that this is a case where the appellant was made accused to show good work and, thereafter, he was shown to the eye witnesses, and by tutoring the witnesses, a dock identification was effected, which resulted in conviction. It has been submitted that such belated dock identification, particularly, when the abduction took place in the night and the abductees were kept tied and one of the abductees stated that they were blind folded, dock identification for the first time in court after more than 2 years of the incident is unreliable and cannot form the basis of conviction. It has been submitted that the trial court committed manifest error in convicting the accused-appellant. It was thus prayed that the judgment and order of conviction be set aside and the appellant be acquitted of the charges for which he has been tried.
SUBMISSIONS ON BEHALF OF THE STATE
22. Per contra, the learned A.G.A. submitted that it is a case where one of the abductees had lost his fingers; the medical examination report proved that the fingers of PW-2's left hand were chopped; the evidence led before the Court clearly disclose that the abductees were kept by the abductors for as long as two days and therefore, they had every opportunity to carefully memorise the face of the accused and recognise the accused, whenever required; hence, even if there had been no test identification parade for the appellant, as the appellant has been identified during the course of trial by an injured witness who has also proved that there had been a demand of ransom under threat of extermination, the trial court rightly convicted the appellant. Learned A.G.A. further submitted that although it may not have come in the deposition of the investigating officer as to on what basis the appellant was charge-sheeted but from the material brought on case diary it appears that the parentage of the accused was fixed on the basis of information received. Therefore, merely because there was no disclosure of the parentage by the eyewitnesses, it cannot be a ground to disbelieve the prosecution case against the appellant or extend the benefit of doubt to him. Learned A.G.A., accordingly, pleaded that the appeal be dismissed and the judgment and order of conviction recorded by the trial court be affirmed.
ANALYSIS
23. On a careful consideration of the rival submissions and the entire prosecution evidence, there are certain features of the case which stand out and have a material bearing on the evaluation of the evidence. We, therefore, enumerate them herein below:-
(i) Abduction took place in the night of 26/27.03.1997 any time after 10 pm and before 7 am;
(ii) The first information report was lodged on 27.03.1997 at 11.00 am by PW-1, father of PW-3 and brother of the other two abductees, against unknown persons in respect of abduction of three persons;
(iii) The first abductee, namely, Man Singh, who has not been examined, was released in the night of the day following the day of abduction i.e. in the night of 27.03.1997. This abductee was released to fetch ransom money of Rs. 1.5 lacs for release of the remaining two;
(iv) When Man Singh could not get ransom, one of the other two remaining abductees, namely, Guman Singh (PW-2), was released in the night of 28.03.1997, after chopping his left hand fingers. The left hand fingers were chopped by Balram Khangar (non-appellant) with a warning that if he does not bring the ransom money then the other abductee, namely, Virendra Singh (P.W.-3), nephew of PW-2, would be cut into pieces;
(v) Guman Singh (PW-2) reached home at about midnight of 28/29.03.1997;
(vi) On 29.03.1997, according to the testimony of PW-8 (the first I.O.), at Kasba Kurara, in the clinic of doctor Prajapati (not examined), PW-8 met Man Singh (not examined) and Guman Singh (PW3) and recorded their statement;
(vii) According to PW-2, in his statement made during cross-examination, the ransom was arranged and paid on 30.03.1997 whereafter, PW-3 managed to escape. But how the ransom money was arranged and when, and to whom, it was handed over is not disclosed by PW-2 in his testimony. Interestingly, PW-3, in his testimony, states that just before he was released he could hear the abductors conversing inter se that the police is coming therefore, sensing danger from the police, the abductors escaped and soon thereafter PW-3's uncle, namely, PW-2, arrived and untied his hands and feet to take him home and he reached home by about midnight. The discrepancy in the statement of PW-2 and PW-3 in respect of how the release of PW-3 was secured, in absence of details in the testimony of PW-2 as to how the ransom money was arranged and paid, bearing in mind that there is no disclosure about it by PW-1, lead us to infer that release of PW-3 was secured without payment of ransom money, may be, because, the abductors sensing danger of a police intervention left the spot, leaving PW-3 behind; and
(viii) The statement of PW-2 and Man Singh was recorded, under section 161 CrPC, on 29.03.1997 and not any time thereafter, as is confirmed by the statement of the I.O. Notably, in his previous statement, with which PW-2 was confronted, PW-2 had not stated that he knew Rakesh (the appellant) from before; PW-2 had also not disclosed the parentage and the address of the accused-appellant Rakesh. Likewise, in the previous statement of PW-3, as it appears from the statement of the I.O. (PW-8), it was not disclosed that he knew Rakesh (the appellant) from before. PW-3, in his previous statement, had only stated that if that person is produced before him he would recognise that person.
24. Having noticed the key features in the prosecution evidence, we find that neither PW-2 nor PW-3 had disclosed the name of Rakesh with parentage and place of residence to the I.O. during the course of investigation. The names disclosed were of Balram Khangar, a dreaded criminal, who was later killed in an encounter with all his gang members, and of Raka and Saka, as Balram used to address them. Even assuming for the time being that Raka was abbreviated version of Rakesh, the name Rakesh is a common name. More than one Rakesh would be found present in a given locality. Notably, Rakesh was charge-sheeted in the case even before he was arrested. Thus, on what basis Rakesh (the appellant) was made an accused and charge-sheeted is a mystery to us. The obvious question therefore that arises for our consideration is whether to solve out the case, the I.O., on his own, picked up Rakesh, the appellant, and, thereafter, evidence was created. Importantly, even after his arrest, no effort was made to put Rakesh, the appellant, for test identification parade. In these circumstances, the crux of the matter is whether the dock identification for the first time in court after more than two years of the incident could be considered reliable so as to sustain conviction.
25. A test identification parade is an investigative step. Failure to hold test identification parade does not make the evidence of identification in court inadmissible. Where an unknown accused is put to a test identification parade, the result thereof serves as a material to corroborate or discredit the dock identification during the course of trial. To ensure that the result of test identification is not an outcome of tutoring, it is desirable to hold it as soon as possible after arrest of the accused. In Mulla and Another v. State of U.P., (2010) 3 SCC 508, in paragraph 45, it was observed by the Supreme Court that "it is desirable that a test identification parade should be conducted as soon possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution." In Brij Mohan v. State of Rajasthan, (!994) 1 SCC 413, the Supreme Court held that sometimes the crime itself is such that it creates a deep impression on the mind of the witness who had an occasion to see the culprits, such a deep impression is not erased within a short period of few months. In Mohd. Abdul Hafeez vs State Of Andhra Pradesh, 1983 (1) SCC 143, in a case related to robbery, a dock identification of the accused for the first time during trial after a lapse of four months was not considered reliable.
26. In our view, where an unknown accused has not been put to test identification parade before a witness, the delay in dock identification by that witness would have a material bearing on the trustworthiness of the testimony of that witness, particularly, where that witness got opportunity only to have a fleeting glance of the accused. In a case where the witness as a victim of the crime had been in the company of the accused for a prolonged period, the features of the accused may get imprinted in the memory of that witness. In such a case, therefore, merely on the ground of delay in dock identification, the testimony of the witness cannot be discarded if it appears truthful and trustworthy.
27. In the instant case, PW-2 and PW-3 had been with their abductors for a reasonably prolonged period. PW-2 remained with the abductors from the night of 26.03 1997 till the night of 28.03.1997 whereas PW-3 remained with them till the night of 29.03.1997. In the circumstances, we cannot discard the dock identification made by them only on the ground of delay. But what troubles us is that if neither PW-2, nor PW-3 or Man Singh (who has not been examined), had stated before the I.O. that they knew Rakesh (the appellant) from before, and they had also not disclosed to the I.O. the parentage and the address of the appellant-Rakesh, what was the basis to submit a charge-sheet against the appellant even before his arrest and not to put him to test identification parade after his arrest. Another aspect that troubles us is, that, if the I.O. had thought it appropriate to conduct test identification parade for co-accused Sattideen, what was the reason for him not to follow the same procedure in respect of Rakesh (appellant). All of this casts a serious doubt with regard to the fairness of the investigation .
28. Ordinarily, lapses on the part of the investigating agency is not fatal to the prosecution case where the prosecution case is based on eye-witness account. But, here, the eye-witnesses have not even given the details of the accused so as to enable the investigating agency to put him on the dock. In such circumstances, we would have to carefully scrutinise and evaluate the testimony of these eye-witnesses to rule out possibility of false implication at the instance of the investigating agency to give closure to the case. On a careful scrutiny of the testimony of PW-2 and PW-3 what is clear is that the abductees were abducted in the night; they were released, one by one in the night hours, and they were being shifted from one isolated place to another. Witnesses have also deposed that the abductors were wearing bandanas and at one place use of turbans by them has also been indicated. These circumstances would indicate that there was an effort on the part of the abductors to avoid public contact. In the testimony of PW-3 it has come that he was asked by the abductors to run in a field and tell the directions. This circumstance would suggest that at some stage PW-3 was blind-folded. There are certain aspects, such as, whether the abductees were kept blind-folded; whether ransom was paid; and as to how abductees could gather that Raka stood for Rakesh, where the testimony of PW-2 and PW-3 is not consistent qua each other. Notably, PW-2 and PW-3 are inconsistent in respect of the mode and manner in which PW-3 was released. PW-2 speaks of release of PW-3 after payment of ransom money, the arrangement of which is not proved by any cogent evidence; whereas, PW-3 states that the accused left him sensing danger that the police had arrived. If it had been the case of PW-2 that after payment of ransom, the accused left PW-3 and thereafter PW-2 went to PW-3 to untie and free him, we might have believed the testimony of PW-2, in that regard. But, here, PW-2 states that PW-3 somehow managed to escape whereas PW-3 states that he was untied by PW-2 when the accused had left him sensing danger from the police. Further, PW-2 and PW-3 are inconsistent in respect of their statement that they knew the accused-appellant (Rakesh) from before. These two witnesses, during the course of investigation, had stated only this much that they could recognise the accused if they were brought before them. In these circumstances, the testimony of PW-2 and PW-3 is not wholly reliable with regard to the involvement of the appellant in the crime therefore, to act upon their testimony some corroboratory material was required.
29. In the instant case, the prosecution set up a story that cash of Rs. 1.5 lac was to be paid by way of ransom but there is no recovery of any such cash. Further, the police witnesses examined during the course of trial, have not disclosed about the criminal antecedents of the current appellant except that the appellant was also involved in a case under Section 25 Arms Act. Interestingly, from the statement of PW-7 it appears that the appellant was arrested in connection with a case under Arms Act on 15.01.1998 at police station Khanna and when he came to know about it, he went there to record his statement. Importantly, charge-sheet was submitted against the appellant before that date. Further, though the accused-appellant is stated to be member of a gang of one Balram Khangar but there is no evidence brought by the prosecution that Balram and the appellant were residents of the same village; and that they jointly participated in various other criminal activities of which there were reports. There is thus no evidence to lay a foundation that the appellant was part of the gang of Balram Khangar. Interestingly, the prosecution witnesses have admitted that the entire gang of Balram has been exterminated in an encounter 2-3 months after the incident. If the entire gang of Balram Khangar had been killed, how the appellant was left to survive. In such circumstances, we have to carefully scrutinise the evidence to rule out the possibility of implication of the current appellant to solve out the case. At this stage, we observe that the material available during the course of investigation was that the abductees were abducted by Balram Khangar and two members of his gang whom he use to call by the name of Raka and Saka; and that Raka stood for Rakesh. No doubt, these names were disclosed by the eye witnesses to the police during the course of investigation but there was no disclosure that Raka @ Rakesh was known to the witnesses from before, or that prior to that incident they had seen him. There was also no disclosure about Raka's or Rakesh's parentage or place of residence. The disclosure was only to the extent that if those accused are produced, the witnesses would be able to recognise them. In such circumstances, there appears complete guess work on the part of the police to put the name of the appellant Rakesh for Raka and Sattideen for Saka. There appears no material on record as to how the police submitted charge-sheet against Rakesh (the appellant) when even his parentage and place of residence was not even known or disclosed by the eye-witnesses. Further, if Sattideen was put to test identification parade why similar process was not adopted for Rakesh. All of this creates a serious doubt on the prosecution story as regards the involvement of the appellant in the crime and seriously dents the value of dock identification as to form the basis of conviction, particularly, when there is no corroboratory material such as recovery of cash or any weapon used in the crime. Moreover, this is a case where the charges were framed against the appellant on 15.06.1998 and the statement of PW-2 and PW-3 was first recorded on 31.08.1999, leaving sufficient opportunity for the prosecution to show the accused-appellant to the witnesses. This delayed dock identification, in the facts of the case, in our view, is not a wholly reliable evidence to warrant conviction of the appellant.
30. Further, the prosecution also appears to be hiding some facts, such as, whether the abductee was released in a police action or after payment of ransom. In this regard it be noted that the first information report was with regard to abduction in the night of 26.03.1997/27.03.1997. The first abductee was released in the night of 27.03.1997/28.03.1997. This abductee was released to fetch ransom amount for releasing the remaining two. In the testimony of PW-8, it has come that on 28.03.1997, the police team did a combing operation in the jungle to trace out the abductees. Interestingly, the I.O. makes a statement that he met both Man Singh and Guman Singh (PW-2) on 29.03.1997 in the clinic of Dr. Prajapati. This would suggest that in between 27.03.1997 and 29.03.1997 some information regarding the abductors was received by the I.O. What was that information, has not been brought before the Court. In addition to above, though the I.O. is silent as to how the remaining abductee (PW-3) earned his freedom but the testimony of PW-3 that the abductors left him after sensing danger from the police, and the statement of one of the witnesses that the abductors had complained that Man Singh had cheated them by informing the police, would suggest that information to the police about abduction had come from Man Singh, which could be on 28.03.1997 and thereafter, the police did a combing operation. The police witness i.e. PW-8 though stated that on 28.03.1997 a combing operation was carried out in the jungle to trace out the abductees but disclose nothing further. In these circumstances Man Singh was an important witness to throw light on what were those informations. But he has not been examined. Suppression of all these informations, in ordinary course, would not be fatal to the prosecution but here is a case where the identity of the accused-appellant could not be fixed from the statement of the eye-witnesses made during the course of investigation, yet, the police has made him the accused. In such circumstances, in absence of test identification parade, particularly, when it was conducted for the other accused, the dock identification for the first time in court, after a gap of over one year from the date of framing of charge, does not inspire our confidence so as to warrant conviction of the appellant particularly when there is no corroboratory material.
31. In view of the discussion above, we are of the considered view that this is a fit case where the benefit of doubt would have to be extended to the accused-appellant. We therefore allow this appeal. The judgment and order of conviction recorded by the trial court is set aside. The accused-appellant is acquitted of the charge for which he has been tried and convicted. He is reported to be in jail. He shall be released forthwith, unless wanted in any other case, subject to compliance of section 437 A Cr.P.C.
32. Let the record as well as copy of the judgment be transmitted to the trial court for information and compliance.
Order Date :- 7.9.2022 Sunil Kr Tiwari