Allahabad High Court
Natthu Yadav vs State Of U.P. on 23 September, 2010
Author: Vinod Prasad
Bench: Vinod Prasad, Virendra Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
RESERVED
Criminal Misc. Appeal No. 3656 of 2006
Natthu Yadav ....................................... Appellant
Versus
State of U.P. ......................................... Opposite Party
Hon'ble Vinod Prasad, J.
Hon'ble Virendra Singh,J.
(Delivered by Hon'ble Virendra Singh, J.)
1. Appellant Natthu Yadav, has been convicted for offence under Sections 364 A I.P.C., with implanted sentence of life imprisonment and a fine of Rs. 5,000/- by Special Judge (DAA)/ Additional Sessions Judge, Court no. 3, Banda vide his impugned judgment and order dated 24.5.2006 passed in Special Trial No. 163A of 1994, State versus Natthu Yadav with further direction that in default of payment of fine he shall undergo one year further imprisonment, which conviction and sentence has been challenged in this appeal by the appellant.
2. In an abridged form, prosecution allegations against the appellant, as are contained in the written report Ext. Ka-1 are that on 1.6.1994, the First Informant was returning back to his house from Kishanpur market, sailing his big boat accompanied with Kallu Kevat, Sukkha Kevat, Shiv Baran Kevat, Ram Sajeevan Vishvakarma, Parshadi Tiwari, Bacchu Lal Kevat, Bhanu Pratap Shukla, R/o Jagau Tola and others. As soon as his boat reached in the middle of Yamuna river in front of Amethi Ghat, four miscreants came rowing their Surra (small boat) near the boat of informant. Two miscreants amongst them climbed in his boat. All the miscreants were armed with their fire Arms. They took away the Boat of the informant to Amethi Ghat where they got down all the passengers from the boat one by one thereby asking their names. At that time 5-6 miscreants more had also come there. After asking the name of Bhanu Pratap Shukla, aged about 20 years, they apprehended him and took away him with them at about 8 O'clock in the night, stating that his family members on making his search may take him back on the cost of Rs. Two lacs within eight days. One of the miscreant was armed with Rifle, two were having DBBL Gun and others were having SBBL Gun. After the occurrence, informant and others went to Jagau Tola village and informed about the occurrence to Ram Lakhan Shukla, the father of Bhanu Pratap Shukla. Due to fear they could not go to Police Station at that time and next day in the morning, they went to Police Station after making the search for Bhanu Pratap Shukla and requested the police for his search stating the fact that they could not found him.
3. Informant Udai Bhan after getting the F.I.R. scribed by Raj Kumar Shukla lodged the F.I.R. of the aforesaid facts at Police Station Kamasin at a distance of 17 kms. where it was registered as crime no. 117 of 1994, under section 364-A I.P.C., at 11.30 a.m.
4. Head constable Himmat Ram prepared the Chik F.I.R. Ext. Ka-2 and the relevant G.D. Entry in Ext. Ka-3. Investigation of the crime was commenced by S.I. Gurmukh Singh PW-9, who first of all copied the Chik F.I.R. and the G.D. entry and thereafter inspected the spot of occurrence, prepared the site plan of the place of incident Ext. Ka-6, recorded 161 Cr.P.C. Statements of the informant, Ram Vilas, Kallu, Ram Sajeevan, interrogated Badri a co-accused and thereafter he was transferred. After his transfer, PW-10 S.I. Omveer Singh took the investigation in his hand. He tried to apprehend the accused persons came in the light during investigation by earlier investigating officer on the basis of interrogation by earlier investigating officer of co-accused Badri, who had confessed the involvement of accused appellant Natthu, co-accused Chander Bhawan Yadav, Phool Yadav and two other unknown miscreants in the occurrence of kidnapping of Bhanu Pratap. He also recorded the statement of witnesses Sukkha, Shiv Baran, Ram Sajivan, Bacchu and Prashadi as per provisions under Sections 161 Cr.P.C. On his transfer, PW-8 Yogendera Ram, the then Station Officer, entertained the investigation. He interrogated accused appellant Natthu, co-accused Chandr Bhawan and Phool Yadav. After completing the investigation he submitted the charge sheet against accused appellant Natthu Yadav, co-accused Badri, Phool Yadav and Chander Bhawan for the offence under section 364-A I.P.C.
5. The Magistrate concerned took cognizance of the offence and, after summoning the aforesaid four accused persons, committed their case to the court of Sessions for trial, where it was registered as Special Trial No. 163 of 1994, State versus Natthu Yadav and others. Trial Judge after separating the case of accused appellant Natthu Yadav and one other co-accused Chander Bhawan registered the special trial at serial no. 163 A of 1994, framed the charge against them under section 364-A I.P.C., which was denied by them claiming to be tried. Co-accused Chander Bhawan died during the course of trial and case against him stood abated.
6. In order to substantiate the charge and bring home the guilt of the appellant, prosecution examined in all ten witnesses out of whom Udai Bhan informant PW-1, Sukkha PW-2, Bhanu Pratap the victim PW-3, Shiv Baran PW-5 were the witnesses of facts. Raj Kumar Shukla the scribe of F.I.R., PW-4, H.C.P. Himmat Ram PW-6, Doctor Anand Kishor PW-7, Yogendra Kumar Rai S.O. PW-8, Gurmukh Singh S.I. PW-9, and Omveer Singh S.I. PW-10 were formal witnesses.
7. In his deposition before the court, informant Udai Bhan PW-1, did not support the prosecution story alleged to have been dictated by him in his written report, Ext. Ka.-1. He stated that neither he had dictated the F.I.R. nor he had affixed his thumb impression on it. He further stated in his cross examination that he is not aware about the fact that how the scribe Raj Kumar got scribed the F.I.R. in his name. Strange enough, this witness has not been even declared hostile by the prosecution.
8. PW-2, Sukkha, though supported the fact of kidnapping of Bhanu Pratap by miscreants as per prosecution case but he stated that he could not identify the miscreants. He specifically stated thereby seeing the appellant in court that he was not amongst the miscreants. This witness, though, was declared hostile by the prosecution but nothing revealed in his cross-examination too by the prosecution, to substantiate the guilt of the appellant.
9. PW-3, Bhanu Pratap, the victim of alleged kidnapping, supported the prosecution case for the facts that he had gone for marketing to kishanpur in the District of Fatehpur. The occurrence was occurred on 1.6.1994 at 8 p.m., when he was returning home after selling the food grains. He was coming back ridding on the boat which was intercepted by the miscreants having Surra (small boat) with them thereby stating that they should also be taken away by them in their boat as they also had to go to Lakhanpur. Amongst 6 in all miscreants ridding on Surra, 2 got climbed in their boat. All the miscreants were having guns. The boat was being sailed by Udai Bhan. Kallu Kevat, Sukhha Kevat, Prashadi, Ram Sajeevan Vishvakarma of his village were also sitting in the boat. The miscreants took the boat to the bank of the river where he saw two miscreants more having arms with them. All the miscreants got down the passengers from the boat one by one thereby asking their names. When his term came, his name was also asked. When he told his name, the miscreants stated that they were in search of him. Thereafter, one of the miscreant asked him that where the money was kept by him after selling the goods. He said that he sold the grain of worth Rs. 7,000/- out of which he is having Rs. 2,200-2,300/- with him and the remaining of the amount he had spent on purchasing of goods. Thereafter the miscreants searched his goods and the bills etc. One of the miscreants asked other passengers of the boat that his family members be informed for sending Rs. 2 lacs otherwise he will be killed. The rest of the passengers of the boat thereafter went away. He had identified the miscreants in the light of the torch which was being flashed by them. He had identified Natthu Yadav, the accused appellant who is the resident of Para Banno Begum. Chandrabhan Yadav, Phool Yadav and Badri Vishal were also identified by him while the remaining two miscreants could not be identified by him. The accused/appellant Natthu Yadav was identified by him as he had used to come on the river bank near his village and therefore, he was well known to him. He was detained in their custody by the miscreants for two months and in that period they got written so many letters in his writing from him. The letters were also got written by them out of his blood taking thereby cutting his finger. When his family members handed over a sum of Rs. 1,60,000/- to the miscreants then the miscreants left him in the jungle near the village Sikri from where he straight way reached to his village and thereafter went to Police Station. He was examined in the Medical Hospital at Kamasin regarding his injuries.
10. PW-4 Raj Kumar Shukla stated in his deposition that he is known to Udai Bhan, S/o Ramphal Kevat the resident of his village. Paper No. 5-A, (Ext. Ka-1) was got written on 2.6.1994 by Udai Bhan thereby dictating to him. As was stated by him, he had scribed the same and thereafter that was thumb impressed by Udai Bhan after hearing the facts of it.
11. PW-5 Shiv Baran has also been examined by the prosecution as eye witness of this case but he has merely stated that the alleged occurrence was occurred at about 8.00-8.30 O'clock in the night at the time when they were returning home from the market of Kishanpur through a boat owned by Udai Bhan Kevat. Bhanu, Sukkha, Udai Bhan, Bacchi Lal, Ram Sajeevan, Ram Pratap were also sitting in the boat. Four miscreants in a small boat called SURRA, had come and two miscreants amongst them had come in their boat and two miscreants had remained in SURRA. The miscreants had taken away their boat to Amethi Ghat where other two miscreants had also joined their hands. The miscreants got them down from the boat one by one and caught hold Bhanu thereby stating that the family members of Bhanu be informed to sent Rs. 2 lacs. He could not identify the arms which were being carried away by the miscreants. He could also not identify the miscreants. Though he had witnessed the miscreants in the light of the torch but he could not identify them. Accused/ appellant Natthu present in the court during his deposition was not amongst the miscreants.
12. PW-6 H.C.P. Himmat Ram has been examined by the prosecution to prove the facts stated by him on oath that on 2.6.1994 he was posted as Head Moharrir, where he had scribed the chick (Ext. Ka-2) and registered the case crime no. 117 of 1994, under section 364-A I.P.C. On the basis of the written report of Udai Bhan, S/o Ram Phal Kevat. The case was registered in the presence of Station Officer Gurmukh Singh and the gist of the case was scribed by him in the general diary (Ext. Ka-3).
13. PW-7 Dr. Sri Anand Kishor deposed that he had examined Bhanu Pratap on 2.8.1994 at Police Station Kamasin, where he was posted and he had found following injuries on the person of Udai Bhan :-
(i) An old scar with contusion on the back of the scalp 10.00 cm above to the right ear. Reddish in colour.
Dent of scar - 1.5 x 0.2 cm. Contusion - 2.5 x 1.5 cm.
(ii) Four old scar on the posterior aspect of the right upper chest. Reddish in colour (on the scapular region).
Dent of scar - 3.0 x 0.1 cm each.
(iii) Four scar antero-posterior aspect of the upper chest. Reddish in colour (on the scapular region).
Dent of scar - 3.0 x 0.1 cm.
(iv) Multiple scar blackscar on the left upper chest-posterior aspect. Black in colour.
Dent of scar 0.2 x 0.2 cm.
(v) C/o pain on the both upper limb. Not any existings seen.
(vi) An old scar on the forehand 4.0 cm above to the right eyebrow. Reddish in colour.
Dent of scar 0.2 x 0.2 cm.
(vii) C/o pain on the both thigh. Not any external injury seen.
(viii) An abrasion on the left shoulder. Reddish in colour. At the mid of its left soul.
Dent of scar 5.0 x 0.1 cm.
(ix) C/o pain inside the over cavity. No any external injury seen.
(x) C/o pain inside the over cavity. No any external injury seen.
(xi) A contusion on the right terminal pharynx of the little finger. Reddish in colour. (At the nail bed) with broken nail at the base.
Dent of scar 1.0 x 0.4 cm.
All the above injuries were simple in nature, caused by hard and blunt object. Duration was more then one month. (Ext. Ka-4) is the injury report prepared by him at the time of Medical examination of Bhanu Pratap.
PW-8 Yogendera Kumar Rai has stated on oath that he was posted as Station Officer at Police Station Kamasin on 8.9.1994. Case crime no. 117 of 1994 under section 364-A I.P.C. Was taken by him for investigation which was being investigated by other investigating officers earlier to him. On the basis of case diary prepared by the earlier I.O. he found that the interrogation and the arrest of accused Chandra Bhawan, Natthu Yadav and Phool Yadav was due,but since best efforts and despite the process of attachment exhausted, they could not be arrested, he filed the charge sheet for the offence under section 364-A I.P.C. against Natthu Yadav, Phool Yadav and Chandra Bhawan in the state of their absconding, while the charge sheet against Badri was submitted by him after his arrest. The charge sheet was filed by him is (Ext. Ka-5).
15. PW-9 S.I. Gurmukh Singh has deposed that on 1.6.1994, he was posted at police station Kamasin. He had started the investigation of this case thereby copying chick and G.D. In the case diary, inspected the spot and prepared the site plan of the place of occurrence which is Ext. Ka-6 on record. He has examined the witnesses, named Ram Vilas, Kallu, Ram Sajivan. He had also interrogated the accused named Badri. Thereafter he was transferred.
16. PW-10 S.I. Omveer Singh has also been examined by the prosecution. He has stated that he was posted at Police Station Kamasin in the year 1994. He had started the investigation of this case on 18.7.1994 on the transfer of the earlier investigating officer. He had tried to arrest four accused came in the light during the course of investigation. He has also tried to recover Bhanu Pratap the kidnappy. He had interrogated the kidnappy, who had come to his house after his release by the miscreants. The kidnappy had told to him the names of Badri Vishal, Natthu Yadav, Phool Yadav and Chandra Bhawan Yadav. Two other miscreants unknown to him were also told by him. He got medically examined the kidnappy and prepared the fard Supurdginama (Ext. Ka-7) after handing over the kidnappy to his family members. The statement of eye witnesses named Sukha Singh, Shiv Baran, Ram Sajivan, Bacchu Kevat and Prasadi were also written by him. He had tried to arrest the accused thereby invoking the provisions of attachment of the property of the accused. On 23.8.1994 accused Badri Vishal had surrendered himself in the court. Thereafter he was transferred from Kamasin to Lucknow.
17. In his statement under section 313 Cr.P.C. The accused/ appellant Natthu Yadav has stated regarding the facts of this case as aforesaid, that the entire facts and the evidence adduced in this regard was false and frivolous. Jarauth is the village of his Nanihal. The village of Bhanu Pratap is adjacent to Jarauth. He ever used to go to his Nanihal and thus he was known to Bhanu Pratap.
18. We have heard Sri J.S.P. Singh, learned counsel for the accused/ appellant in support of this appeal preferred by appellant Natthu Yadav and Sri Sher Singh, learned A.G.A. for the opposite party, the State and have gone through the record of this appeal, as well as Trial court record.
19. It is contended by learned counsel for the appellant that the prosecution has not been able to substantiate the charge against the appellant. The F.I.R. is not proved as is not stated by PW-1 Udai Bhan to have been scribed by him. He has also contended that neither the accused is named in the F.I.R. nor was identified by the witnesses amongst the alleged miscreants. It is further contended that none of the eye witness examined by the prosecution have supported the prosecution case, except Bhanu Pratap, the kidnappy, who is also not reliable as there was no occasion with him to identify the accused in the night at the time of alleged occurrence and there is contradiction regarding the numbers of miscreants came in alleged SURRA. It is also contended that there is no evidence of any ransom given in this case nor there is any description of the release of the accused out of the clutch of the alleged miscreants.
20. Per contra, learned A.G.A. contended that the appeal is bereft of merits and deserves to be dismissed because the learned Lower court has rightly appreciated the evidence adduced by the prosecution before the learned Lower court and since Udai Bhan the kidnappy has supported the prosecution case, therefore, the learned Lower court has rightly, found the guilt proved against the accused.
21. Analyzing and cogitating over rival contentions we found that the learned Lower court committed error, thereby convicting the accused for the offence under section 364-A I.P.C., merely on single testimony of the victim. Though the single testimony of any witness may not be insufficient for the conviction of an accused, if the witness seems telling the truth in the given circumstances of the case but since here in the present case all the witnesses turned hostile except Bhanu Pratap, the sole witness, therefore, the testimony of Bhanu Pratap is liable to be strictly scrutinized for its credibility in the entire scenario of the alleged occurrence placed before the court on behalf of prosecution. PW-3 Bhanu Pratap had stated that he had identified the miscreants through torch. The alleged torch is said with the miscreants. In our view, it is impossible that the miscreants having torch with them would flash the light of their torch on their own face, so that they may be easily identified by the witnesses. Had there been the torch with the witness, it was possible that the witness may identify the miscreant thereby flashing even incidently the torch on miscreants. So the identification of accused by this witness through torch of miscreant's is not believable.
22. Though this witness has further stated that since the accused had ever used to come in his village and on the bank of river therefore, he could identify him but despite this fact and even on this fact admitted by the accused Natthu Yadav that in villarge Jarautha which is adjacent village of Bhanu Pratap, he ever used to go as his Nanihal was in village, Jarautha and he was known to Bhanu Pratap, we do not find it possible that at the time of committing a crime, Natthu Yadav accused may be identified by this witness in the darkness of the night with no source of light with the witness. It is on record that the accused Natthu Yadav was well-known in the area as he had contested the election also of U.P. Assembly. Had the accused Natthu Yadav been remained involved in the kidnapping of Bhanu Pratap, there would have been no reason for not to naming him in the F.I.R. as Natthu Yadav was well-known to the witnesses being political person, contesting the election of U.P. Assembly. It is stated by this witness that there was no question of not identifying the accused Natthu Yadav by him in the aforesaid circumstance but if there was no question of not identifying the accused at the time of the alleged accurrence, certainly the name of accused would have been mentioned in the F.I.R. which is a missing fact on record. We have not even found any whisper on record that any point of time of his custody with the miscreants this witness had identified, the accused Natthu Yadav. In such circumstances the testimony of sole witness Bhanu Pratap is not acceptable beyond doubtful.
23. PW-3, Bhanu Pratap the sole witness against the accused has stated in his statement before the learned Sessions Judge that a sum of Rs. 1,60,000/- was given by his family members as a ransom in this case and thereafter he was released by the miscreants but there is no evidence of it that who was the person by whom the ransom was given, who was the miscreant amongst the miscreants or any other person, who received the ransom. Even there is no evidence on record as to which of the place the money for ransom was delivered. Therefore, this fact of ransom nowhere established on record. More so PW-10, Sub-inspector of Police, named Om Veer Singh has stated on oath that Bhanu Pratap had stated to him that he had ran away out of the clutch of miscreants, pretending to get ease himself at the time when the miscreants were under intoxication of the wine. No doubt some discrepancies of less importance in testimony of a witness in court and in the statement recorded by the police are not so much material but the factum of ransom and the factum of releasing the accused by miscreants is not the fact of less importance for the discrepancies in the statement of the witness rather it is so much material that it makes the testimony of this witness doubtful. The entire record in this regard nowhere is establishing that any ransom was demanded or received by the accused Natthu Yadav.
24. PW-3, Bhanu Pratap the victim of this case has stated that some letters were got written from him by the miscreants but none of such letter has been brought on record. None of such witness is examined receiving such letters. None of such witness is examined proving the fact that ransom was demanded through letters by the accused. Therefore, looking into the entire facts on the record, we are of this view that there are serious doubts on record that accused Natthu Yadav was identified by PW-3, Bhanu Pratap and any ransom was demanded or received by the accused Natthu Yadav in lieu of kidnapping of Bhanu Pratap. In such circumstance the sole testimony of PW-3, Bhanu Pratap is not sufficient to hold guilty the accused Natthu Yadav for the offence under section 364-A I.P.C.
25. The learned Sessions Judge committed error thereby convicting the accused Natthu Yadav for the offence under section 364-A I.P.C. We, therefore, find that his appeal should be allowed, hence we allow this appeal thereby setting aside the conviction and sentence of accused Natthu Yadav. He is hereby acquitted for the offence under section 364-A I.P.C. He shall be released forthwith, if not wanted in any other case. Fine, if any, found deposited by the accused in this case, the same shall be returned to him.
26. Let the copy of this order be sent to lower court immediately for compliance.
Dt. 23.9.2010 (F.H.)