Allahabad High Court
Firasat And Another vs State Of U.P. on 22 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 1070
Author: Naheed Ara Moonis
Bench: Naheed Ara Moonis, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 46 Reserved
Case :- CRIMINAL APPEAL No. - 5487 of 2015
Appellant :- Firasat And Another
Respondent :- State of U.P.
Counsel for Appellant :- Shashi Kumar Mishra
Counsel for Respondent :- G.A.
Connected with
Case :- CRIMINAL APPEAL No. - 5350 of 2015
Appellant :- Hafeez
Respondent :- State of U.P.
Counsel for Appellant :- Javed Habib
Counsel for Respondent :- G.A.
Hon'ble Naheed Ara Moonis,J.
Hon'ble Narendra Kumar Johari,J.
(Delivered by Hon'ble Ms Naheed Ara Moonis, J) After being convicted and sentenced in Special Sessions Trial No. 15 of 2002 arising out of case crime No. 236 of 2001, under Section 364-A IPC, police station Ganjdundwara, district Etah by the learned Special Judge (Dacoity Affected Areas) Etah vide judgement dated 26.10.2015 and order dated 02.11.2015 accused-appellants Firasat and Sushil Jatav alias Master preferred Criminal Appeal No. 5487 of 2015, whereas accused-appellant Hafeez preferred Criminal Appeal No. 5350 of 2015.
By the impugned judgement and order, the accused-appellants were convicted under Section 364-A IPC and sentenced to life imprisonment and a fine of Rs. 5,000/- (rupees five thousand) each and in case of default they were further directed to undergo imprisonment for one year's each.
Since both the afore-captioned criminal appeals have been preferred against the judgement dated 26.10.2015 and order dated 02.11.2015 passed by the learned Special Judge (DAA) Etah in S.S.T. No. 15 of 2002, both the appeals have been heard analogously and are being disposed of by means of this common judgement.
In short compass, the facts giving rise to the present appeals are that a written report was handed over by the first informant PW-1, Sukhram, son of Neksu Lal, village Nagla Sisaiya at the police station Ganjdundwara, district Etah on 20.8.2001 scribed by Rajendra Singh, son of Bhagwant Singh, resident of the same village to the effect that on 11.8.2001 at about 12.00 in the night when his relatives and co-villagers namely Asha Ram, Data Ram, Anar Singh, Raj Pal, Mahadev and Charan Singh were coming back to the village Nagla Sisaiya Majra Ajijpur after seeing the Janmashtmi programme, near Budi Ganga, they were made captive by the six miscreants. The information in respect of their missing had already been given by Netrapal, the father of Anar Singh on 14.8.2001 at the police station Ganjdundwara. All the abductees returned back on 20.8.2001 on their own, who disclosed the names of the accused as Hari Prasad alias Daroga Shakya, Hafeez, Firasat, Murad and two unknown persons. It was further mentioned in the report that the accused abducted them for ransom of Rs. 6,00,000/-.
On the basis of the aforesaid report Ext. Ka-1, a case was registered against the named accused persons as case crime No. 236 of 2001, under Section 364-A IPC, police station Ganjdundwara, district Etah, which was entered in GD No. 28 at 3.30 PM on 20.8.2001. The missing report had already been entered in G.D. No. 33 at 6.05 PM on 14.8.2001.
After the registration of the FIR, the law set into motion and investigation of the case was entrusted to PW-8 SI Parmanand Kaler, who copied the contents of the FIR and the missing report in the case diary and recorded the statement of PW-9, Har Shyam Mishra, who prepared chik FIR and entered the same in GD. On the same day, he recorded the statement of the first informant PW-1, Sukh Ram and abductees Asha Ram, Data Ram, Anar Singh, Raj Pal, Mahadev and Charan Singh. He prepared Supurdaginama of the abductees and entered the same in G.D. He also perused the medical report of the abductees and prepared site plan on the pointing out of the abductees, which he proved as Ext. Ka-3.
Thereafter, further investigation of the case was taken up by PW-10, SI Vikram Singh. He deposed that on 25.8.2001, when he was posted as Station Officer at Police Station Ganjdundwara, he took up the investigation of that case. On 09.09.2001, he raided the house of the accused, but they could not be arrested. On 10.10.2001, on the pointing out of the first informant, Sukh Ram, he prepared site plan and also raided the house of the accused for their arrest, but in vain. Thereafter, report was sent to the court for initiating proceedings under Sections 82 and 83 Cr.P.C., which he proved as Ext. Ka-5.
On 14.10.2001, he (PW-10), made search of accused Murad and Firasat, but they were untraceable. Thereafter report was submitted to the court for initiating proceedings under Section 82 and 83 Cr.P.C.. On 15.10.2001, the investigating officer raided for the hideouts of Hafeez and Har Prasad. Charge sheet against Hafeez was submitted under custody whereas investigation in respect of accused-Sushil was pending and after his identification by the witnesses during test identification parade, charge sheet against Sushil was also submitted. Charge sheets against the accused Murad, Firasat, Har Prasad, Hafeez and Sushil were submitted under Section 364-A IPC, police station Ganjdundwara, district Etah, which he proved as Exts. Ka-6 and Ka-7.
As the case was exclusively triable by the Court of Sessions, learned Additional Special Judge (DAA) Court No. 10, Etah vide order dated 06.1.2003 framed the charges against the accused Hafeez, Murad, Sushil and Firasat. Charges against the accused Har Prasad were framed on 09.1.2004. The charges were read over and explained to the accused in Hindi, who pleaded not guilty and claimed to be tried.
To bring home guilt of the appellants to the hilt, the prosecution has examined as many as ten witnesses. PW-1, Sukhram is the first informant of the case. PW-2, Raj Pal, PW-3, Anar Singh, PW-4, Data Ram, PW-5, Charan Singh, PW-6, Asha Ram and PW-7, Mahadev are the victim/abductees of the case, PW-8, SI Parmanand Kaler is the first investigating officer of the case, PW-9, Constable Har Shyam Mishra is the scribe of Chik FIR and PW-10, SI Vikram Singh is the second investigating officer of the case, who submitted charge sheet against the accused persons.
PW-1, Sukhram, in his examination-in-chief has deposed that on the date of occurrence, i.e. one and a half year ago, when his brother Asha Ram, cousin Data Ram and co-villagers Anar Singh, Raj Pal, his brother-in-law Mahadev and Charan Singh were coming back from village Bhujpura after seeing the Janmashtmi programme, near Budi Ganga, they were made captive by the six miscreants, who abducted them and took them to Jungle Myau. All the abductees returned back after 9-10 days on their own, who disclosed that accused Hari Prasad alias Daroga Shakya, Hafeez, Murad and Firasat have abducted them. He further deposed that he took all the abductees to the police station and on the basis of disclosure by the abductees, he got the report scribed by one Rajendra and after putting his signature, he handed over the same at the police station, which he proved as Ext. Ka-1.
PW-2, Raj Pal is the victim of the case. In his examination-in-chief, he deposed that on the date of occurrence, he along with Charan Singh, Data Ram, Asha Ram, Anar Singh and Mahadev had gone to village Bhujpura to hear Kirtan. When, they were coming back, at about 12.00 in the night, near Budi Ganga, six miscreants armed with guns and rifles have tied their hands and feet and made captive and took them to village Myau and locked them in the cell of Tube well. He further deposed that during detention, miscreants used to give one or two Chapati and water. While in detention, he recognized accused Hafeez, Murad, Firasat and Daroga. When the miscreants had gone to take meals, they have escaped from the cell of tube well and reached village. He had gone to jail to identify the accused. He also deposed that the persons whom he identified in jail, is not present in the Court. In the Court Sushil, Hafeez, Murad and Firasat are present, out of whom Sushil was not involved in his kidnapping.
PW-3, Anar Singh, in his examination-in-chief, has deposed that on the date of occurrence, he had gone to see Janmashtmi programme at village Bhujpura along with Mahadev, Charan Singh, Asha Ram and Raj Pal. At about 1.00 in the night, when they were coming back, on the turn of bridge of Budi Ganga, six miscreants armed with weapons, surrounded them and took them to village Myau and locked them in the cell of tube well. He has further deposed that miscreants used to keep a watch on them all the times. He can recognized all the miscreants as he has seen and recognized all of them. Finding opportunity, all of them ran away from the clutches after 10-11 days and after reaching the house, all of them narrated the stories. Police have got all the victims examined. He also deposed that miscreants have abducted them for ransom.
PW-4, Data Ram is also the victim of the case. In his examination-in-chief, he has deposed that on the date of occurrence, while he was coming back to his village after hearing the Janamashtmi Kirtan along with Karan Singh, Asha Ram, Anar Singh, Raj Pal and Mahadev, after crossing Budi Ganga, the miscreants surrounded and blindfolded them. He has further deposed that he could not tell whether the miscreants were having any weapon or not. All the abductees have returned home on their own. He also disclosed that whenever miscreants feed them, they used to address each other as Murad, Daroga alias Har Prasad, Firasat and Hafeez. On their return, all the abductees were taken to the police station by the villagers from where they were sent for their medical examination.
PW-5, Charan Singh, in his examination-in-chief has deposed that on the date of occurrence, he had gone to village Bhujpura to hear Kirtan along with Asha Ram, Mahadev, Data Ram, Anar Singh and Raj Pal. At about 1.00 in the night when they were returning, near Budi Ganga, miscreants caught and blindfolded them. He also deposed that he told the investigating officer about the names of Murad, Firasat, Hafeez and Daroga as whenever the miscreants feed them, they used to address each other as Murad, Daroga, Firasat and Hafeez. About 10 days of abduction, all the abductees returned back on their own. On their returned, all of them were taken to the police station by the villagers from where they were sent for their medical examination.
PW-6, Asha Ram, in his examination-in-chief has deposed that on the date of occurrence, he along with Charan Singh, Data Ram, Anar Singh and Mahadev had gone to hear Kirtan. After hearing Kirtan, when they were returning to their village at about 12.00 in the night, and as soon as they reached near Budi Ganga, they met six miscreants armed with illegal guns and rifles. All the miscreants tied their hands and feet, blindfolded them and took them to village Myau and locked them in the cell of tube well. All the miscreants used to address each other as Hafeez, Murad, Firasat and Daroga. They did not take the name of other two miscreants. After 10-11 days, when the miscreants had gone somewhere, finding opportunity, they have run away and reached their homes and narrated the story. They were taken to police station from where they were sent for medical examination. He further stated that accused Sushil and Hafeez are not the persons who have abducted him.
PW-7, Mahadev, in his examination-in-chief, has deposed that on the date of occurrence, he had gone to hear Kirtan at village Bhujpura along with his brother-in-law Asha Ram, Data Ram, Raj Pal, Anar Singh and Charan Sngh. At about 1.00 in the night, when they were coming back, near the turn of Budi Ganga, six miscreants armed with weapons, surrounded and tied them and took them to village Myau and locked them in the cell of tube well. He further deposed that miscreants used to keep a vigil on them all the times and give food to them. Har Prasad alias Daroga, Hafeez, Firasat and Murad were recognized by the other abductees. Finding opportunity, all of them ran away from the clutches of miscreants after 10-11 days and after reaching home, all of them narrated the story. Police have got all the victim medically examined. He also also deposed that he was abducted for ransom of Rs. 600,000/- (rupees six lac only). Amongst the miscreants, he would recognize Har Prasad alias Daroga, Hafeez, Firasat and Murad. During identification, he recognized accused-Sushil.
PW-8, SI Parmanand Kaler is the first investigating officer of the case, who started the investigation and PW-10 SI Vikram Singh is the second investigating officer of the case, who submitted charge sheet. Their evidence in details have already been discussed above.
PW-9, Har Shyam Mishra, in his examination-in-chief has deposed that on 14.8.2001, he was posted at police station Ganjdundwara as Clerk-Constable. On that date on the basis of missing report he prepared G.D. on the basis of written report of Sukhram on 20.8.2001, a case as case crime No. 223 of 2001 under Section 364-A was registered vide G.D No. 28. He has further deposed that original G.D has been weeded out.
All the above witnesses have also stood the rigour of cross-examination.
After the closure of prosecution evidence, the statements of the accused-appellants were recorded under Section 313 Cr.P.C., in which they denied the charges levelled against them and stated that they have been falsely implicated in this case due to enmity.
Learned Special Judge (Dacoity Affected Areas) Etah after hearing the learned counsel for the parties, evaluating and assessing the evidence on record, convicted and sentenced the appellants as indicated herein above.
Hence, this appeal.
Heard Mr. Shashi Kumar Mishra, learned counsel for the appellants in Criminal Appeal No. 5487 of 2015 and Mr. Javed Habib, learned counsel for the appellant in Criminal Appeal No. 5350 of 2015 and Mr. Ashwani Prakash Tripathi, learned Additional Government Advocate representing the State in both the appeals.
The main thrust of arguments of learned counsel for the appellants is that initial burden was upon the prosecution to prove abduction and demand of ransom as there are material contradictions in the statements of the witnesses, which makes the entire prosecution story doubtful. The trial court has misinterpreted section 27 of the Dacoity Affected Areas Act, 1983, which reads as under:
"27. Presumption in respect of kidnapping and abduction. -In any trial of scheduled offence under this Act where it is proved that -
(i) the accused has kidnapped or abducted any person from dacoity affected area, it shall be presumed, unless the contrary is proved, that the accused has kidnapped or abducted such person for ransom,
(ii) the accused has wrongfully concealed or confined any person kidnapped or abducted from dacoity affected area, it shall be presumed, unless the contrary is proved, that the accused has concealed or confined such person knowing that such person has been so kidnapped or abducted."
Further submission of learned counsel for the appellants is that doctor, who has medically examined the abductees has not been examined by the prosecution. It has also been contended by the learned counsel for the appellants that the identification evidence is so deficient in volume, which does not form a satisfactory basis for the conviction of the appellants. Only PW-7, Mahadev has identified after 12 years of the incident for the first time in the court to appellant Sushil. The identification memo is neither legally proved nor exhibited. It is lastly submitted by the learned counsel for the appellants that no case has been made out against the appellants for the offence punishable under Section 364-A IPC inasmuch as ingredients of Section 364-A IPC have not been established by the prosecution.
Per contra, Mr. Ashwani Prakash Tripathi, learned Additional Government Advocate contended that the prosecution was successful in bringing home guilt of all the appellants to the hilt and that the findings of guilt recorded by trial court are well reasoned and require no interference. Learned Additional Government Advocate further contended that appellant-Firasat has the criminal history of eleven cases and convicted for two years under the Gangsters Act.
Before appreciating the contention of learned counsel for the appellants that there are material contradictions in the statements of the witnesses, it would be useful to refer certain pronouncements of Hon'ble Supreme Court:
In State of Rajasthan Vs. Rajendra Singh, (2009) 11 SCC 106) held as under:
"Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence."
In Mahendra Pratap Singh Vs. State of Uttar Predesh, (2009) 11 SCC 334, held as under:
"The discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt."
In the light of the aforesaid observations of Hon'ble Supreme Court, we will now consider whether the contradictions/omissions had been of such magnitude that they may have materially affected the trial.
The first information report in the instant case was allegedly lodged on 20.8.2001 by the first informant, Sukh Ram, who is neither eyewitness nor victim of the case. In the FIR, the first informant has given names, parentage and address of the accused. The relevant portion of the FIR is quoted herein under:
ßvc ;g yksx vkt fnuk¡d 20-8-2001 dks okil vk x;s gSa bu yksxksa ls cnek'kksa ds uke gfj izlkn mQZ njksxk 'kkD; ,l@vks uUn yky] uxyk ihre etjk fe;kÅ Fkkuk fldUnjiqj oS'; rFkk gQht iq=0 xuh] xzke&fe;kÅ ¼m>;kuh okyk½] Fkkuk fldUnjiqj oS'; ¼,Vk½A fQjklr ,l@vks ljkQr] eqgYyk iwjc Fkksd o eqjkn ,l@vks yYyu] eqgYyk ojhFkksd dlck&Fkkuk xatMqMokjk ftyk ,Vk rFkk nks yksx vkSj Fks bu yksxks us N% yk[k] :i;s ds fy, idM+ dh FkhAÞ Now the question for consideration for this Court is as to which victim has told him the names, parentage and address of the miscreants.
PW-1, Sukh Ram, the first informant has stated that when all the abductees have returned from the captivity of the miscreants, they told him that Daroga, Hafeez, Murad and Firasat have abducted them. In his cross-examination, PW-1, Sukh Ram has stated that he has not mentioned the name of Sushil in the FIR as the abductees have not told his name as one of the miscreants and he did not know how the investigating officer has submitted charge sheet against him. To a specific suggestion, PW-1, Sukh Ram has admitted that all the miscreants are resident of different villages and abductees have not told the parentage and addresses of the miscreants and he has written the same on the advice of the villagers.
PW-2, Raj Pal, PW-3, Anar Singh, PW-4, Data Ram and PW-5, Charan Singh in their cross-examination have clearly admitted that no test identification parade was conducted, whereas PW-6 Asha Ram in his cross-examination has stated that accused Sushil and Hafeez were not involved in his abduction. However, PW-7, Mahadev has stated that only to identify accused-Sushil, test identification parade was conducted. He, however, admitted that no test identification of rest of the accused was conducted in jail. Therefore, the statement of PW-7 is contrary to the statements PW-2, Raj Pal, PW-3, Anar Singh, PW-4, Data Ram, PW-5, Charan Singh and PW-6, Asha Ram.
PW-1, Sukh Ram in his evidence has stated that victim have disclosed the names of the accused persons to him, whereas PW-2, Raj Pal to a suggestion, in his cross-examination has admitted that he never told the names of the accused to PW-1, Sukh Ram. He also replied that he also did not know the parentage and address of the accused persons. PW-2 also stated that he had not seen their faces as whenever they used to come to feed them, they always kept their faces concealed. PW-3, Anar Singh, PW-4 Data Ram, PW-5 Charan Singh and PW-6, Asha Ram in their cross-examination have admitted that they cannot recognize the accused as they have blindfolded them. However, PW-7, Mahadev to a suggestion, has stated that he did not know the names of the accused from before and that his companion has told the names of the accused. He further stated that today, he cannot tell the names, parentage and address of the accused.
In the FIR lodged by the informant PW-1, it was simply stated that the miscreants have abducted the victim. It was not alleged in the FIR that miscreants were armed with lethal weapons. PW-2 Raj Pal, PW-3, Anar Singh, PW-6, Asha Ram and PW-7 Mahadev have stated that miscreants were armed with lethal weapons, whereas PW-4, Data Ram has stated that he cannot tell whether the accused were armed with any weapon or not. PW-5, Charan Singh has not assigned any weapon to the miscreants.
In their examination-in-chief, PW-2, Raj Pal, PW-4, Data Ram, PW-6 Asha Ram and PW-7 Mahadev have specifically stated that miscreants have caught them and tied their hands and feet and thereafter took them to village Myau and lodged them in the cell of Tube well, whereas no such disclosure was made by PW-3, Anar Singh and PW-5 Charan Singh in respect of tying their hands and feet by the miscreants.
From the perusal of the evidence of the first informant and victim/abductees, it transpired that they are full of material contradictions, inconsistencies and improvement, which create a serious doubt about the truthfulness of the witnesses qua prosecution story as set up by the prosecution in the instant case.
The next contention of learned counsel for the appellants is in respect of non-examination of the doctor, who has conducted medical examination of the victim.
Before appreciating this submission of learned counsel for the appellants, it would be proper to refer to the injuries report prepared by Dr. S.K. Gupta, Medical Officer, Primary Health Centre, Ganjdundwara, Etah.
Injury report of PW-2 Raj Pal
1. Mild swelling on left side of back.
2. Mild swelling on back of left leg.
3. Complain of pain on back.
In the opinion of the doctor, no external injury was seen. Only mild swelling and complaint of pain present.
Injury report of PW-3 Anar Singh
1. Mild swelling on both hands.
2. Mild swelling on both legs and complain of pain on both legs.
In the opinion of the doctor injuries were simple and caused by any blunt object. Duration 4-5 days old.
Injury report of PW-4 Data Ram
1. Complain of pain on chest and back.
2. Complain of pain on both legs.
No external injury seen. Only complaint of pain.
Injury report of PW-5 Charan Singh
1. Scabed abrasion 1.00 cm x 1.00 cm on both wrists.
2. Mild swelling 4.00 cm x 4.00 cm on both legs both sides.
3. Complain of pain on lower back.
Injury report of PW-6 Asha Ram
1. Scabed abrasion 2.00 cm x 1.00 cm on nose.
2. Mild swelling 4.00 cm x 4.00 cm on lower and back side of neck
3. Complain of pain on lower back.
In the opinion of the doctor all the injuries are simply and caused by any blunt object. Duration 4-5 days old.
Injury report of PW-7, Mahadev
1. Swelling 4.00 cm x 4.00 cm on the back of both hands
2. Swelling 5.00 cm x 4.00 cm on back of left shoulder.
3. Complain of pain on both leg.
Injuries are simple and caused by any blunt object. Duration one week old.
In the opinion of the doctor all the injuries were simple and caused by any blunt object. Duration one week old.
From the perusal of the above noted injuries of the victim, it is very much clear that all the injuries of the victim were only swelling and complain of pain. It is to be noted that in the instant case six persons have allegedly been abducted by the miscreants and not a single abductee/victim has stated in their evidence that the miscreants have assaulted him while he was under their captivity. Further, there is not a whisper in the first information report that victim was subjected to assault by the miscreants. In view of above facts, it can safely be held that the prosecution has failed to prove that the aforesaid injuries were caused by the miscreants while the victim were under detention.
Moreover, for the reasons best known to the prosecution, it has withheld the doctor, who has examined the witnesses/abductee. Thus, the injuries of the victims are not legally proved of which there is no evidentiary value to give any strength to the prosecution case.
In Habeeb Mohammad Vs. State of Hyderabad, AIR 1954 SC 51, Hon'ble Supreme Court held as under:
"It is said that the state of things above described arose because of a supposed obligation on the prosecution to call every available witness on the principle laid down in such a case as Ram Ranjan Roy Vs. Emperor (I.L.R 42 Ca 422) to the effect that all available eye-witnesses should be called by the prosecution even though, as in the case cited, their names were on the list of defence witnesses. Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on part of those conducting persecutions, but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the function both of prosecution and defence. If it does so confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution."
In Ram Prasad and others Vs. State of U.P., 1973 AIR 2673, Hon'ble Apex Court held thus:
" It is as much the duty of the prosecution as of the Court to ensure that full and material facts are brought on record so that there can be no miscarriage of justice. The discharge of such duty cannot be affected by the consideration that some of the facts , if brought on record, would be favourable to the accused. In case the Court finds that prosecution has not examined witnesses for reasons not tenable or not proper, the Court would be justified in drawing an inference adverse to the prosecution."
So far as the question of test identification is concerned, it is to be noted that in all criminal trials, the two most important points of determination for the courts are whether alleged offence was committed and if so, as to who committed the offence. One of the methods adopted to establish the identify of the perpetrator of the act is by way of identification parade. Evidence by means of identification parade is taken under Section 9 of the Indian Evidence Act. The purpose of the identification parade is to test the veracity of the evidence of the witnesses. The object of conducting the test identification parade is firstly to satisfy the investigating officer, before submitting the charge sheet and sending the case to the Court for trial, that the person arrested who was not previously known to the witness and was in fact, one of those who committed the crime; and secondly to satisfy the Court that accused arrested is in fact the culprit.
PW-10, SI Vikram Singh, the second investigating officer of the case, in his cross-examination has deposed that he got the test identification parade of the accused Sushil conducted after four months of the occurrence. The name of accused-Sushil was disclosed by accused-Hafeez in his statement. As stated by PW-10, the investigating officer, accused-Hafeez was allegedly arrested on 06.12.2001 and his statement was recorded. The investigating officer has further deposed that on 29.1.2002, report for his identification was moved, i.e. after 38 days after the arrest of accused-Hafeez.
Now, the question for determination before this Court is as to before whom the proceeding for test identification was conducted. PW-2, Raj Pal, to a suggestion, in his cross-examination, has specifically stated that no test identification parade was conducted to identify the accused, who have abducted him. PW-3, Anar Singh, in his cross-examination has clearly deposed that neither any test identification parade was conducted in jail to identify the accused nor accused were known to him from before. PW-4, Data Ram and PW-5, Charan Singh have also deposed in their cross-examination that no test identification parade was conducted in jail to identify the accused. PW-6, Asha Ram in his evidence has not stated a single word about test identification parade, but has only stated that accused Sushil and Hafeez were not involved in his abduction. From the perusal of statements of PW-2, Raj Pal , PW-3, Anar Singh, PW-4, Data Ram, PW-5, Charan Singh and PW-6, Asha Ram it is vivid that they have not gone to jail to identify the accused.
PW-7, Mahadev, whose evidence has been recorded after more than twelve years of the occurrence, is the only witness, who has stated that he went to jail to identify the accused. Admittedly, PW-7 is not the resident of village Nagla Sisaiya where all the witnesses reside. In his examination-in-chief he has stated that all his relatives, i.e. PW-2 to 6 have identified accused Har Prasad alias Daroga, Hafeez, Firasat and Murad, meaning thereby that he did not identify any of the accused while he was abducted. By that time, accused Sushil was also not in picture, his name has been surfaced later on, on the basis of alleged statement of accused-Hafeez. Further, in earlier part of his cross-examination, PW-7, Mahadev has deposed that he had identified the accused-Sushil in jail during test identification parade. He further stated that test identification parade was conducted only to identify the accused-Sushil and not for other accused. In the end of this cross-examination, he has stated that all the witness had gone to jail to identify the accused, which is contradictory to the evidence of other witnesses, i.e. PW-2 to PW-6, who have stated that they did not go to jail to identify the accused.
Moreover, PW-10, SI Vikram Singh, the investigating officer has not stated a single word as to who was the Magistrate before whom the test identification was conducted. Moreover, the prosecution has neither exhibited nor proved the proceeding of test identification parade, which goes to suggest that no test identification parade was conducted to identify the accused.
Even otherwise, according to PW-10, SI Vikram Singh, the second investigating officer, the test identification parade of Sushil was conducted on 29.1.2002 of the occurrence dated 11.8.2001 for which no plausible explanation has been tendered by the investigation officer for delayed test identification parade.
Hon'ble Supreme Court in State of Andhra Pradesh Vs. Dr. M.V. Ramana Reddy and others, AIR( 1991) SC 1938, held that where there is unexplained delay in holding the identification parade, the evidence of the prosecution regarding identity of an accused cannot be held absolutely reliable and in such a case the accused is entitled to the benefit of doubt.
In Budhen and another Vs. State of U.P., (1970) 2 SCC 128, held that the evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances the complainant or the witnesses came to pick out the accused person and the details of the part which such persons played in the crime in question with reasonable particularity. The test identification is considered as a safe rule of prudence for corroboration. Though the holding of the identification proceedings may not be substantive evidence, yet such proceedings are used for corroboration purposes in order to believe or not the involvement of the person brought before the Court for the Commission of the crime. The holding of identification parade being a rule of prudence is required to be followed strictly in accordance with the settled position of law and expeditiously. The delay, if any, has to be explained satisfactorily by the prosecution.
Looking into the attending circumstances and the totality of the evidence produced in Court, we are of the opinion that the test identification parade for identifying the accused was not conducted in accordance with law.
The last contention of learned counsel for the appellants is that on the basis of evidence on record, no case against the appellants under Section 364-A IPC is made out.
Malleshi Vs. State of Karnataka (2004) 8 SCC 95, is a celebrated judgement of the point of Section 364-A IPC, in which Hon'ble Supreme Court held as under:
" To attract the provisions of Section 364-A IPC what is required to be prove is (1) that the accused kidnapped or abducted the persons, (2) kept him under detention after such kidnapping and abduction and)3) that the kidnapping or abduction was for ransom."
Now, we have to consider whether the prosecution has established its case for the offence punishable under Section 364-A IPC beyond reasonable doubt. From the bare reading of Section 364-A IPC, it transpires that kidnapping for ransom would be attracted when the kidnapper makes a demand to pay the ransom. To attract the provisions of Section 364-A IPC, prosecution has to prove that the accused kidnapped or abducted the victim, kept him under detention after such kidnapping and that the kidnapping was for ransom. The essential ingredient to attract the provisions of Section 364-A IPC is that there has to be a demand by the kidnapper to victim or any of his/their relations asking for payment of ransom.
Learned trial court while convicting the appellants under Section 364-A IPC has noted that victim were abducted for ransom of Rs 600,000/-. It also noted that PW-3, Anar Singh and PW-7 Mahadev have stated that they have been abducted for a ransom of Rs. 600,000/-.
In the instant case, as many as six persons namely PW-2, Raj Pal, PW-3, Anar Singh, PW-4, Data Ram, PW-5, Charan Singh, PW-6, Asha Ram and PW-7 Mahadev have been abducted by the miscreants. PW-2, Raj Pal in his cross-examination has clearly stated that neither from him nor from any other victim any ransom was demanded by any one. Although PW-3, Anar Singh in his examination-in-chief has deposed that he was abducted for ransom, but in his cross-examination, he has not made any whisper about the ransom. PW-4, Data Ram, PW-5, Charan Singh, PW-6, Asha Ram in their evidence have not uttered a singe word that miscreants have ever demanded any ransom from them. PW-7, Mahadev, in his examination-in-chief has stated that he has been abducted for ransom of Rs. 6,00,000/-, but in his cross-examination he has clearly stated that miscreants has never demanded any ransom from him. Further, not a single witness in his evidence has stated that any of the miscreants has ever administered any threat to him. Moreover, there is not an iota of evidence on record to show as to who has demanded ransom and from whom ransom was demanded or to whom the message of ransom was conveyed.
In the absence of any demand of ransom or threat to the victim, we are of the view that ingredients of Section 364-A IPC are not at all attracted in this case.
The contention of the learned Additional Government Advocate that appellant-Firasat has the criminal history of eleven cases is bereft of any substance. Merely because the accused has the criminal history is no ground to convict the accused-appellant when the prosecution has failed to prove the case against the appellants as such the provision of Section 27 of the Dacoity Affected Areas Act would not be attracted to draw presumption against them.
On appreciation of evidence of the prosecution witnesses as a whole, we are of the considered opinion that the learned trial court has not appreciated the evidence brought on record by the prosecution in correct perspective and the prosecution has not been able to prove the case against the appellants beyond reasonable doubt.
In view of what has been indicated herein above, both the appeals are hereby allowed.
The judgement dated 26.10.2015 and sentence order dated 02.11.2015 passed by the learned Special Judge (Dacoity Affected Areas) Etah in Special Sessions Trial No. 15 of 2002 arising out of case crime No. 236 of 2001, under Section 364-A IPC, police station Ganjdundwara, district Etah are set aside.
Appellant Hafeez is on bail. His bail bond is cancelled and sureties discharged. He need not surrender before the Court. However, he is directed to comply with the provisions of Section 437A of Code of Criminal Procedure.
Appellants Firasat and Sushil Jatav alias Master are in jail. They shall be released forthwith unless wanted in any other case.
Office is directed to transmit a copy of this order to the court concerned for compliance and compliance report be submitted to this Court within two months.
Dated: 22.01.2020 Ishrat