Allahabad High Court
State Of U.P. vs Shashi Shekhar And Ors. on 13 February, 2004
Equivalent citations: 2004CRILJ2961
Author: M. C. Jain
Bench: M.C. Jain, Onkareshwar Bhatt
JUDGMENT M. C. Jain, J.
1. Five accused respondents, namely, Shashi Shekhar, Pradeep Aron, Deepak, Gulsher and Rahman were tried for the offence punishable under Section 364A IPC before the IV Additional Sessions Judge, Muzaffar Nagar in Sessions Trial No. 382 of 1996. As they were acquitted by order dated 10-7-1998, the State preferred the instant appeal.
2. As per the report of Chief Judicial Magistrate, Muzaffar Nagar dated 22-12-2003, the accused respondent No. 2 Pradeep Aron was killed in police encounter. The appeal abated so far as he was concerned as per our order dated 13-1-2004. The remaining four accused respondents have been lodged in jail in compliance of our order dated 19-11-2003.
3. The facts necessary to be recorded for the decision of the appeal are these : One Dr. Ved Bhushan was a private medical practitioner at Muzaffarnagar and on 6-11-1995 he has left his residence at about 10 a.m. in his car-NE 118 bearing No. UP12A-4888. At about 11 a.m., he visited his patient Shiv Charan Maheshwari in Nai Mandi, Muzaffar Nagar and at about 11.30 a.m. one Gopal Bhartiya at his residence. Thereafter he neither returned his home nor reached his clinic. His son -- Manu Bhushan PW 1 lodged a report of his missing. Later on, the said car was spotted parked on a road between Barla and Purkaji. Thereafter the son of the victim lodged report of his kidnapping on 7-11-1995 at 23.30 hours. A case was registered and investigated. The missing Doctor came to be recovered in the morning of 16-11-1995 from a house situated in Deoband town of District Saharanpur which was raided by the police in between the night of 15/16-11-1995. Before his recovery, letters -- Exts. Ka-8 to Ka-10 were received from the victim whereby Rs. 40 lacs were demanded as ransom for his release. These letters were addressed to one Mahendra Kumar PW 2 (friend of the victim).
4. As referred to above, in between the night of 15/16-11-1995 in town Deoband of district Saharanpur, the house of one Islam was raided by the police and two miscreants Rampal Singh and Afzal were killed in police encounter during the raid. Third one made his escape good and it was at about 6 O'clock in the morning that the victim was recovered from the room of his house. The accused-respondents figured as the kidnappers of Dr. Ved Bhushan during investigation. The charge-sheet was submitted and they were accordingly tried for the offence under Section 364A IPC.
5. The defence was of denial.
6. The prosecution in all examined eleven witnesses but none was examined by the accused-respondents in defence. Manu Bhushan PW1 was the son of the victim who spoke about his father Dr. Ved Bhushan having left his residence on 6-11-1995 at 10 a.m. to visit the patients and that thereafter he neither returned home nor reached the clinic. He also stated that the photo copies of the letters Exts. Ka-8 to Ka-10 were in the handwriting of his father Dr. Ved Bhushan. Mahendra Kumar, Advocate PW 2 stated that he had received original letters demanding ransom for his release, photo copies of which were on record. They were on the letter head of Dr. Ved Bhushan, but he could not say whether they were in the handwriting of Dr. Ved Bhushan. According to him, he had given the letters, without going through them, to Dr. Ved Bhushan's son. S. I. Prem Chand Sharma PW 3, S. I. Rampal Singh PW 5 and C. O. Ajai Rautela PW 7 were the witnesses of the recovery of Dr. Ved Bhushan at about 6 a.m. on 16-11-1995 in the morning consequent upon the raid on the house of Islam in Deoband town in between the night of 15/ 16-11-1995. Premchand Agrawal PW 6 is Sala of Dr. Ved Bhushan but he stated that he did not receive any telephonic call regarding ransom after kidnapping of Dr. Ved Bhushan. He was declared hostile by the prosecution.
7. The testimony of other witnesses is not worth to be referred.
8. We have heard Sri M. C. Joshi, learned A. G. A. and Sri Satish Trivedi, learned Senior Advocate assisted by Sri Imranullah and Sri Anubhav Trivedi on behalf of the accused-respondents. The record has been summoned before us which has been carefully perused by us. Learned A. G. A. has assailed the finding of acquittal as being against the evidence whereas it has been argued from the side of the accused-respondents that none of them could be connected with the alleged kidnapping of Dr. Ved Bhushan and that their exoneration by the Court below is perfectly justified.
9. On careful consideration, we are of the opinion that it is not at all possible to reverse the finding of acquittal recorded by the trial Court. There are solid and cogent reasons which justify the acquittal. We deal with them in the suceeding discussion.
10. To begin with, it is to be stated that there is no eye-witness of the kidnapping of Dr. Ved Bhushan. The sad feature of the case is that the victim or kidnappee Dr. Ved Bhushan himself, who could be the best witness, was murdered in some other incident before being produced as a witness in the case.
11. Learned A.G.A. urged that as per the testimony of S. I. Prem Chand Sharma PW 3 and C.O. Ajai Rautely PW 7, immediately after his recovery Dr. Ved Bhushan had disclosed that he had been kidnapped by the accused-respondents Shashi Shekhar, Pradeep Aron, Deepak, Gulsher and Rahman and that Afzal and Rampal had joined them at Deoband. According to him, it was legal evidence admissible under Section 6 of the Evidence Act. The point of the matter is that there is no primary evidence as to the kidnapping of Dr. Ved Bhushan by the accused-respondents. The so-called res gestae evidence of S. I. Prem Chand Sharma PW 3 and C. O. Ajay Rautela PW 7 based on the alleged disclosure made by Dr. Ved Bhushan, could be of some use to support the prosecution, had there been some primary evidence in this behalf. The alleged disclosure made by Dr. Ved Bhushan to these witnesses could not form the basis of conviction of the accused-respondents as kidnappers of Dr. Ved Bhushan. Admittedly, the kidnappee Dr. Ved Bhushan did not disclose the parentage and address of any of the accused-respondents. It has been stated by S.I. Prem Chand Sharma PW 3 that the memos had been prepared at the time of recovery, but there was no reference therein of the disclosure made by Dr. Ved Bhushan. In fact, the alleged disclosure itself is rendered doubtful which Prem Chand Sharma PW 3 and Ajay Rautela PW 7 insist to have been made by Dr. Ved Bhushan. Ajay Rautela PW 7 has further contradicted Prem Chand Sharma PW 3, by saying that no fard of recovery was prepared at all. The record also shows that no fard of recovery was proved.
12. It is further to be pointed out that the accused-respondents had claimed test identification, but the same was not got done.
13. The statement made by Dr. Ved Bhushan under Section 161 Cr. P.C. could also not be utilised by the prosecution in its favour as his previous statement to fix up the culpability on the heads of the accused-respondents. As per Section 32(1) of the Indian Evidence Act, the statement made by a person who is dead can be used in evidence provided it relates to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in case in which the cause of that person's death comes into question. In the present case, Dr. Ved Bhushan was murdered in some other incident and cause of his death was not in question in this trial. Therefore, his statement made under Section 161 Cr. P.C. was hit by Section 162.
14. Original ransom letters were not produced before the Court at all. Manu Bhushan PW 1 son of Dr. Ved Bhushan conveniently washed his hands off by saying that he had given original letters to his father and the same were not available with him.
15. The accused-respondent Gulsher was said to be brother of Afzal from whose house Dr. Ved Bhushan was allegedly recovered. But there was no evidence that the said house was also in possession of Gulsher. As a matter of fact, it was also not proved that Gulsher was brother of Afzal. In the site plan Ext. Ka-12 (of the place of recovery of Dr. Ved Bhushan), it was shown to be belonging to Afzal son of Rafiq whereas the name of father of Gulsher was Islam. There was nothing to show that Rafiq and Islam was one and the same person.
16. The entire evidence adduced by the prosecution being considered cumulatively, the accused-respondents could not be held to be guilty of the offence with which they were charged. Indeed, the Court of law is to be guided by legal evidence and not by any extraneous consideration. Doubtless, kidnapping for ransom is a serious offence calling for stern punishment, but for conviction the guilt of charged person has to be proved by legal evidence. The fluid evidence adduced at the trial by the prosecution coupled with other circumstances dealt with above could not warrant conviction of the accused-respondents and they have rightly been acquitted.
17. In view of the above discussion, we do not find any merit in this appeal and we hereby dismiss it. It has already abated against the accused-respondent Pradeep Aron as per our order dated 13-1-2004. The other accused-respondents, namely, Shashi Shekhar, Deepak, Gulsher and Rahman who are in jail in compliance of our order dated 19-11-2003, shall be released forthwith, if not wanted in any other connection.
18. Judgment be certified to the lower Court.