Allahabad High Court
Jay Prakash @ Bhure And Another vs State Of U.P. on 18 May, 2022
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 46 AFR Reserved on: 14.02.2022 Delivered on:18.05.2022 Case :- CRIMINAL APPEAL No. - 3798 of 2007 Appellant :- Jay Prakash @ Bhure And Another Respondent :- State of U.P. Counsel for Appellant :- R.S. Chaudhary,M.C. Chaturvedi,P.K.Singh,P.V.Singh,Prashant Kumar,R.P. Kanoujiya,Rajesh Kumar Dubey,S.K. Rathore,Vijay Singh Sengar,Vinod Kumar Sahu,Vishnu Shanker Gupta Counsel for Respondent :- Govt. Advocate And Case :- CRIMINAL APPEAL No. - 2753 of 2007 Appellant :- Shrikant Respondent :- State of U.P. Counsel for Appellant :- K.K. Tripathi,P.K.Singh,Rajesh Kumar Mishra,Surendra Singh Counsel for Respondent :- Govt. Advocate And Case :- CRIMINAL APPEAL No. - 4234 of 2007 Appellant :- Virendra Respondent :- State of U.P. Counsel for Appellant :- P.K. Singh,Kanchan Chaudhary,Sushil Kumar Pandey Counsel for Respondent :- Govt. Advocate And Case :- CRIMINAL APPEAL No. - 5287 of 2007 Appellant :- Lajja Ram Respondent :- The State Of U.P. Counsel for Appellant :- Jaswant Singh,Prashant Kumar Srivastava Counsel for Respondent :- Govt. Advocate And Case :- CRIMINAL APPEAL No. - 3806 of 2007 Appellant :- Sarvesh Kumar @ Machchar Singh Respondent :- State of U.P. Counsel for Appellant :- P.K. Singh,Prashant Kumar,Prashant Kumar Srivastava Counsel for Respondent :- Govt.Advocate Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Mrs. Sadhna Rani (Thakur),J.
(Delivered by Hon'ble Mrs. Sunita Agarwal,J.)
1. Heard Sri Vishnu Kumar Sahu, learned counsel for the appellants Jay Prakash @ Bhure and Virendra, Sri Vishnu Shanker Gupta, learned counsel for the appellants Munnilal Prajapati and Lajja Ram, Sri Rajesh Kumar Mishra, learned counsel for the appellants Shrikant and Sarvesh @ Macchar and Sri Rupak Chaubey, learned A.G.A. for the State.
2. These appeals are directed against the judgments and orders dated 13.04.2007 and 28.4.2007 passed by the Additional Sessions Judge/ Fast Track Court no.2, Kanpur Dehat in S.T no.204 of 2006 arising out of Case Crime no.17 of 2002 under Section 364A IPC, P.S-Sikandra, District-Kanpur Dehat.
3. The appellants herein (six in number) have been convicted under Section 364A IPC and sentenced for life imprisonment with fine of Rs.10,000/- The default punishment is five years additional simple imprisonment for each of the appellants. Four appellants Lajjaram, Shrikant, Jay Prakash @ Bhure and Munnilal Prajapati have also been convicted under Section 377 IPC for seven years rigorous imprisonment and fine of Rs.2000/- with the default punishment of one year simple imprisonment. All the sentences are to run concurrently.
Introduction:-
4. The first information report of the incident, occurred on 20.01.2002 at about 7-7:30 p.m, was lodged on 21.01.2002 at 6.15 am by Shripal @ Pappu s/o Ramsewak Pal reporting therein that his brother Yashpal Singh aged about 29 years had been abducted in order to commit his murder by some miscreants while he and his brother Yashpal (victim) were coming to their house in village Maheshpur from the Government Parag Dairy, Village-Hariharpur. It was averred therein that near the Hariharpur wali bambi ki puliya on the western side, 5-6 persons were standing, the first informant and his brother were on two cycles and his brother (victim) was fifteen paces ahead of him. Three-four unknown persons caught his brother and started beating him. He and his brother had seen the miscreants in the torch light clearly and they all were wearing pant, shirt and sweater. The miscreants first caught his brother, beaten him by kicks and fists and when the first informant intervened he was also beaten. His brother then told him to run away and the informant ran away from the place of the incident to save his life. His brother Yashpal, however, had been abducted by the unknown miscreants and the first informant had an apprehension that they might kill his brother out of enmity. The first informant further states that he alongwith villagers made all possible efforts to search his brother but his whereabouts could not be known. In the written report, the first informant stated that he could identify the miscreants if they were brought before him.
5. On the basis of the written report, P.W-3, Ram Chandra the Head Moharrir posted at the police station concerned registered the first information report and proved that the Check report was prepared in his handwriting and bears his signature, it was exhibited as Exhibit Ka-1. The G.D entry at Rapat no.7 dated 21.01.2002, at 6.15 a.m, was also proved by P.W-3 from the original GD brought in the Court and filing of the carbon copy thereof, marked as Exhibit Ka-2.
6. On a suggestion to this witnesses, he categorically stated that before submission of the written report no oral or telephonic information about the incident was recieved in the police station and no police personnel went to the spot prior to the lodging of the first information report. The Investigating Officer Mahipal Singh Tomar (P.W-6) was present in the police station when the report was lodged.
7. The Investigating Officer P.W-6 stated that the investigation was received by him on 21.01.2002 and after copying the Check report, G.D, the statements of the first informant and other witnesses were recorded. The inspection of the site was made on the pointing out of the first informant and the site plan had been proved as Exhibit Ka-5, being in his handwriting and signature. After recording the statements of other witnesses on 22.1.2002, the search for the victim was conducted from 24.01.2002 for several days. On 05.03.2002, a letter of ransom which was received by the first informant Shripal through the post, was entered in the case diary at parcha no.8. On 06.03.2002, accused-appellant Sarvesh Kumar s/o Ram Bharose was arrested, he was interrogated in the police station. On the information of accused Sarvesh, search was made in the house of Mistri @ Virendra and search for other accused persons was also made. On 8.3.2002, a wireless message was received that the victim Yashpal was present in the Police Station-Bhare in District Etawah. On getting the said information, P.W-6 reached at the police station concerned, interrogated the victim and recorded his statement. The victim named other accused persons in the offence of his abduction. The Investigating Officer states that the victim told him that the accused persons used to visit the house of Lajjaram in the village prior to the incident. They took him to the jungle and used to beat him. Two accused persons namely Munni lal and Shrikant made Anal sex with him and accused Virendra and Bhure threatened him for ransom while he was in their custody. They also forced him to write 2-3 letters to raise the demand for ransom.
8. On 10.03.2002, P.W-6 received a message that appellants Munni lal Prajapati and Jay Prakash @ Bhure had been arrested in some other case in District Auraiya. Their statements were recorded in the police station Ajitmal, they also took the names of Laljjaram, Shrikant, Sarvesh @ Machchar, Virendra @ Tiwari and Lambu as co-accused.
9. The victim was produced before the CJM for recording his statement under Section 164 Cr.P.C. At G.D Rapat no.5 dated 9.3.2002, the offence under Section 364A IPC was added and the carbon copy of the said GD had been proved and exhibited as Exhibit Ka-'7'. Photo copy of an inland letter with envelop received by the first informant, entered in the CD, was produced and proved as Exhibit Ka-'8' and Ka-'9'. After the investigation was completed, the chargesheet was submitted. In cross, when the statement of victim Yashpal was put to P.W-6, he admitted that the victim told him that apart from one accused named as Lambu, all other four miscreants used to come to the house of Lajjaram in the village for playing cards and that is why the victim knew all of them. The appellant Lajjaram was resident of the same village as that of the victim. P.W-6 stated that after receipt of the information of the incident, he reached at the spot of the incident at about 10-10.30 hours. P.W-6 denied any knowledge of there being any enmity between Lajjaram and the first informant and also denied the suggestion that a false case was lodged due to enmity.
10. P.W-6 proved that he recorded statement of the first informant on the date of the incident and made inspection of the site on the same day. He stated that the first informant did not mention name of any of the accused in his first statement nor expressed any suspicion on any of them. P.W-6 proved that the victim, in his first statement, told that he knew accused Shrikant before the incident as Shrikant used to come to the house of Lajjaram in the village Maheshpur and knew his name as well. A suggestion of enmity between Shrikant and the first informant was given to P.W-6 which he had denied. In cross for appellant Lajjaram, P.W-6 stated that the victim had taken the names of Munni lal and Shrikant while making allegations of commission of Anal sex with him. It was admitted that the place of the incident falls within the jurisdiction of the police station Sikandra, whereas the first informant was the resident of village Maheshpur.
11. The doctor P.W-5 who had examined the victim on 08.03.2002 at the District hospital, Etawah proved that the victim was brought by the police personnel of the concerned police station in the District Etawah. During the examination, the victim complained of pain on his both shoulders, right leg and chest but there were no visible injuries and as such no definite opinion could be formed about the cause of pain. The doctor, however, stated that such pain may occur due to beating by kicks and fists or because of some old injury. The medico legal report of the victim was proved by P.W-5, as Exhibit Ka-4, being in his hand writing and signature and bearing thumb impression and identification mark of the victim. In cross, P.W-5, again stated that the victim told him during the examination that he was experiencing pain but there was no visible injury or swelling and further that the victim did not make complaint of any pain in his Anus. No proximate time could be estimated as there was no visible injury.
12. The formal witnesses, thus, proved the documents prepared by them during the course of the investigation and the medical examination of the victim. The charge under Section 364 A and 377 IPC framed against the accused appellants had been denied by all of them.
Prosecution Case:-
13. Three witnesses of fact were produced by the prosecution, amongst whom, P.W-1 is the cousin of the victim and the first informant; P.W-2 is the victim Yashpal; P.W-4 is the first informant Shripal @ Pappu. P.W-1 Shivbalak s/o Jorawar Singh, resident of Maheshpur stated that he met the first informant in the field near his house, one kilometre towards the east from the place of the incident. He stated that after hearing the cries he went to the place of the incident at around 7 to 7.15 p.m, Shripal told him that he (Shripal) was also beaten by the miscreants and he had left his cycle at the place of the incident. He came running to the field where P.W-1 was met. The statement of this witness is hearsay so far as the incident of abduction is concerned and nothing much could be elicited from his testimony, in favour of the prosecution.
14. The star witnesses of the prosecution are two brothers P.W-2, the victim and P.W-4, the first informant whose testimony will decide the fate of the case.
15. Coming to the statement of P.W-4, the first informant Shripal @ Pappu, it is to be noted that in his deposition in the Court, he described the incident in the same manner as narrated in the FIR. In his examination in chief, P.W-4 stated that he believed that the accused had abducted the victim due to enmity and they would either kill him or release him on ransom. The report of the incident was dictated to Videsh Singh and after the report was read over to him, it was signed, the written report is Exhibit Ka-3. P.W-4 further stated that he clearly saw the accused persons namely Virendra, Lajjaram, Sarvesh @ Machchar, Jay Prakash in the torch light. But the names of these persons, were disclosed by his brother (P.W-2) when he returned back. At the time when the report was lodged, he (P.W-4) did not know the names of the accused persons. P.W-4 admitted that no examination of his alleged injuries was conducted and the Investigating Officer recorded his statement.
16. In cross, P.W-4 narrated a different story that the miscreants had muffled their faces and he could not identify any of them as it was dark and for that reason, he did not mention the names of the accused persons in the first information report and it was lodged against unknown persons. P.W-4 further stated that he was beaten by the miscreants by lathi and danda and the act of beating continued for about 2-3 minutes. The miscreants had given a blow of danda on his head. He left his cycle on the spot and it was brought to the village by one Nandram. He then stated that the police had reached at the spot before lodging of the first information report and it seemed to him that someone had intimated the police. He then stated that he did not give information to the police. The suggestion given to this witness that his brother was not abducted and the story was created as his brother had fallen in a bad company, was denied by him. He then stated that he went to the spot of the incident along with the police and they made searches in the torch light. The cycle was lying at the roadside and the police picked it up.
17. P.W-4 further stated for lodging the first information report he left to the police station at about 06.15 am by motorcycle and he went alone. In the same breath he says that he could not drive the motorcycle and did not remember the name of the person who drove the motorcycle.
18. With regard to the identity of the accused, P.W-4 admitted in the cross examination that accused Lajjaram was resident of his village and the fields of Lajjaram were nearby his field. A suggestion was given to P.W-4 of previous enmity due to Nali (drain) in their field which he denied. P.W-4 also denied that Lajjaram and Munnilal were friends and that the accused Munnilal used to come to the house of Lajjaram in his village and he had falsely implicated both of them. P.W-4 also admitted that he knew Shrikant prior to the incident but denied any enmity with him because of the betel shop (kiosk). The suggestion that the report was lodged intentionally against unnamed persons and the accused were falsely implicated later after deliberations with his brother (P.W-2) was denied by P.W-4.
19. P.W-2 is the victim namely Yashpal who was aged about 29 years on the date of his deposition. He stated that the incident had occurred at about 7.30 pm when he was coming from Hariharpur after delivering milk. 5-6 persons gheroed him near bambi ki puliya and when his brother Shripal flashed his torch, he had seen that they were carrying guns, country made pistol, lathi and danda. The miscreants caught him though his brother could escape. The miscreants took him to the jungle while covering his eyes but he could slightly see that they used to change places. On the third day of the incident they had beaten him and while beating they asked him as to how much gold and silver and cash he had in his account. One letter was got written by the miscreants for ransom around 14-15th February. The said letter was stamped and addressed to his brother. The contents of the letter had been narrated by P.W-2 in his testimony to emphasize that the ransom of Rs.5,51,101/-, as offerings to Maa Durge, was demanded.
20. P.W-2 admitted that amongst the miscreants, Lajjaram was the resident of his village and also narrated the details of residences of other accused except one unknown miscreant named Lambu; and then stated that he could identify that person if he was brought before him. P.W-2 further stated that except Lambu he knew everyone prior to the incident as they used to come to the house of accused Lajjaram in the village and they all played cards together and since then he knew their names as well. P.W-2 then stated that the miscreants used to beat him and tortured him to do all their daily works such as making of food and fetching the water. They also committed Anal sex with him against his wishes and Shrikant, Munnilal Prajapati and Lajjaram were amongst those who had sex with him. On 20.02.2002, the co-accused Sarvesh @ Machchar alongwith others took him to his village Maheshpur and detained him in his field; they were getting food from the house of accused Sarvesh @ Machchar and stayed there for one week. On 28.04.2002, he was beaten by the accused while they were asking the place of residence of his brother Shiv Balak in District Auraiya.
21. On 04.03.2002, accused Sarvesh @ Machchar went to his house and on 06.03.2002, the police arrested Sarvesh @ Machchar and then there was a lot of chaos amongst the miscreants and they took him to the 'Behad' (deep jungle) of the Yamuna river. There was one more abducted person with them. On 08.03.2002, while the accused persons were sleeping having been tired near the Yamuna river in the field of the jungle and another kidnapped person was sitting, P.W-2 states, that he escaped and reached at the police station Bhare in District Etawah. His medical examination was done at Etawah and the Investigating Officer of the police station Sikandara reached there at about 2.00-2.30 p.m. After interrogation by the Investigating Officer he was taken to the Court for recording his statement under Section 164 Cr.P.C.
22. He further stated that the letter for ransom was given by his brother to the Investigating Officer. In cross for the accused Virendra, Sarvesh and Jay Prakash, P.W-2 reiterated the incident as narrated in his examination in chief but categorically stated that the miscreants were not covering their faces when they pounced from the field at the place of the incident. He further stated that they also hit him by the butt of the gun and all miscreants had beaten him. On being confronted, P.W-2 stated that he knew everyone in the village and population of his village was about 2000. He narrated the place of residence of the accused persons, namely Shrikant, Virendra, Sarvesh and Jay Prakash, and stated that Sarvesh was a relative of Lajjaram and used to come to his village. P.W-2 further stated that he knew names and addresses of the accused persons as they used to play cards in the house of Lajjaram and their addresses were not told to him by anyone else. The accused Lajjaram was resident of his village and the accused Shrikant, Munnilal, Jay Prakash and Virendra were coming to the house of the Lajjaram for about 1½ years prior to the incident and he also used to go there to play cards with them. P.W-2 then stated that his brother knew the accused Shrikant and Lajjaram and no one else.
23. P.W-2 further disclosed that he had partnership with Lajjaram for the crop of sugarcane and there was one more partner with them named as Radhakishan. The partnership was alive at the time of the incident and it was ended only because of the first information report lodged by P.W-2 against the accused persons. P.W-2 however, stated that in relation to the partnership with Lajjaram, no dispute had arisen nor there was any dispute relating to the cost of the crop. At the time when he was with the accused, crop was harvested and the share of Lajjaram had been sent to his house and his own share came to his house. When he came back, though Lajjaram was sent to jail but all accounting of the crop was done by his family members. P.W-2 then denied that a false report was lodged by him because of the dispute relating to the partnership and also denied that any dispute had arisen between them on account of playing of cards together.
24. P.W-2 further stated that the accused persons used to keep him at different places and a ransom of Rs.5,51,101/- was demanded. He was also beaten by the accused persons. P.W-2 repeated many times in his deposition that he knew the accused persons prior to the incident though denied that it was wrong to say that no such incident took place or the accused persons had not beaten him or not demanded ransom. It was stated that the letter for ransom was written by him on the instructions of the miscreants and the signatures of all the accused persons were present thereon which also bears his signature. He stated that he was released from the custody of the accused after 20-22 days of writing of the said letter. The accused persons namely Munnilal and Shrikant used to commit Anal sex with him. P.W-2 stated that the site plan of the site of the incident was prepared at his instance. P.W-2 again admitted that Lajjaram was the resident of his village and their fields were adjacent and the drain of their fields was common though he denied that any dispute had occured between them on account of the common drain.
25. In cross for the accused Shrikant, P.W-2 stated that his brother was not used to going to the house of Lajjaram and that he (P.W-2) could not identify the miscreants when they first met him. The name of the village of the accused Shrikant was disclosed by P.W-2 but he denied any dispute with Shrikant because of the betel kiosk. He stated that when miscreants were taking him with them he did not raise any alarm.
26. P.W-2 stated that the letter for ransom was written in the name of his brother Shripal and the original letter was not brought in the Court on the date of his deposition but kept at his home. PW-2 was recalled and crossed for the accused Shrikant wherein he stated that his brother Shripal knew the accused Shrikant and Lajjaram prior to the incident because of the fact that Lajjaram was resident of his village and Shrikant used to go to the house of Lajjaram and further that Shrikant was also resident of a nearby village. P.W-2 stated that his brother identified two of the miscreants but the reason for lodging the report against unknown persons could not be explained by him. He then stated that he could identify the miscreants when they were at a distance of one feet. P.W-2 stated that he told the doctor to examine his injuries; and to the Investigating Officer that the accused had committed Anal sex with him.
Arguments of the counsels for the appellants:-
27. Placing the above noted statements of the prosecution witnesses and the documentary evidences on record, it is argued by the learned counsel for the appellants that 5-6 persons were implicated for the offence under Sections 364-A and Section 377 IPC at the instance of P.W-2, the alleged victim of the occurence. The first informant/P.W-4 lodged the report of the incident allegedly occurred on 20.01.2002 at about 7.30 p.m., on the next morning, ie 21.01.2002 at about 6.00 a.m. No reason for delay in lodging of the first information report could be furnished by P.W-4. According to P.W-2, the victim, he had escaped from the custody of the accused persons and reached to the police station at Etawah. He was then examined by the doctor and he told the doctor as also the Investigating Officer that the offence under Section 377 IPC was committed with him.
28. It is urged that the victim, in so many words had admitted that he knew the accused persons prior to the incident except one Lambu. He also admitted that his brother, the first informant namely P.W-4 also knew two of the accused persons namely Lajjaram & Shrikant. No explanation could be offered by the prosecution as to why the written report was lodged against unnamed persons. The explanation offered by P.W-4 that he though identified the miscreants but did not know their names and hence the first information report was lodged against unnamed persons is belied by the version of the P.W-2, victim, in his deposition both in chief and cross. There are material inconsistencies in the statements of two prosecution witnesses who are real brothers and their testimonies are full of embelishments and exaggerations. The statement of P.W-4 that the accused persons were covering their faces and, as such, he could not identify them is in complete contradiction to the statement of P.W-2, the victim and his own version in the FIR. This statement is nothing but a material improvement in the testimony of P.W-4 when he was confronted as to why he did not name the accused persons whom he knew well since before the incident. The scribe of the FIR, Videsh Singh was resident of a different village. There is no injury report for the alleged assault on the first informant (P.W-4). Other contradictions in the statement of P.W-4, the first informant and the Investigating Officer about visiting the spot of the incident even after lodging of the first information report have been pointed out by the learned counsels for the appellants to assert that none of the prosecution witnesses are credible, their testimonies are liable to be thrown at the very threshold.
29. It was argued that the victim P.W-2 admitted that the fields of one of the accused Lajjaram and his field were adjacent to each other and his brother P.W-4 knew him very well. The act of P.W-4 in making the written report against unknown persons itself demolishes the entire prosecution story.
30. Moreover, the letter for ransom was not proved by production of original in the Court by both the prosecution witnesses ie P.W-2, (the victim) and P.W-4 (his brother) though P.W-2 deposed that the original letter was kept at his home. P.W-2 though narrated the contents of the letter but did not prove the document in the Court. The proof of photocopy of the letter for ransom in the deposition of the Investigating Officer is of no relevance. P.W-2, the victim though stated that the letter for ransom was written by him and signed by all the accused persons but no forensic report to tally the writing and signature of the accused persons was obtained to testify the genuineness of the said document. It is thus argued that as the demand of ransom could not be proved by the prosecution, the conviction for the offence under Section 364A IPC of the appellants cannot be sustained.
31. Further, there is no medical report to support the allegations of commission of offence under Section 377 IPC. The conviction under the said provision, therefore, has to be set aside. Further, no bodily injury could be found on the person of the victim to support his version that he was beaten by the accused persons. The medical evidence, thus, shatters the occular version of the victim, P.W-2, that he was threatened to death or the conduct of the accused persons gave rise to an apprehension in his mind that he might be put to death. The ingredients of Section 364A, thus, could not be proved by the prosecution.
32. It is argued that the present is a case of false implication of the accused persons at the hands of P.W-2 who projected himself as a victim. It seems that the alleged victim himself went with the appellants and later on the brother of the victim implicated all his acquaintence falsely for the reasons best known to the complainant and the victim. The testimony of P.W-4 is liable to be discarded as a whole as this witness has been proved to be a liar.
Arguments of the State:-
33. Learned AGA, in rebuttal, argued that the best witness in a case of kidnapping is the victim himself. The fact that an unnamed FIR was lodged rather proves that the prosecution is truthful is not making a case of false implication. No contradictory suggestion was given to P.W-2 when he stated that he was taken to different places by the accused persons. The names of all accused persons were disclosed by the victim in his first statement under Section 161 Cr.P.C. No contrary suggestion had been given to the victim for false implication of the accused persons by him. The statement of the victim (P.W-2) is that all the accused persons demanded ransom and used to ask him as to how much money, gold and silver he owned and that they also asked about the financial status of his brother Shiv Balak and the place of his residence, proved the demand for ransom.
34. As regards the submission of the learned counsels for the appellants that P.W-2 went on his own with the accused persons, it was argued by the learned A.G.A that there was no suggestion to P.W-2 in that regard during his cross examination. The victim had given a vivid description of the entire occurence. It is evident that the accused persons were caught one by one and then only the victim could escape from their custody, who straightway went to the police station and his medical examination was conducted which also proved that he was beaten by the accused persons. In any case, the statement of P.W-4 cannot be discarded as no motive of making a false report regarding abduction could be assigned to him. He cannot be said to be an untrustworthy witness. The demand for ransom coupled with the threat given to P.W-2 was proved by him in his oral testimony. The fact that the original of the letter for ransom was not produced or the writing and signatures were not tallied would not make any difference in so far as the offence under Section 364A is concerned.
35. It is argued by the learned AGA that contradictions in the testimony of prosecution witnesses are not such that their testimony as a whole, can be discarded. Each and every statement of the prosecution witnesses cannot be read in piecemeal to discard the prosecution witnesses. The fact that P.W-4 did not disclose the names of two of the accused persons who were known to him rather supports the prosecution case and dispels the defence theory that it was a case for false implication, as in that case it was very easy for the first informant to name the accused persons at the very beginning. The submission of the learned counsels for the appellants that there was no medical report to support the version of the victim about commission of the offence under Section 377 IPC, by the accused persons, however, could not be contradicted by making any submissions.
36. In rejoinder, it was reiterated by the learned counsels for the appellants that in this case, the demand for ransom could be proved by the original letter to compare the letter (photocopy) produced by the Investigating Officer but since the original of the said letter was not brought before the Court, the allegations of demand for ransom could not be said to be proved by the prosecution. Further, there is absolutely no evidence that the victim had faced threat of his death. As per his own version the victim was well known to the appellants and he remained in their company for about 1½ months. The entire story put forth by P.W-2 projecting himself as a victim is concocted one. The appeal, thus, deserves to be dismissed.
Analysis:-
37. Having heard learned counsels for the parties, we find it fit to go through the provisions of Section 364A to understand as to what would be the circumstances required in a case, to attract the provisions of Section 364A of the Indian Penal Code.
38. Section 364A of the Code deals with kidnapping for ransom. The Section reads as under:-
"[364A. Kidnapping for ransom, etc.--Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or [any foreign State or international inter-governmental organisation or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.]"
This Section refers to both kidnapping and abduction.
39. Section 359 defines kidnapping and as per the definition therein the offence of kidnapping is not attracted in the present case.
40. Abduction is defined in Section 362 as under:
"362. Abduction.--Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
Abduction is distinguished from kidnapping. It is well known that the ingredients of the two offences-'kidnapping' and 'abduction' are entirely different. These are two distinct offences;" The ingredients of two offences namely of kidnapping and abduction, are entirely different. These are two distinct offences as noted above. The offence of kidnapping is not made out in the instant case.
41. The provision which defines abduction envisages two types of abductions, ie (i) by force or by compulsion; and/or (ii) inducement by deceitful means. The object of such compulsion or inducement must be the going of the victim from any place.
To "Induce" means "to lead into". 'Deceit' according to its plain dictionary meaning signifies anything intended to mislead another. It is a matter of intention, if the case falls in the second category. The case at hand, however, falls in the first category.
42. It is held by the Apex Court in Malleshi vs State of Karnataka reported in (2004) 8 SCC 95 that the offence of abduction is a continuing a offence. Section 364A provides punishment for kidnapping, arrest, abduction or detaining for ransom. To attract the provisions of Section 364A, what is required to be proved is:-
(1) that the accused kidnapped or abducted the person; and (2) kept him under detention after such kidnapping and abduction; and (3) that the kidnapping or abduction was for ransom;
43. The question as to what would amount to pay ransom had further been deliberated by the Apex Court in the aforesaid decision while referring to the dictionary meaning of the words "to pay a ransom" and "demand".
Relevant paragraph-'13' of the decision is to be quoted as under:-
"13.To pay a ransom as per Black's Law Dictionary means "to pay price or demand for ransom". The word "demand" means "to claim as one's due;" "to require"; "to ask relief"; "to summon"; "to call in Court"; "An imperative request preferred by one person to another requiring the latter to do or yield something or to abstain from some act;" An asking with authority, claiming." The definition as pointed out above would show that the demand has to be communicated. It is an imperative request or a claim made. "
It was noted in paragraph-'13' that the essence of abduction is causing to stay a person in isolation and demand for ransom. It cannot be laid down as a straight jacket formula that the demand for payment has to be made to a person who ultimately pays. It has to be established in the facts of the case that the object of abduction was for ransom. In the facts of that case it was held that the demand of ransom was clearly conveyed to the victim and he was even conveyed the amount to be paid. The victim was told that, for his release his family members would have to pay a certain amount of money. It was held that if after making the demand to the kidnapped or abducted person merely because the demand could not be conveyed to some other persons, as an accused is arrested in the meantime, does not take away the offence outside the purview of Section 364 A. It has to be seen in such a case as to what was the object of kidnapping or abduction. It was held in the facts of that case that since the demand had already been made therein by conveying it to the victim, the conviction of the accused under Section 364A could not be said to suffer from any infirmity. It was lastly noted that who pays the ransom is not the determinative fact.
44. Considering the observations in the judgment of the Apex Court in Malleshi (supra), it is clear that the provisions of Section 364A can be said to be attracted in a case where both the ingredients are proved:-
(i) that the accused abducted the person and kept him under detention after abduction;
(ii) the object was for ransom, i.e detention of the victim is with the intention to demand for ransom;
45. Whether the demand could be conveyed to the person or the family members who were to pay for his release is immaterial. It has to be seen by the Court that the object for abduction was for ransom and the demand was conveyed to the victim.
46. In the light of the said discussion, it has to be seen as to whether in the facts of the present case, the prosecution has been able to prove the ingredients of Section 364A IPC.
47. Coming to the facts of the present case, from the evidence of P.W-2 and P.W-4 as noted above, it is established that admittedly the victim P.W-2 knew all the accused persons before hand except one named as Lambu as he used to play cards with them when they came to the house of accused Lajjaram, who was resident of the same village. The accused Lajjaram and the victim had a partnership in relation to a crop of sugarcane at the time of the incident. The fields of the accused Lajjaram and the victim P.W-2 were adjacent. As per the version of P.W-4, the first informant in the written report as also his deposition in the Court, he had seen the accused persons clearly in the torch light when they caught hold of his brother (victim P.W-2) and beaten him.
48. In the said scenario, it is impossible to believe that P.W-4 could not identify Lajjaram who was his next door neighbour and was well acquainted with both of them, i.e. P.W-4 and his brother (the victim herein). It is also difficult to believe that the first informant (P.W-4) could not identify another accused Shrikant whom he knew well as per his own version. From the testimony of both P.W-4 and P.W-2, thus, it is proved that the accused Lajjaram was resident of the same village and the field of Lajjaram was adjacent to their field and that they both knew Shrikant as well. In the said scenario, it is not acceptable that P.W-4 could not identify the accused persons, at least two of them namely, Lajjaram and Shrikant.
49. The explanation offered by P.W-4 for lodging the unnamed FIR that the accused persons had muffled their faces was contradicted by the victim P.W-2. Moreover, the said version is a material improvement as it is in complete contradiction to the first version of P.W-4 in the FIR and his examination-in-chief, wherein he stated that he had seen the accused persons clearly in the torch light and could identify them if they were brought before him and is liable to be discarded as such.
50. Further, the version of P.W-4, in chief, that he had seen miscreants clearly in the torch light and then in the cross that he could not identify any of them as they had muffled their faces and that is why unnamed report was lodged is self contradictory. As regards the rest of the testimony of P.W-4 we can only say that he has proved the written report having been lodged by him, which is exhibited as Exhibit-Ka-3. The contents of the written report had also been proved by P.W-4 in his testimony in the examination in chief.
51. The star witness of the prosecution, the victim, who had entered in the witness box as P.W-2, stayed with the accused persons for about 1½ months and stated that he was detained by them and they moved to different places. There is not even a whisper in the testimony of P.W-2 as to how he was detained by the accused persons who were very well known to him rather who were his friends, with whom he used to play cards and one of them was a neighbour with whom he had partnership for the crop of sugarcane. Mere assertion in the statement of P.W-2, the victim, that the accused persons were 5-6 in number and they took him to the jungle and forced him to cook their food and fetch water for them would not be sufficient to hold that the victim was kept under detention. It is admitted by the victim P.W-2 in his testimony, that he never raised alarm while he was going from one place to another with the accused persons. The mode as to how they travelled from one place to another is completely missing from the testimony of P.W-2. It is difficult to assess as to whether the victim did not have a chance to raise any alarm at any point of time during his stay with the accused persons for about 1½ months which for some time was also in the village of accused Sarvesh @ Machchar. It is noted that the victim P.W-2 very conveniently projected himself as a person in detention and then state that while the accused persons were sleeping, he escaped and straightaway reached to the police station at District-Etawah. In the statement of P.W-2, it has also come that one more abducted person was in his company.
52. Further the object of abduction as projected by P.W-2 was for ransom. The demand of ransom was sought to be proved by producing an inland letter allegedly received through post, photostat copy of which was given to the Investigating Officer who proved it in the Court as Exhibit Ka-8 and Ka-9, the documents having been entered in the case diary by him. How much reliance can be placed on the photocopy of the alleged letter for the demand of ransom has to be seen in the light of the statement of P.W-2, the victim who stated that the letter for demand of ransom was written by him on the instructions of the accused around 14-15th February and this letter was addressed to his brother Shivpal Singh (P.W-4) whose address mentioned in Exhibit-Ka-8 had been proved by P.W-2. P.W-2 stated that the stamp of Rs.1.00/- was pasted therein and the demand of Rs.5,00,000/- was made. The photocopy of this letter though was entered by the Investigating Officer in his case diary and produced in the Court but the original copy had not been produced by the witnesses specifically P.W-2, who deposed that the original letter was in his possession but was not brought in the Court. The best evidence in possession of P.W-2, the victim, has been suppressed by the prosecution.
53. Further, there is no proof of writing of P.W-2 on the said letter for ransom, ie Exhibit Ka-8 and Ka-9, P.W-2 did not prove the letter or his writing on the same in his deposition. No forensic report has been obtained in this regard. Further the statement of P.W-2 is that the letter for ransom (Exhibit Ka-9) contained signatures of all the accused persons with their writing on the letter which were not tallied. The person to whom the said letter was addressed, i.e brother of the victim namely Shiv Pal Singh had not proved that he had received the said letter through post. There is no proof of dispatch of the said letter by post. From the case diary, only this much can be shown that at CD Rapat no.8 dated 05.03.2002, there is an entry that one letter in an envelop was given by the first informant to the Investigating Officer, the content of which was extracted in the case diary and after enclosing the photostat copy of the letter therein, the original was handed over to the first informant with the instructions that it had to be kept preserved and produced in the Court or before the police whenever summoned.
54. From the above entry, only this much can be said that the first informant gave a letter to the Investigating Officer stating that the demand for ransom was made by the accused persons but as to how the said letter was received and who had received the same was not proved. P.W-4, the first informant is completely silent about the letter for ransom given to the Investigating Officer and the scribe of the letter namely P.W-2 who is the victim himself did not prove his writing on the said letter. No inquiry in this regard had been made by the trial court and the original letter was not produced in the Court. These facts are sufficient to conclude that the prosecution had failed to prove the demand for ransom on the basis of the letter for ransom exhibited as Exhibit-Ka-9.
55. As to the rule of proof of a fact by the documentary evidence, it is settled principle that so long as the original exist and is available, it being the best evidence, must be produced. As per the Section 62 of the Evidence Act, the existence of primary evidence generally excludes secondary evidence. Secondary evidence of contents of written instruments cannot be given unless there is some legal excuse for non production of the original. The general rule is that secondary evidence is not admissible until non production of the primary evidence is satisfactorily proved.
56. In view of Section 64, contents of document must be proved by production of the original document and secondary evidence of it is not generally admissible. Section 65 admits secondary evidence only of the existence or the contents of a document which is lost or otherwise unavailable. Section 67 of the Evidence Act provides that mere production of the document in evidence is not proof of genuineness of the document. The genuineness and execution of the document, therefore, has to be proved by the signature or the handwriting of the signatory or the author.
Section 67 enjoins that before the document can be looked into it has to be proved. The provision though does not prescribed any particular mode of proof, the execution or authorship of document being question of fact it can be proved like any other fact by direct or circumstantial evidence. The opinion of a person who is acquainted with the handwriting of a particular person is a relevant fact to prove the handwriting.
57. Similarly, opinion of handwriting expert is also relevant fact for identifying any handwriting. Exhibit Ka-'9' brought by the prosecution as a proof of the document for ransom has not been proved in accordance with the provision of Evidence Act and therefore, has to be rejected.
58. The document proved by the Investigating Officer as Exhibit Ka-9 is, thus, a waste piece of paper and cannot be relied upon to hold that it was a proof of demand for ransom on the part of the accused persons.
59. As regards the contention of the learned A.G.A that since the demand for ransom was conveyed to the victim and he was kept under threat that his release would be subject to the payment of ransom, it is sufficient to hold that the object of keeping the victim under detention was for ransom. This submission of the learned AGA is liable to be rejected at the threshold, inasmuch as, the first ingredient of Section 364A of keeping the victim under detention could not be proved by the prosecution.
60. The fact that the accused persons were well known to the victim and he used to play cards with them raises a serious doubt about the truth of the whole prosecution story. It seems to us that the scene of abduction of the victim and demand for ransom was created by two brothers with some oblique motive. The complete picture of abduction and demand for ransom is hazy and seems to be based on a concocted story. Not going further in this direction, at least, it can be said that the prosecution has not been able to prove the abduction of the victim for demand of ransom.
61. Dealing with the contention of the learned AGA that since the demand was conveyed to the victim and he was put under threat that his release would be subject to the fulfillment of the demand, the second ingredients of Section 364A that the abduction for ransom was fulfilled, it may be noted that this argument is based on the decision of the Apex Court in Malleshi (supra). In Malleshi's case, (supra) the accused persons had abducted a student of first year B.Sc, when he came out of the college along with his classmates. As per the sequence of events therein, the accused called the victim by taking his name and when he turned, he saw that the person wearing white shirt and pant. The victim was told that the accused knew his father. The accused then inquired about the fees and expenses of the college course stating that he wanted to admit his son and took the victim to the jeep parked nearby on the pretext that his son was therein. When the victim went near the vehicle, he was asked to sit in the jeep. Three other persons came and sat in the jeep alongwith the accused by the side of the victim. The door of the jeep was closed and it was driven towards the Highway. The victim was threatened not to raise any voice otherwise, he would be murdered. After they covered some distance, the accused inquired phone number of the father of the victim and told him that they want Rs.2,00,000/- to release him. However, while the victim was permitted to meet the call of nature and the vehicle stopped near a village, the victim ran away. In that factual background, it was held by the Apex Court that since the demand, in that case, had already been made by conveying it to the victim, the offence under Section 364-A was made out.
62. The factual position is different in the present case. As noted above, in the instant case, we are unable to accept the testimony of the victim namely P.W-2 that he was abducted and detained by his own friends and acquaintances with whom he was playing cards frequently and that the demand for ransom of Rs.5,00,000/- was conveyed to his brother. The testimony of both the brothers (P.W-2 & P.W-4) who have created the scene of abduction with the object of demand for ransom is found unreliable. Lots of embellishments, material improvements and unexplained stories are found in the testimonies of P.W-2 who projected himself as the victim and P.W-4 his brother who lodged the first information report. It seems that the prosecution has projected a different story from what had actually happened. The genesis of the occurrence has been suppressed by the prosecution. The fact that the accused persons had criminal antecedents and they were well acquaintance of the victim raises a serious doubt about the story projected by the victim, P.W-2 and his brother P.W-4. The fact that the victim was having a partnership with one of the accused Lajjaram, his neighbour, also indicates that the prosecution is not telling the truth.
63. It has also come in the evidence of P.W-6, the Investigating Officer that he had received the information of abduction of a person named as Yashpal through wireless before the first information report was lodged and the said information was given to him by Head Moharir Ram Chandra at about 9.15 p.m. On getting the said information within 20-25 minutes he reached at the spot. P.W-6 further denied that the first information report was lodged after he reached the spot. P.W-3 Head Moharir, however, stated that no oral or telephonic information was received by him about the incident prior to lodging of the first information report. It has also come in the evidence of P.W-4 that the police reached the spot prior to the lodging of the first information report and according to P.W-4 some acquaintance of his brother might have called the police. The police had reached after about 1¼ hours of the incident and P.W-4 kept on searching for his brother alongwith the police, when his brother was not found he went to the police station to lodge the report along with the police.
64. From the statement of P.W-4 and the Investigating Officer, at least, it is established that the information of abduction of the victim P.W-2 was given to the Investigating Officer within 1¼ hours of the incident and the police also searched for the victim along with the first informant on the spot. The time of the incident as narrated by the prosecution witnesses is 7.30 p.m. The first informant stated that they kept on searching for the victim alongwith the police and when they could not find him he went to the police station to lodge the report along with the police. The Investigating Officer further stated that he reached at the place of the incident at about 10-10.30 p.m directly from another place where he was on duty on receiving a wireless message. He kept on searching of the victim for the whole night and also on the next day of the incident and returned back to the police station at about 3.20 a.m only on 22.01.2002. The entry of his return at the police station was recorded in the case diary. The report of the incident occurred on 20.01.2002 at about 7.30 p.m., however, was lodged on 21.01.2002 at about 6.12 a.m., when according to the Investigating Officer he kept on searching for the victim even for the whole day of 21.01.2002 along with the first informant.
65. We may also note the statement of P.W-3, Head Moharir, at this juncture, when he stated that the Investigating Officer Mahipal Singh was present in the police station when the first information report was lodged and the said report was lodged on his oral orders. The first informant, Shripal (P.W-4) and one Shivpal came to the police station to lodge the report and both the said persons were interrogated by the Investigating Officer (SO Mahipal Singh), whereas the Investigating Officer stated that the report was not lodged on his instructions whether the oral or written and that he was not present in the police station when the report was lodged.
66. This inconsistency in the testimony of P.W-3, P.W-4 and P.W-6, in the light of the circumstances of the present case noted above, also creates doubt about the time of lodging of the first information report and the genesis of the incident. This opinion further finds support from another circumstance brought by the prosecution of the allegation of commission of the offence under Section 377 IPC to implicate four accused persons namely Lajjaram, Shrikant, Munnilal Prajapati and Jay Prakash @ Bhure. The statement of the victim in this regard is at variance in his entire testimony. At one point of time, he stated that all the accused persons committed Anal sex with him almost in a gap of 2-3 days, and that had started after 3-4 days of abduction and then that this offence was firstly committed by Munnilal. The previous statement under Section 161 Cr.P.C, was put to the victim (P.W-2) to confront that only the names of Munnilal and Shrikant was mentioned therein for the alleged offence under Section 377 IPC, he stated that it was wrong and all the accused persons had committed offence under Section 377 with him. The statement under Section 164 Cr.P.C of the appellant could not be found on the record and the said statement was not even put to any of the witnesses during the cross examination.
67. On another occasion, P.W-2 stated that accused Shrikant had also committed the Anal sex and explained as to how all the accused persons used to gang rape him. P.W-2, however, excluded only Virendra @ Tiwari and Sarvesh @ Machchar in his version in the cross for the accused Shrikant when he was recalled.
68. Believing this statement of P.W-2-the victim, the trial court had convicted three accused namely Lajjaram, Shrikant and Jay Prakash @ Bhure under Section 377 IPC, but it had lost sight of fact that there is no medical evidence of commission of the offence under Section 377 IPC. The victim, as per his version, had escaped from the custody of the accused persons and straightaway went to the police station in District-Etawah. The Investigating Officer stated that on 08.03.2002 as soon as he received the message through wireless that the victim was present in the police station at District-Etawah, he reached there and recorded statement of the victim at CD parcha no.10. Referring to the statement of the victim, it was deposed by the Investigating Officer that the victim had told him that the accused persons used to beat him and also committed Anal sex with him. The medical examination of the victim was also done on 08.03.2002 at about 08.05 p.m. After examination, the doctor had opined that the victim was complaining of pain on some parts of his body, i.e shoulder, right leg and chest but there were no apparent injuries or swelling. No complaint was made by the victim about any pain in his Anus. The doctor further stated that he examined the victim on the complaint of pain made by him. It is, thus, evident that the doctor was not communicated either by P.W-2 or the Investigating Officer that he was supposed to examine the victim to ascertain as to whether the offence under Section 377 IPC was committed with him. No supplementary medical examination of the victim was got conducted by the Investigating Officer after interrogating him. On the mere oral testimony of the victim, (P.W-2) in view of the surrounding circumstances of the case, it is difficult to hold that the accused persons had committed the offence under Section 377 IPC. Thus, the allegations of the commission of offence under Section 377 IPC against the appellants could not be proved by the prosecution beyond all reasonable doubt.
69. Lastly, in the statement of P.W-4 one startling fact has been noted by the trial court that during his deposition, this witness was carrying a paper on which he made certain notes related to the incident and he was giving answers while looking to the said paper, the said paper was confiscated by the Court. The deposition of this witness, therefore, cannot be said to be natural and truthful.
Conclusion:-
70. Having regard to the entire evidence discussed above on careful consideration of the relevant attending circumstance, it seems that the prosecution has suppressed the genesis and origin of the occurrence and has thus not presented the true version. The suppression on material facts in the prosecution version creates a deep dent in its story.
71. It is a case where the prosecution has not been able to prove its case of abduction for ransom under Section 364A IPC and commission of offence of Anal sex with the victim under Section 377 IPC by placing cogent evidence to prove the implication of the appellants for the alleged offences beyond reasonable doubt.
72. In view of the above discussion, the judgment and orders of conviction and sentence of the appellants dated 13.04.2007 and 28.04.2007 are hereby set aside.
73. The appeals are allowed.
74. The appellants namely Jay Prakash @ Bhure, Munnilal Prajapati, Shrikant, Virendra, Lajja Ram and Sarvesh Kumar @ Machchar Singh are in jail.
75. All the appellants shall be released from jail forthwith, unless they are wanted in any other case.
76. The office is directed to send back the lower court record along with a certified copy of the judgment for information and necessary compliance.
77. The compliance report be furnished to this Court through the Registrar General, High Court Allahabad.
Order Date :-18.05.2022/Harshita