Allahabad High Court
Kunwar Sen And Others vs State Of U.P. on 20 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 2504
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 12.09.2019 Delivered on 20.09.2019 Criminal Appeal No. 278 of 1986 1. Kunwar Sen 2. Dwarki 3. Ram Charan 4. Jantar Singh ---- Accused-Appellants Vs State Of U.P. ------------ Respondent For Appellant : Shri Anurag Mishra, Amicus Curiae For Respondent/State : Shri Amit Sinha, Additional Government Advocate Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Raj Beer Singh, J
1. This appeal has been preferred against the judgment and order dated 16.01.1986 passed by IV Additional Sessions Judge, Budaun in S.T. No. 418 of 1983 (State vs. Kunwar Sen and Others), under Sections 364, 302/34 of Indian Penal Code (hereinafter referred to as 'I.P.C.'), police station Faizganj Behta, district Budaun, whereby accused-appellants, namely, Kunwar Sen, Dwarki, Ram Charan and Janter Singh have been convicted under Section 364 of IPC and sentenced to undergo imprisonment for life, however, they were acquitted of the charge under Section 302/34 of IPC.
2. Accused-appellants Kunwar Sen, Dwarki and Janter Singh have expired during pendency of this appeal and thus, appeal stands abated qua them. Now, the present appeal is confined only in respect of accused- appellant Ram Charan.
3. As per prosecution version on 08.01.1983 at about 6:00 am, all the four accused-appellants, namely, Kunwar Sen, Dwarki, Ram Charan and Janter Singh came at the house of complainant Hem Raj and took his son Vijay Pal (deceased) by saying that they were going to Kashipur in search of some job. Accordingly Vijay Pal accompanied them. On the next day at around 5:00 pm, when complainant/PW-1 Hem Raj was returning from river after fishing, he saw that one slipper of his son was lying near the land of one Bhoopal Jatav. On suspicion, complainant made search around that place and found that dead body of his son Vijay Pal was lying in the sugarcane field of one Sukhey Jatav. There was sign of pressing his neck on his body and one of his slipper was also lying nearby. As per the complainant, his son was murdered by Kunwar Sen, Dwarki, Ram Charan and Janter Singh by pressing his neck.
4. Complainant/PW-1 Hem Raj reported the matter to the police by submitting a written tehrir Ex. Ka-1 at Police Station Faizganj Behta and on that basis the case was registered on 09.01.1983 at 10:45 am against all the four accused-appellants under Sections 364, 302 of IPC vide FIR Ex. Ka-3.
5. Sub Inspector Dataram conducted inquest proceedings. Inquest report and other related documents were prepared and the dead body of the deceased Vijay Pal was sent for postmortem.
6. Post-mortem on the dead body of the deceased was conducted on 10.01.1983 by Dr. V.P. Bhatnagar and following ante-mortem injuries were found on the person of deceased:
(i) Contusion 10 cm x 2 cm on the front of neck below thyroid cartilage, on either side of the middle line of the neck. Horizontally placed.
(ii) Contusion 8 cm x 2 cm on front of neck just on and above the thyroid cartilage.
(iii) Contusion 3 cm x ½ cm on the rt. ride mandible.
(iv) Abrasion 2 cm x 1 cm on back of rt. calf mouth.
(v) Clotted blood found from angle of rt. side of mouth.
As per Autopsy Surgeon, the cause of death was stated to strangulation as a result of asphyxia.
7. Station House Officer K.C. Tyagi conducted investigation. During course of investigation, statements of witnesses were recorded and after completion of investigation accused-appellants Kunwar Sen, Dwarki and Ram Charan were charge-sheeted under Sections 364 and 302 of IPC, while a separate charge-sheet was filed against accused-appellant Janter Singh under Sections 364 and 302 of IPC.
8. Learned trial court framed charges under Sections 364, 302/34 of IPC against all the accused-appellants. Accused-appellants pleaded not guilty and claimed trial. In order to bring home the guilt of accused-appellants, prosecution has examined nine witnesses. Accused-appellants were examined under Section 313 Cr.P.C., wherein they denied prosecution evidence and claimed false implication. However, no evidence was adduced in defence.
9. After hearing and analysing the evidence on record, all the four accused-appellants were convicted under Section 364 of IPC vide impugned judgment and order dated 16.01.1986 and were sentenced to imprisonment for life, however, they were acquitted of the offence under Section 302/34 of IPC.
10. Being aggrieved, accused-appellants have preferred the present criminal appeal.
11. We have heard Sri Anuraj Mishra, learned Amicus Curiae for accused-appellant Ram Charan and Sri Amit Sinha, learned A.G.A. for the State-respondent.
12. Learned Amicus Curiae has submitted that there is absolutely no evidence of kidnapping or abduction and thus, the ingredients of Section 364 of IPC are not satisfied. The only incriminating evidence against the accused-appellant is that the deceased has accompanied the accused-appellants for going Kashipur for some job, however, even this version has not been supported by any of the independent witness. A number of independent witnesses were examined but they did not support prosecution version and turned hostile. In view of these facts, the statements of PW-1 Hem Raj and PW-6 Smt. Ram Shree, who are father and mother of the deceased, cannot be relied upon. Even regarding alleged last seen circumstance, it was submitted that there is no incriminating evidence against the accused-appellant and thus, learned trial court has committed error by convicting the accused-appellant Janter Singh.
13. Per contra, it was submitted by learned A.G.A for the State that PW-1 Hem Raj and PW-6 Smt. Ram Shree have deposed about the fact that the deceased was taken away by the accused-appellants and thereafter on the next day, his dead body was recovered and thus, the circumstance of last seen is established against the accused-appellant. It was submitted that the deceased was taken away by the accused-appellants and thereafter, he has not been seen alive by anyone and on the next day, his dead body was found.
14. PW-1 Hemraj has stated that all the four accused persons, namely, Kunwar Sen, Dwarki, Ram Charan and Jantar Singh have come at his home in morning hours and took his son Vijay Pal with them by saying that they were going for some job at Kashipur. On the next day morning, when PW-1 was returning after fishing and reached near land of one Bhoopal Jatav, he found one slipper of his son Vijay Pal. On suspicion, when he made search, dead body of his son Vijay Pal was found in sugar-cane field of one Sukhey Jatav. PW-6 Ram Shree, who is mother of the deceased, has also made a similar statement like that of PW-1 Hemraj.
15. PW-2 Bankey, PW-3 Naubat, PW-4 Natthoo, PW-5 Radhey Shyam, PW-7 Raghubir Saran and PW-8 Jagdish Saran have not supported the prosecution version and turned hostile. PW-9 H.C. Kripal Singh is a formal witness, who has recorded FIR and GD entry.
16. Learned trial court has based the conviction of appellant on the evidence of PW 1 Hem Raj and PW-6 Smt. Ram Shree. Before examining evidence on record, it would be pertinent to peruse provision of Section 364 of IPC, which is reproduced herein below:
"Section 364 of IPC:- Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
There are two illustrations appended to Section 364 of I.P.C. These two illustrations are as follows -
(a) 'A' kidnaps 'Z' from India, intending or knowing it to be likely that 'Z' may be sanctioned to an idol. 'A' has committed the offence defined in this Section.
(b) A forcibly carries or entices 'B' away from his home in order that 'B' may be murdered. A has committed the offence defined in this section."
A careful reading of Section 364 of I.P.C. along with the illustrations appended thereto shows that kidnapping or abduction, which Section 364, I.P.C. envisages, must be with the intention to commit his murder or with the knowledge that the person, kidnapped or abducted, would be put to danger of being murdered. Section 364, I.P.C., in fact, shows that if the kidnapping or abduction is with an intention that the person, kidnapped or abducted, be murdered or if the person is kidnapped or abducted with the knowledge that the victim is likely to be put to danger of being murdered, offence under Section 364, I. P. C. would be complete irrespective of the fact as to whether the victim is, eventually or actually, murdered or not. It is explicit that kidnapping or abduction is a basic and necessary ingredient to attract penal provisions of Section 364, I.P.C. The gravamen of the charge under Section 364, I.P.C. is that kidnapping or abduction has to be either with the intention to murder the victim or with the knowledge that the victim is likely to be murdered. Some glimpses of this proposition of law can be had from an analytical reading of the observations of the Apex Court in State of West Bengal v. Mir Mohammad Omar and Ors. reported in 2000(8)SCC 234, which was as follows:
13. Section 364, I.P.C. says, whoever abducts any person "in order that such person may be murdered or disposed of as to be put in danger of being murdered" he commits the offence punishable under the Section. So the important task of the prosecution was to demonstrate: that abduction of Mahesh was for murdering him. Even if the murder did not take place, the offence would be complete if the abduction was completed with the said objective. Conversely, if there was no such objective when the abduction was perpetrated, but later the abductors murdered the victim, Section 364, I.P.C. would not be attracted, though in such a case the court may have to consider whether the offence of culpable homicide (amounting to or not amounting to murder) was committed.
Bearing in mind the ingredients of Section 364 I.P.C., when we revert to the facts of the present case, it appears that there is no evidence to prove that there was abduction or kidnapping of the victim Vijai Pal. Kidnapping from lawful guardian-ship is defined in Section 361 IPC which is not applicable in this case as deceased was not a minor. Abduction is defined under Section 362 IPC, wherein it is provided that whoever by force, compels or by any deceitful means induces, any person to go from any place, is said to abduct that person.
In the instant case, as stated earlier, the statement of PW-1 Hem Raj is to the effect that all the four accused-appellants came to his house and took his son deceased Vijay Pal from home by stating that they were going in search of some job at Kashipur and on the next day, his dead body was found in the land of one Bhoopal Jatav. Nearly, similar is the statement of PW-6 Smt. Ram Shree, who is mother of the deceased. Other independent witnesses of alleged ''last seen'', PW-2 Bankey and PW-3 Naubat have not supported that version. Similarly, PW-4 Natthooa and PW-5 Radhey Shyam were witness of alleged incident of scuffle between the deceased and accused persons, but these witnesses have also not supported the prosecution version and turned hostile. As per the prosecution version, accused persons have made extra-judicial confession before PW-7 Raghubir Saran and PW-8 Jagdish Saran, confessing their guilt, but these witnesses also did not support the prosecution version and turned hostile. Thus, the only incriminating piece of evidence against the accused-appellant Ram Charan is statements of PW-1 and PW-6, which are to the effect that deceased was taken away from their home by the accused persons by saying that they were going for some job at Kashipur. PW-1 Hem Raj was candid enough to admit in his statement that his son deceased Vijay Pal along with accused persons used to indulge in commission of thefts, gambling and he used to consume liquor with the accused persons and that they also used to commit theft in trains. PW-1 has stated that on the issue of share of stolen property, a quarrel has taken place amongst them. PW-1 has gone admitting to the extent that his son used to misbehave with the wives of the accused persons and due to this reason, the accused persons were having enmity against the deceased. Similarly, PW-6 Smt. Ram Shree also admitted that her son was a scoundrel and he along with accused persons used to commit theft in trains and a scuffle has taken place among them over the issue of share of stolen property. She has further admitted that her son also did evil acts with the wives of accused-appellants Janter Singh and Ram Charan.
17. Close scrutiny of evidence shows that there is no evidence that the deceased was compelled by the accused persons to go with them from his home or that he was induced by any deceitful means to go with them. As stated earlier, PW 1 and PW 6 have merely stated that deceased was taken away by saying that they were going to Kashipur for some job. These witnesses have not stated that the deceased was abducted or kidnapped by the accused persons. No recovery whatsoever has been effected at the instance of the appellant or other accused persons. Both these witnesses have admitted that deceased was a scoundrel and he used to indulge in commission of thefts and other crimes. However, there is absolutely no evidence that deceased was abducted. In such circumstances, the evidence on record does not satisfy the ingredients of offence under section 364 IPC, particularly when there is absolutely no evidence that the deceased was done to death by the appellant or co-accused persons. In view of these facts, mere statements of PW-1 and PW-6 to the effect that deceased was taken away by the accused persons by saying that they are going for search of job at Kashipur, would not be sufficient to satisfy the ingredients of Section 364 of IPC. In fact, it appears that it was a case of murder and the application of Section 364 of IPC was not warranted. In the facts of case and considering the law laid down in case of State of West Bengal (Supra), it is clear that it was a case of murder and not of kidnapping or abduction and as stated earlier, accused-appellants have already been acquitted of charge under Section 302/34 of IPC by the trial court.
Even the alleged circumstance of ''last seen'' of deceased in the company of the accused person is not fully established as the independent witnesses examined by the prosecution have not supported this version. Here it may be stated that in Mohibur Rahman and Anr. v. State of Assam (2002) 6 SCC 715, the Hon'ble Apex Court held that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. Similarly in Arjun Marik and Ors. V. State of Bihar 1994 Supp (2) SCC 372, it was reiterated by the Hon'ble Supreme Court that the solitary circumstance of the accused and victim being last seen will not complete the chain of circumstances for the Court to record a finding that it is consistent only with the hypothesis of the guilt of the accused. No conviction on that basis alone can, therefore, be founded. So also in Godabarish Mishra v. Kuntala Mishraand Another (1996) 11 SCC 264, the Supreme Court held that the theory of last seen together is not of universal application and may not always be sufficient to sustain a conviction unless supported by other links in the chain of circumstances.
18. It is one of the cardinal principle of law that prosecution is required to prove its case beyond all reasonable doubts. In the instant case, considering the entire evidence on record, it is apparent that the evidence on record does not satisfy the ingredients of the offence under section 364 IPC. Learned trial court has not appreciated evidence in correct perspective. In view of the evidence on record and considering all attending facts and circumstances of the case, it is apparent that prosecution has failed to prove its case beyond reasonable doubt. Resultantly, surviving accused-appellant Ramcharan deserves to be acquitted.
19. In view of the aforesaid, the impugned judgment of conviction and sentence passed by IV Additional Sessions Judge, Budaun in S.T. No. 418 of 1983 (State vs. Kunwar Sen and Others), under Sections 364, 302/34 of IPC, police station Faizganj Behta, district Budaun is hereby set aside and the surviving accused-appellant Ram Charan is acquitted of the charge under Section 364 of IPC. Accused-appellant is on bail, his personal bond is canceled and sureties are discharged.
20. The appeal is allowed.
21. Sri Anurag Mishra, learned Amicus Curiae, who has argued on behalf of the accused-appellant Ram Charan, shall be paid Rs. 5,000/- as his remuneration.
22. A copy of this order be transmitted to the court concerned forthwith.
Dated: 20.09.2019
Anand
(Raj Beer Singh, J) (Pritinker Diwaker, J)