Kalloo Jamadar vs State Of U.P.
2015 Latest Caselaw 1760 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 
Case :- CRIMINAL APPEAL No. - 7668 of 2009
 

 
Appellant :- Kalloo Jamadar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- J.N. Singh,Arimardan Singh
 
Counsel for Respondent :- Govt. Advocate
 
Along with
 
Case :- CRIMINAL APPEAL No. - 7149 of 2009
 

 
Appellant :- Kalloo Jamadar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- J.N. Singh,Arimardan Singh,B.B.Dubey
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Surendra Vikram Singh Rathore,J.

Hon'ble Raghvendra Kumar, J.

(Per Surendra Vikram Singh Rathore, J.)

1.Under challenge in the aforesaid criminal appeals is the judgment and order dated 09.11.2009 passed by Additional Sessions Judge/Fast Track Court No.2, Kannauj, in Sessions Trial No.22 of 1994 arising out of Case Crime No.118 of 1994, under Section 364-A IPC, Police Station Kannauj, and Sessions Trial No.200 of 2001 arising out of Case Crime No.120 of 1994, under Sections 148, 149, 307 IPC, Police Station Kannauj. Along with the aforesaid sessions trials, two other sessions trials were also tried, which were against co-accused Ram Niwas and Iqbal. Accused Ram Niwas was absconding and accused Iqbal died during trial. So the case of the accused Ram Niwas was separated and the case of the accused Iqbal was abated. Appellant Kalloo Jamadar was convicted in both the sessions trials and was held guilty for the offence under Section 364-A IPC and was sentenced to undergo imprisonment for life and also with fine of Rs.10,000/-. He was further convicted for the offence under Sections 148 IPC and was sentenced to undergo rigorous imprisonment for a period of one year. He was also held guilty for the offence under Section 307/149 IPC and was sentenced to undergo rigorous imprisonment for a period of five years and also with fine of Rs.2,000/-. In default of payment of entire fine amount, the appellant was directed to undergo additional rigorous imprisonment for a period of one year. All the sentences were directed to run concurrently

2.In the aforesaid sessions trials, co-accused Musheer Ali was also tried with appellant Kalloo Jamadar, however, he was acquitted of the charges leveled against him.

3.In brief, as per the prosecution case, on 11.02.1994 at about 05.30 PM, the victim of the offence namely Nathoo Ram, aged about 75 years, who happens to be the father of the complainant Ram Das Kushwaha, had gone to his tube-well, situated at the outskirt of the villlage Kanpatiapur, to sleep there. When the complainant reached there in the following morning then his father was missing, as such, he searched his father but he could not be traced out. On 12.02.1994, an information of missing of his father was given at the concerned police station. Thereafter, the complainant got a letter demanding ransom of Rs.2,60,000/- and the said letter also contained threats of dire consequences to the victim of the offence. So the first information report of this case was lodged by the complainant on 19.02.1994 at 22.30 hours. After registration of the case, the investigation started and the place of occurrence was inspected. During investigation, on 20.02.1994 at about 07.45 AM, the police party got a secret information that the alleged victim Nathoo Ram has been kept in the house of Shiv Charan Jamadar in village Rauni. On this information, the police party raided the said house. The complainant Ram Das Kushwaha and one Rakesh were made witnesses and no person of the village Rauni consented to become a witness. Thereafter, the police party came to village Rauni at about 09.00 AM at the house of Shiv Charan Jamadar. When they peeped into the house of Shiv Charan Jamadar then Ram Saran, Musheer, Iqbal, Shiv Kumar, Kalloo Jamadar (appellant) who is son of Shiv Charan Jamadar and Ram Niwas were sitting in the courtyard and were talking to each other. The witnesses who were previously known to the accused persons disclosed their identity to the police. SSI Shri Vishnu Pratap Singh challenged the accused persons then accused Ram Niwas and Ram Saran opened fire with their country made rifle and gun. The police party escaped the said fires. The police also opened fire in their self defence. Ram Niwas, Iqbal and Kalloo Jamadar were apprehended on the spot by the police at 09.30 AM in the courtyard of the house of appellant Kalloo Jamadar. Remaining miscreants namely Ram Saran, Musheer and Shiv Kumar made good their escape. On the search of the arrested accused persons, from the possession of Ram Niwas, one country made rifle (315 bore) along with one empty cartridge in the barrel was recovered and two live cartridges were also recovered from the pocket of his jacket. From the possession of Iqbal, four live cartridges (12 bore) were recovered. Nothing is alleged to have been recovered from the possession of present appellant Kalloo Jamadar. The accused persons confessed that they have kidnapped Nathoo Ram and he is present in the house. Thereafter, the police party opened the room and Nathoo Ram, the victim, was found sitting in the room. It was alleged that thereafter all the three arrested accused persons also made confession of some other incidents of kidnapping and they also disclosed that the letter for demand of ransom was sent by Musheer (acquitted accused). The accused persons were taken into custody and a separate case under Sections 147, 148, 149, 307 IPC and Section 25 of the Arms Act was registered at a different case crime number.

4.After completing the investigation, charge sheet was filed.

5.Since both the cases were connected to each other, therefore, both sessions trials, as disclosed earlier, were simultaneously tried but it transpires from the evidence that in both sessions trials, separate evidence was recorded as the other case was committed subsequently after about seven years.

6.The case of the defence was of his false implication by the police simply to show their good work.

7.In order to prove its case, the prosecution has examined in S.T. No. 22 of 1994, PW-1 the victim Nathoo Ram, PW-2 witness Jai Chand, PW-3 the complainant Ram Das Kushwaha, PW-4 Sub-Inspector M.P. Gupta and PW-5 the Investigating Officer H.D. Prajapati. In the connected S.T. No.200 of 2001, the Arresting Officer V.P. Singh, Sub-Inspector, as PW-1, Constable Manna Singh as PW-2, Head Constable S.L. Yadav as PW-3, Nathoo Ram- the victim of the offence as PW-4 and R.B. Singh as PW-5 have been examined.

8.In defence, no evidence was adduced on behalf of the appellant.

9.Submission of learned counsel for the appellant was that learned trial court has not appreciated the prosecution evidence in correct perspective. There was no evidence to connect the appellant with the present offence. Even the victim of the offence has not identified the appellant as the person who had kidnapped him nor any effort was made by the prosecution during trial to get him identified. No test identification parade of the accused persons was conducted. The evidence on the point of recovery was so contradictory that it gives rise to only conclusion that the story of alleged recovery has been falsely cooked up by the police but the learned trial court has utterly failed to appreciate all these aspects in accordance with settled principles of appreciation of evidence.

10.Learned AGA has submitted that the victim Nathoo Ram was recovered from the house of the appellant Kalloo Jamadar. The other accused persons are either absconding or have died. Hence, at present, the only appellant Kalloo Jamadar remains as accused from whose house the recovery is alleged to have been made. The victim in his evidence has named him as one of the accused persons and therefore the trial court has not committed any illegality in convicting the appellant. The judgment of the trial court is well reasoned. Hence, no interference is called for.

11.Now the evidence has to be considered. PW-1 in S.T. No.22 of 1994 is the victim himself. He has stated that 5-6 miscreants had forcibly kidnapped him. At that time, he cried that Ram Niwas along with his companions has kidnapped him and thereafter his mouth was gagged with a piece of cloth. In the night, he was kept in village in the house of Kalloo Jamadar, the present appellant. He was kept there for 9 days and the police recovered him thereafter from the house of Kalloo Jamadar along with three miscreants. He has stated that among those persons who were arrested by the police at the time of recovery he recognized only Ram Niwas and the other accused persons were not known to him. An effort was made by the prosecution to get the appellant identified in the court but he failed to identify him and has stated that he is unable to recognize the persons who were arrested by the police and the persons who were involved in his kidnapping. He has stated that he recognizes only Ram Niwas.

12.In his cross examination, he has stated that he was recovered after about 7-8 days at about 3.30 PM. He has also admitted that the accused persons were not put to test identification parade. Thus, this witness has not identified the present appellant Kalloo Jamadar as the person who was involved in his kidnapping along with Ram Niwas and has also not identified him as the person who was apprehended by the police at the time of his recovery.

13.PW-1 in connected S.T. No.200 of 2001 is Sub Inspector V.P. Singh who has supported the factum of recovery but he has stated that the said recovery was made at about 09.30 AM. This statement of the witness is absolutely contrary to the evidence of PW-1 the victim Nathoo Ram, who has stated that he was recovered at about 03.30 PM.

14.PW-2 Jai Chand in S.T. No.22 of 1994 was a witness who has been declared hostile. This witness happens to be the son of the victim. He has stated that he does not know as to what had happened with his father and no letter regarding demand of ransom was received at his house. After 8-9 days, his father was released and he does not know as to who was involved in this incident. This witness has also admitted that the complainant Ram Das Kushwaha is his real brother and he was living separately from his father since 1977. He was having talking terms with his father and brother. Thus, the evidence of this witness does not help the prosecution in any manner, rather it goes against it because he has denied the story of ransom letter.

15.PW-2 is Constable Manna Singh in S.T. No.200 of 2001, who had also accompanied the arresting party on 20.02.1994. This witness has stated that he is not aware by what means of transport, he had gone to the place of recovery i.e. village Rauni. He could not state whether he had gone by cycle or by jeep.

16.PW-3 is the complainant Ram Das Kushwaha in S.T. No.22 of 1994. He has supported the factum of lodging of the first information report of kidnapping of his father and has also stated that he had accompanied the police party to village Rauni for the purpose of recovery of his father. He has stated that he and all the police personnel went to village Rauni on police jeep and one private jeep. The private jeep was also managed by the police personnel. He was taken by the police personnel from Makrand Nagar to police station and thereafter they went to village Rauni. Some extra force was also taken from police outpost Sarai Meera and both the vehicles were parked at the outskirt of the village. He and his father were dropped to their house by the same private jeep after the said recovery.

17.PW-3 is Head Constable S.L. Yadav in S.T. No.22 of 1994 who had scribed the Chik Report and G.D. on the basis of the recovery memo. So he is a formal witness.

18.PW-4 is Sub Inspector M.P. Gupta in S.T. No.22 of 1994, who had investigated the case up to 31.05.1994 and thereafter the investigation was transferred.

19.PW-4 is the victim Nathoo Ram who was again examined in connected sessions trial. In his statement, which was recorded in S.T. No.200 of 2001, he has stated that he was recovered after 8-9 days and the time of recovery was disclosed by him in his cross examination as 9-10 AM. He has stated that when he was recovered by the police at that time his son Ram Das was not present at the place of recovery. When the police brought him to the police station then other villagers and his son Ram Das came to the police station. His eyes were closed with a cloth and when he sat on the tempo then his eyes were opened. Thus, this witness in his subsequent statement has corrected the time of recovery but has denied the presence of his son Ram Das at the time of his recovery and has stated that he was brought on a tempo and not on a jeep as was stated by Ram Das, his son and a witness of recovery as claimed by prosecution.

20.PW-5 is Haridas Prajapati in S.T.No.55 of 1994, who has investigated the case of recovery and police encounter.

21.PW-5 is Sub Inspector R.B. Singh in S.T. No.200 of 2001, who is the subsequent Investigating Officer. The evidence of this witness was only of formal nature.

22.The prosecution has come with two circumstances against the present appellant to connect him with the incident. The first is incident of kidnapping. Admittedly, the victim Nathoo Ram is the sole witness of that incident and during trial, he has not identified the present appellant as the person who was involved in his kidnapping. So the only evidence to connect the appellant with the instant offence is the recovery of Nathoo Ram by the police party from the house of Shiv Charan Jamadar, who happens to be the father of present appellant Kalloo Jamadar. On the point of recovery, one public witness Ram Das was produced. As per recovery memo, he and Rakesh accompanied the police party to the place of recovery. But the complainant Ram Das Kushwaha has stated that apart from him, 4-5 other persons of different villages had also accompanied them. It is really strange to note that victim Nathoo Ram, in his evidence, has specifically stated that at the time of his recovery only the police personnel were present and none of his family was there. He has specifically stated that his son Ram Das was not present there and he subsequently came at the police station. Even PW-2 Manna Singh in S.T. No.200 of 2001 has stated that Ram Das Kushwaha had not accompanied them to village Rauni. The prosecution has come with a definite case that apart from Ram Das Kushwaha and Rakesh, no other person accompanied them. They made an effort to procure public witness but none agreed for the same. As stated earlier, the rifle which is alleged to have been recovered from accused Ram Niwas at the time of recovery was not in a serviceable condition. The very strong reason to disbelieve this story of police encounter and recovery of Nathoo Ram is that each and every witness has given a different statement regarding the mode of transport by which they reached village Rauni. In the recovery memo, it was no where mentioned that whether the police party went on jeep or by any other mode of transport. The arresting officer V.P.Singh has also not disclosed the means by which he had gone to village Rauni in his examination in Chief but in his cross examination, he has stated that at the time of arrest, Ram Das Kushwaha was with him and they went to village Rauni on foot and not by jeep. Ram Das Kushwaha was on cycle. PW-2 Manna Singh in S.T. No.200 of 2001 has stated that Ram Das Kushwaha had not gone with them to Rauni and this witness could not recollect as to with what means of transport they went to village Rauni. PW-3 Ram Das Kushwaha has stated that they went to village Rauni by two jeeps. One was the police jeep and the other was a private jeep. The private jeep was also arranged by the police personnel. He has also stated that apart from him 4-5 other persons of different villages were also accompanying them. PW-4 Nathoo Ram, the victim of the offence, has stated that after his recovery, he saw the accused persons while he was sitting in a tempo. Thus, each and every witness on which the prosecution has placed reliance has given entirely different story. The reason for such contrary statement appears to be that the means of transport was not mentioned in the recovery memo and the witnesses who have been produced by the prosecution in support of this recovery have given evidence only after reading the said recovery memo. Had such raid and recovery been taken place in the manner as alleged by the prosecution then there was absolutely no chance for so much contradictory statements regarding the means of transport and also regarding the presence of Ram Das. This inconsistency regarding the means of transport gives rise to the only inference that no such raid at the house of Shiv Charan Jamadar was made by the police, nor the victim Nathoo Ram was recovered from the house of Kalloo Jamadar. The evidence of recovery of Nathoo Ram from the house of Shiv Charan from village Rauni is only a cooked up story and no reliance ought to have been placed on the prosecution evidence regarding this recovery and police encounter. We simply fail to understand as to how learned trial court has placed reliance on such unreliable evidence and has convicted the appellant.

23.Learned trial court appears to have been swayed away by the fact that recovery has been made from the house of appellant Kalloo Jamadar. But learned trial court has failed to appreciate the evidence regarding such recovery correctly. Evidence of witnesses was contradictory regarding time of recovery, regarding the independent persons who, as per prosecution version, were accompanying the police party, regarding presence of complainant Ram Das Kushwaha and also regarding the means of transport by which police party reached in village Rauni. Victim of the offence has nowhere identified the appellant as the person who was involved in his kidnapping or in his confinement for nine days. All these factors have rendered the impugned judgment unsustainable under law.

24.In view of discussions made above, we are of the considered view that the prosecution has utterly failed to prove its case beyond reasonable doubt against the present appellant Kalloo Jamadar. Accordingly, these appeals deserve to be allowed and are hereby allowed. Appellant Kalloo Jamadar is hereby acquitted of all the charges levelled against him. He be set at liberty.

25.At present, appellant Kalloo Jamadar is in custody. He shall be released forthwith, if not wanted in any other case.

26.Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.

Order Date :- 11th Aug. 2015        (Raghvendra Kumar, J.)   (S.V.S. Rathore, J.)
 
A. Katiyar