Mahesh vs State Of U.P.
2016 Latest Caselaw 5208 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No.40
 
Case :- CRIMINAL APPEAL No. - 3647 of 2005       AFR
 
Appellant :- Mahesh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ajit Kumar Singh Solanki,Anshu Chaudhary,J.S. Sengar,M.K.Upadhyay,Noor Mohammad,P C Mishra,Pramod Kumar Singh
 
Counsel for Respondent :- Govt. Advocate
 
Connected with
 
Case :- JAIL APPEAL No. - 8576 of 2008
 
Appellant :- Mohd. Alam
 
Respondent :- State
 
Counsel for Appellant :- From Jail,V.B. Maurya,Yogesh Srivastava
 
Counsel for Respondent :- A.G.A.
 
And
 
Case :- JAIL APPEAL No. - 7070 of 2007
 
Appellant :- Naseem
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Anita Singh,V.B. Maurya
 
Counsel for Respondent :- A.G.A.
 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Arvind Kumar Mishra-I,J.

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.)

By way of the aforesaid three appeals, the appellants have challenged the judgment and order of conviction dated 01.08.2005 passed by the Additional Sessions Judge, F.T.C. No.1, Hathras in Sessions Trial No.331 of 2001 arising out of Case Crime No.125 of 2001, (State Vs. Mohd. Alam and others), under Section 364-A IPC, Police Station Hasayan, District Hathras, whereby the appellants were sentenced to life imprisonment coupled with fine of Rs.1000/- each; default clause stipulates one month additional simple imprisonment to the concerned convict.

Heard at length Sri N.I. Jafri assisted by Sri Noor Mohammad, Shahroze Khan and Sri S.P.S. Chauchan, learned counsels for the appellant and Sri Saghir Ahmad, Sri J. K. Upadhyay and Kumari Meena, learned AGAs for the state.

Facts of this case, as unfolded by the first information, appear to be that first informant Mahendra Pratap Singh son of Sri Hakim Singh resident of Nagla Danda Majra Jarera, Police Station Hasayan, District Hathras gave written report (Ext. Ka-1) at aforesaid police station on 10.6.2001 alleging commission of offence of kidnapping for ransom of his nephew Raja, to the effect that labourers used to come to his village for harvesting wheat and paddy crop from state of Bihar. One among them, Mohd. Alam son of Jahid resident of village-Bhagal, police station-Sontakhad, District Kishanganj, Bihar had come to his village one and half year ago and he used to stay at the house of informant. He also worked as labourer in the village. Due to this, little children of his house were familiar with him. He took advantage of his familiarity with children of the house and he in collusion with one Data Ram and his two sons Naresh and Mahesh, kidnapped his nephew Raja aged about three years on 07.06.2001. All the four persons are absconding from his village ever since.

On search being made, it was told by Sri Hari Prasad Sharma resident of Nagla Veer Sahai that Mohd. Alam and Mahesh son of Data Ram were seen by him on the canal bridge (culvert) and the child was in the lap of Mohd. Alam. Both were seen going away by bus towards Sikandrarau. The first informant made hectic efforts for search of the child in and around Sikandrarau, but in vain. Next day, Data Ram said to Pradeep Kumar (cousin brother of first informant- Mahendra Pratap Singh) that in case Rs.2 lacs are spent by them, then the victim child can be traced out. Pradeep Kumar agreed to the same and asked Data Ram that they will pay money but he should disclose the whereabouts of the child. At this, Data Ram said that he will arrange his talk with Naresh, whereupon, in the presence of several villagers, Naresh told that Mohd. Alam has told him that he will come at Panth Crossing in Sikandrarau on 10.6.2001 at 2.00 p.m. Report be lodged and appropriate action be taken. Scribe of this report is Om Veer Singh Raghav. This report is Exhibit Ka-1.

Contents of this report were taken down in the Check FIR on 10.6.2001 at Crime No.125 of 2001, under Section 364A IPC at 8.45 a.m. at police station- Hasayan. Check FIR is Exhibit Ka-6 on record.

On the basis of entries made in Check FIR, a case was registered against the present appellants in the date and relevant general diary at aforesaid crime number at police station Hasayan at 8.45 a.m. on 10.6.2001 under Section 364A IPC, copy whereof is Exhibit Ka-7. The investigation of the case was entrusted to Mahendra Pratap Singh, SHO Hasayan who arrested appellant Mohd. Alam at the instance of first informant and he recovered victim Raja on the pointing out of the appellant Mohd. Alam from Naseem and Mahesh on 10.6.2001 at 7.00 p.m. The Investigating Officer prepared recovery memo of the victim on the spot, which is Exhibit Ka-2. Thereafter the victim was handed over to the custody of his father Naresh Pal Singh. This custody memo of the victim is Exhibit Ka-3. The site plan of the place of recovery of the child was also prepared by him, which is Exhibit Ka-4. The Investigating Officer recorded statements of various witnesses and after completing the investigation filed charge-sheet against the appellants which is Exhibit Ka-5.

Thereafter, the case of the appellants was committed to the court of sessions from where it was eventually made over for trial to the court of Additional Sessions Judge, F.T.C. 1, Hathras, where the appellants were heard on point of charge. The trial court framed charge under Section 364-A IPC against the present appellants. Charge was read over and explained to the accused, who denied the charge and opted for trial. Thereafter, the prosecution was asked to adduce its testimony. Prosecution in all has produced six witnesses. Brief reference of the same is as hereunder:-

Mahendra Pratap Singh P.W.1 is the first informant. He has proved written report Exhibit Ka-1. Pradeep Kumar P.W.2 is witness of fact as well as witness to the fact of recovery of the victim. Hari Prasad Sharma P.W.3 is also witness of fact and he has testified fact that he saw the victim in the company of appellants Mohd. Alam and Mahesh on the day of occurrence (7.6.2001). Vijay Pal Singh P.W.4 is also witness of fact as well as witness of extra-judicial confession allegedly made by appellant Mohd. Alam. He is also witness of recovery of victim. Mahendra Pratap Singh, retired S.I. P.W.5 was the Investigating Officer. He has proved the entire investigation and recovery of the victim and has also proved charge-sheet Exhibit Ka-5. HCP Kalicharan P.W.6 is the Constable. He has proved Check FIR and the relevant GD entry.

Thereafter, evidence for the prosecution was closed and statement of the appellants were recorded under Section 313 Cr.P.C., wherein, they termed their implication false and submitted that they are innocent and no incident of kidnapping for ransom ever took place.

The accused Mahesh has stated that he has been falsely implicated in this case on account of conspiracy hatched up for expelling him from the village.

The accused Mohd. Alam has stated that informant side exploited him as bonded labour and they did not pay his wages due to him for about four years and when he demanded the same, he was falsely implicated in this case in collusion with the police.

The accused Naseem also stated on similar lines and he also asked for his wages due to him, which was refused and he was falsely implicated in this case in collusion with police.

Defence, in turn, has produced D.W.1 Kalyan Singh.

Learned trial court after hearing both the parties on merit passed the aforesaid judgment and order of conviction and sentence dated 01.08.2005 against the present appellants.

Consequently, this appeal.

We have been vehemently persuaded on behalf of the appellants that in this case, when the case was considered on merit by the trial court then on the same evidence, the two other co-accused Data Ram and Naresh were acquitted by the trial court by means of the same judgment holding that demand of ransom was not proved against them, whereas, the case of the present appellants stands on better footing than that of the aforesaid two accused Data Ram and Naresh. Testimony on point of demand for ransom by the appellants is altogether missing and finding of conviction, thus, has become perverse and erroneous.

PW-1 Mahendra Pratap Singh son of Hakim Singh is vacillating in his testimony and he has not been consistent; instead he appears to have been improving the prosecution version against the appellants. His testimony before trial court is in sheer contrast to his statement given to the Investigating Officer.

Similar is the testimony of other witnesses of fact. The entire story of recovery of victim Raja was planted by the first informant and the Investigating Officer of this case. No such incident of kidnapping for ransom ever took place. The testimony appearing against the present appellants at the most can be taken to be confined to the extent of kidnapping with an intent to confine the victim secretly and wrongfully. There is no iota of evidence against the present appellants that they were directly involved in demanding any ransom for kidnapping, therefore, the case of the appellants is not covered under Section 364-A IPC. For the sake of argument it can be inferred that the appellants have committed offence under Section 365 IPC.

Cumulative reading of testimony of prosecution witnesses of fact will lead one, at the most, to the inference and conclusion that the case is covered under Section 365 IPC rather than under Section 364A IPC.

It has been claimed by learned counsel for the appellants that Mohd. Alam is in jail since 10.6.2001. Naseem and Mahesh are in jail since 1.8.2005. Even the first informant could not testify categorically against the appellants regarding demand for ransom by them.

Learned counsel for the appellants summed up that though the testimony of the prosecution witnesses of fact is shaky and inconsistent as a whole, but the same is altogether missing regarding fact of demand for ransom. Therefore, the case is not covered under Section 364A IPC.

Per contra, learned AGA has submitted that specific argument regarding the case being not covered under Section 364A IPC is without any substance. The entire testimony on record and its cumulative effect overwhelmingly covers the case of the appellants under Section 364A IPC.

The recovery of the child was made from the appellants and the Investigating Officer has proved the recovery. Apart from that, the prosecution witnesses have also proved recovery of the child from the present appellants. The learned trial court was justified in recording conviction under Section 364 A IPC and has recorded just conviction and sentence against the appellants.

Also considered the above submissions pros and cons. In view of the arguments advanced, particularly on behalf of the appellants, this appeal is confined to the point as to whether the appellants' case is covered under Section 365 IPC instead of Section 364A IPC (?), or they are entitled to acquittal against charge under Section 364A IPC?

Before we proceed further with the meritorial aspect of the case on the point under consideration, it would be appropriate to have a dip into the contents of first information report. It is reflected from written report (Exhibit Ka-1) that the nephew of the first informant was kidnapped on 07.06.2001. However, time of disappearance/kidnapping of the victim has not been mentioned in the first information report.

This incident of kidnapping took place on 07.06.2001 and on the very next day, one Hari Prasad Sharma (P.W.3) told the first informant that he saw the victim in the company of Mohd. Alam and Mahesh on canal bridge (culvert) and they were going by bus to Sikandararau. Though search was made for the victim but whereabout of the victim was not known. Data Ram (acquitted co-accused) said to one Pradeep Kumar, (cousin brother of informant) that child will be returned if Rs.2 lacs are spent. As a sequel to it, the money was arranged and Data Ram was asked to divulge the whereabouts of the child, whereupon, he facilitated their talk with co-accused Naresh, who, in presence of, the villagers told that Mohd. Alam will come on Panth Crossing at Sikandararau on 10.6.2001 at 2.00 p.m. and thereafter, recovery of the child was made on 10.6.2001 at 7.00 p.m. from Mahesh, Naseem and Mohd. Alam- the present appellants.

It is obvious that the first information report was lodged at 8.45 a.m. on 10.6.2001 and the recovery of the victim was made at 7 p.m. on 10.6.2001. We have also scanned carefully entire evidence of all the prosecution witnesses of fact and particularly, on point of demand for ransom, whether it was so made by the present appellants. We could neither discover any testimony on the point nor could we infer from attendant circumstances that it was so made by the appellants. Certainly, act of the appellants brings their case within purview of kidnapping with intent secretly and wrongfully to confine person. It is established by evidence that the victim was recovered from their possession on 10.6.2001 at 7.00 p.m.

The attention of this Court has been invited to the testimony of Hari Prasad Sharma P.W.3 as appearing in the last paragraph of his testimony in his cross-examination on page-31 of the paper book, wherein he has sated that Data Ram never indulged in any sort of talk concerning demand for ransom with Pradeep Kumar, Mahendra Pratap Singh etc.

In this view of the matter, testimony of P.W.3-Hari Prasad Sharma on point of demand for ransom by the present appellants or their indulgence for the same is not proved. However, the fact of recovery of the victim from possession of the appellants on the pointing out of appellant Mohd. Alam is very much proved by the testimony of prosecution witnesses and the recovery memo of victim Raja is very much proved, as Exhibit Ka-2.

At this stage it would be appropriate to discuss testimony of Mahendra Pratap Singh-retired S.I.-who was the Investigating Officer of this case. He has deposed that he arrested Mohd. Alam at the instance of informant and thereafter relevant information was extracted from Mohd. Alam which led to recovery of co-accused Naseem and Mahesh where recovery of victim Raja was also made. A recovery memo (Exhibit ka-2) was prepared on the spot. He has stated that he started for place of recovery from Panth Crossing around 6.00 P.M. and reached to the spot in 7-8 minutes, left behind his Jeep 20.25 steps before the spot of recovery.

Also, fact of recovery of victim has been testified by Vijay Pal Singh-P.W.4 when he sated that Raja was recovered at the pointing out of Mohd. Alam at that relevant point of time Raja was sitting in the lap of Naseem and accused Mahesh was giving Raja some eatable. Informant identified his son Raja. I.O. and the witnesses with the help of other persons surrounded the accused, arrested them and recovered Raja from their possession around 7.00 p.m. on 10.6.2001.

Thus testimony on record brings case of appellants within purview of Section 365 IPC. At this stage it would be relevant to extract Section 365 IPC:

"365. Kidnapping or abducting with intent secretly and wrongfully to confine person.--Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully con­fined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

Thus after careful scrutiny of facts and testimony on record we do not come across any specific piece of evidence, which may give any force or credence to the claim of the prosecution that the present appellants kidnapped Raja for ransom.

Here in the present case, the offence proved is one of kidnapping with intent to confine Raja secretly and wrongfully. The learned trial court, while appreciating testimony on record and its cumulative effect, failed to take integral view of the matter and has misread the evidence on the point of applicability of relevant section of IPC, convicted the appellants under Section 364A IPC and passed sentence against them- which under facts and circumstances of this case was not justified.

We have no hesitation in expressing at this stage that learned trial court has already acquitted the two other co-accused Naresh and Data Ram by the same judgment and order giving benefit of doubt against whom some reference of ransom erupts in prosecution testimony. To hold that the present appellants were directly involved in demanding ransom for release of victim (Raja) is not justified, under facts and circumstances of the case qua testimony of prosecution witnesses as a whole.

We are mindful of legal proposition that conviction under Section 364A IPC is primarily based on demand for ransom and there should be positive evidence regarding any such demand made by the accused person. Point under context takes us to careful scrutiny of the testimony of witnesses of fact particularly P.W.1, P.W.2, P.W.3 and P.W.4, these witnesses nowhere testify that any ransom was demanded by the present appellants. The incriminating circumstances against the appellants are very much confined to the recovery of the child from their possession on the pointing out of Mohd. Alam.

On the one hand our thoughtful consideration of the testimony on record takes us to fact that indulgence of the present appellants for any demand for ransom is found to be altogether missing and on this count, the prosecution has failed, out and out, to establish the essential ingredients of such demand as required under Section 364A IPC. Therefore, the essential ingredients of Section 364A IPC are not existing against the present appellants. On the other hand, the offence alleged and proved against the present appellants squarely falls within the ambit and purview of Section 365 IPC.

Accordingly, we are of the firm opinion that conviction of appellants recorded by the trial court under Section 364A IPC should be altered and modified to one under Section 365 IPC only. The conviction and sentence so awarded stands modified accordingly.

As per the dictum contained under Section 365 IPC, the offence is punishable with imprisonment of either description for a term which may extend to seven years, coupled with fine.

In the result, the aforesaid appeals are partly allowed. The judgment and order of conviction dated 01.08.2005 passed by the Additional Sessions Judge, F.T.C. No.1, Hathras in Sessions Trial No.331 of 2001 arising out of Case Crime No.125 of 2001, (State Vs. Mohd. Alam and others), under Section 364-A IPC, Police Station Hasayan, District Hathras, is altered/modified from Section 364A IPC to Section 365 IPC.

In this case, appellant Mohd. Alam is in jail since 10.06.2001 and Naseem and Mahesh are in jail since 01.08.2005, therefore, Mohd. Alam has already spent over 15 years of incarceration, whereas, the other two appellants Naseem and Mahesh have already spent about more than 11 years of incarceration. Therefore, the respective period of imprisonment already undergone by the present appellants is justified, as the sentence provided for the offence under Section 365 IPC, which they have already suffered in surplus. A fine of Rs.1000/- each is also imposed on the appellants and in case of default in payment of fine the concerned convict shall have to undergo additional imprisonment for one month.

In so far as payment of the amount of fine is concerned, the appellants are given one month's time to deposit the same. In case the amount of fine is deposited by the appellants, they shall be released forthwith, if they are not wanted in connection with any other case.

Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.

Dt. 16.08.2016

RK