Karan Aarakh vs State Of U.P.
2016 Latest Caselaw 5769 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

                                  JUDGMENT RESERVED ON 16.6.2016
 
				   JUDGMENT DELIVERED ON 12.9.2016
 
                                                                      
 
		Court No:- 4							 A.F.R.
 

 
Case :- CRIMINAL APPEAL No. - 77 of 2008
 
Appellant :- Karan Aarakh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Shiv Shanker Sen,Ajai Kumar Agnihotri,Ashok Kumar Singh I,H.K.Bhatt,Rama Kant Jaiswal,Sunil Kumar Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Connected with
 
Case :- CRIMINAL APPEAL No. - 156 of 2008
 
Appellant :- Shiv Kumar Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.N. Gupta,Ashok Kumar Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Connected with
 
Case :- CRIMINAL APPEAL No. - 182 of 2008
 
Appellant :- Vikram Singh @ Puttaney
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Servesh Kumar Shukla,Ashok Kumar Singh,Avinash Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Connected with
 
Case :- CRIMINAL APPEAL No. - 218 of 2008
 
Appellant :- Dinesh Yadav
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Servesh Kumar Shukla,Ashok Kumar Singh, Rishad Murtaza
 
Counsel for Respondent :- Govt. Advocate
 

 
Connected with
 
Case :- CRIMINAL APPEAL No. - 345 of 2008
 
Appellant :- Manoj Yadav
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Shiv Kumar Yadav,Ashok Kumar Singh,Vinay Mishra
 
Counsel for Respondent :- Govt.Advocate
 

 
Connected with
 
Case :-CRIMINAL APPEAL DEFECTIVE No. - 445 of 2008
 
Appellant :- Shri Pal & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Vishambhar Singh Yadav,Abhay Kumar,Krishna Kumar Singh,Sunil Kumar Singh
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Vinod Kumar Srivastava-III,J.

(Delivered by Hon'ble Vinod Kumar Srivastava-III, J.)

1. All the aforesaid criminal appeals have been preferred against the judgment and order dated 14.12.2007 passed by the Additional Sessions Judge/F.T.C.-III Hardoi in S.T. No. 839 of 2005 (State Vs. Dinesh Yadav and others) connected with S.T. No.  370 of 2006 (State Vs. Shri Pal and another) arising out of case crime no. 429 of 2005 whereby all the appellants Karan Aarakh, Shiv Kumar, Vikram Singh alias Puttaney, Dinesh Yadav, Manoj Yadav, Shri Pal and Satpal have been convicted for the offence under section 364-A I.P.C. and sentenced to undergo for life imprisonment with fine of Rs. 10,000/- and in default further to undergo for a period six months imprisonment.

2. As all the above mentioned six criminal appeals have been preferred against the common judgment and order hence same are being decided together by a common judgement.

Brief Facts of the case:

3. The prosecution story in brief is that complainant Ravindra Kumar Srivastava (P.W.1) lodged a First Information Report on 29.5.2005 with P.S. Kotwali City District Hardoi in respect of the incident allegedly occurred on 22.5.2005 at about 6.30 P.M. alleging therein that his younger brother Awadesh Kumar (P.W. 2) had gone to Kannauj by boarding in D.C.M. Vehicle. Thereafter his whereabouts could not be known, therefore, a missing report was lodged on 24.5.2005. A telephonic message came on 27.5.2005 from unknown person at the complainant's home that his brother is present with him and was told to meet the miscreants  on the same day at 2.00 P.M. at the temple of Kakrahiya Devi along with  another person. The complainant sent his younger brother Mahesh Chandra Srivastava (P.W.3) along with one Manoj Tripathi, who reached at 2.30 P.M. at the said place, where three persons met them. When the complainant's brother said to them that he would talk to them after relying that Awadesh Kumar is with them then, they took the Nokia Mobile of Mahesh Chandra Srivastava (complainant's brother) and said that through this mobile Awadesh will call to you, then come as told by them. On 29.5.2005, in the morning a phone call came at complainant's home and his brother only told his name on phone, thereafter phone was taken away by another person, who told to meet on 30.5.2008 at 2.00 P.M. at same temple and threaten that if he would not come his brother would be killed by them.

4 On the basis of written report Ex. Ka-1 of complainant Ravindra Kumar Srivastava (P.W.1) First Information Report was lodged initially under section 364 I.P.C. against three unknown persons.

5. During  investigation of the case, on 31.5.2005, the police party led by S.I. Bhagwant Singh got the  information through a Mukhbir Khas that a gang having the accused persons along with the alleged abductee  Awadhesh Kumar was moving in a Marshal vehicle no. U.P. 30-B 7616,relying upon the information, police force came to the place of incident. When the police party intercepted the said vehicle  firing was made by the miscreants towards police party due to which constable  Kajjan Khan (P.W.7) and constable Harvasav Rao  received some injury. However ultimately police party successfully apprehended six miscreants , namely Dinesh Yadav, Shiv Kumar, Vikaram alias Puttaney, Rajeev Yadav, and Manoj Yadav from whose possession illegal firearms were also recovered  and Karan Aarakh who was driving the vehicle along with abductee Awadesh Kumar. The name of the miscreants Sripal and Satya Kumar  were also disclosed by them, who successfully escaped from the place of incident. Thereafter recovered illegal firearms were kept under seal cover and relevant recovery memo (Ex.Ka-2) was prepared in accordance with the rule. On the basis of recovery memo(Ex. Ka-2), a First information Report was lodged against all the accused persons under sections 147, 148, 149, 307 I.P.C. and 7 Criminal Law Amendment Act and Section 3/25 of Arms Act and  2/3 U.P. Gangsters Act at different crime numbers on 31.5.2005 with P.S. Arwal, District Hardoi.

6. After completion of investigation, charge sheet against all the appellants-accused persons was filed under section 364-A I.P.C in case crime no. 429 of 2005 and separate charge sheets were also filed in case crime no. 48 of 2005 under sections 147, 148,307 read with 149 I.P.C. and in case crime nos. 49 of 2005, 50 of 2005, 51 of 2005, 52 of 2005 and 53 of 2005 under section 3/25 Arms Act

7. It is pertinent to mention that one co-accused, Rajiv Yadav was also charge sheeted along with accused-appellants but he was declared juvenile and his trial was separated.

8. After committal proceedings charges were framed against all the accused-appellants Dinesh Yadav, Shiv Kumar, Vikaram Singh alias Puttaney, Manoj Yadav, Karan Aarakh, Sripal and Satya Kumar under Section 364-A I.P.C. in case crime no. 429 of 2005 S.T. No. 839 of 2005 (State Vs. Dinesh Yadav and others) connected with S.T. No. 370 of 2006(State Vs. Shripal and another).

9. It is also relevant to note here that accused-appellants Dinesh Yadav, Shiv Kumar, Vikram Singh alias Puttaney, Manoj Yadav, Karan Aarakh, Sripal and Satya Kumar were also charged for the offence under sections 147, 148, 307 read with section 149 I.P.C. in case crime no. 48 of 2005 in separate S.T. No. 716 of 2005(State Vs. Dinesh Yadav and others) connected with S.T. No. 388 of 2006 (State Vs. Shripal and another). Further accused-appellants Dinesh Yadav, Shiv Kumar, Vikaram Singh alias Puttaney and Manoj Yadav were also separately charged under Section 25 Arms Act in case crime no. 49 of 2005 S.T. no. 717 of 2005 (State Vs. Dinesh Yadav) case crime no. 50 of 2005, S.T. No. 718 of 2005 (State Vs. Shiv Kumar), case crime no. 51 of 2005, S.T. No. 719 of 2005 (State Vs. Vikaram Singh alias Puttaney) and case crime no. 53 of 2005, S.T. No. 721 of 2005 (State Vs. Manoj Yadav); respectively, but all the accused-appellants have been acquitted for the aforesaid charges by the trial court.

10. These present appeals have been filed by all the accused-appellants against their conviction for the offence charged under section 364-A I.P.C.

11. The prosecution has examined as many as 12 witnesses in support of its case. Out of which P.W.1- Ravindra Kumar Srivastava, P.W.2- Awadesh Kumar Srivastava and P.W.3- Mahesh Chandra Srivastava are the witnesses of fact, in respect of the case of alleged kidnapping in case crime no. 429 of 2005 under section 364-A I.P.C.

12. P.W.8 constable-Santu Lal is a formal witness, who has proved chik F.I.R. of the case crime no. 429 of 2005, under section 364-A I.P.C. dated 29.5.2005 as (Ex. Ka-3) and carbon copy of the G.D. entry thereof as Ex- Ka 4.

13. P.W.12- Ram Naresh Chaudhary, investigating officer of the case crime no. 429 of 2005, under section 364-A I.P.C  has proved the site plan of the spot of occurrence of kidnapping as Ex. ka -24,charge sheet no. 140 of 2005 against accused-appellants Dinesh Yadav, Shiv Kumar, Vikram Singh alias Puttaney, Manoj Yadav and Karan Aarakh as Ex. Ka- 25 and has also proved as secondary evidence, the charge sheet no. 140-A of 2006 against the appellant-accused Shri Pal and Satya Kumar as Ex. Ka- 26.

14. The statements of all the accused-appellants were recorded under section 313 Cr.P.C. and all the incriminating materials and circumstances were put to them one by one. They denied the prosecution story and stated that they have been falsely implicated.

15. The accused-appellant Dinesh Yadav has stated in his statement under section 313 Cr.P.C. that Police of District Hardoi has falsely implicated him due to enmity with police personnel of Fatehgarh and village party bandi. He has further stated that on 30.5.2005 at noon, when he was going to his home from Fatehgarh, police personnel's arrested him and took to him Hardoi and falsely implicated in the case showing fake encounter. His brother Umesh had informed to S.P. Hardoi on 31.5.2005 through telegram regarding the incident.

16. D.W.1-Umesh Yadav brother of accused-appellant Dinesh Yadav has stated that on 30.5.2005 when accused-appellant Dinesh Yadav and Vikram Singh alias Puttaney were going to their village Paramnagar police personnels of Hardoi and Fathegarh took them away on jeep and falsely implicated showing fake encounter regarding which he sent a telegram to S.P. Hardoi on 31.5.2005. The certified copy of the said telegram has been proved as Ex. Kha-1 . He has also proved the certified copy of the telegram dated 31.5.2005 sent by one Pushkar, brother of the accused-appellant Vikaram Singh alias Puttaney as Ex. Kha-2

17. The accused appellant Vikaram Singh alias Puttaney has reiterated the same statement under section 313 Cr.P.C. as given by co-accused  Dinesh Yadav.

18. The accused-appellants Shiv Kumar, Manoj Yadav and Karan Aarakh have simply denied the allegations levelled against them and stated that they have been falsely implicated in the case.

19. The accused-appellant Sri Pal has stated in his statement under section 313 Cr.P.C. that he and his brother Satya Kumar have been falsely implicated on the basis of the statement of co-accused. They had enmity with co-accused and his family members prior to this incident and his brother Satya Kumar (accused appellant) had lodged the First Information Report at case crime no. 199 of 2001 against Kali Charan and Ram Tirath, who are family members of the co-accused Dinesh Yadav .He has also stated that he had filed an application for identification of himself and his brother Satya Kumar but no test identification parade was conducted.

20. The accused-appellant Satya Kumar has also approved the statement of appellant-accused Shri Pal in his statement under section 313 Cr.P.C.

21. Learned trial court after appreciation of all the evidence and submissions made by the public prosecutor and defence counsel convicted and sentenced all the accused-appellants for the offence under section 364-A I.P.C. as has been referred to herein above.

22. Aggrieved by the same, the appellants have filed these criminal appeals.

23. We have heard the submissions  made by Shri Ashok Kumar Singh, learned counsel for the appellants and Shri M.Y Ansari learned A.G.A,. for the State and perused the record of the case.

24. In view of the rival submissions made by the learned counsel for the parties,the point for determination arises that whether all the accused-appellants allegedly kidnapped the victim Awadesh Kumar Srivastava for ransom.

Submissions and conclusions

25. Before proceeding to examine the ocular evidence adduced by the prosecution in support of its case, it may be noted that in order to prove the offence under section 364-A I.P.C. Hon'ble Supreme Court in case of Suman Sood alias Kamaljeet Kaur Vs. State of Rajasthan (2007) 5 SCC 634 had laiddown in paragraph-57 as under

"57. Before the above section is attracted and a person is convicted, the prosecution must prove the following ingredients;

(1) The accused must have kidnapped, abducted or detained any person;

(2) He must have kept such person under custody or detention; and (3) Kidnapping, abduction or detention must have been for ransom. "

26. In the light of the aforesaid settled legal position, the evidence of the present case is required to be considered.

27. In support of the charge under section 364-A I.P.C. against the accused-appellants prosecution has examined three witnesses of fact namely P.W.1- Ravindra Kumar Srivastava (complainant), P.W.2- Awadesh Kumar (victim) and P.W.3- Mahesh Chandra Srivastava( brother of the victim) and two formal witnesses namely P.W.8- Constable Santu Lal, and P.W. 12- Ram Naresh Chawdhary(I.O.).

28. It may be noted that rest of prosecution witnesses namely P.W.4- Ritesh Bajpai, P.W.5- S.I. Satyanarayan Yadav, P.W.6- S.H.O. Murrari Lal Chadhaury, P.W.7- constable Kajjan Khan, P.W.9- constable Ram Lal and P.W.10- Inspector Sahab Singh Yadav (I.O.) and P.W.11- Goverdhan Lal Yadav (Chief Pharmacist) are related to the offence under section 147, 148, 149, 307 I.P.C. and under section 25 arms Act, registered at different case crime numbers and Sessions Trial Numbers, from which accused-appellants have been acquitted by the trial court,therefore, their evidence need not to be considered in the present appeals, which is only against the judgment and conviction order for the offence under section 364-A I.P.C., case crime no. 429 of 2005 as has been referred to herein above.

29. P.W.1- Ravindra Kumar Srivastava, is the informant and brother of the abductee Awadhesh Kumar Srivastava (P.W.2) has proved the First Information Report Ex.Ka-1 and reiterated the allegations made in the First Information Report. He has stated in his evidence that his younger brother Awadhesh Kumar had gone to Kannauj by boarding in D.C.M. Vehicle. Thereafter when his whereabouts could not be known, he lodged a missing report at Kotwali Shahar on 24.5.2005. A telephonic message came on 27.5.2005 at his home from unknown person that his brother is present with him and was told to meet on same day at 2 P.M. at the temple Kakrahiya Devi along with another person having red strip on right arms. He sent his younger brother Mahesh Chandra and one Manoj Tripathi at the said temple, who reached there at about 2.30 P.M. then three persons met them. When his brother Mahesh told them that first bring his brother Awadhesh Kumar before him and after relying on them he would talk to them, then they took mobile set of Mahesh and said that through this mobile his brother will call to you and thereafter come as told by them. On 29.5.2005 in the morning phone call came at his home and his brother only told his name, thereafter phone was taken by some other person who told to meet on 30.5.2005 at 2 P.M. at the same temple and threatened that if he would not come, his brother would be killed. On 29.5.2005 he gave a written report Ex.Ka 1 at P.S. Kotwail Sahar and lodged the First Information Report.

30. P.W.3- Mahesh Chandra Srivastava, is the brother of the abdcutee Awadhesh Kumar Srivastava (P.W.2) and has supported the prosecution case as alleged in the First Information Report and corroborated the statement of P.W.1-Ravindra Kumar Srivastava (complainant). P.W.3-Mahesh Chandra Srivastava has stated that his brother Awadhesh Kumar Srivastava had gone to Kannauj by boarding in D.C.M. vehicle on 22.5.2005 at 6.30 P.M., but thereafter his whereabouts could not be known, then his brother Ravindra Kumar Srivastava lodged missing report at P.S. Kotwali Sahar District Hardoi. On 27.5.2005 a telephonic message of unknown person came at his home that his brother is in his custody and Rs. five lacs was demanded as ransom . When he reached at the place as told by them along with one Manoj Kumar Tripathi three persons met him there .They took him to outside the temple and said that his brother is in their custody and demanded Rs. Five lacs. When he said that show me, his brother then they took his mobile phone and said that your brother will talk through this mobile. Thereafter phone call came and his brother told his name on phone.

31. On 29.5.2005 phone call of kidnappers came and it was said that if you can not arrange Rs. Five lacs then come with Rs. One lac at the same place otherwise they will kill his brother. On 30.5.2005 he went with police at the said temple but nobody met there.

32. P.W.3- Mahesh Chandra Srivastava has further stated that on 31.5.2005 he along with Ritesh Bajpai went with Hardoi Police to search Awadhesh Kumar. When they were going on Baramu Tera Road police personnel phoned to P.S. Arawal and S.I. and constable of P.S. Arawal reached there. After a while a Marshal bearing no. U.P. 30B-7616 came and police party intercepted the vehicle, miscreants got down from the vehicle and started firing on the police force. Due to firing by the miscreants constable Kajjan Khan and constable Harvasav Rao have received simple injury. Six miscreants were arrested on the spot at about 5.30 P.M., while two fled away . The arrested miscreants told their names as Dinesh Yadav, Shiv Kumar, Vikaram Singh alias Puttaney, Manoj Yadav,Rajeev and Karan Aarakh and they told the name of absconded miscreants as Sripal Kachhi and Satya Kumar Kachhi.The illegal firearms were also recovered from the possession of all the arrested miscreants except Karan Aarakh. His brother was sitting in the said vehicle. Police personnels inquired to him and he told all about the incident. Thereafter recovered illegal firearms were kept under sealed cover and Fard was prepared and he put his signature on it which is Ex. Ka-2 . Police party took him and his brother and recovered articles to P.S. Arwal where his brother Awadhesh Kumar was given in his custody.

33. P.W.-2- Awadhesh Kumar Srivastava (abductee) has stated that on 22.5.2005 at about 6.30 P.M., he was going to Kannauj by boarding in D.C.M. vehicle. When the vehicle reached at Bilgram crossing at 7.30 P.M., D.C.M. vehicle got some defect at Bilgram crossing. Therefore he left the D.C.M. vehicle and reached at Kannauj road by walking on foot and was standing there in waiting for bus. At that time a 'Marshal' vehicle bearing no. U.P. 30B-7616 came and stop there, calling passengers for Kannauj. Eight persons were sitting in the vehicle. He along with two other persons sat on the said vehicle. Two passengers got down from the said vehicle after traveling 3-4 Km., then after traveling 6-7 Km. the vehicle left the Kannauj road and turned to the right hand towards forest. When he protested, the sitting persons in the vehicle whipped out Tamancha and threatened to keep quiet otherwise they will shoot him. Thereafter they covered his eyes with a piece of cloth (Angauchha). After two hours of running of vehicle, they got him down and vehicle went back. When vehicle stopped the strip of the eyes was removed and he identified all the accused-persons. They all were talking each other by their name in the vehicle. The name of the driver of the vehicle was Karan. Dinesh was sitting on the front seat and Shiv Kumar, Vikaram alias Puttaney, Manoj, Rajeev, Shripal and Staya Kumar were sitting in the vehicle and talking to each other. Thereafter, they took him in the forest, in a field of sugarcane. There was a hut in the field of sugarcane, that field of sugarcane was of Shripal. They tied his legs and when he requested to release him, they said that he will be released after payment of money. They kept him there for six days and thereafter kept him for three days in the field of 'Beshram'. On 29.5.2005 he talked to his brother on mobile.

34. P.W.-2 Awadhesh Kumar Srivastava has further deposed that on 31.5.2005 same 'Marshal' vehicle came, they consulted to each other and after consultation, in order to keep him at some other place, they boarded him in the vehicle. They were talking to go to Mirjapur Katan. After running of 2 ½ -3 km. Police force surrounded the jeep, then they started firing . Due to firing of the kidnappers some police personnel's received injuries. This incident took place at 5-5.30 P.M. on 31.5.2005. Shripal and Satya Kumar fled away from the spot and rest of six accused persons were arrested, who disclosed their names before the police personnels as Dinesh, Shiv Kumar, Vikaram alias Puttaney, Manoj Yadav, Rajeev Yadav and Karan driver. On their personal search illegal firearms were recovered from the possession of all the arrested accused persons except Karan. At the time of the incident, his brother Mahesh and Ritesh Bajpai were also with the police force on the spot. The police personnels took the accused persons in custody, recovered articles were kept in sealed cover and 'fard'(memo) was prepared on the spot, on which he also put his signature, which is Ex. Ka-2.Thereafter he was released from the possession of the kidnappers by the police force.

35. P.W.-2 Awadhesh Kumar Srivastava is the abductee and main witness of the alleged offence of kidnapping for ransom, as he was in the custody of the kidnappers for nine days and has suffered mental torture during that period. Since the abductee Awadhesh Kumar Srivastava (P.W.2) was in the custody of the kidnappers for nine days,therefore, he had opportunity to recognize them by their name and face. He has narrated all the story of kidnapping from beginning to the end in a quite natural manner. There appears no exaggeration or embellishment in his statement and his testimony is reliable and dependable.

36. P.W-2- Awadhesh Kumar Srivastava has categorically described the role and involvement of all the accused-appellants and has specifically stated that the appellant Karan Aarakh was the driver of the same Marashal vehicle, which was used on first day of the kidnapping on 22.5.2005 and last day at the time of arrest on 31.5.2005. He has also stated that for six days he was kept in a hut made in the field of sugarcane, which was of Shripal, appellant. There is no any material contradiction in his cross examination to disbelieve his statement. Therefore his evidence cannot be disbelieved.

37. It is evident from the record that complainant P.W.-1-Ravindra Kumar Srivastava and his brothers P.W.-2-Awadhesh Kumar Srivastava and P.W.-3, Mahesh Chandra Srivastava are the resident of Harodi City, district Hardoi, while the accused-appellants Dinesh Yadav, Vikaram Singh alias Puttaney, Shripal and Satya Kumar are resident of district Farrukhabad and the appellants Karan Aarakh, Manoj Yadav and Shiv Kumar are resident of different villages of district Hardoi. The complainant and his brothers were not familiar to the appellants prior to the incident and there was no enmity between them. Therefore there was no motive or occasion to the complainant and his brothers to falsely implicate the appellants, thus theory of false implication is baseless and not acceptable at all.

38. The prosecution witnesses P.W.-1-Ravindra Kumar Srivastava (complainant), P.W-2-Awadhesh Kumar Srivastava (abdcutee) and P.W.3, Mahesh Chandra Srivastava have been cross examined at length, but inspite of lengthy cross examination, learned counsel for the appellants has failed to point out nothing, which could make out that prosecution witnesses were stating against the appellants due to enmity and revengeful attitude.

39. The accused-appellants have also not produced any credible evidence on record to show that the incident took place in any other manner,therefore, the case of false implication of accused-appellants on the basis of enmity and partybandi is not established and the defence plea has no substance.

40. The learned counsel for the accused- appellants submitted that accused-appellants Dinesh Yadav, Shiv Kumar, Vikaram Singh alias Pattenney, Manoj Yadav, Karan Arakh were allegedly arrested by the police force on 31.5.2005 and at the time of their arrest they made fire on the police party with illegal firearms, and illegal firearms were recovered from their possession, while accused-appellants Sripal and Staya Kumar had run away from the spot at the time of the said occurrence. Regarding this incident S.O. Bhagwant Singh had lodged the First Information Report against all the accused-appellants on 31.5.2005 with P.S. Arwal District Hardoi under sections 147, 148, 149, 307 I.P.C. and 7 Criminal Law Amendment Act at case crime no. 48 of 2005 and also under section 3/25 Arms Act at case crime no. 49 of 2005, 50 of 2005 , 51 of 2005 and 53 of 2005 against the accused appellants Dinesh Yadav, Shiv Kumar, Vikaram Singh alias Pattenney and Manoj Yadav; respectively. All the accused appellants were also tried for the aforesaid offences along with alleged offence under section 364-A I.P.C. at case crime no. 429 of 2005, but the prosecution could not prove the aforesaid allegations with credible evidence and trial court after appreciating the evidence of the prosecution witnesses have reached at the conclusion that the  testimony of the  prosecution witnesses was not reliable in connection with the alleged firing at the police personnel's by the accused-appellants at the time of their arrest on 31.5.2005 and the alleged recovery of illegal firearms from their possession and prosecution has failed to prove the alleged offences charged under sections 147, 148, 149, 307 I.P.C. and section 25 Arms Act beyond reasonable doubt. Therefore all the accused-appellants have been acquitted by the learned trial court for the aforesaid offences but on the other hand learned trial court has convicted the accused-appellants for the offences under section 364-A I.P.C. relying on the evidence of same prosecution witnesses and as such learned trial court has not appreciated the evidence of the prosecution witnesses in the right perspective and erred in convicting the accused-appellants.

41. The prosecution case runs in two parts. The first part is related to the offence of kidnapping for ransom under section 364-A I.P.C. at case crime no. 429 of 2005 for which all the accused- appellants have been convicted and the present appeals have been filed. The second part relates to the incident of 31.5.2005 when some of the accused-appellants, namely, Yadav Dinesh, Shiv Kumar, Vikaram Singh alias Pattenney, Manoj Yadav and Karan Arakh were arrested on the spot by the police force and during their arrest, they made fire on the police personnel and illegal firearms were recovered from their possession,regarding which separate First Information Report was lodged by S.O. Bhagwant Singh under sections 147, 148, 149, 307 I.P.C. and 7 Criminal Law Amendment Act at case crime no. 48 of 2005 and also under section 3/25 Arms Act at different crime numbers. All the accused- appellants were tried together for all the aforesaid offences but since the prosecution could not prove the alleged incident of firing on police personnels at the time of their arrest and recovery of illegal firearms from their possession by sufficient reliable evidence, therefore, trial court have acquitted them for the said offence and convicted only for the offence of kidnapping for ransom under section 364-A I.P.C. having found prosecution evidence reliable for the said offence.

42. It is pertinent to mention here that Hon'ble Supreme Court has time and again laid down that Maxim "Falsus in uno, Falsus in omnibus" is not applicable in India. It is merely a rule of caution. Thus even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove the guilt of the accused, conviction can be maintained. A witness may be speaking untruth in some respect and it has to be appraised in each case, as to what extent the evidence is worthy of acceptance and merely because in some respect the court considers the same to be insufficient for placing reliance on the testimony of a witness,it does not necessarily follow as a matter of law that it must be disregard in all respects as well. Falsity of particular material witness on a material particular would not ruin it from beginning to end.

43. Hon'ble Supreme Court in case of Ramesh Harijan Vs. State of Uttar Pradesh(2012) 5 SCC 777 has laid down in paragraph-29 as follows:-

"29.In Sucha Singh v. State of Punjab, AIR 2003 SC 3617, this Court had taken note of its various earlier judgments and held that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus in omnibus has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well."

44. In view of the above, the aforesaid submission of the learned counsel for the appellants appears to be baseless and not acceptable, when the evidence of prosecution witnesses have been found reliable in respect of the offence of kidnapping for ransom under section 364-A I.P.C.

45. Learned counsel for the appellants also submitted that as per prosecution story itself it is alleged that on 31.5.2005, when accused-appellants were allegedly arrested by the police personnel after the short encounter, the accused-appellant Karan Arakh was only driving the said vehicle on which the other accused-appellants along with abductee Awadehs Kumar Srivastava were sitting and he did not take part in firing and admittedly no illegal firearm was recovered from his possession. Therefore, he cannot be said to be involved in the alleged kidnapping along with other accused-appellants.

46. It may be noted that the offence of kidnapping for ransom is committed by the organized gang and each member of the gang has their assigned role in commission of the crime. Some members of the gang may be directly involved and may be visible, while some members of the gang remain behind the curtain and may not be visible to others, but they are completely involved in the commission of crime of kidnapping. Therefore we are of the opinion that accused appellant Karan Arkah being the driver of the vehicle carrying other accused-appellants along with abductee and arrested by the police force shows that he was playing the role of driver of the vehicle which was being used in kidnapping by the gang and as per evidence of P.W.2, Awadhesh Kumar Srivastava, abductee, his involvement in commission of crime along with other accused appellants cannot be discarded, only on the ground that he did not participate along with other accused-appellants in alleged firing on police personnels at the time of arrest.

47. It is further submitted by the learned counsel for the appellants that accused- appellant Shripal and Satya Kumar have not been arrested on 31.5.2005 at the spot alongwith other accused-appellants and their name have come into light only on the basis of confessional statement made by the arrested accused therefore, their case is distinguishable from other accused-appellants and their participation in commission of the alleged offence of kidnapping along with other accused appellants cannot be presumed, hence learned trial court has erred in convicting the accused-appellants Sripal  and Satya Kumar.

48. Though the accused-appellant Sripal has stated in his statement under section 313 Cr.P.C. that he and his brother Satya Kumar(appellant) have been falsely implicated on the basis of statement of co-accused . They have  enmity with co-accused and his family members prior to this incident and accused-appellant Satya Kumar had lodged the First Information Report at crime no. 199 of 2001 against Kalicharan and Ram Tirath, who are family members of the co-accused Dinesh Yadav, therefore, he has falsely implicated them in his confessional statement. But the said facts have not been proved by any reliable corroborative evidence, hence mere on the basis of statement it cannot be presumed that Kalicharan and Ram Tirath against whom the said First Information Report was lodged by the accused appellant Satya Kumar were the family members of the accused-appellant Dinesh Yadav having good family relation to each other and due to that accused-appellant Dinesh Yadav was having enmity with accused-appellant Sripal and Satya Kumar. Therefore,the aforesaid submissions of the learned counsel for the appellants have no substance, especially when P.W.2 Awadhesh Kumar Srivastava, abductee has stated their involvement in commission of alleged kidnapping along with other accused-appellants.

49. In view of the above oral evidence and circumstances and other relevant materials available on record, we find the testimonies of P.W.-1- Ravindra Kumar Srivastava(complainant), P.W-2-Awadhesh Kumar Srivastava (abdcutee) and P.W.3- Mahesh Chandra Srivastava are wholly reliable and see no reason, not to accept the same. Therefore, we are of the view that on the basis of evidence of aforesaid prosecution witnesses, it is established that accused-appellants namely Dinesh Yadav, Vikaram Singh alias Puttaney, Shiv Kumar, Manoj Yadav, karan Aarakh, Shripal and Satya Kumar were equally involved in committing the offence of kidnapping for ransom of Awadhesh Kumar Srivastava(P.W.2) and prosecution has proved their involvement and complicity for the offence charged under section 364-A I.P.C.

Final Order

50. In light of the the above discussion, we are of the opinion that trial court have meticulously considered the facts and circumstances and evidence produced by the prosecution, thereafter passed the judgement and order of conviction of the appellants dated 14.12.2007 . The judgement and order of the Additional Sessions Judge/F.T.C. III, Hardoi is based on evidence and conclusion reached by the trial court is not erroneous. Therefore, no interference is required.

51. We find no merit in the appeals, the appeals are hereby dismissed.

52. The appellants Karan Aarakh, Shripal and Satya Kumar are on bail. Their bail bonds and sureties bonds are cancelled and sureties are discharged. They shall be taken into custody forthwith to serve out the sentence awarded by the trial court.The rest of the four appellants, namely, Shiv Kumar Singh,Vikram Singh alias Puttaney,Dinesh Yadav and Manoj Yadav are stated to be already in jail since 31.5.2005, they shall serve out the sentence awarded by the trial court.

53. Let a copy of this judgement be sent to the Sessions Judge, Hardoi for ensuring compliance.

(Vinod Kumar Srivastava,J.) (Ramesh Sinha,J.)

Order Date :12.9.2016

Atul kr. sri.