Mohan Sharma vs State Of U.P.
2016 Latest Caselaw 5772 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

                                             AFR           
 
  Reserved on 21.6.2016 
 
					                 Delivered on 12.9.2016                
 
Court No. -4
 

 
Case :- CRIMINAL APPEAL No. - 121 of 2011
 
Appellant :- Mohan Sharma
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Jail Appeal (G.A.),Ambrish Verma,Anil Singh,D.K. Singh Somvanshi,Shachindra Dwivedi
 
Connected with
 

 
Case :- CRIMINAL APPEAL No. - 122 of 2011
 
Appellant :- Sohan Sharma
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Jail Appeal (G.A.),Anil Kumar Pandey,Anil Kumar Rai,Anil Singh,Bhup Chandra Singh,D.K.Singh Sombansi
 
			      Connected with 
 

 
Case :- CRIMINAL APPEAL No. - 437 of 2011
 
Appellant :- Rajesh Joshi
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Shiwa Kant Tiwari,Ramanjeet Singh Johar,Vivek Kumar Rai
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Vinod Kumar Srivastava-III,J.

(Delivered by Hon'ble Ramesh Sinha,J.)

1. The present criminal appeals have been preferred by the appellants against the judgment and order dated 21.12.2010 passed by the learned Additional Sessions Judge, Fast Track Court No.7, Lucknow in Sessions Trial No.95B of 2007 & S.T. No.95C of 2011,arising out of Case Crime No.91 of 2006, under Sections 364A, 342, 394 I.P.C., Police Station-Tal Katora, District Lucknow by which the appellants, namely, Mohan Sharma, Sohan Sharma and Rajesh Joshi have been convicted and sentenced for the offence under Section 364A I.P.C. for life imprisonment with fine of Rs. 5,000/- each, under Section 342 I.P.C. for one year R.I. and for the offence under Section 394 I.P.C. for 10 years R.I. with fine of Rs.5,000/- each and all the sentences were directed to run concurrently.

2. The prosecution case in brief is that, on 17.4.2006 a missing report was lodged by the informant, namely, Shiv Kumar Sharma at Police Station Tal Katora, District Lucknow stating therein that on 16.4.2006 the informant's son, namely, Rohit Kumar Sharma alias Vikki aged about 16 years is missing since 6 P.M. who while leaving the house had informed his mother that he was going in a birthday party of his friend. The informant after great search could not trace out the whereabouts of his son, hence, on 27.4.2006 he again submitted another written report to the concerned police station that on 17.4.2006 he had lodged a missing report of his son, namely, Rohit Kumar Sharma alias Vikki at the concerned police station and he has been continuously searching his son and he has come to know on a information received on phone that his son Rohit Kumar Sharma alias Vikki is in custody of some person and he has been asked to make an arrangement of Rs.30 lacs at once for which he would be given another phone call and would be informed that where to deliver the said money and whose behest the same has to be brought and to be given and if any information is given to the police about the same or he is unable to arrange the said money, his son would be killed. The informant on receiving the said information was very much worried and after much thinking over the matter he had given the said report to the police under the belief that his son would be rescued.

3. On 27.4.2006, the police had received an information by an informer that the abudctee had been kept in the house of one Rajesh Joshi and on believing on the said information, the police party along with the informant, namely, Shiv Kumar Sharma raided the house of Rajesh Joshi and three persons were seen fleeing from the place of occurrence. It was informed by the informant, namely, Shiv Kumar Sharma that two persons who had fled away were the Mohan Sharma and Sohan Sharma respectively and the third person was not known to him. Thereafter, the police entered into the house of Rajesh Joshi and on search being made it was found that three other persons, namely, Raj Kumar Sharma, Ravindra Kumar Sharma and Sonu alias Amit were present there along with the abudctee Rohit Kumar Sharma alias Vikki in the said house, who was chained by the accused persons. The said three accused persons, namely, Raj Kumar Sharma, Ravindra Kumar Sharma and Sonu alias Amit were arrested by the police and the abductee Rohit Kumar Sharma alias Vikki was rescued by them. A recovery memo of the abductee child was prepared by the Station Officer, namely, Sanjay Maurya of Police Station Tal Katora, District Lucknow on 27.4.2006 at 13.10 hours. The fard recovery memo which was prepared, was signed by the said three accused persons, namely, Raj Kumar Sharma, Ravindra Kumar Sharma and Sonu alias Amit and thereafter an FIR was lodged as Case Crime No.91 of 2006, under Sections 364A, 394 & 342 I.P.C., Police Station-Tal Katora, District Lucknow.

4. The accused persons have further stated before the police that they had abducted the Rohit Kumar Sharma alias Vikki only on account to grab the ancestral property and further demanded Rs.30 lacs as a ransom and had kept the abductee in their custody.

5. A mobile phone was recovered from the accused persons which was used in the crime in question and the same was sealed. A chain was also recovered which was also sealed.

6. The investigating Officer of the case after investigation submitted the charge sheet against the three accused persons, namely, Raj Kumar Sharma, Ravindra Sharma and Sonu alias Amit being Charge Sheet No.65 of 2016 in the Court on 15.5.2006 and subsequently a supplementary charge sheet was also submitted being Charge Sheet No.65A on 5.7.2006 against the appellants, namely, Mohan Sharma, Sohan Sharma and Rajesh Joshi for the offence under Sections 364A, 394, 342 I.P.C.

7. The charges were framed by the trial Court against all the six accused persons on 26.4.2007 for the offence under Sections 364A, 342, 394 I.P.C.. All the accused have denied the prosecution case and claimed their trial.

8. The prosecution in support of its case has examined PW1-Shiv Kumar Sharma, PW2-Rohit Sharma alias Vikki (abductee), PW3-Smt. Leela Sharma, PW4-Dr. Pawan Kumar, PW5- Ram Niwas, PW6-S.I. Sajeevan Lal and PW7-S.I. Sanjay Kumar Maurya.

9. During the course of the trial, the accused, namely, Raj Kumar Sharma and Ravindra Kumar Sharma had died. Hence, the S.T.No.95A of 2007 which was registered against them was abated and was ordered to be consigned to record by the Court's order dated 30.11.2009.

10. So far as Sessions Trial being S.T. No.95 of 2007 pertaining to the co-accused Sonu alias Amit is concerned, the same was separated from the Sessions Trial of the present appellants as they were confined in another Case Crime No.688 of 2005, under Section 307 I.P.C., Police Station Gomti Nagar, Lucknow and accused Sonu alias Amit was acquitted by the trial Court on 1.11.2010.

11. The prosecution in support of its case has relied upon the documentary evidence, such as Ex. Ka.-1 written report dated 27.4.2016, Ex.Ka.-2 medical report, Ex. Ka.-3 G.D. regarding registration of the case, Ex. Ka.-4 recovery memo of abductee-Rohit Kumar Sharma alias Vikki and accused, Ex. Ka.-5 & 6 site plan of the place of recovery and occurrence, Ex. Ka.-7 & 8 two charge sheets, Ex. Ka.-9 missing report of the informant dated 17.4.2006.

12. PW1-Shiv Kumar Sharma (informant of the case and father of the abudctee) has deposed before the trial Court and proved his missing report Ex. Ka.-1 and Ex. Ka.-9, report dated 27.4.2006. He has reiterated the prosecution case as alleged in his written report Ex. Ka.-1 dated 17.4.2006 and further the averments made by him in his subsequent report dated 27.4.2006, i.e., Ex. Ka.-9 that he received an information on his phone regarding custody of his son by some of the accused who had asked him to arrange Rs. 30 lacs for release of his son and he would further be informed about the place where the money is to be delivered and to whom. He has further stated that when he had accompanied the police party for recovery of his son, then on an information received by the police informer, they reached at the house of accused-appellant, namely, Rajesh Joshi and the accused appellants seeing the police party had fled away from the place of occurrence and while the said persons were fleeing, he identified the appellants, namely, Mohan Sharma, Sohan Sharma and the third persons who had fled away from the place of occurrence could not be identified by him. He further stated that his son was found in the said house and he was chained by the accused persons. So far as the participation of the co-accused, namely, Raj Kumar Sharma, Ravindra Sharma and Sonu alias Amit in the crime in question is concerned, he did not support the prosecution case against them and turned hostile and he only deposed against the accused appellants.

13. PW2-Rohit Sharma alias Vikki (the abductee) has deposed before the trial Court that he was taken away by the accused Mohan Sharma who took him to the place where the other accused persons, namely, Sohan Sharma and Rajesh Joshi were present and when he told Mohan Sharma to drop him at his house, then he did not allow him to go and further threatened him for dire consequences of life and informed that unless his father paid the ransom amount which was demanded by the accused appellants, he would not be released. He further stated that the accused demanded the money in his presence. He further submitted that the accused had put a cloth on his eye and tied it and also put cloth in his mouth and he was asked to lie down. Thereafter, after some time he found himself to be in a room which was locked. He further stated that his one golden ring, two silver rings, mobile phone and a watch was also snatched by the accused persons. He further stated that in the room a pit was dug and he was asked to perform nature call in the said pit and he was kept in the said room for about eleven days and he was given food once in a day sometimes either by Mohan Sharma or sometimes by Sohan Sharma and Rajesh Joshi. He stated that after eleven days his father along with police team and Ravindra Sharma, Raj Kumar Kumar Sharma and Sonu Sharma alias Amit rescued him. He was also given Hemp (Bhang) and was also assaulted by them. He further deposed that he knew the accused appellants, namely, Mohan Sharma and Sohan Sharma from his childhood. He deposed that prior to the incident, accused appellant Mohan Sharma, Sohan Sharma and Sonu alias Amit used to come to his house. So far as participation of accused persons, namely, Rajesh Kumar Sharma, Ravindra Sharma and Sonu alias Amit were concerned, he did not support the prosecution case against them and also turned hostile and only deposed and gave evidence against the accused appellants.

14. PW3-Leela Sharma who is mother of the abductee and wife of PW1 has stated that her husband accompanied the police party for recovery of his son. She further stated that in the evening a call was received by the informant from the accused persons who were demanding Rs.30 lacs as a ransom, failing which her son would be killed and further asked/threatened not to inform the police about the same. She stated that police informed that her son was in custody of the accused appellants.

15. PW4- Dr. Pawan Kumar has deposed before the trial Court that on 27.4.2006 he was posted as Medical Officer at Rani Luxmi Bai Hospital in District Lucknow and he had medically examined the abductee Rohit Sharma alias Vikki who was brought by the police constable. He further submitted that the abductee was conscious and there was no external injury found on his person and there was multiple small rashes all over the body except head, face and neck and he was complaining about itching in the area of rashes and proved the said medical report as Ex. Ka.-2.

16. PW5-Ram Niwas has deposed before the trial Court that he was domestic servant in the house of PW1 Shiv Kumar Sharma. He further deposed that Sohan Sharma and Mohan Sharma were the real nephew of informant PW1-Shiv Kumar Sharma. He further stated that Mohan Sharma used to come at the house of PW1 and the accused Sonu Sharma alias Amit was grand-son of PW1 and was known to him. He further deposed that at the time of the incident he had gone to purchase some vegetable from the market. He came to know about the missing of the abductee, namely, Rohit Sharma alias Vikki at 10 P.M. in the night when he returned and abductee was being searched by his parents. When Rohit had returned back to his house, he did not have any conversation with him nor his parents had told him that as to who had taken him. So far as participation of the accused Sonu alias Amit was concerned, he did not support the prosecution case against him and was declared hostile. He further deposed that it is correct that PW1 and his wife had informed the police that their family members have abducted their son and have demanded a ransom then he heard the said conversation. This witness has further stated that Sohan Sharma, Mohan Sharma, Sonu Sharma, Ravindra Kumar Sharma, Raj Kumar Sharma and Rohit Sharma belong to the family of PW1-Shiv Kumar Sharma. After the police had gone, he heard the parents of Rohit Sharma alias Vikki having conversation that Rohit Sharma alias Vikki was abducted and a ransom was demanded by Sohan Sharma, Mohan Sharma, Sonu Sharma, Ravindra Kumar Sharma and Raj Kumar Sharma and the said fact was not disclosed by him to the police as he had personal knowledge about the same. This witness was declared hostile by the trial Court.

17. PW6-S.I. Sajeevan Lal has deposed that he was posted at Police Station-Tal Katora, District Lucknow and on 17.4.2006 a missing report was lodged by PW1-Shiv Kumar Sharma in which an inquiry was being made and during the course of inquiry on 27.4.2006, the informant had given another written report, on the basis of which an FIR was registered as Case Crime No.91 of 2006, under Section 364 I.P.C. which was also endorsed in the G.D. of the concerned police station and he has proved the G.D. as Ex.Ka.-3. He further stated that on 27.4.2006 he along with Police Constables and Station Officer Sanjay Maurya had started search of the abductee and on an information received by an informer that the abductee can be recovered from the house of one Rajesh Joshi, thereafter the police party reached there and recovered the abductee and arrested the accused persons, namely, Raj Kumar Sharma, Ravindra Sharma and Sonu Sharma on the spot and three other accused, namely, Mohan Shama, Sohan Sharma and Rajesh Joshi had fled away from the place of occurrence who were identified by the PW1 who is informant of the case. The abductee Rohit Sharma alias Vikki was found in a room and was tied by a chain. The abductee was rescued and a fard recovery memo was prepared by the Station Officer and the same was signed by him also along with the accused persons arrested and the said recovery memo was also read over to the accused arrested. He further has deposed that Mohan Sharma, Sohan Sharma and Rajesh Joshi were not found at the spot and about Mohan Sharma and Sohan Sharma the informant had informed him and the name of Rajesh Joshi was disclosed by the three accused who were arrested on the spot.

18. PW7-S.I. Sanjay Maurya has deposed before the trial Court that he was posted at Police Station Tal Katora, Lucknow as Station Officer and on 17.4.2006 a missing report was lodged by PW1-Shiv Kumar Sharma stating that since 16.4.2006 at about 6 P.M. his son Rohit Kumar Sharma alias Vikki was missing. He inquired about the missing report and ordered for inquiry about the missing by H.C.P. Sajeevan Lal and on 27.4.2006 another report was lodged by PW1, on the basis of which an FIR was registered as Case Crime No.91 of 2006, under Section 364 I.P.C. and missing report was converted into an FIR and investigation was started. He further deposed that he had taken the statements of witnesses including of the accused Raj Kumar Sharma, Ravindra Kumar Sharma and Sonu and prepared the site plan of the place and recovery at the instance of the abductee, namely, Rohit Sharma alias Vikki and proved the same as Ex. Ka.5 and further recorded the statement of the witnesses including the abductee. He after investigation submitted charge sheet against the accused, namely, Raj Kumar Sharma, Ravindra Kumar Sharma and Sonu alias Amit Sharma being Charge Sheet No.65 of 2006, Case Crime No.91 of 2006, under Section 364A, 394, 342 I.P.C. dated 15.5.2006 which was marked as Ex. Ka.-7. He further deposed that a supplementary charge sheet was also submitted being Charge Sheet No.65A of 2006, under Sections 364A, 394, 342 I.P.C. against accused Mohan Sharma, Sohan Sharma and Rajesh Joshi and proved the same as Ex. Ka.-8. This witness has also reiterated the recovery of the abductee made by him along with the police party and informant, namely, Shiv Kumar Sharma from the house of Rajesh Joshi. He has also proved the fard recovery memo of the abductee as Ex. Ka.-4 under his hand writing and H.C.P. Sajeevan Lal.

19. Heard Sri Anil Singh and Vivek Rai, learned counsel for the appellants and Sri Umesh Chandra, learned AGA for the State and perused the record.

20. It has been argued by learned counsel for the appellants that though the present two appeals have been preferred by Mohan Sharma and Sohan Sharma from jail and they have engaged a counsel of their own choice, i.e., Sri Anil Singh who has appeared on behalf of the said appellants and argued the case on their behalf and the third appellant, namely, Rajesh Joshi has been represented by Sri Vivek Rai, Advocate.

21. Learned counsel for the appellants submitted that PW1, namely, Shiv Kumar Sharma had two wives and Raj Kumar Shama and Ravindra Sharma and Ashok Kumar Sharma were his sons from the first wife and further he has three daughters, namely, Sudha, Manju and Madhvi from the first wife, whereas from the second wife he has one son, i.e., Rohit Sharma alias Vikki (abuctee) and one daughter, namely, Monika were born and there was a family dispute between them regarding shares in the property of the informant, namely, Shiv Kumar. The children of the first wife of the informant conspired to kidnap the son of the second wife, namely, Rohit Sharma alias Vikki and they demanded Rs. 30 lacs from their father PW1- Shiv Kumar Sharma for release of the abductee-Rohit Sharma Sharma alias Vikki. It was further argued that as per the recovery memo of the abductee dated 27.4.2006, it is evident that the abductee was confined in the house of one appellants, namely, Rajesh Joshi and when the police had raided at the said house, the two sons of the informant-PW1 from the first wife, namely, Raj Kumar Sharma and Ravindra Sharma and one grand son, namely, Sonu Sharma alias Amit who was the son of third son of PW1, namely Ashok Kumar Sharma were arrested on the spot by the police along with the abductee and the accused appellants are said to have fled from the place of occurrence and the PW1 who was accompanying the police party identified the two appellants, namely, Mohan Shama and Sohan Sharma but he could not identified the third accused. It is was further pointed out that the charge sheet was submitted against the accused Raj Kumar Sharma, Ravindra Sharma and Sonu alias Amit for the offence under Section 364A, 394, 342 I.P.C. by the Investigating Officer on 15.5.2006 being Charge Sheet No. 65 of 2006.

22. It was further submitted that though the two sons, namely, Ravindra Sharma and Raj Kumar Sharma and one grand-son, namely, Sonu Sharma alias Amit of the informant PW1 were arrested on the spot with the abductee and he turned hostile before the trial Court and did not give any evidnce against them. Moreover, he stated that he along with his two sons, namely, Raj Kumar Sharma, Ravindra Sharma and grand-son, namely, Sonu Sharma alias Amit had accompanied the police party for recovery of the abductee and when the abductee was recovered, his three sons along with him and abductee detained to the police station and the PW1 along with his sons and abductee were asked to go from the police station to have bath etc. on the pretext that two sons and grand son statements is to be recorded by the police and thereafter they would be left but the Station Officer had demanded Rs. 1 lacs from him and the informant refused to pay the same, on account of which his two sons and grand-son were implicated in the present case and were sent to jail. Thereafter, the abductee was called again at the police station and PW1 reached along with the abductee at 10.30 P.M. and they were sent by the police constable for medical examination. He argued that PW1 in order to save his two sons and grand- son has changed the version, hence, prosecution declared him hostile with respect to accused, namely, Raj Kumar Sharma, Ravindra Sharma and Sonu Sharma alias Amit, on which prosecution sought for his cross-examination but he denied the allegation against the said accused persons and submitted that there were cordial relationship between all the persons of his family and all his sons were living happily and they had a common kitchen and there was no ill-will or bad blood between them, but he deposed against the two appellants who were also his nephew, namely, Mohan Sharma and Sohan Sarma who were his real nephews.

23. Similarly, PW2 the abductee Rohit Shama alias Vikki has also turned hostile with respect to the accused persons, namely, Raj Kumar Sharma and Ravindra Sharma and Sonu alias Amit and only supported the case against the accused appellants and stated that his father and three real brother had come along with the police party to rescue him from the accused appellants who had fled away from the place of occurrence.

24. Similarly, PW3 Leela Sharma mother of the abductee and wife of PW1 has also denied the allegation against the accused appellants, namely, Raj Kumar Sharma and Ravindra Sharma and Sonu alias Amit and supported the case against appellants Mohan Sharma and Sohan Shrma.

25. It has been further argued that the trial Court acquitted the accused appellant namely, Sonu Sharma alias Amit as PW1, PW2 & PW3 have turned hostile against him and supported the prosecution case against the accused appellants by misleading their evidence, hence, conviction of the appellants is against the evidence on record and their conviction be set aside and they be acquitted by the charges.

26. Learned counsel for the appellants has further urged that the appellants, namely, Mohan Sharma and Sohan Sharma are in jail in since 28.1.2010 and appellant, namely, Rajesh Joshi in jail since 22.2.2011 respectively. He further pointed that the case of the appellants, namely, Mohan Sharma and Sohan Sharma could not be argued before the trial Court because there was no lawyer on their behalf as they could not engage a counsel of their choice and further on the question of sentence an Amicus Curiae was appointed by the Court who pleaded their case on the question of sentence only. He further submitted that so far as accused Rajesh Joshi is concerned, he could not appear before the trial Court on the date of the judgment due to some miscommunication of date by his counsel for delivery of judgment but he has surrendered on 22.2.2011 and as on date he is in jail.

27. Learned AGA opposed the prayer for quashing of the impugned order and submitted that the abductee, namely, Rohit Sharma alias Vikki was recovered from the house of accused appellant, namely, Rajesh Joshi and PW1 informant of the case, PW2 abductee and PW3 have supported the prosecution case against the accused appellants but he could not dispute the fact that three accused persons, namely, Raj Kumar Sharma, Ravindra Sharma and Sonu Sharma alias Amit who were arrested on the spot and charge sheeted, out of whom two accused, namely, Ravindra Sharma and Raj Kumar Sharma died during trial and their appeal was abated vide Court's order dated 30.11.2009 and third accused, i.e., Sonu Sharma alias Amit has been acquitted by the trial Court who happens to be grand-son of the PW1 and PW3.

28. Having considered the submissions advanced by learned counsel for the parties and perused the record.

29. It appears from the record that the abductee, namely, Rohit Sharma alias Vikki who was son of PW1 had left his house alone on 16.4.2006 at 6 P.M. in the evening and on the pretext that he is going attend a birthday party of his friend but when he did not return, then a search was made by his father and mother, i.e., PW1 and PW3 and a missing report was lodged on 17.4.2006 at police station-Tal Kotara, District Lucknow, Ex.Ka.1 and on 27.4.2006 another report was lodged by PW1 at the concerned police station stating that he received an information on phone that his son has been abducted by some persons and he has been asked to arrange Rs. 30 lacs for rescue of his son, failing which his son would be killed. On the basis of the same, the said report was converted into an FIR for the offence under Section 364 I.P.C. which was registered as Case Crime No. 91 of 2006. On 27.4.2006, PW7 Sanjay Maurya the Station Officer of the concerned Police Station along with the police party started search of the abductee and on an information received through an informer that the abductee was confined in the house of accused appellant Rajesh Joshi, the police party along with PW1 reached at the house of Rajesh Joshi and on seeing the police party, the accused appellants, namely, Mohan Sharma, Sohan Sharma and Rajesh Joshi had fled away from the place of occurrence and while they were fleeing they were identified to be Mohan Sharma, Sohan Sharma and the third person could not be identified by the informant. The police party entered in the house of Rajesh Joshi and found that the accused Raj Kumr Sharma, Ravindra Sharma and Sonu Sharma alias Amit was present along with the abductee who was chained by them and the abductee was rescued. Thereafter a fard recovery memo Ex.Ka.-4 was prepared by the police which was read over to said accused who were arrested and their signatures were also taken on the said fard recovery memo along with the signature of PW6 Sajeevan Lal, HCP and other police constables who were the part of the raiding team. The accused who were arrested and sent to jail and after investigation the Investigating Officer-PW7 submitted charge sheet against accused persons who were arrested on the spot being Charge Sheet No.65 of 2006, Case Crime No.91 of 2006, under Section 364A, 394, 342 I.P.C and also a supplementary charge sheet being Charge Sheet No.65A of 2006, under Sections 364A, 394, 342 I.P.C. was also submitted against accused appellants, namely, Mohan Sharma, Sohan Sharma and Rajesh Joshi.

30. The two accused who were arrested on the spot, namely, Ravindra Sharma and Raj Kumar Sharma who happens to be real sons of PW1 have died during the course of the trial and the other accused, namely Sonu Sharma alias Amit who happens to be grand-son of PW1 was acquitted by the trial Court on 1.11.2010 in S.T.No.95 of 2006 as the PW1, PW2 and PW3 have turned hostile and did not support the prosecution case against him but they supported the prosecution case against the accused appellants.

31. PW2- Rohit Sharma alias Vikki (the abductee) has given evidence against the accused appellants, namely, Mohan Sharma, Sohan Sharma and Rajesh Joshi and further deposed that they had abducted him and confined him in a room in the house of Rajesh Joshi and he further stated that he was being assaulted by them and also chained them and was asked to attain the nature call in the room where a pit was dug. He was offered meal once in a day and further a demand of ransom of Rs.30 lacs was made by them in his presence from this father. But he has stated that co-accused, namely, Ravindra Sharma, Raj Kumar Sharma and Sonu Sharma alias Amit along with his father had come with the police party and rescued him, hence, he was declared hostile by the trial Court against accused, namely, Ravindra Sharma,Raj Kumar Sharma and Sonu Sharma alias Amit.

32. The evidence of PW1 against the accused who were arrested on the spot, namely Raj Kumar Sharma, Ravindra Sharma and Sonu Sharma who happens to be his sons and grand-son respectively from whose custody the abductee was rescued after eleven days, he changed his stand before the trial Court to save them and stated that the police has falsely implicated them in the present case only on account of the fact that the when the Station Officer of Police Station-Tal Katora, District Lucknow had demanded Rs.1 lac by him and when he refused to pay the same, then the police implicated the Raj Kumar Sharma, Ravindra Sharma and Sonu Sharma in the present case though they had also accompanied the police at the time of recovery of abductee. Thus, the evidence of PW1 does not appears to be a reliable one as it is evident from the fard recovery memo dated 27.4.2006 Ex. Ka.5 which was prepared by the police from which it is evident that the three accused namely, Raj Kumar Sharma, Ravindra Sharma and Sonu Sharma who were arrested on the spot with the abductee whereas the accused appellants are said to have fled away from the place of occurrence. From the accused persons who were arrested, a mobile phone was also recovered from their possession and they had further confessed before the police that they had abducted the abductee Rohit Sharma alias Vikki due to family dispute between them and further demanded Rs. 30 lacs from PW1 who was father of the two accused, namely, Raj Kumar Sharma and Ravindra Sharma and grand-father of Sonu Sharma alias Amit.

33. In this respect statement of PW5, Head Constable Sanjeevan Lal and PW7 Sanjay Maurya is also be noteworthy that they have supported the fard recovery memo and further stated that accused, namely, Raj Kumar Sharma, Ravindra Sharma and Sonu Sharma alias Amit were arrested on the spot and accused appellants had escaped, hence a charge sheet was submitted against the said accused persons, namely, Raj Kumar Sharma, Ravindra Sharma and Sonu Sharma being Charge Sheet No.65 of 2006 and a supplementary charge sheet being Charge Sheet No.65A of 2006, under Sections 364A, 394, 342 I.P.C. was also submitted against accused Mohan Sharma, Sohan Sharma and Rajesh Joshi.

34. The contention of learned counsel for the appellants that PW1 had two wives and two accused, namely, Raj Kumar Sharma and Ravindra Sharma were his son and accused Sonu Sharma alias Amit was his grand-son, who was son of Ashok Kumar Sharma who was the son of PW1 from the first wife and there was family dispute of property of PW1 between them, on account of which abductee, namely, Rohit Sharma alias Vikki was abducted and PW1 and PW2 have not supported the prosecution case against them in order to save them but deposed against the accused appellants who also happens to be real nephew of the informant, namely, Mohan Sharma and Sohan Sharma has substance. Hence, the evidence of PW1, PW2 and PW3 cannot be said to be wholly reliable. The trial Court has acquitted the accused, namely, Sonu Sharma alias Amit who was arrested on the spot with the abductee along with the two accused, namely, Ravindra Sharma and Raj Kumar Sharma who have died during the course of trial and their trial was ordered to be abated, whereas the convicted accused appellants, namely, Mohan Sharma and Sohan Sharma who were not arrested on the spot nor any recovery was made from the accused Sohan Sharma and Mohan Sharma. The conviction of the said accused appellants on the basis of the aforesaid witnesses who are not trustworthy is wholly unsafe, hence, the conviction and sentence of the said accused appellants by the trial Court is wholly unjustified.

35. So far as recovery of of the abductee from the house of appellant, namely, Rajesh Joshi is concerned, taking into account the fact that two sons and one grand-son of PW1-Shiv Kumar Sharma whose participation in the crime cannot be ruled out as per the evidence on record and as PW1 and PW2 have turned hostile for the accused arrested on the spot who wrongfully confined the abductee in his house and out of them two accused have died during trial and the third accused, namely, Sonu alias Amit has been acquitted by the trial Court, hence the conviction of the appellant, namely, Rajesh Joshi merely on the ground that the abductee was recovered from his house is also not proper as he was not arrested on the spot and fled from the place of occurrence with the other two accused appellants, namely, Mohan Sharma and Sohan Sharma. hence, his conviction and sentence by the trial Court is also not justified and proper.

36. The impugned judgment and order dated 21.12.2010 passed by the learned Additional Sessions Judge, Fast Track Court No.7, Lucknow convicting and the sentencing the appellants, namely, Mohan Sharma, Sohan Sharma and Rajesh Joshi is hereby set aside and they are acquitted of all the charges.

37. Accordingly, the appeals of appellants, namely, Mohan Sharma, Sohan Sharma and Rajesh Joshi stands allowed.

38. The appellants, namely, Mohan Sharma and Sohan Sharma are stated to be in jail since 28.1.2010 and the appellant, namely, Rajesh Joshi since 22.2.2011, they shall be released forthwith unless otherwise wanted in any other case.

39. Office is directed to send a certified copy of this order to the District Judge concerned for its compliance.

(Vinod Kumar Srivastava, III,J.)         (Ramesh Sinha, J.) 
 
Dated:12.9.2016
 
NS