Ramu vs State Of U.P.
2018 Latest Caselaw 1845 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved.
 
Case :- CRIMINAL APPEAL No. - 4282 of 2010
 
Appellant :- Ramu
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Deepak Kumar Yadav
 
Counsel for Respondent :- Govt. Advocate
 
Connected With
 
Case :- JAIL APPEAL No. - 4638 of 2010
 
Appellant :- Shiv Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,A.K.Singh,Abhishek Mayank,Akhilesh Kumar Srivastava,Dileep Kumar,Jeet Bahadur Singh,Noor Mohammad,S.K.Upadhyay,Satish Trivedi,Satya Prakash Sharma
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Rajesh Dayal Khare,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(Delivered by Hon'ble Mrs. Vijay Lakshmi,J.)

1. As both these appeals are directed against the same impugned judgment and order dated 07.6.2010 passed by learned Additional District and Sessions Judge, Court No.11, Aligarh, both are being decided by this common judgment.

2. The appellants have been held guilty by the learned trial court under Section 364-A I.P.C., 307 I.P.C. and Section 25 of the Arms Act and have been sentenced as under:

3. For their conviction under Section 364-A I.P.C., both the appellants have been sentenced with Life Imprisonment and fine of Rs.5000/- imposed on each of them, in default of payment of fine, to undergo additional imprisonment for one month.

4. For their conviction under Section 307 I.P.C., both of them have been sentenced with 3 years rigorous imprisonment and fine of Rs.1000/- imposed on each of them, in default to undergo additional imprisonment for 15 days.

5. For their conviction under Section 25 of the Arms Act, both the appellants have been sentenced with one year rigorous imprisonment and fine of Rs.500/- imposed on each of them, in default to undergo additional imprisonment for 10 days.

6. Heard Shri Noor Mohammad, learned counsel for the appellants and Shri Krishna Pahal, learned Additional Advocate General assisted by Shri Chandrajeet Yadav, learned A.G.A. on behalf of the State.

7. Facts giving rise to these appeals are that on 04.1.2005, the nine year old son of complainant namely Ankit had gone to his school. When the school was over and the children, including Ankit, came out from the school, two unknown persons reached there by a motorcycle and asked that who among them is Ankit. When the children pointed out towards Ankit, they made him sit on their motorcycle stating that his maternal Uncle is calling him. Thereafter, they took him to some unknown place. The complainant, who is in defense service, was not present at his village at that time and was on duty at his place of posting. When the child did not return home till late evening, his mother Chandrawati (wife of the complainant) lodged a missing report at the police station (Exhibit Ka-15) on the same day i.e. 04.1.2005 and informed her husband/complainant.

8. On 05.1.2005, the complainant returned to his village and tried to search his son in his relations. He also took help of fortune tellers and exorcists, but in vain. After searching for 4-5 days, when the child was not found, he lodged a report at the police station on 09.1.2005, (Exhibit Ka-3) mentioning therein that his younger brother Shiv Kumar is a vagabond type of person. He had taken money from several persons giving them false assurance of securing some job for them, but neither he could secure any job to those persons, nor he returned their money, due to this reason, the persons from whom he had taken money apprehended him and his wife. In order to save the family prestige, the complainant gave some money to those persons and got the wife of his younger brother freed from them. However, the people continued to make pressure on Shiv Kumar who instead of returning their money asked the complainant to pay their money. When the complainant refused to give money to his younger brother, he threatened him "AAP SEEDHI UNGLI SE PAISE NAHIN DENGE TO UNGLI TEDI KARNI PADEGI". At that time the complainant did not pay any heed to his threat. Expressing his apprehension and suspicion against his younger brother Shiv Kumar and the persons who had given him money to have kidnapped his son. In the F.I.R., he stated the names of Yogendra @ Buddha and Vijay Pal Singh who had given Rs.92,000/- to Shiv Kumar for securing the job and has expressed that they might have been involved in the kidnapping of his son.

9. On the basis of the written report lodged by the complainant, a case under Section 364 I.P.C. was registered against Shiv Kumar, Yogendra @ Buddha, Vijay Pal Singh and some unknown persons on 9.1.2005, at 21.05 p.m. and the matter was investigated. The check report (Exhibit Ka-1) was prepared and relevant entries were made in the G.D. (Exhibit Ka-2). The investigation of the case was entrusted to Sub Inspector Mangey Singh, who interrogated the witnesses and prepared the site plan of the school from where Master Ankit had been kidnapped. During investigation, on 14.5.2005, an information was received by a police informer that Ankit Kumar has been kidnapped by his another real Uncle (Chacha) Ram Das. On the basis of such information, Ram Das was arrested who confessed his guilt before the police by stating that he had helped the Sukhbir Gang in kidnapping of Ankit Kumar for Rs.25,000/-. Ram Das also informed that the kidnappers have kept Ankit in the jungle of Dera Khurd under a Jamun tree near the bridge of Karban river. The police party took Ram Das with it and proceeded to the aforesaid place. When they reached near the bridge of Karban river, they saw fire litting behind the bush and some people were seen sitting around the fire. The police party challenged them asking them to surrender, on which one of the miscreants shouted with the words "POLICE AAA GAYI HAI SAALON KO GOLI MAARO" and started firing on the police party. The police party also fired on them. The child Ankit Kumar shouted "MUJHE BACHAO GOLI MAT MAARO". Hearing his shrieks, the complaint who was also accompanying the police party recognized his voice and said "YEH MERE LADKE ANKIT KI AAWAJ HAI". The miscreants ran away towards north direction firing in the air however, two miscreants were apprehended by the police on the spot and they were brought near the fire. The child Ankit Kumar, on seeing his father, ran towards him. During search, one of the miscreants told his name as Ramu (appellant in Criminal Appeal No.4282 of 2010) and the other told his name as Shiv Singh (appellant in Jail Appeal No.4638 of 2010). One country made pistol of 315 bore with an empty cartridge stuck in its barrel (Naal) and two live cartridges of 315 bore were recovered from the appellant Ramu and from the possession of Shiv Singh too, one country made pistol of 315 bore with an empty cartridge stuck in its barrel and two live cartridges of 315 bore were recovered. The fire arm and cartridges recovered from the appellants were kept separately in a sealed cover and recovery memo was prepared. The child Ankit Kumar was given in the custody of his father and "supurdginama" (Exhibit Ka-4) was prepared. Thereafter, the investigation was done by the S.H.O. Hari Ram Verma who, after conclusion of the investigation, filed charge-sheet Exhibit Ka-6 against Ramu, Shiv Singh, Ram Das, Salim, Javed and Ajab Singh under Sections 364-A I.P.C. After some time, the involvement of two more persons namely Ashok and Subhash came into light in the case and charge-sheet (Exhibit Ka-7) was filed against them also under Section 364-A I.P.C. The matter under Section 25 of the Arms Act was investigated by the Sub Inspector Har Dayal, who obtained sanction order and after completing the investigation filed separate charge-sheet (Exhibit Ka-9 and 10) against the present appellants.

10. The case being triable exclusively by the court of sessions, it was committed to the Sessions Court. However, the case of Ram Das was not committed along with the case of other accused persons and it was committed at a later stage. In the Sessions Court, five Sessions Trial i.e. S.T. No.182/2006, under Section 364-A of the I.P.C. against the accused Ramu, Shiv Singh, Salim, Javed, Ajab Singh, Ashok and Subhash, S.T. No.637/2008 against accused Ram Das, S.T. No.183/2006 against accused Ajab Singh, Ashok, Sukhbir, Subhash, Ramu, Shiv Singh, Salim and Javed under Sections 147, 148, 149 and 307 I.P.C., S.T. No.184/2006 under Sections 25 of the Arms Act against appellant Ramu and S.T. No.185/2006 against accused Shiv Singh under Section 25 of the Arms Act were registered.

11. As all the aforesaid Sessions Trial's were related to the same occurrence, all were tried together and were decided by the same impugned order dated 07.6.2010, whereby the learned trial court convicted only two accused i.e. the appellants as aforesaid and acquitted the rest of the accused.

12. The legality and correctness of the impugned judgment has been challenged by learned counsel for the appellants in this appeal mainly on the following grounds:

(i) None of the appellants is named in the F.I.R. The police has exonerated the named persons and has falsely implicated the appellants.

(ii) Nothing has been recovered from the possession of the appellants and the alleged country made pistol of 315 bore and the cartridges have been planted by the police in order to falsely implicate the appellants.

(iii) The learned trial court has not found the prosecution story worthy of credit in respect of other co-accused persons including even Ram Das at whose instance the police party has reached at the spot, therefore, the learned trial court has acquitted all the other accused persons including Ram Das, whereas it has wrongly convicted the appellants by the impugned judgement, which is liable to be set-aside.

(iv) There is absolutely no evidence on record as to when and where the appellants demanded ransom from the complainant, therefore, even assuming for the sake of arguments, the prosecution story to be true, the present case to a maximum, does not travel beyond Section 365 I.P.C.

(v) Both the appellants during their examination under Section 313 Cr.P.C. have stated that the police picked them up from their house and they were not arrested from the alleged spot i.e. the jungle. The appellant Shiv Singh also produced a defence witness (D.W.1), but the learned trial court, without any application of mind and without paying any attention to the evidence led by the defence, wrongly convicted the appellants.

(vi) No proper identification of the appellants either by conducting identification parade or during trial in the Court has been held in this case, which raises a serious doubt in the involvement of appellants in this case.

(vii) The time of incident was of dark night in the winters, the place was jungle, therefore, without any proper source of light, it was not possible for anyone to see and recognize the appellants who had even no prior acquaintance with the witnesses.

(viii) The place from where the child was recovered is an open place. The real miscreants fled away from the spot. As the police could not arrest them, it arrested the appellants from their house only in order to show its good work,.

(ix) The complainant in the F.I.R itself, has alleged the involvement of his real brother Shiv Kumar in the incident and his other younger brother Ram Das has confessed that he, for a consideration of Rs.25,000/- had given his nephew Master Ankit Kumar to the Sukhbir Gang. However, both of them being the real brothers of the complainant, were acquitted because the complainant and the child did not give any evidence against them, but the appellants, against whom there is no evidence that they ever demanded any ransom, were illegally sentenced with life imprisonment by the learned trial court under Section 364-A I.P.C.

13. Per contra, learned A.G.A. has vehemently contested the appeal by arguing that the learned trial court has rightly convicted the appellants under Section 364-A I.P.C. and the argument advanced by the learned counsel for the appellants that the case is not covered under Section 364-A I.P.C. is without any substance. The entire testimony on record and its cumulative effect overwhelmingly covers the case of the appellants under Section 364-A I.P.C. Learned A.G.A. has further contented that the recovery of child has been made by the police from a jungle. The appellants have been arrested from the spot. The fire arms and the cartridges have also been recovered from the appellants. The Investigating Officer and the complainant have proved the recovery during trial by their evidence. Even the child witness Ankit Kumar has stated about the involvement of appellants and has stated about firing between the police party and them. Therefore, the learned trial court was justified in recording their conviction under Sections 364-A, 307 I.P.C. and Section 25 of the Arms Act.

14. On the aforesaid grounds, learned A.G.A. has prayed that the appeal being meritless be dismissed.

15. We have given our thoughtful consideration to the the rival submissions advanced by the learned counsel for the parties and have carefully gone through the evidence available on the lower court's record.

16. The prosecution in order to prove its case, has produced five witnesses in all out of whom only two witnesses are material witnesses and three witnesses are police personnel. The two material witnesses produced by the prosecution in this case are the complainant (P.W.2) who is the father of the victim and the victim child himself, who has been examined as P.W.3. The remaining three witnesses are formal.

17. The accused in their statements recorded under Section 313 Cr.P.C. have alleged their false implication and have stated that the police had picked them from their house and no such incident of kidnapping for ransom ever took place.

18. In defence, the appellant Shiv Singh has produced Village Pradhan Babu Lal as D.W.1 who has stated that on 14.1.2005, the police arrested accused Shiv Singh from his house and took him to the police station. He has also stated that Shiv Singh has no criminal antecedent, at the time when the police team had reached at his village, he being the Gram Pradhan, had asked them as to where they were taking Shiv Singh? On which they replied that they were taking him to the police station only for the purpose of interrogation. Later on he came to know that Shiv Singh has been falsely implicated in a firing and a kidnapping case.

19. The learned trial court has not believed the testimony of defence witness on the ground that D.W.1 and accused Shiv Singh both belong to the same caste, therefore, DW-1 is a highly interested witness.

20. Learned counsel for the appellants has contended that D.W.1 is 'Khatik' by caste, whereas appellant Shiv Singh is 'Jatav' and 'Khatik' and 'Jatav' do not belong to the same caste. 'Khatik' is O.B.C. and 'Jatav' belongs to Scheduled Caste, but the court below has wrongly disbelieved the testimony of D.W.1, holding him an interested witness, whereas D.W.1 being Gram Pradhan of the village is an independent and reliable witness.

21. In order to properly appreciate the truthfulness of the prosecution case, a close scrutiny of the statements of the witnesses is necessary.

22. The complainant Satish Chandra who has been examined as P.W.2 has proved the written report corroborating the facts mentioned in it. He has stated that on 09.1.2005, someone called on his neighbour's phone and asked to give Rs. 5 lakhs stating that his son was with them. He has further stated that on 10/11.1.2005 again a phone call came and the caller asked him to come with Rs.5 lakhs to the water tank situate at "Jadtauli mod wali gali." The caller also instructed not to take anybody with him. P.W.2 has further stated that he went to the place near water tank, but no one was found at that place. Thereafter, on 14.1.2005, he received a phone call and the caller asked him to come to the "Deta Khurd Jungle" where he would find someone. The complainant gave the information to the police about this phone call. Thereafter, he along with the police and his relative Chandra Pal Singh, Rajpal Singh and brother Ram Das reached at the spot i.e. Jungle of Deta Khurd. They went on the bank of river Karban where they saw fire litting on a place and some persons were sitting around it. The police party challenged them and firing took place between them. Some miscreants ran away from the spot and two were arrested who told their names as Shiv Singh and Ramu. Complainant's son Master Ankit was also found there.

23. During his cross-examination, P.W.2 complainant has admitted the fact that he had no prior acquaintance with any of the appellants and he never went to jail to identify them. He has also admitted the fact that in the written report he had not mentioned anything about the demand of ransom by the miscreants. He has also admitted the fact that when he had come to his house on leave, his younger brother Shiv Kumar had threatened him with the words "PAISE DE DO NAHI TO TEDI UNGLI SE GHEEE NIKALNA PADEGA". He has admitted that on 14.1.2005, at about 11.P.M. the police had arrested his brother Ram Das. He has admitted the fact that when they were going to Karban River, Ram Das was also with them in another police jeep. He has further admitted that he has given the statement about the demand of Rs.5 lakhs as ransom money, through a phone call on his neighbour's phone, for the first time before the Court. In this respect the following statement of P.W.2 is worth mentioning:-

^^cjkenxh ds lEcU/k esa iqfyl usa esjk c;ku ugha fy;k Fkk eq>ls VsyhQksu ij fn0 [email protected]@05 dks iM+kslh ds ;gkW Qksu vkus dh rFkk 05 yk[k :i;s nsus dh ckcr eSaus dy fnukad [email protected]@07 dks igyh ckj vnkyr esa crk;k gSA ^^

24. P.W.2 has also admitted that after recovery of his son Master Ankit, he never went to Jail to identify the accused persons.

25. Learned counsel has drawn the attention of this Court to the following lines stated by P.W.2 to show that it suffers from material contradictions regarding the phone call for demand of ranson:

ÞfQjkSrh dh lwpuk Qksu ij nh Fkh fd vki Msjk [kqnZ ds taxy esa vdsys vkdj fQjkSrh nsdj vius yMds dks ys tk,A VsyhQksu eSus mBk;k FkkA VsyhQksu esjs ?kj ij ugha gS iMkslh ds lwpuk nsus ij eSaus tkdj Qksu ls ckrphr dh FkhA iMkslh dk VsyhQksu ua0 05724233627 gS eq>s /;ku ugha gS fd bl VsyhQksu ij VsyhQksu djus okys dk uEcj vk;k Fkk ;k ughaA eSaus VsyhQksu okyh ckr iqfyl dks tkdj crk;h FkhA eq>s /;ku ugha gS fd VsyhQksu dk pkVZ fudyok;k Fkk ;k ughA ;g VsyhQksu nksigj ds le; vk;k FkkAß

26. The aforesaid statement of P.W.2 appears self-contradictory because at one place he is saying that the phone call was received by him and at the other place he is saying that there was no telephone in his house and he had received the phone call at his neighbours house. P.W.2 has further stated that he does not remember whether he informed the police about the telephone call or not. He has failed to remember whether he had obtained the call details or not.

27. All these statements of P.W.2 raise a serious doubt in the story of demand of ransom.

28. P.W.4, Hari Ram Verma, Inspector Incharge, Kotwali has stated that on 11.1.2005 a call was made from phone numbers 233687 and 233673 of Village Pulseda by someone who threatened to kill Master Ankit (victim) and when the call details were obtained, the police came to know that these calls were made by Mobile Nos.9719063943. He also came to know that the phone call was made from Deeksha P.C.O. Pratibha Colony, Aligarh. On being enquired, the Proprietor of Deeksha P.C.O. informed that the aforesaid mobile number belongs to one Subhash which was in use by Subhash's friend Sukhbir at that time.

29. Subhash and Sukhbir both were charge-sheeted in this case and both have faced the trial, but due to lack of evidence, both of them have been acquitted in this case.

30. Apart from the aforesaid statements of informant (P.W.2) and of Hari Ram Verma, Inspector Incharge, Kotwali, (P.W.4), there is no evidence on record about the demand of ransom by the appellants.

31. On a close scrutiny of the evidence led by the prosecution, we are of the firm view that the prosecution has failed to prove the demand of ransom in this case beyond reasonable doubt. However, the kidnapping of the child has been successfully proved by it in view of the categorical statement of victim Ankit Kumar (P.W.3) who has stated as under:

Þ,d eksVj lkbfdy ij nks vkneh eq>s taxy esa ys x;sA dbZ vkneh ogha ij vkx ij rki jgs FksA vkSj 3&4 vkneh esjs dks idMs gq, cSBs FksA tc iqfyl dh vkokt vk;h rks og vkneh ogha cSBs jgs tc iqfyl ikl dks vk xbZ rc xqaMs eq>s ysdj Hkkxus yxsA tc iqfyl us nks xqaMksa dks idM fy;k rks xqaMksa us eq>s NksM fn;k vkSj ckdh vkneh Hkkx x;sA

iqfyl okys ds lkFk esjs ikik Fks] ekek panziky flag Fks vkSj ekSlkth FksA tks xqaMs iqfyl us idM fy;s Fks mUgksaus vius uke jkew o f'ko flag crk, FksA xqaMksa ls nksuksa vknfe;ksa ls ,d&,d dV~Vk feyk FkkA tc cnek'k eq>s xkao ls ysdj vk;s Fks vkSj iqfyl us tc idMk Fkk eq>s le; ugha ekyweAß

32. P.W.3 Ankit Kumar, even though a child witness, has been cross examined at length by several counsel appearing on behalf of all the accused persons (7 or 8 in number), but the child has been throughout cogent and consistent while giving answers to several questions put to him by learned defence counsel and has repeatedly stated about the involvement of the present appellants in the incident, therefore, the plea taken by the appellants that it was only due to coincidence that the appellants were present at the spot at that time and as they could not run away they were arrested by the police, appears to have no force.

33. The offence of kidnapping has been classified in I.P.C. in several categories, like kidnapping from lawful guardianship (Section 361), kidnapping from India, (Section 360), kidnapping a minor for the purpose of begging (Section 363-A), kidnapping in order to murder (Section 364), kidnapping for ransom (364-A), kidnapping with intent secretly and wrongfully to confine person (Section 365), kidnapping a women to compel her for marriage (Section 366), kidnapping in order to subject person to grievous hurt (Section 367), kidnapping a child under ten years with intent to steal from its person (Section 369).

34. In the present case, the report was registered under Section 364 I.P.C., but on the basis of the prima facie evidence, charge against the accused persons was framed under Section 364-A I.P.C. which provides for kidnapping for ransom.

35. For ready reference Section 364-A I.P.C. is reproduced below:

"[364A. Kidnapping for ransom, etc.--Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or [any foreign State or international inter-governmental organisation or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.]"

36. Thus, the conviction of a person under Section 364-A I.P.C. is primarily based on demand for ransom and there should be positive evidence regarding any such demand made by the accused persons. However, the facts and the evidence available on record in the case in hand clearly shows that the prosecution has not been able to prove beyond doubt that there was any demand for ransom in this case as is evident from the evidence discussed above. Rather, incriminating circumstances against the appellants in this case are confined to the recovery of the child from their possession only.

37. In view of the facts and circumstances of the case, we are of the considered opinion that the prosecution has not been successful in proving the charge under Section 364-A I.P.C. against the appellants. But the offence alleged and proved against the appellants squarely falls within the ambit and purview of Section 365 I.P.C.

38. Section 365 I.P.C. provides as under:

"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."

39. The learned trial court has without any cogent evidence regarding the demand of ransom, has punished the appellants under Section 364-A I.P.C. for life imprisonment which finding appears to be perverse to us and the impugned judgment requires interference with respect to the offence for which the appellants have been convicted and sentenced.

40. After giving our thoughtful consideration to the entire facts and circumstances of the case, we are of the firm opinion that the conviction of the appellants recorded by the learned trial court under Section 364-A I.P.C. should be altered and modified to one under Section 365 I.P.C. only. The sentenced so awarded by the learned trial court is liable to be modified accordingly.

41. As per the dictum contained under Section 365 I.P.C., the offence is punishable with imprisonment by either description for a term which may extend upto seven years coupled with fine.

42. As a result, the aforesaid appeals are partly allowed. The impugned judgment and order of conviction dated 07.6.2010 is altered and modified to the extent that the conviction of the appellants is altered/modified from Section 364-A I.P.C. to Section 365 I.P.C.

43. In this case, the appellant Shiv Singh is in jail since 14.1.2005 and thus he has already spent more than 13 and half years in jail. Appellant Ramu was also in jail since 14.1.2005 and he remained in jail during trial which is evident from a perusal of the impugned judgment. However, his bail application moved in appeal was rejected by this Court vide order dated 26.3.2012. However, it appears that he moved a second bail application which was allowed. In the meantime, the appellant Ramu had also undergone more than 7 years imprisonment.

44. The maximum punishment provided under Section 365 I.P.C. is 7 years imprisonment. Thus, both the appellants have already undergone the maximum punishment awarded under Section 365 I.P.C. As both the appellants have already undergone more than 7 years in jail, they need not suffer default imprisonment for fine as stipulated in the judgment impugned.

45. The appellant Ramu is on bail. His bail bonds are cancelled and sureties are discharged.

46. Appellant Shiv Singh is in jail. He be released forthwith if not wanted in any other case.

47. A certified copy of this judgment be sent to the learned trial court by FAX for necessary compliance forthwith. Lower court's record be sent back to the court concerned.

Order Date :-06-8-2018-SB