Ambarish vs State Of U.P.
2018 Latest Caselaw 558 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                                          AFR
 
Court No. - 4
 

 
Case :- CRIMINAL APPEAL No. - 2518 of 2013
 

 
Appellant :- Ambarish
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- C.P. Singh,Ashish Singh,Gaurav Kakkar,Raghvendra Prasad,Vikash Chandra Tiwari
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Rajiv Gupta,J.

Per: Hon'ble Rajiv Gupta, J.

1 The present criminal appeal has been filed challenging the validity and sustainability of the judgment and order dated 20.5.2018 passed by the Additional Sessions Judge, Court No. 15, Ghaziabad in S.T. No. 09 of 2011, State Vs. Ambrish arising out of case crime no. 132 of 2009, under section 364-A I.P.C, P.S. Kotwali, District Ghaziabad whereby the appellant has been convicted for the offence under section 364-A IPC and awarded the sentence of life imprisonment and fine of Rs. 5000/-. In default of payment of fine to undergo additional imprisonment of one year.

2. Heard Shri Gaurav Kakkar, learned counsel for the appellant and Shri J.K. Upadhyaya, lerned A.G.A and perused the record.

3. The prosecution story as unfolded in the F.I.R. is that the first informant, Sumit Jain is the permanent resident of 52-53/A, Radha Krishna Kunj, Ghaziabad and on the date of incident the appellant, Ambrish was carrying on the job of fittings of the electric work at his house. Appellant's shop is also situated in the residential colony itself and he very often used to carry out the electrical repairing work at his house. On the date of incident i.e. 7.2.2009, the appellant without informing the inmates left his house at about 4.30 p.m after completing his work and at that very time his niece Navya Jain aged about 2 and ½ years who was sleeping in the room was found missing. The family members and others residents of the colony started searching her. Meanwhile, three calls were received on his telephone number 2866490. On two occasions on addressing "Hello" the telephone was disconnected,. However on the the third occasion on addressing "Hello" a voice was heard stating that her younger daughter has been lifted and within two hours Rs. 7.00 lacs be paid else the child would be killed. It was further stated that at 8.00 p.m. the phone call would be again repeated. The voice of the caller of the phone was identified by his wife Niyati Jain, to be that of Ambrish. The informant alongwith his family members and other residents of the colony reached at the house of Ambrish and inquired about the whereabout of his daughter, however, he did not disclose anything. On search, the child was recovered from the room of his house. The first informant reached at the police station alongwith the child and the appellant Ambrish and gave a written report for lodging the F.I.R. On the basis of the aforesaid written report, the Check F.I.R. was registered vide case crime number 132/09, under section 364-A IPC at P.S. Kotwali, District Ghaziabad which is marked Ex. Ka 7. Corresponding G.D. entry for registration of F.I.R. was drawn at Sl. No. 49 at 17.45 hrs which has been marked as Ex. Ka 8. After registration of the F.I.R. the investigation of the said case was handed over to P.W.5, Akhilesh Kumar, Sub-Inspector and thereafter the victim was sent for medical examination. P.W.4, Dr. A.K. Singh examined the victim and has found no internal injury on her person but only smell of alcohol was coming from her mouth but the victim was not in a state of intoxication. The injury report was proved by P.W.4, Dr. A.K. Singh which is marked Ex. Ka 2 and thereafter the custody of the victim was handed over to the first informant. The investigating Officer after collecting the relevant material and recording the statements of the witnesses and preparing the site plan submitted the charge sheet against the appellant before the Chief Judicial Magistrate, Ghaziabad. The case being triable by court of Sessions the same was committed to the court of Sessions and registered vide S.T. No. 09 of 2011. The Sessions Judge made over the case for trial before the court of Additional Sessions Judge, Court No. 6, Ghaziabad. The trial court after hearing the prosecution as well as accused framed charge under section 364-A I.P.C. against the appellant, to which he did not plead guilty and claimed to be tried.

4. The prosecution in order to bring home the guilt against the appellant has produced P.W.1, Sumit Jain, first informant, P.W.2, Namit Jain and P.W.3, Niyati Jain who are witnesses of fact and P.W.4, Dr. A.K. Singh who has examined the victim and has proved the injury report Ex. Ka. 2 and P.W.5, A.K. Singh, the Investigating Officer of the case who has also proved Ex. Ka 3 to Ka 8.

5. After concluding the prosecution evidence, the statement of the accused was recorded under section 313 Cr.P.C. in which he stated that he has been falsely implicated. He has not kidnapped the victim Navya Jain nor made any demand for ransom nor administered any alcohol to her. He has produced the witness D.W.1 Harendra Kumar who had stated that the appellant Ambrish was assaulted by the public and he remained in the company of the appellant for whole day on the day of incident. The defence also produced D.W.2 Rajesh Kumar who had denied the recovery of the victim from the house of the appellant Ambrish on the date of incident i.e. 7.2.2009.

6. The trial court after hearing the parties on merit and scrutinizing the evidence and material on record has returned the finding of conviction against the appellant under section 364-A and sentenced the appellant to life imprisonment and a fine of Rs. 5000/-. In default of payment of fine to further undergo one year additional imprisonment. Hence, this appeal.

7. Learned counsel for the appellant has submitted that there is not an iota of evidence that may link the appellant with the crime. The statements of the witnesses are inconsistent so far as the recovery of the child which is said to have been made from the house of the appellant is concerned. Learned counsel for the appellant has further submitted that the testimonies of witnesses of fact on the face of it are contradictory and do not inspire confidence. He has further submitted that learned trial judge has not appreciated the evidence on record in right perspective and on erroneous consideration has recorded the finding of conviction and sentence which is not sustainable in the eyes of law and is liable to be set aside.

8. On the contrary, learned A.G.A. has submitted that the factum of kidnapping of minor child of 2 and ½ years has been clinchingly established by the testimony of the witnesses and no doubt can be raised regarding the veracity of their statements and the prosecution has unerringly proved the guilt against the accused-appellant and there is no material contradiction in the testimonies of the prosecution witnesses which may go to the root of the case. Learned trial court has appreciated the evidence in right perspective and has correctly recorded the finding of conviction against the appellant and passed appropriate sentence.

9. We have considered the rival submissions made by the learned counsel for the parties. The only point for determination in this appeal is to the effect that whether any offence under section 364-A I.P.C was committed by the accused-appellant in kidnapping the minor child aged about 2 and ½ years from her house and whether the prosecution has been able to establish its case beyond reasonable doubt charged under section 364-A I.P.C.

10. We have carefully gone through the evidence adduced by the prosecution in support of prosecution story, however, from careful perusal of the statements of the witnesses, we find that there are materiel contradictions in their statements which go to the root of the case particularly the manner in which the victim is said to have been recovered from the house of the appellant. Elaborating the said evidence the counsel for the appellant has invited the attention of the court to the testimony of P.W. 1 and P.W.2 and P.W.3 and has pointed out that there are serious contradictions in their statements on material particulars which go to the root of the case and as such the said witnesses cannot be said to be trustworthy and no credence can be attached to their testimony.

11. Learned counsel for the appellant castigating the testimony of PW-1 has stated that in the F.I.R. lodged at the instance of PW-1. has been categorically stated that after the recovery of the victim, he along with kidnapped girl and the appellant Ambrish reached at the Police Station and lodged the F.I.R. Contrary to this in his cross-examination-in-chief, he has categorically stated that on finding the victim from the house of the appellant, he had informed the police and the police had reached the place of incident within 10 minutes this circumstance itself creates serious doubt about the manner in which the F.I.R. has been lodged.

12. Learned counsel for the appellant has further submitted that there are serious contradictions in the statement of the witnesses regarding the factum of the phone call being attended by the first informant himself or his wife. PW-1 in his statement has categorically stated that the phone call by which the ransom was demanded was attended by him and his wife, in the course of speaking over the phone had identified the voice of the appellant to be that of Ambrish. However, contrary to this statement PW-3 in her cross-examination has stated that the phone call was received by her at 6:15 P.M. and on picking the phone twice the phone was disconnected, however, on third occasion a voice was heard stating that her daughter has been kidnapped and demanded to pay a ransom of Rs. 7.00 lakhs within 2 hours else the child would be killed and the phone was disconnected. PW-3 further stated that she had identified the voice to be of that Ambrish. She then gave a ring to her husband Sumit Jain and informed him that Navya is not at her house and information regarding her kidnapping has been received by a phone call. This particular circumstance further creates doubt about veracity of the testimony of the PW-1 and PW-3 regarding attending of the phone call and demand of ransom money.

13. Learned counsel for the appellant has further submitted that it is specific case of prosecution that the telephone call was received at telephone No. 2866490 but the telephone number by which the said call was made could not be traced out during the entire process of investigation which is a very important missing link in the chain of circumstances to be proved for establishing the guilt of the accused appellant and the accused appellant can not be justifiably and legally saddled with the liability of the offence of kidnapping the victim for ransom. We find force in the said argument of the learned counsel for the appellant and and we are of the view that in the absence of the prosecution to connect the alleged telephonic call by the appellant demanding ransom, the charge under section 364-A I.P.C. can not be said to be proved against him.

14. Learned counsel for the appellant has further submitted that even in narrating the manner in which the victim is said to have been recovered, there are serious contradictions in the statements of PW-1, PW-2 and PW-3. As per the statement of PW-1 when he along with other inmates of the house including PW-1 and PW-2 reached at the house of Appellant Ambrish, then the door of the said house was closed from inside and on making call Ambrish had responded from inside of his house and opened the door and when he went inside the house then he found his niece lying in the inner room of his house on a bed. In contrast to this statement P.W-2 Namit Jain in his statement has stated that on reaching the house of Ambrish, they had interrogated him about the whereabouts of Navya but he did not disclose anything and on making search the victim was recovered from the inner room of the house of Ambrish lying on the floor in an unconscious stage and smell of alcohol was coming of her mouth and thereafter the kidnapped girl along with appellant-Ambrish was brought at their house No. 52/53, Radha Krishna Kunj, Amrit Nagar from where the police was informed by Sumit Jain and the police reached at their house and took away the appellant Ambrish to the police station Kotwali and kidnapped girl was sent to government hospital for treatment.

15. Learned counsel for the appellant has further pointed out that in the statement of PW-1 there is absolutely no whisper of smell of alcohol coming out from the mouth of victim. However, in the statement of P.W-2 categorical statement of smell coming out from the mouth of victim has been stated.

16. Learned counsel for the appellant further drawn the attention of the Court to the statement of P.W-3 regarding the manner in which the victim has been recovered. As per the statement of P.W-3 Niyati Jain after getting a phone call regarding the kidnapping of the girl and demand of ransom informed her husband on phone who came at the house and she along with her husband, Dewar, P.W-2, Jeth, Ramit Jain and other residents of the colony had reached the house of appellant-Ambrish and found that the door of the room was closed from inside then her Dewar (brother-in-law) P.W.2 Namit Jain had gone in the house of Ambrish from the roof top of his neighbour and found the victim Navya lying inside the room and the appellant-Ambrish was not present in the room. Navya was thereafter brought at her house. Highlighting the said contradictions in the statements, learned counsel for the appellant had submitted that there are material contradictions in the statements of the witnesses regarding the manner in which the kidnapped girl has been recovered which creates serious doubt about the credibility of the witnesses and their testimony does not inspire confidence. We find force in the said argument of the learned counsel for the appellant and are of the view that in the backdrop of the material contradictions in the statements of witnesses on materials particulars the witnesses can not be said to be truthful witnesses and as such no credence to their testimony can be attached and the same is to be discarded.

17. Learned counsel for the appellant has further submitted that from the statement of the witnesses, it is evident that the father of the kidnapped girl Ramit Jain was also accompanying the witnesses at the time of the recovery of the kidnapped girl said to be made from the house of appellant Ambrish. However, it is surprising to note that neither father of the girl Namit Jain nor her mother has been produced by the prosecution and has been deliberately withheld by the prosecution which again creates serious doubt, about the veracity of the prosecution story and we are of the opinion that the prosecution is not coming up with clean hand and suppressing the genesis of the case.

18. Learned counsel for the appellant castigating the testimony of the witnesses has further stated that as per the statement of P.W-1 after receiving the phone call at about 5:30 - 6:00 P.M. they had reached the house of Ambrish and kidnapped Navya was with him. However, P.W-3 in her cross-examination-in-chief has stated that the first phone call was received at about 6:00-6:15 P.M. and thereafter they had gone to the house of the appellant-Ambrish. This circumstance again create serious doubt about the veracity of the prosecution witnesses regarding the time when the first phone call was received and the recovery of the victim from the house of the appellant which again shakes the credibility and truthfulness of the witnesses and renders the entire prosecution story doubtful.

19. In view of the foregoing discussions, we are of the opinion that the prosecution has miserably failed to prove its case against the appellant and as such the finding of conviction and sentence recorded against the appellant can not be sustained in the eyes of law and is liable to be set aside by allowing the appeal. The impugned judgment and order 20.05.2013 passed by the trial court is hereby setaside.

20. The appeal is allowed.

21. The appellant is acquitted of all charges. The appellant is in jail. He shall be released forthwith unless he is wanted in some other cases after fulfilling the requirement under section 437-A of the Cr.P.C.

Order Date :-16.5.2018

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