Rama Kant vs State Of U.P.
2018 Latest Caselaw 660 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved                                                                   
 
                                                                                 AFR
 
Case :- JAIL APPEAL No. - 2711 of 2012
 

 
Appellant :- Rama Kant
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Arvind Kumar Mishra-I,J.

Hon'ble Jayant Banerji,J.

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

By way of instant jail appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 01.12.2011 passed by the Additional Sessions Judge/Special Judge (DDA) Etawah, in Special Session Trial No.115 of 2008 State of U.P. Vs. Rama Kant, arising out of Case Crime No.157 of 2001, under Section 364A IPC, Police Station- Ekdil, District- Etawah, whereby the appellant has been sentenced to life imprisonment coupled with fine Rs.10,000/-, in default of payment of fine, additional one year rigorous imprisonment.

Heard Sri Pradeep Kumar, learned amicus curiae for the appellant, Sri Chandra Jeet Yadav, learned AGA for the State and perused the record of this appeal.

Facts germane for adjudication of this appeal as discernible from record appear to be that the informant Sanjeev Kumar lodged the written report at Police Station Ekdil, District Etawah, on 24.06.2001 at 10:30 a.m. at Case Crime No.157 of 2001 under Section 364 IPC for abduction of his brother Arun Kumar @ Jeetu by the appellant Rama Kant with the allegation that the informant's brother Arun Kumar @ Jeetu son of Ram Sharan, resident of Village Maniyamau, Police Station Ekdil, District Etawah was taken away by the appellant Rama Kant, resident of Village Ajhara, on 12.06.2001 around 11:00 a.m. from his home for securing his recruitment in the Indian Army at Agra in the presence of Subhash Tiwari son of Kishan Singh and Brijesh Shukla son of Shyam Kishore of his village along with co-villagers. The maternal grand parents of the appellant Rama Kant and the informant belonged to the same village due to which the informant was acquainted with Rama Kant. The informant kept on waiting for Arun Kumar @ Jeetu (victim) till now but he was not traceable and an apprehension was expressed that the accused-appellant Rama Kant has caused disappearance of his brother (the victim) and has killed him. The written report is Ext. Ka-1.

Entry of contents of written report was noted in the concerned check F.I.R. at 10:30 a.m. on 24.06.2001 at Case Crime No.157 of 2001 u/s 364 I.P.C., Police Station- Ekdil, District- Etawah, which is Ex. Ka.3. On the basis of entries so made in the check F.I.R., a case was registered against the accused-appellant in the concerned G.D. at serial no.23 at 10.30 a.m. on 24.06.2001. Copy of G.D. is Ext. Ka.-4.

The investigation ensued and the same was initially taken over by S.I. Ganpat Singh. However, he was not produced before the trial court, whereas, subsequent Investigating Officer Ashok Rana PW-5 took over the investigation on 02.08.2001 and took note of the record of the previous investigation after visiting the office of the Circle Officer concerned and searched for the abductee Arun Kumar @ Jeetu. On 25.08.2001, he recorded statement of the scribe Shailendra Dubey. On 13.09.2001, he sought remand of the accused-appellant Rama Kant.

During course of the investigation, it so happened that the abductee Arun Kumar @ Jeetu somehow escaped from the captivity of the gang on 13.09.2001 and came to Police Station Ekdil, description whereof finds mention at Serial No.21 of general diary of the above date at 10:00 a.m.

The victim Arun Kumar @ Jeetu was medically examined by Dr. Ashok Kumar Paliwal, PW-4, the very same day i.e. 13.09.2001 at 1:50 at District Hospital Etawah, who noted the following injuries:

1. Multiple scars in area of 15 cm x 10 cm over top of right shoulder.

2. Multiple scars in area of 14 cm x 9 cm over back of right forearm.

3. Healing wound 1 x 0.5 cm x skin deep over medial side of right thumb.

4. A scar 1.5 cm x 1 cm over back of left arm, 7 cm above elbow.

5. A scar 3 x 1 cm over left side of back 5 cm below scapula.

6. Multiple scars in 15 x 5 cm over front of right leg and ankle.

7. Multiple scars in 29 x 7 cm area around left ankle.

8. A scar 2 x 1 cm over right side of face 3 cm below right eye.

In the opinion of the doctor, injuries were simple in nature and were more than two weeks old. Object by which these injuries could have been caused could not be ascertained. The injury report is Ext. Ka-5.

The Investigating Officer also recorded statement of the other witnesses including the victim Arun Kumar @ Jeetu and on the basis of the same converted the case one from Section 364 IPC to Section 364A IPC and the very same day on 13.09.2001, the investigation was completed and charge sheet was filed under Section 364A IPC, which is Ext. Ka-6 by the Investigating Officer.

Consequent upon this, proceeding of the case was committed to the court of Sessions from where it was transferred for conduction of trial and disposal of the case to the aforesaid trial court of Special Judge (DAA) / Additional Sessions Judge, Court No.4, Etawah who in turn heard both the sides on point of charge and was prima-facie satisfied with the case against the appellant, accordingly, framed charge under Section 364A IPC. Charge was read over and explained to the appellant who abjured the charge and opted for trial.

In turn the prosecution was required to adduce its testimony. The prosecution produced in all five prosecution witnesses. A brief reference of whom entails hereinbelow.

Sanjeev Kumar PW-1 is the informant, he has proved the written report Ext. Ka-1. Arun Kumar @ Jeetu PW-2 is the victim himself. Constable Kailash Babu PW-3 made relevant entry in the police record regarding the offence in question. Dr. Ashok Kumar Paliwal PW-4 has medically examined the victim on 13.09.2001 at District Hospital Etawah and has proved the injury report Ext. Ka-5. Ashok Rana PW-5 is the second / subsequent Investigating Officer, he has detailed various steps, he took in completing the investigation and has proved the charge sheet.

Except as above, no other testimony was adduced by the prosecution. Consequently, evidence for the prosecution was closed and the statement of the appellant was recorded under Section 313 Cr.P.C. wherein various grounds were suggested for false implication on account of village enmity and in reply to question no.9, he has specifically stated that he lent Rs.30,000/- to the informant which money on demand being raised was not returned, instead he was falsely implicated in this case.

No evidence, whatsoever, was led by the defence.

The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against the appellant under Section 364A IPC and sentenced the appellant to life imprisonment under Section 364A IPC coupled with fine Rs.10,000/- with stipulation to suffer additional one year rigorous imprisonment in case of default in payment of fine.

Consequently, this appeal.

Learned amicus curiae for the appellant has vehemently submitted that this case is full of loopholes and shortcomings and the evidence has been fabricated which particular aspect can be gathered after weighing the evidence and the circumstances of this case which invariably point out false implication of the appellant. The episode of abduction was well-planned out, was self-creation and imagination of the informant just to avoid payment of the borrowed money. The victim Arun Kumar @ Jeetu dramatically appeared at his home on 28.08.2001 but was not produced before the police or taken to the police station, whereas, the report had been lodged earlier on 24.06.2001. Certain particular aspects of this case are self-speaking about the reality.

First, the claim raised by the prosecution that the incident of taking away of the victim Arun Kumar @ Jeetu took place on 12.06.2001 around 11:00 a.m. is on the face an afterthought, for specific reason that the first information report was lodged after 12.06.2001, on 24.06.2001 at Police Station Ekdil, District Etawah. Secondly, after the victim had escaped from his captivity by the gang, he remained confined to his home for a number of days and went to the police station only on 13.09.2001 when his medical examination was done and the very same day, the investigation was hurriedly completed and charge sheet Ext. Ka-6 was filed by the Investigating Officer.

Learned counsel for the appellant has further added that all the prosecution witnesses of fact are interested witnesses. Their testimony does not inspire confidence and the same is not consistent. The falsity of the prosecution case is exposed by looking to and considering the particular factual aspect of the case that no site plan has been prepared by the Investigating Officer of the very place from where the victim was allegedly taken away by the appellant. This renders, the very genesis of origin of the act of taking away of the victim by the appellant, doubtful. Origin of this case is shrouded in mystery. There being two Investigating Officers, only the subsequent Investigating Officer (PW-5) was produced, whereas, the first information report was lodged on 24.06.2001 and the subsequent Investigating Officer took over the investigation on 02.08.2001 and there is complete vacuum about the fate of investigation as to what transpired from 24.06.2001 up to 02.08.2001 when PW-5 - the subsequent Investigating Officer took over the proceeding.

The aforesaid circumstances speak volume of deliberation and manufactured evidence, which renders the conviction recorded by the trial court against the appellant erroneous, perverse and illegal.

Per contra, it has been submitted in reply by the learned Additional Government Advocate that in this case, testimony on record is sufficient to establish charge and it is flawless and transparent and it inspires confidence. The trial court has acted on the wholesomeness of the testimony on record and has rightly recorded conviction against the appellant and has passed appropriate sentence.

Also considered the above rival submissions and took into consideration the rival claims. In view of above, the point for determination of this appeal specifically relates to fact whether the prosecution has been able to prove charge under Section 364A IPC beyond reasonable doubt against the accused and sentenced condignly ?

In this case, as per allegations made in the first information report, the informant Sanjeev Kumar PW-1 has detailed particular facts about his brother Arun Kumar @ Jeetu that he was taken away by the appellant on 12.06.2001 at 11:00 a.m. from his house on the pretext of getting him recruited in the Indian Army at Agra and at that point of time at 11:00 a.m., co-villagers namely Subhash Tiwari and Brijesh Shukla and others were also present on the spot. However, testimony of these prosecution witnesses has not been brought forth. But, that by itself does not make any difference.

However, it is admitted fact that as per testimony of the victim Arun Kumar @ Jeetu, PW-2, he was taken away by the appellant on 12.06.2001 from his house on the pretext of availing his employment in the Indian Army. Besides, he has detailed the manner of his taking away by the appellant up to the gang to whom he was handed over (by the appellant). It has been testified by him (PW-2) that after proceeding from his house on 12.06.2001 around 11:00 a.m. along with the accused-appellant, he boarded bus with the appellant for Agra but they alighted from bus at Udinagar crossing on the ground that two more boys of village Mihauli are to accompany them for the same job. Thereafter, they boarded another bus and alighted from bus in the vicinity of village Mihauli. One unknown person also alighted from the bus from its rear gate. The appellant Rama Kant accompanied him and proceeded towards the village and he was followed by the unknown person as well. On way, they came across a well where one room was existing. The appellant Rama Kant stopped him there. As soon as he reached near well, one man from roof of the room jumped down and came to the victim and in the meanwhile, the unknown person who was following him also arrived on the spot when the appellant Rama Kant snatched away the bag which the victim was possessing in his hand in which his educational certificates and documents were kept. The victim objected to it whereupon all the three persons dragged him away towards jungle and after covering some distance, they came across some gang of persons. One of them introduced himself to this witness (PW-2) by saying that he is known as Lovely Pandey and he pointed out towards another person and told that he is known as Rajjan Gujar. The appellant Rama Kant went up to Rajjan Gujar and told him that he incurred lot of expenses in bringing the victim up to this spot, whereupon Rajjan Gujar gave Rs.5000/- to Rama Kant who handed over the victim to the gang and moved away from there.

As per testimony of Arun Kumar @ Jeetu PW-2, he remained in the captivity of the gang for over two and half months and in the meanwhile gang members used to change their place of abode. In the meanwhile, the police encounter also took place. Lovely Pandey told him that Rs.5,00,000/- (Rupees five lakhs) will be taken for his release from his relatives. The victim was also assaulted/beaten by the gang members. On 27.08.2001, the gang members were heavily drunk and they had beaten the victim. Under influence of intoxicant, they fell asleep whereupon the victim got an opportunity and untied the chain and fled away from there and arrived at his house on 28.08.2001.

On 12.09.2001 when the victim was going to the Police Station, Daroga Ji met him on way, he asked the victim to come to the police station on 13.09.2001. Therefore, the victim went to the police station on 13.09.2001 and explained the entire incident to Daroga Ji. The victim was medically examined at District Hospital and thereafter, the victim left for his home.

It would be relevant to take note of testimony of Sanjeev Kumar (PW-1) which appears to be quite relevant, for the reason that from 28.08.2001 up to 12.09.2001, his brother Arun Kumar @ Jeetu was stated to be under great mental distress and mental agony, therefore, he did not visit police station. But it is surprising that he did not inform about return of his brother Arun Kumar @ Jeetu back to home from captivity of the gang though the case was under investigation and in the meanwhile even the police personnel/the Investigating Officer did not visit house of the informant and no attempt was made to secure whereabout of the victim in the meanwhile (by the police). Surprisingly, the police personnels also did not visit the spot from where the victim Arun Kumar @ Jeetu was intially abducted/taken away by the appellant on 12.06.2001 at 11:00 a.m. Certainly, things have been tried to be crated in a mess, for the reason best known to both the prosecution witnesses of fact including the victim and the police personnel who investigated into the case.

Laches committed by the Investigating Officer cannot be said to be full of shortcomings but act of the police appears to be one in collusion with and at the connivance of the informant which is perfidious, for the reason that the first Investigating Officer who started the investigation after the lodging of the first information report on 24.06.2001 at Police Station Ekdil, District Etawah, was not produced before the trial court and no worthy explanation was given by the prosecution for his non-examination before the trial court and no detail furnished as to what was done by the first Investigating Officer. As to under what circumstances, the subsequent Investigating Officer Ashok Rana - PW-5 - who took over investigation on 02.08.2001, has not been clarified by the prosecution. Some mystery has been created about the investigation details running from 24.06.2001 upto 01.08.2001. Even PW-5 (second Investigating Officer) has not clarified things at his level. All these aspects could have been ignored by this Court had there been consistency in the prosecution version without any significant gap of time in between the period firstly; when the victim was taken away from his home on 12.06.2001 at 11:00 a.m. secondly; when the victim returned his home on 28.08.2001 and thirdly; gap between 28.08.2001 up to 12.09.2001 when after arrival of the victim back to home the development was not brought to the notice of the police by the informant in the meanwhile and there is no reason as to how and why the victim met Daroga Ji on 12.09.2001 then Daroga Ji asked him to come to the police station the very next day on 13.09.2001 and the victim was not taken to the police station on 12.09.2001 itself.

Surprisingly, on 13.09.2001 medical examination of the victim was conducted by doctor witness PW-4, Dr. Ashok Kumar Paliwal at District Hospital Etawah and the very same day, the investigation was completed and the charge sheet was filed by the Investigating Officer. If the above facts and circumstances had been consistently ordained, stream of such irregular course of this case, without furnishing consistent explanation, would not have taken place. But one aspect of this case assumes even greater importance than others and becomes a circumstance established against the prosecution and working in favour of the appellant as to how and under what circumstance the very place from where the victim was allegedly taken away by the appellant on 12.06.2001 at 11:00 a.m. was not inspected by the Investigating Officer and no site plan of that place was prepared by him. The absence of the site plan of the place of occurrence puts the very genesis and origin of the act of taking away of the victim by the accused-appellant in darkness and creates doubt about the manner and claim of the prosecution that the victim was in fact taken away by the appellant from his house on 12.06.2001 at 11:00 a.m. in the presence of the co-villagers. The absence of the site plan regarding the very place of taking away of the victim Arun Kumar @ Jeetu by the appellant creates lot of doubt on the claim of the prosecution qua taking of the victim by the appellant and raises serious question on the authenticity of the claim of the informant. Origin of the episode has not been reasonably established by the prosecution.

In the backdrop of the above scrutiny, established facts and the circumstances of the case, obviously claim made by the appellant that he lent some money to the informant which on demand was refused, instead he was falsely implicated in this case appears to be reasonable explanation for his false implication. The aforesaid factual aspects vis-a-vis circumstances of this case were completely ignored and overlooked by the trial court and it erroneously took things for granted and it did not notice fact that such suspicious circumstances of the case, as the present one, did not find any corroboration from any independent source - say - testimony of another villager or any site plan of the place from where the victim was taken away by the appellant.

Analysis and comprehensive scrutiny of record takes us to conclude that lot of doubts are created regarding the authenticity of the claim of the prosecution because of inconsistent description of the prosecution witnesses of fact when applied to and compared with the prevailing facts and circumstances of the case. Consequently, the conviction recorded by the trial Judge is, on the face, erroneous and against material on record and the trial Judge misread into evidence vis-a-vis facts and circumstances of the case which renders the order of conviction and sentence wholly bogus and the trial court was not justified under facts and circumstances of the case in recording finding of conviction. We may sum up that the prosecution was not able to prove its case beyond reasonable doubt.

In this case, there is no worthy evidence which may connect the accused with the commission of the crime except testimony of the interested police personnels and the witnesses of fact but the trial court while taking stock of merit of the case overlooked vital factual aspects and erroneously recorded finding of conviction and awarded sentence against the appellant under Section 364A IPC which conviction and sentence is not sustainable in the eye of law.

Consequently, the judgment and order of conviction dated 01.12.2011 passed by the Additional Sessions Judge/Special Judge (DDA) Etawah, in Special Session Trial No.115 of 2008 State of U.P. Vs. Rama Kant, arising out of Case Crime No.157 of 2001, under Section 364A IPC, Police Station- Ekdil, District- Etawah, is set aside and the present appeal is allowed.

The appellant is acquitted of charge under Section 364A IPC.

In this case, the appellant is in jail. He shall be set at liberty forthwith, if he is not wanted in connection with any other case. However, the appellant shall ensure compliance of Section 437A Cr.P.C.

Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.

Order Date :- 18.05.2018

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