Shashi Pravesh Rai And Another vs State Of U.P.
2018 Latest Caselaw 3885 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgment reserved on: 31.10.2018 
 
Judgment delivered on:   22.11.2018 
 
Court No. - 1
 
Case :- CRIMINAL APPEAL No. - 2028 of 2015
 
Appellant :- Shashi Pravesh Rai And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ashwani Kumar Rai,D.R. Chaudhary,M.P. Yadav
 
Counsel for Respondent :- Govt.Advocate,J.P.N. Singh
 

 
connected with
 

 
Case :- CRIMINAL APPEAL No. - 2219 of 2015
 
Appellant :- Dileep
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajesh Sharma, Manoj Srivastava
 
Counsel for Respondent :- Govt.Advocate,J.P.N. Singh
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

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

1. Heard Sri Kamal Krishna, learned Senior Advocate assisted by Sri Shashi Bhushan and Sri M.P. Yadav, learned counsel for the appellants, Sri J.P.N. Singh, learned counsel for the complainant and Sri Jai Narain, learned A.G.A. for the State.

2. This Criminal Appeal has been preferred against the judgment and order dated 8.5.2015 passed by Additional Sessions Judge / Fast Track Court No. 1, Ballia in Sessions Trial No. 249 of 2000 (State vs. Shashi Pravesh Rai and others), whereby the accused-appellant- Shashi Pravesh Rai has been held guilty u/s 364 A I.P.C. arising out of Case Crime No. 33 of 2000, P.S. Nagra, District Ballia, and has been awarded life imprisonment and fine of Rs. 10,000/- and in default of payment of fine, one year rigorous imprisonment.

3. In brief, the prosecution's case is as follows. Himanshu Kumar aged about eight years, who is the son of Ramesh Bahadur Singh (first informant) had gone to St. Mary Model School on 03.04.2000 and did not return after the school closed. Thereafter the first informant went to his school, where he came to know that somebody had taken his son away at about 10:30 a.m. on the pretext that his mother was sick and thereafter despite hectic search, his son could not be found. The first informant gave a written report (Ext. Ka-1) on the same date at Police Station- Nagra, District- Ballia whereon Case Crime No. 33 of 2000, under Section 363 I.P.C. was registered against unknown persons on 03.04.2000 at 7:30 p.m. and its entry was also made in G.D. (Ext. Ka- 3 to Ext. Ka-5) at report no. 27 at 9:30 hours on 03.04.2000 at the concerned Police Station. The investigation of the case was assigned to Sub-Inspector, Sri Rameshwar Pandey (PW-5). During investigation, he inspected the place of occurrence and prepared the site plan (Exh. Ka-6) and recorded statement of first informant, Ramesh Bahadur Singh. Thereafter, he also recorded statements of school teacher, Sunita Singh (PW-3), Champa Devi (Manager of the school) and eye-witnesses, Mahesh Singh (PW-2) and Bawan Singh. Thereafter, it transpired that Himanshu Kumar, son of the first informant had been kidnapped by accused-appellants Shashi Pravesh Rai, Vipin Kumar and Dileep Kumar. Thereafter, he recorded statement of one Nilu Rai, who used to live in the house of first informant as a tenant and who was sister of accused-appellant, Shashi Pravesh Rai. During investigation, it also transpired that the accused-appellant, Shashi Pravesh Rai and other co-accused used to visit the house of first informant often and because of that they all knew the abductee, Himanshu Kumar. In the statement recorded of the first informant, he also informed the investigating agency that a demand of rupees three lacs as ransom was being made. After the arrest of accused-appellant, Shashi Pravesh Rai, his statement was recorded by Investigating Agency on 05.05.2000 in which he confessed to has committed the offence and on 07.05.2000, the accused-appellant, Vipin Kumar was arrested with a country made pistol and cartridges. The recovery memo (Ext. Ka-8) contained that one country made pistol of 0.315 bore and two live cartridges of 0.315 bore which were recovered from accused-appellant, Vipin Kumar, for retaining which he could not show the licence. When his statement was recorded by I.O., he admitted that he had kidnapped the son of first informant, Ramesh Bahadur Singh with the help of other co-accused, Dileep Kumar and Shashi Pravesh Rai. The Investigating Officer, Rameshwar Pandey (PW-5) could not recover the abductee- Himanshu Kumar, till he conducted the investigation and after him, the investigation was taken over by Sub-Inspector, Kasi Nath Singh, who arrested co-accused, Dileep Kumar and recorded his statement in which he revealed that when he was going from Kashi Railway Station to MugalsaRai Railway Station by a passenger train and as soon as the train reached a bridge, he had thrown the abductee - Himanshu Kumar out of the train into river Ganga and at that time there was no one else except the abductee and the accused persons. After concluding the evidence, he submitted charge-sheet (Ext. Ka-7) against all the above named accused-appellants under Section 364A I.P.C.

4. After committal of the case in the court of Sessions, the charge was framed against the accused-appellants u/s 364A I.P.C. on 16.10.2002 to which they pleaded not guilty and claimed to be tried.

5. From the side of prosecution, in support of its case, by way of oral evidence, injured/first informant- Ramesh Bahadur Singh was examined as PW-1, Mohit Singh was examined as PW-2, Sri Kashi Nath Singh was examined as PW-3, S.I. Ramesh was examined as PW-4, S.I. Rameshwar Pandey was examined as PW-5, S.I., Kan Bahadur, was examined as PW-6, Constable Lalan Prasad was examined as PW-7, Arms Clerk Rajendra Prasad was examined as PW-8. By way of documentary evidence, written report Exhibit Ka-1, Chick F.I.R. Exhibit Ka-2, G.D. Exhibit Ka-3 to Ka-5, Site Plan Exhibit Ka-6, Charge-sheet u/s 364 IPC Exhibit Ka-7 and recovery memo of one country made pistol and two cartridges Exhibit Ka-8, were presented.

6. Thereafter, the statement of the accused-appellants were recorded under Section 313 Cr.P.C. in which they claimed to have been falsely implicated in the present case and denied the truthfulness of the oral as well documentary evidence and also stated that police had falsely implicated that because they could not give them money. It was also stated that they would give evidence in defence. Appellant, Vipin Kumar denied any recovery of country made pistol and cartridges to have been made from him specifically. The appellant, Dileep Kumar stated that there was a civil suit contested by him against Ram Awadh Pandey in which he won the case in 1999 and one Sahjadanand was a friend of Ram Awadh Pandey and Sahjadanand is related to first informant because of which, he has been falsely implicated in the present case by the first informant. One copy of judgment dated 15.4.2014 of High Court was also filed in defence.

7. First of all, we would like to deal with the evidence which has come on record against the accused-appellant and its appreciation by the trial court and to see whether the same has been provided in appropriate manner to arrive on above conclusion of conviction correctly before taking up the points raised by the learned counsel for the appellant before us because during arguments, learned counsel for the appellant had taken us word by word through the testimony of PW-1, Ram Bahadur Singh (first informant), PW-2, Mahesh Singh, independent witness and PW-3, Suneeta Singh, (who was teacher in that school, in which the abductee used to study) along with statements of Investigating Officer, Rameshwar Pandey (PW-5), and argued that their statements would indicate that the circumstantial evidence against the accused-appellant was not forming a complete chain so as to draw the conclusive conclusion that it could only be accused-appellant, who alone could be responsible for the commission of this offence and that the evidence of last seen only was not sufficient to hold them guilty as has been done by the trial court. It was further argued that there was a lot of discrepancy in the testimonies of all the above witnesses which makes their statements to be doubtful in respect of guilt of the accused-appellants.

8. PW-1, Ramesh Bahadur Singh (first informant), has stated that on 3.4.2000, his son Himanshu (abductee), aged about 8 years, was studying in St. Mary Model School of his village where he had gone in the morning at 6:00 a.m. and when he did not return after the school was closed, they searched for him and when he went to school it was apprised that his son had told his teacher that his mother was sick and that the accused-appellant Dileep Kumar Pandey had gone to the school at about 10:30 a.m. and had brought his son on the pretext that his mother was ailing. He further stated that sister of accused-appellant Shashi Pravesh Rai, i.e. Neelam Rai, was staying in the house of PW-1, as she was taking B.P.Ed. training and because of this reason, the accused-appellants Shashi Pravesh Rai, Vipin Bihari and Dileep sometimes used to visit her. When his son could not be found, he gave a written application (Ext. Ka-1) in his hand writing at P.S. Nagra. The police had taken his statement in school and also that of other teachers. During this period, Phone calls were being made to one Chaubey Ji of the village, whereby demand of money as ransom was being made. These phone calls were being made by the accused Vipin Bihari. During investigation by police, Dileep and Vipin Bihari were arrested. The accused were seen taking away his son from school by Babban Singh and Mahesh Singh, who were residents of the same village, on the Dhekvari turn of the road which leads to Nagra from school. He also identified appellants Shashi Pravesh Rai and Vipin Bihari in court and further stated that he did not pay any ransom amount to the accused-appellants because of which they have done his son to death and have thrown his body somewhere.

9. PW-2, Mahesh Singh, an independent eye witness of last seen has stated that on 3.4.2000 at about 11:00 a.m., he was coming from Nagra towards village along with Babban Singh of the village and when they reached near Dhekvari turn, he saw Shashi Pravesh Rai driving a motor-cycle on which Vipin Bihari and Dileep were also sitting and behind Shashi Pravesh Rai, Himanshu (abductee), son of the first informant aged about eight years was also sitting. The said motor-cycle was Hero-Honda Company which was going from Narhi towards Nagra. Further it is stated that the sister of the Shashi Pravesh Rai was receiving teachers training in Narheji Mahavidyalaya and was living as a tenant in the house of first informant- Ramesh Bahadur Singh, because of which all the three accused used to visit that place and because they were regularly visiting the place of first informant, he thought that they might be going towards Nagra and would return. From there he returned to his tube-well and went for threshing instead of going home and when he reached home around 9:00 p.m.-10:00 p.m., he came to know that Himanshu had been abducted. When he reached home of informant, he saw that Babban Singh (the other eye-witness, who has not been examined) was also present there, both of them told that they had seen the accused around 11:00 a.m. taking away the son of the informant. Thereafter in the night he went to sleep and when in the morning he was carrying straw, the Investigating Officer met him and all this was disclosed to him also. He also stated that accused-appellant Dileep was present in court while rest of the accused-appellants were not present.

10. PW-3 Suneeta Singh, (who was a teacher in the school at the relevant time, where the abductee used to study), has stated that in April, 2000, she was a teacher in St. Mary Model School, Narhi. On 3rd April 2000, at about 10:00 a.m., it was 7th period in which she was teaching children and in Verandah, one Champa Devi, a resident of Imazipur, was teaching children of the class in which Himanshu was studying. On Champa Devi's call, she came out of her class whereon Champa Devi told her that someone was calling Himanshu for being taken away. At this she asked the said person as to which he wanted to take away Himanshu as there were two Himanshu studying. After seeing the accused-appellant- Dileep, who was present in court, she said that he was the person, who had come to take away Himanshu. The said person had stated that he also belonged to the same village and had come to take away with him Himanshu, son of first informant Ramesh Bahadur Singh and he had also stated that mother of Himanshu was indisposed and was sitting on a Chatti and was to go for treatment to Nagra and this boy had also to accompany her. At this she called Himanshu and had shown him to accused- Dileep and asked him as to whether he recognized him, at which Himanshu stated that he knew him as he used to visit his house several times. Since the seventh period was going on, therefore, she told him that he should also take his bag along and thereafter Himanshu and the accused-person present in court (Dileep) went outside the gate of school. She further stated that the Investigating Officer had taken her statement about one and a quarter month after this occurrence. She had seen the accused- Dileep going and then she had told about this to police which was present at Chatti that he was the same person who had taken away the child and thereafter the police had arrested him.

11. Next important witness is PW-5, Rameshwar Pandey, who is Investigating Officer of this case, who has stated that on written report of first informant, Ramesh Bahadur Singh, Crime No. 33 of 2000 was registered at P.S. Nagra and its investigation was handed over to him whereafter on 3.4.2000, he received copy of Chick F.I.R., G.D. of institution of the case and the same day he had taken the statement of informant Ramesh Bahadur Singh and had taken him to place of occurrence which was inspected by him and prepared site plan (Ext. Ka-6). The same very day he recorded statement of Suneeta Singh, PW-3, teacher of the said school, the other teacher of the school- Champa Devi and the Manager of the said school. Thereafter on 4.4.2000 statement of eye-witnesses Mahesh Singh and Babban Singh were recorded. Thereafter on 5.4.2000, 7.4.2000, 10.4.2000, 15.4.2000, he tried to find out accused persons. On 19.4.2000, he recorded statement of sister of the accused Shashi Pravesh Rai namely Neelu Rai who used to reside in the house of informant. On 2.5.2000 statement of first informant was recorded again and on the basis of that the case was converted into Section 364-A, IPC and on 5.5.2000 he had recorded statement of accused Shashi Pravesh Rai inside District Jail in which he confessed to have committed offence and that he had demanded money as ransom. On 7.5.2000, Vipin Bihari was arrested with illegal country made pistols of 315 bore and two live cartridges at culvert situated in Malipur Chatti and took down his statement, thereafter, due to his transfer, the investigation was handed over to S.I. Kashinath Singh and after him, investigation was handed over to S.I. Ghanshyam Pandey, (does not appear to have been examined), who submitted charge sheet (Ext. Ka-7), u/s 364-A IPC against the appellants.

12. The other witnesses, which deal with the case u/s 25 Arms Act are not being discussed here.

13. On the basis of above oral evidence, the learned trial court has held the accused-appellants guilty after scrutinizing the evidence thoroughly stating that the incident of abduction happened on 3.4.2000 at about 10:30 a.m. regarding which report was made on the same day at 19:30 hours, which shows delay of 9 hours in lodging the F.I.R. but the same was natural as parents would first try to search his children and when he could not be found only then the said information was given to police hence, no suspicion has been expressed by the trial court in respect of the F.I.R. being true. Further he has recorded that the incident of abduction normally happens for some aim/motive which has not been disclosed in the written report but why the son of the informant had been abducted came into light only after investigation when it came into light that abduction was done with a view to demanding money as ransom and, thereafter, the case was converted into u/s 364-A IPC. Further it is recorded that the abduction was made from the St. Mary Model School, Narhi which was inspected by the I.O., thereafter site plan (Ext. Ka-6) has been prepared in which it is specified that metal road goes from Nagra to Sikandarpur from west to east direction and to the south of it is situated St. Mary Model School, Narhi and by letter ''A' the main gate has been shown; by letter ''B' is shown the place where abductee was sitting in class and from where he was called ; by letter ''C' is shown the place where class teacher Champa Devi was teaching and by letter ''D' is shown where teacher Suneeta Singh (PW-3) was teaching. No discrepancy has been pointed out by defense in regard to correctness of this site plan and the same has been found proved. Further it is recorded that the informant had lodged a report against the unknown persons and during investigation, it came to light that there were two eye-witnesses of the abduction namely Mahesh Singh (PW-2) and Babban Singh from whose statement it transpired that a conspiracy was hatched by Shashi Pravesh Rai, Vipin Bihari and Dileep, who abducted Himanshu, in pursuance of which, at the time when school was open, they reached St. Mary Model School, Narhi on Motor-cycle and accused-Dileep went inside the school and got Himanshu called through Suneeta Singh (PW-3) and class teacher Champa Devi and after concocting false story about illness of mother of Himanshu, all the three had taken him away. The trial court has put a question to itself as to how this conspiracy was hatched and in this regard it is further written that in statement of PW-1, it was disclosed in cross-examination that sister of accused Shashi Pravesh Rai called Neelu was living in his house on rent, who was doing B.P.Ed. training. The said sister had started living there on rent only 3-4 months prior to the occurrence and Shashi Pravesh Rai and Vipin Bihari often used to visit Neelu, and it was then that he used to get sometimes opportunity to talk to them but he did not verify much about their conduct. Further it is recorded that the other eye-witness Mahesh Singh (PW-2) had seen Himanshu being taken away by the accused-appellants stating that he had started on the said date in the morning around 6:00 a.m.-7:00 a.m. for purchase of diesel and was going to Nagra. After having purchased 10 liters of diesel, he met other witness (Babban) near cemented well which was located towards East of Nagra at about 8:30 a.m.; thereafter from Nagra at about 10:30 a.m. he started for his house and there he remained for two and half hours for taking care of other works. Babban Singh, who was also coming from Nagra had also purchased 5 to 6 liters diesel in gerrycan. The distance of Nagra where the diesel was purchased from the village was about 4 and ½ km.. The trial court has found the statement of PW-2 very natural and has found that his presence at the said place was very natural and his status would not fall in category of being chance witness. Further it was mentioned that this witness further stated that about 11:45 a.m. he had gone to his tube-well for threshing and thereafter he returned home around 9:00 p.m. and at that time it had become quite dark. When he reached home he came to know that son of Ramesh Bahadur Singh had been abducted from school and thereafter when he reached house of Ramesh Bahadur Singh at about 9:30 p.m., he met Babban Singh. There were other persons also sitting there and then he told Ramesh Bahadur Singh that he had seen his son being taken away by the accused Shashi Pravesh Rai and others on motor-bicycle and Babban Singh also told him the same. It is also mentioned in the judgment that this fact had become clear from the statement of PW-2 that till the informant had gone to lodge a report to P.S. Nagra, he had no knowledge about the names of the accused-persons, hence in written report names of the accused-appellants were not mentioned. He could know about the names of accused-appellants only after 9:00 p.m.-9:30 p.m. through Mahesh Singh (PW-2). As regards the statement of PW-2 -Mahesh Singh given to I.O. concerned, it was recorded the next day on 4.4.2000 when he was carrying straw. Therefore, there does not appear to be any discrepancy in respect of the names of the accused not being written in the written report/F.I.R. which was written at the police at 7:30 p.m. as the names of the accused for the first time were broken by Mahesh Singh (PW-2) between 9:00 p.m. to 9:30 p.m.. The learned trial court has also recorded that question arises as to how PW-2 knew accused Shashi Pravesh Rai and Vipin Bihari, who belonged to Mau. In this regard it is mentioned that the said witness had stated that he knew accused since January-February, 2000 when the accused had disclosed their names to him on their own and they used to come often to the house of informant. His statement has been found to be trustworthy by the trial court wholely.

14. Further it is recorded by the learned trial court that PW-3 Suneeta Singh after having seen Dileep Kumar in court, had identified him to be the same person, who had come to take away Himanshu. When on the date of occurrence, she reached home from school, half an hour after that it came to his knowledge that Himanshu had not reached home which was apprised to her by Buchhan, sister of the abductee, whereon she immediately went to house of Himanshu where she met his father and mother and at that time, neighbours of informant i.e. Mahesh Singh (PW-2) and Babban had also reached there, who were outside the house. It is further recorded that the meaning of the statement that PW-2 Mahesh Singh and Babban that they were also there outside the house, was that when PW-3 Suneeta Singh had gone to the house of Himanshu, she remained there till late night, when Mahesh Singh (PW-2) and Babban Singh also reached there. Further it is recorded that in cross-examination, PW-3 clearly stated that she had told I.O. that she had asked Himanshu whether he recognized the person who had come to take him away at which he had stated in the affirmative as the said person had visited his house on several occasion and after the arrest of the said person only, could she know his name to be Dileep. This witness has given eye-witness version that the Dileep had taken away Himanshu from school. Further it is recorded that PW-1, informant, in cross-examination has stated that prior to lodging report, he did not know name of Dileep Kumar and he could only subsequently know in the night about his name but he could not tell exact time. Before his knowing the name of Dileep, the police had taken his statement in school. He was broken the name of Dileep by PW-2 Mahesh Singh and Babban Singh after coming to his house. On the date of occurrence, in his statement to I.O., he had not disclosed name of Dileep as an accused. Before the trial court, it was also taken as a defense that the accused were not got identified by the witnesses. In this regard, the trial court has held that there was no need for such identification because as per the statement of PW-2 and Babban Singh, they knew them well from before. With respect to motive of abduction, the learned trial court has held that in course of investigation, in the statement of PW-1, it has come that he had told Investigating Officer that the accused were making demand of money as ransom and phone-call was being received in Shatrughan Chaubey's house where he used to be called and after reaching there also phone-call used to be received and when talk used to be held on phone, chaubey used to remain present also there sometimes and the phone-call had been received about 4 to 5 times and demand of money as ransom had started being made about 4-5 days after the abduction but he could not tell as to how long said demand was continued to be made. When about 2 to 3 times, phone-call had been received for demand of ransom, then he disclosed about it to investigating officer but he could not make out from the voice as to who was the person calling him and an amount of Rs. 3,00,000/- was being demanded and further it was being threatened that if the said amount was not paid, his son would be killed. It is further recorded that in parcha no. 2 of the case diary dated 2.5.2000, in the statement of informant that a demand of Rs. 3,00,000/- as ransom was made on the basis of which the case was converted into u/s 364-A IPC. The occurrence is of the year 2000 and at that time when there was not much use of mobile phone being made and only P.N.T. phones used to be there in some houses of the villagers. Although it was bounden duty of the Investigating Officer to obtain a call details of the phone calls which were being received in regard to demand of ransom to know as to who was calling but that appears to be a huge lacunae left on the part of the investigating officer but it is held that till now abductee could not be recovered and the circumstances would reflect that he might not be alive and during investigation, the accused Dileep is alleged to have stated that he had thrown Himanshu into river Ganga from train along with his bag. No enmity has come into light between the accused persons and abductee and his father and the trial court has held that from humanitarian angle it would not be inappropriate to record that a child of eight years who had gone to school for studying, was abducted for ransom and it appears that for non-fulfillment of the same, his life was cut shot and who could not be recovered till yet which reflects that he may not be in this world, hence u/s 108 of the Indian Evidence Act, his judicial death may be presumed.

15. Rest part of the judgment pertains to analysis of case of 25 Arms Act, hence the same is not being considered here.

16. Lastly the learned trial court has concluded that from the evidence on record, it was convinced that on 3.4.2000 Himanshu was abducted from St. Mary Model School, Narhi by the appellants and was taken to Varanasi from where his father was telephoned for a demand of Rs. 3,00,000/- as ransom failing which a threat was given that his son would be killed and the said demand could not be fulfilled and the abductee was thrown from the train into river, hence his body could not be recovered, hence the learned trial court has found that the on the basis of circumstantial evidence, all the links have been proved forming a chain from which the only conclusion which could be drawn is that the accused and the accused-persons only would be the person, who had abducted him for ransom and had threatened the first informant to kill his child if the ransom amount was not paid and accordingly held them guilty and awarded them the aforementioned punishment.

17. Learned counsel for the appellants has mainly argued that from the evidence cited above, that PW-1 had come to know about the names of accused Dileep from Suneeta (PW-3), who after having been told by sister of the abductee namely Buchhan, that Himanshu had not reached home from school, whereafter PW-3 had gone to the house of informant, where informant and his wife were present, then certainly PW-3 ought to have disclosed the name of Dileep to have taken away Himanshu from school on the pretext that his mother was ailing and was to be taken for treatment. It is also pointed out that PW-3 has clearly stated that when she had reached the house of first informant, the PW-2 and other eye-witness Babban of last seen were already there, therefore, they certainly must have told the names of the accused-appellants carrying away the abductee on a motor-bicycle and yet the first informant did not mention names of the appellants in the F.I.R., which creates doubt in respect of credibility of these statements and the statements of the first informant. No reason has been given by the prosecution as to why the names of the appellants were not mentioned in the afternoon when the school was closed and the abductee did not return home and when PW-3 & PW-2 along with another eye-witness had reached home of the first informant, would they not have disclosed names of the accused-appellants having taken away Himanshu. It is further argued that it is only on basis of sheer suspicion that the accused-appellants have been made accused in this case. No concrete evidence has been collected by the prosecution nor any other link evidence has been gathered which could clinchingly prove the charge framed against the accused-appellants. It is further argued that the deposition of PW-2 Mahesh Singh has been assailed on the ground that his testimony is very unnatural because he has stated to have gone for purchase of diesel in the morning and after having purchased the same, PW-2 stated that he was sitting on Dhekwari turn near a well for two and half hours, which is unnatural. Further it is unnatural that he would wait there for two and half hours and, thereafter, would go for threshing and would return home only in the night. It appears that all-this has been deliberately stated to make their presence believable on the said place where he stated to have seen the appellants taking away the abductee.

18. Further reliance has been placed by the learned counsel for the appellants in Nizam Vs. State of Rajasthan, 2016(1) SCC (Crl.), Page 386, Vijay Shankar Vs. State of Haryana, 2015(12) SCC Page 644, Sahadevan & Others Vs. State of Tamil Nadu, 2012(6) SCC Page 403 and Ganpat Singh Vs. State of M.P., 2018(2) SCC (Crl.) page 159 and it is argued that evidence of last seen in the present case is not believable because no other corroborative piece of evidence could be gathered by the prosecution to prove the guilt.

19. On the other hand, learned A.G.A. as well as learned counsel for the complainant have vehemently argued that this case rests wholely on the circumstantial evidence and the prosecution has been able to prove its case to the hilt on the strong testimony of PW-3 who is teacher of the school where abductee was studying, who had identified one of the accused, Dileep to have taken away the abductee on the pretext that he had to accompany her mother who was to go for medical treatment and that he was in conspiracy with other two co-accused and all these three were seen by PW-2 along with one other eye-witness who has not been examined, taking away the abductee on a motor-bicycle whereafter he never returned till date which clinchingly proves that it were accused and accused persons only who could have abducted Himanshu for ransom of Rs. 3,00,000/- for non fulfillment of which they might have done him to death.

20. We have gone through the entire evidence and have heard the arguments of both the sides.

21. First of all we have to take into consideration as to what are the ingredients which are required to be proved u/s 364-A IPC. The following ingredients are required to be satisfied for this namely i.e. (i)- That the accused kidnapped or abducted a person; or (ii)- That the accused kept such person under his detention; (iii)- that the accused threatened to cause death or hurt to such person or caused death or hurt to him; (iv)- That the accused did commit so to compel,

(a)- the Government; or

(b)- any foreign State; or

(c)- Inter Governmental Organization; or

(d)- any other person;

(e)- That the accused compel to do or abstain from doing any act or to pay a ransom.

22. We would like to take up first of all the first argument of learned counsel for the appellants that there were discrepancies with respect to the names of the accused-appellants to have come to the knowledge of the first informant as it is pointed out that why PW-1 did not mention the names of the accused-appellants in F.I.R. which was lodged at 7:30 p.m. by him when immediately after closure of the school, PW-3 had reached the house of the first informant before whom one of the accused- Dileep had taken away the son of the first informant. In this regard, we are of the view that there is no discrepancy found in the statement of these witnesses because PW-1 has clearly stated in examination-in-chief that PW-3 and Champa Devi had not told him the name of the person who had taken away Himanshu before he lodged the F.I.R. The name of the accused-appellants was disclosed to him by Mahesh (PW-2) and Babban Singh whose houses are located in close vicinity to his own house after reaching their home late in the night after 9:00 p.m. -9:30 p.m..

23. PW-3 in this regard has clearly stated that she did not know the name of accused-Dileep, who had come to take away Himanshu from school and she could know his name only later on after arrest of the accused because she had identified him going on foot when police had arrested him one and quarter months after abduction. On the date when he had come to school she had simply asked Himanshu as to whether he recognize him and when he stated that he did recognize him thereafter she had allowed him to go with the said person who ultimately was found to be accused- Dileep.

24. In statement of PW-2, it has come that he had returned home late in the night. At about 11:00 a.m. he had seen the accused-appellants taking away the abductee on the motor-bicycle and after having returned home late he had gone to the house of PW-1 and had broken the names of the appellants thereafter only. Therefore, there appears to be a cogent answer to this question as to why the first informant could not mention the names of the appellants in the first information report.

25. Much emphasis has been laid by the learned counsel for the appellant on the point that when PW-3 had already reached home of the first informant after 11:00 a.m. when school had closed down and she stated that she had seen that PW-2 and the other eye-witness Mahesh Singh and Babban were also there standing out outside, why these two witnesses i.e. PW-2 and other witness Babban did not disclose the names of the appellants to the first informant. The impression is given by the learned counsel for the appellants that these two witnesses probably were already there in the afternoon when PW-3 had reached the house of the first informant and despite that they did not divulge the name of the appellants to the first informant which is unbelievable. But we do not find any substance in the argument because the time when the PW-3 had seen the PW-2 and Babban at the house of the first informant, has not been mentioned in the statement nor has it been got clarified in cross examination and therefore the statement of PW-2 does not appear to be in conflict with the statement of PW-3 that he had seen the PW-2 and other eye-witness of last seen at the house of first informant because it could be possible that PW-3 might have seen these two witnesses at 9:00 p.m. or 9:30 p.m. in the night and she might have stayed at the house of first informant from afternoon till night particularly in a situation when a small child had gone missing and out of concerned, she might have stayed back at the house of the first informant. This line of interpretation has also been taken by the learned trial court in its analysis of the evidence and we totally agree with his view point and we do abide by the principle of law that if a view is possible which has been taken by the learned trial court, the other view which might also be possible should not be taken only to dislodge the finding of the trial court.

26. Much hype has been laid by the learned counsel for the appellants on evidence of last seen being of very weak kind unless the same is corroborated by the other piece of evidence by relying upon the above rulings, we would like to make mention all these case laws here so as to understand as to how and whether these case laws support the version of the appellants.

27. Learned counsel for the appellants has placed reliance in the case of Ganpat Singh Vs. State of M.P., 2018 (2) SCC (Crl.) Page 159. In this case, the Hon'ble Apex Court has summarized the requirements of a case resting on circumstantial evidence and reiterated that normal principle is that circumstances from which the inference of guilt is sought to be drawn, must be cogently and firmly established. Those circumstances should be of definite tendency, unerringly pointing towards the guilt of accused. The Circumstances taken cumulatively should form a chain so complete, that there is no escape from the conclusion, that within all human probability, the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of guilt of accused and inconsistent with his innocence. Further it was held that when in a case of murder, the theory of last seen would come into play only where time gap between point of time when accused and deceased were last seen alive and when deceased is found dead, is so small, possibility of any person other than accused being author of the crime becomes impossible. Further it is mentioned that it would be difficult in some cases to positively establish that deceased was last seen with accused when there is long gap and possibility of other persons coming in between exists. In absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to conclusion of guilt in such cases. In the present case, the mere circumstance that accused-appellant was last seen with the deceased was an unsafe hypothesis to found a conviction on a charge of murder. Lapse of time between point when appellant was last seen with the deceased and time of death was not minimal and, accordingly, the conviction of appellant u/s 302 IPC was reversed.

28. We find that facts of the present case are totally different from the facts of the above mentioned case because in the present case the abductee could not be found till now and possibility cannot be ruled out that he might have been killed, hence it cannot be stated as to what could be the time gap between the abduction made of the said child and his possible killing. Therefore, in the present case, we are only to go by the facts in the existing case only.

29. Learned counsel for the appellants has placed reliance in the case of Sahadevan and others vs. State of Tamil Nadu, 2012(6) SCC page 403. In this case, Hon'ble Apex Court has held that extra judicial confession is a weak piece of evidence. The court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If extra judicial confession suffers from material discrepancy or inherent probabilities and does not appear to be cogent, it may be difficult for the court to make conviction on such confession. In such circumstances, court would be fully justified in ruling such evidence out of consideration as such confession would only be a here-say. In such circumstances onus lies upon prosecution to prove complete chain of events which must undoubtedly point towards the guilt of the accused.

30. It was held in this case that extra judicial confession did not inspire confidence; the recoveries did not correlate to alleged offence; last seen evidence was found not in consonance with time of death, hence conviction was reversed. The facts of the above case are also totally different because in the case in hand, there is no extra judicial confession made by the accused although prosecution states that there was confession made by the accused but this Court has not taken into consideration such confessional statement and would like to form an opinion on the other piece of evidence on which evidence has been adduced by the prosecution, hence no benefit of this ruling may be given.

31. Learned counsel for the appellant has placed reliance in the case of Vijay Shankar Vs. State of Haryana, 2015(12) SCC Page 644. In this case, Hon'ble Apex Court has held that the normal principle in circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; that these circumstances should be of definite tendency, unerringly pointing towards the guilt of accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused. And it is further held that in each and every case, it is not incumbent upon the prosecution to prove motive for crime. Often motive is indicated to heighten probability of offence, that accused was impelled by that motive to commit the offence. The proof of motive only adds to weight and value of evidence. The absence of proof of motive, only demands careful scrutiny of evidence. In the present case of murder, absence of convincing evidence as to motive made the court to be circumspect in the matter of assessment of evidence and this aspect was not kept in view by the courts below, hence taken together with remaining evidence it was found that it was enough to throw reasonable doubt on prosecution case.

32. This case also relates to a case of murder while in the instant case, there is no evidence on murder adduced, only other circumstantial evidence has been found. As regards motive, the benefit of this case may go to prosecution side instead of defense because it is held in the above ruling that even if motive is not proved, it would not be detrimental to the prosecution case except that the evidence adduced by the prosecution is required in such situation to be scrutinized meticulously. We do not find that any benefit of this ruling may go to the appellants in this case.

33. Learned counsel for the appellants has placed reliance in the case of Nizam Vs. State of Rajasthan, 2016(1) SCC (Crl.) Page 386. In this case, the Hon'ble Apex Court that did not find links in the chain of circumstances established and found many lapses in investigation, hence conviction was reversed. It was further held that in case of circumstantial evidence, the court has to examine entire evidence in its entirety and ensure that only inference can be drawn from the evidence, is guilt of accused. It was further held that circumstances from which conclusion of guilt is drawn, should be fully proved and such circumstances must be conclusive in nature. Moreover, all circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further it was held that circumstances must be consistent only with hypothesis of guilt of accused and totally inconsistent with his innocence. Facts of the present case are different from the above mentioned case, however, with the principles of circumstantial evidence as mentioned above, we are fully in agreement and we have to ensure that the circumstances which are proved by the prosecution's side are forming a complete chain from which only one conclusion can be drawn that it was appellants person only who could have committed this crime.

34. Learned counsel for the appellants has also relied upon judgment in the case of Kaliram Vs. Himanchal Pradesh, 1973 (SCC) Crl.) Page 1048 and Sabha Shanker @ Lalta Pd. Dubey, 2015(89) All. Crl. Cases (DB) Page 383 in respect of criminal antecedents of the accused but we are not inclined to consider these rulings because we believe that despite the criminal antecedents not being taken into account of appellants, we found sufficient evidence against the accused-appellants in this case.

35. In view of the position of law, as well as evidence which has been discussed by the trial court and by us also above, we find that son of the first informant, Himanshu was taken away on 3.4.2000, who was aged about eight years from St. Mary Model School, Narhi at about 10:30 a.m. by accused-appellant Dileep Kumar on the pretext that her mother was sick and was to be taken to for treatment and Himanshu was to accompany her, which is proved by PW-3, who is a teacher in the said school, because in her statement, it is made clear that the class teacher of the said child had called her when Dileep wanted to take the child away on the said pretext. Thereafter PW-3 had asked the said child as to whether he recognized Dilip, and when he gave reply in affirmative the child was allowed to go with Dileep, whereafter other strong piece of evidence which has come on record is that on that very date all the three accused-appellants were seen by PW-2 Mahesh who is an independent witness at about 11:00 a.m. taking away the said child on a motor-cycle near Dhekwari turn, because the said person knew the accused persons from before. His presence at the spot is found believable by us and the said witness returned home late on the said date in the night thereafter he apprised the first informant about the accused-appellants having taken away his son. The first informant has lodged the F.I.R. in this case at about 7:30 p.m. till then he was not knowing the names of accused-appellants and the names of all the accused-appellants were given by him to the police in his statement subsequently when these names were disclosed by PW-2 on 3.4.2000 in the late hours by 9:00-9:30 p.m. We have also found the statement of PW-3 believable because PW-3 despite her having reached the informant's house after closing down of her school some time after 11:00 a.m. and she remained there till late hours in the night and saw PW-2 and other eye-witness there, she clearly stated that she did not know the name of accused appellant who had come to take away the son of first informant. This accused's name she could learn only after his arrest which was made after one and a quarter months after the abduction therefore no discrepancy is found by us in the name not being mentioned in the F.I.R. by the first informant, of all the accused-appellants. These are very strong pieces of evidence that PW-3 who had actually seen the accused appellant Dileep who was identified as well in court by her taking away the child of the first informant and immediately thereafter the accused having been seen by PW-2 taking away the child of the first informant. Since thereafter no whereabouts could be known about the said abducted child, these pieces of evidence are very strong links of the chain of evidence against the accused-appellants. After having proved these links, the burden shifts upon the accused-side to disclose as to what happened to that child after he was taken away by them. It has also come on record that soon after the said abduction, the demand of 3 lacs as ransom was started to be made from the first informant regarding which phone calls were being received at a place of third person (Chaubey Ji) where somebody used to talk on telephone to the first informant and used to demand Rs. 3 lacs as ransom and also used to threaten that in case the said demand was not made, his child would be murdered. The learned trial court has given very cogent finding in that the investigating officer ought to have collected evidence in the form of obtaining call details to ascertain as to who was the person who used to make phone calls but that was a lacunae left by the prosecution for which the prosecution case should not be allowed to suffer in our estimation.

36. We would like to rely upon Ranjeet Kumar Ram @ Ranjeet Kumar Das Vs. State of Bihar, 2015 SCC Online 500, in which in paragraph 20 of the judgment, Hon'ble Apex Court has held that so far as the contention regarding the inadmissibility of the statement recorded from the accused Chintu Singh, A-5 and Birendra Bhagat, A-3, of course the statement did not lead to disclosure of any fact as admissible u/s 27 of the Evidence Act. Ideally based on the statement recorded from the accused-appellants, the Investigating Officer should have taken the accused to alleged place of occurrence which would have led to disclosure of the place of occurrence and omission to do so is only a lapse in the investigation. Even if it is accepted that there was deficiency in investigation that cannot be a ground to doubt the prosecution version which is otherwise cogent and credible, hence in the present case, if the prosecution has not collected evidence on call details to establish that it was the accused only who were calling the first informant to demand ransom, the benefit of the same would not be allowed to go to the accused-appellants.

37. In view of above, we are categorically of the opinion that whatever evidence has been adduced by the prosecution side in the form of circumstantial evidence is sufficient to complete the chain of evidence from which the only hypothesis which can be drawn is that it could be only the accused-appellants who had abducted the said child, son of first informant for demand of ransom of Rs. 3 lacs and for non-fulfillment of the same, had issued the threat that in case, the said demand was not made, the son of first informant would be done to death. Therefore, all the ingredients which are mentioned above of the offence u/s 364-A IPC are made out and we find the case proved against the accused-appellants to the guilt. There is no infirmity in the judgment of the trial court. The trial court's judgment is confirmed and both the appeals deserve to be dismissed and are accordingly dismissed.

38. All the three appellants are stated to be in jail and they shall serve out the sentence awarded to them by the trial court.

39. Let A copy of this order be transmitted to the trial court for necessary information and compliance.

(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)

Order Date: 22.11.2018

J.K. Yadav/A.P. Pandey