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Allahabad High Court · body

2009 DIGILAW 3349 (ALL)

SUMANT @ CHUMMAN CHAUHAN v. STATE OF U. P.

2009-10-27

A.K.ROOPANWAL, RAKESH TIWARI

body2009
JUDGMENT By the Court.—As all the above appeals arise out of the same judgment, hence, these are being decided by a single judgment. 2. These appeals have been filed against the judgment and order of conviction and sentence dated 27.9.06 recorded by the Additional Sessions Judge, Court No. 16, Deoria in S.T. No. 203/97 whereby the appellants were found guilty for the offence punishable under Section 364A, IPC and were sentenced to life imprisonment with a fine of Rs. 10,000/- and in default to pay the fine, further R.I. for one year. 3. The complainant of this case is Awadhesh Kumar Mishra s/o Ram Naresh Mishra, r/o Nai Colony, Deoria. He lodged an FIR at Kotwali Sadar, Deoria on 23.3.94 alleging therein that his son Abhishek @ Raja was kidnapped by two persons when he was going to his school on a rickshaw. This happened at 8.00 a.m. on 23.3.94. 4. The investigation of the case started and during the investigation two letters were given by the complainant to the police. One is said to have been written by the accused demanding ransom for the release of the boy and the second was written by the kidnapped boy to his father to bring him back as he was present in a village. 5. The Investigating Officer during the investigation recorded the statements of the witnesses, prepared the site plan of the place of the alleged kidnapping and after concluding the investigation submitted the charge sheet. 6. The appellants were charged along with two other accused under Section 364A, IPC to which they denied and claimed to be tried. 7. The prosecution in order to prove the charge examined PW-1 Awadhesh Kumar Mishra (complainant of the case), PW-2 Ram Pyare Pandey who deposed that he had seen the accused-appellants Sumant and Dilip Singh carrying away the boy on a scooter. It was 23.3.94 and he was returning back from his relationship in village Guthni. Deena Nath was also accompanying him. PW-3 is the kidnapped boy himself who deposed that on 23.3.94 he was going to his school on a rickshaw. At about 8.00 a.m. he was taken away by two persons who had come on a scooter. They said to him that his grandfather had been injured by a bull and he is admitted in the hospital. He was also told that his mother and father were also in the hospital. At about 8.00 a.m. he was taken away by two persons who had come on a scooter. They said to him that his grandfather had been injured by a bull and he is admitted in the hospital. He was also told that his mother and father were also in the hospital. On this information he sat on the scooter and went with those persons. PW-4 is the Investigating Officer of the case and whatever was done by him has been stated above. 8. The statement of the accused-appellants were recorded under Section 313, Cr.P.C. in which they denied from the prosecution version and said that they have falsely been implicated. They did not lead any evidence in their defence. 9. The trial Court after perusal of the evidence tendered by the prosecution and hearing both the sides convicted and sentenced the appellants in the manner stated above. 10. Heard Mr. V.P. Srivastava, learned senior counsel assisted by Mr. Lav Srivastava, learned counsel for the appellants, Mr. Karuna Nand Vajpayee, learned AGA and perused the record. 11. It has been argued by Mr. Srivastava that the trial Court has wrongly appreciated the evidence on record. There was no material to record the finding that the appellants were the persons who had committed the occurrence. For that purpose test identification of the appellants should have been conducted by the kidnapped boy and because that was not done, hence, his statement was not worth placing reliance. The statement of PW-2 Ram Pyare Pandey should also not have been relied upon as he is the relative of the complainant and has all the reasons to depose against the appellants. He was also not reliable as his statement was recorded after a long gap of time from the date of occurrence. The learned AGA refuted all the above arguments. 12. It appears from the record that PW-1 Awadhesh Kumar Mishra (complainant of the case) is not the witness of alleged kidnapping. The name of the appellants was told to him by PW-2 Ram Pyare Pandey and he also came to know about the culprits through an envelope alleged to have been given to him by Mohan Singh of his village who had told him that the envelope was given to him by Pappu @ Hanuman, Ajay and Upendra. The name of the appellants was told to him by PW-2 Ram Pyare Pandey and he also came to know about the culprits through an envelope alleged to have been given to him by Mohan Singh of his village who had told him that the envelope was given to him by Pappu @ Hanuman, Ajay and Upendra. As Mohan Singh could be the best witness to depose that the envelope was given by him to the complainant and had also told the names of the accused, hence, his non-production during the trial would entail a presumption against the prosecution and therefore, in his absence there can be no justification to rely upon the statement of Awadhesh Kumar Mishra to the effect that the names of the appellants were told to him by Mohan Singh and the envelope was also given by this man. 13. So far as this fact is concerned that PW-2 Ram Pyare Pandey had told the names of the accused persons to the complainant, in that regard PW-2 Ram Pyare Pandey being available on the record the statement of PW-1 Awadhesh Kumar Mishra does not warrant any appreciation and thus, regarding the participation of the accused persons in the crime the statement of PW-1 Awadhesh Kumar Mishra has no importance. 14. Regarding the factum of kidnapping two material witnesses PW-2 Ram Pyare Pandey and PW-3, the kidnapped boy are available. We will first take up the statement of PW-2 Ram Pyare Pandey. PW-2 Ram Pyare Pandey had stated before the trial Court that on 23.3.94 he was coming back from his relationship in village Guthni and when he came at the barrier of Mehrauna Bridge, he saw the accused Sumant and Dilip Singh on a scooter bearing No. UP 52 A 1755. The kidnapped boy Abhishek @ Raja was also sitting with them on the scooter. The statement of this witness was believed by the trial Court. We do feel that the trial Court was not correct in accepting the testimony of this witness. It is clear from the statement of this witness that he is the close relative of the complainant. The daughter of his elder brother is married to the complainant. The statement of this witness was believed by the trial Court. We do feel that the trial Court was not correct in accepting the testimony of this witness. It is clear from the statement of this witness that he is the close relative of the complainant. The daughter of his elder brother is married to the complainant. Not only this that this witness had close relationship with the complainant he also did not tell the factum of kidnapping to anybody on the day of alleged seeing of the boy with the accused persons, hence his conduct is very much unnatural in the circumstances of the case and on this ground also there could be no justification at all to place reliance upon him. This witness can also not be said to be a reliable witness in view of the fact that his statement was recorded after 40 days of the occurrence and there is every possibility that his statement could be manoeuvred by the Investigating Agency. 15. Thus, we do not place any reliance on PW-2 Ram Pyare Pandey regarding the factum that he had seen the accused Sumant and Dilip Singh with the kidnapped boy. 16. Now, comes the statement of star witness i.e. of the kidnapped boy. It has come in the statement of the witness that the appellants were not known to him from before the occurrence. This being the position, in order to establish the identity of those, who had kidnapped him and had taken part in the whole occurrence, the test identification should have been arranged immediately after the arrest of the accused persons by this witness and because that was not done, hence, we are of the opinion that the identification by this witness of the accusedappellants in the Court has no value and should not have been acted upon by the Court below and the trial Court should not have concluded that from the statement of this witness the participation of the appellants was established beyond all the reasonable doubts. 17. Not only that the witnesses produced by the prosecution were not capable to prove the case of kidnapping of the son of the complainant beyond all the reasonable doubts it is a case where the prosecution did not produce the material witnesses in order to establish its case. 17. Not only that the witnesses produced by the prosecution were not capable to prove the case of kidnapping of the son of the complainant beyond all the reasonable doubts it is a case where the prosecution did not produce the material witnesses in order to establish its case. These were the rickshaw puller and the person who had given the letter to the complainant. These being the material witnesses their withholding would raise a presumption that if they would have been produced, they would not have supported the prosecution case. 18. Thus, in view of the above, we are of the opinion that the trial Court was not justified in recording the conviction against the appellants. 19. Accordingly, we allow the appeals and set aside the judgment and order of conviction and sentence dated 27.9.06. The appellants are said to be in jail. They shall be released forthwith, if not wanted in any other case. The copy of this judgment be immediately sent to the concerned CJM for compliance. ————