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Uttarakhand High Court · body

2012 DIGILAW 708 (UTT)

Suresh Kumar Wala v. State of Uttaranchal

2012-11-26

BARIN GHOSH, U.C.DHYANI

body2012
Judgment U.C. Dhyani, J. In the instant case, the criminal law was set into motion on the complaint of Vasant Kumar s/o Gopi Ram. The complaint (Ext.Ka-1) was addressed to S.O, Police Station Bajpur, District Udham Singh Nagar. According to the complaint, when the informant Vasant Kumar was going to drop his son Piyush Bansal, aged 12 years, to St. Mary’s School on his motorcycle on 12.10.2000 at 07:30 a.m., an unnumbered Maruti van hit his motorcycle near sugar mill gate. Informant’s motorcycle got dis-balanced and fell on the ground. Blue coloured Maruti van was being driven by Suresh Kumar. Karam Singh, Chhota Musalman and Bijendra Jatav were sitting in the Maruti van. All of them caught hold of informant’s son Piyush, threw his bag and dragged the victim inside the van. Maruti van ran speedily towards Nandpur-nar-ka-topa. In the mean time, Jai Bhagwan, Raje Kumar Gupta and Tilak Raj Sharma came and (they) tried to stop the van, but to no avail. Chik FIR (Ext.Ka-13) was lodged on 12.10.2000 at 09:30 a.m. The distance between the place of occurrence and P.S. Bajpur was only 1½ Kms. The FIR thus appears to be delayed. The same was registered as case crime no. 777/2000 under Sections 363 and 364 IPC. 2. Investigation began on the basis of said FIR, which culminated in submission of charge-sheet against Suresh Kumar Wala, Karam Singh, Govardhan, Aamir Ahmad, Jassa alias Jaspal and Bijendra Singh for the offence punishable under Section 364-A IPC. When the prosecution opened it’s case, charge for the offence punishable under the same Section was framed against the accused persons, to which they pleaded not guilty and claimed trial. Six witnesses, namely, PW1 Vasant Kumar, PW2 Jai Bhagwan, PW3 Piyush Bansal, PW4 SI Rakesh Chandra Thapaliyal, PW5 Dr. K. Chandra and PW6 Head Constable Rishipal Singh were examined on behalf of the prosecution. Statements of the accused persons were taken under Section 313 Cr.P.C., in which they said that they did not kidnap Piyush Bansal and also said that they were roped in a false case. Accused Aamir Ahmad alias Chhota absconded during the trial and therefore his file was separated from the file of the rest of the accused persons by the learned court below. No evidence was adduced in defence. Accused Aamir Ahmad alias Chhota absconded during the trial and therefore his file was separated from the file of the rest of the accused persons by the learned court below. No evidence was adduced in defence. After considering the evidence on record, learned court below convicted Suresh Kumar Wala, Karam Singh, Govardhan, Jassa alias Jaspal and Bijendra Singh of the offence punishable under Section 364 IPC and were sentenced appropriately. Aggrieved against the said order, present Criminal Appeal was preferred. 3. PW1 Vasant Kumar, in his examination-in-chief, not only proved his complaint (Ext.Ka-1), but also proved the prosecution story. He said that he was a resident of Shastri Nagar, Bajpur. Piyush Bansal was his son, who was studying in St. Mary’s School, Bajpur. Piyush was aged 12 years at the time of incident. PW1 used to drop his son to school everyday. On 12.10.2000, at around 07:00 a.m., when PW1 was going to drop his son on motorcycle and PW1 reached near sugar mill gate at Bajpur, an unnumbered blue coloured Maruti van hit his motorcycle from the back. Motorcycle got disbalanced. The van was being driven by Suresh Kumar. Karam Singh, Jassa, Chhota Musalman alias Aamir Hasan and Bijendra Jatav got down from the van and caught hold of Piyush. They threw his bag and dragged him inside the van and ran away towards Nandpur-nar-ka-topa. In the meantime, witnesses Jai Bhagwan, Rajendra Gupta and Tilak Raj Sharma reached there, who saw the incident and tried to intercept Maruti van. In his cross-examination, PW1 said that he saw the appellants after the van hit the motorcycle. All of them were sitting inside the van. The door of the van was closed, but window panes were opened. The witnesses were at a distance of 5-7 feet from the van. Witness Jai Bhagwan came on scooter. Witness Rajendra Gupta came on motorcycle. They were also carrying their children. The witnesses reached, no sooner Piyush was lifted by the accused persons. PW1 received abrasions. The other children also went to school on their bicycles. It took PW1 5-7 minutes to go to police station. He did not go to the police station immediately, but reached there at 09:30 a.m. PW1 knew the appellants from before the incident. The appellants did not cover their faces. They were unarmed. 4. PW1 received abrasions. The other children also went to school on their bicycles. It took PW1 5-7 minutes to go to police station. He did not go to the police station immediately, but reached there at 09:30 a.m. PW1 knew the appellants from before the incident. The appellants did not cover their faces. They were unarmed. 4. PW2 Jai Bhagwan said that on 12.10.2000, he was going to take his daughter Sonia, who had gone for tuition. At 07:30 a.m., Rajendra Gupta and Tilak Raj Sharma were going on their motorcycles to drop their children to St. Mary’s School. PW2 was going on scooter. When PW2 reached near the sugar mill gate, he saw that Vasant Kumar’s motorcycle had fallen on the ground. Piyush Bansal was aged 12 years and was a student of St. Mary’s School. A blue coloured Maruti van was being driven by appellant Suresh. Karam Singh, Chhota Musalman alias Aamir, Jassa and Bijendra Jatav kidnapped Piyush Bansal forcibly. They took the victim inside the van, which ran away towards Nandpur-nar-ka-topa. PW2 Jai Bhagwan, Tilak Raj Sharma and Rajendra Gupta chased the van, but to no avail. PW2 said in his cross-examination that the van did not hit the motorcycle in his presence. When PW2 reached on the place of occurrence, van had left the place. PW2 saw Piyush Bansal being inducted into the van. PW2 was 10-15 paces away from the van. No security guard was present on the factory gate. Piyush was kidnapped. PW2 went with Vasant Kumar to lodge the report. Tilak Raj Sharma and Rajendra Gupta also accompanied Vasant Kumar to the police station. The appellants were armed and they did not cover their faces. 5. PW3 Piyush Bansal was the victim. He was a student of class IX when he came to depose. He said that on 12.10.2000, at about 07:00 a.m., when his father was going to drop him in the school, one Maruti van hit the motorcycle, which was being driven by his father. PW3 was a pillion rider. PW3 fell from the motorcycle at sugar mill gate, Bajpur. Appellants got down from the van and forcibly dragged him inside the van. They stopped Maruti van when they reached a river. PW3 was taken to a jungle. PW3 was escorted by five miscreants. They were addressing each other by their names. PW3 was a pillion rider. PW3 fell from the motorcycle at sugar mill gate, Bajpur. Appellants got down from the van and forcibly dragged him inside the van. They stopped Maruti van when they reached a river. PW3 was taken to a jungle. PW3 was escorted by five miscreants. They were addressing each other by their names. PW3 was not provided food inside the jungle for two days. The kidnappers were telling PW3 that once they received rupees 10 Lacs from PW3’s father, then they will release him. The appellants were carrying two small pistols and a big gun. The police reached the jungle on the third day. The appellants fired upon them. Three miscreants fled away. The fourth one, namely, Goverdhan was arrested by the police. When the victim was taken to jungle, the appellants covered the face of PW3. Police recovered PW3 and was handed over to his (victim’s) father. In the cross-examination, PW3 said that he was called at the police station to identify the appellants, when they were arrested. Goverdhan was arrested by the police on the spot. PW3 said that he could not connect the identity of the appellants with their names. PW3 was got seated on the back seat of the van. He did not recognize the face of the driver of Maruti van. He said that he could not see the face of the driver. The appellants did not cover their faces in the jungle. PW3 did not recognize their faces before the incident. PW3 wrongly identified Bijendra in the trial court. When he was asked to identify Bijendra, he said that his name was Suresh. PW3 was not assaulted by the appellants in the jungle. He was simply threatened. Some other unimportant questions were also asked in the cross-examination of PW3. He was recovered by the police in the jungle from a place which was near to a river. Only one accused was apprehended by the police in the jungle. The others fled away. 6. PW4 SI Rakesh Chandra Thapaliyal was the Investigating Officer, who recovered kidnapped child. He narrated the incident whereby the kidnapped child was recovered by the police party on 14.10.2000 at 11:20 a.m. He also said that only the appellant Goverdhan was arrested and the others fled away. A rifle and cartridges were found from the possession of Goverdhan. 6. PW4 SI Rakesh Chandra Thapaliyal was the Investigating Officer, who recovered kidnapped child. He narrated the incident whereby the kidnapped child was recovered by the police party on 14.10.2000 at 11:20 a.m. He also said that only the appellant Goverdhan was arrested and the others fled away. A rifle and cartridges were found from the possession of Goverdhan. PW4 affected arrest of other accused persons, took the statements of the witnesses, prepared site plan (Ext.Ka-10) and finally submitted charge sheet (Ext.Ka-11) against the appellants. Maruti van, which was used in the commission of crime was recovered on the pointing and disclosure of appellants Karam Singh and Suresh. 7. PW5 Dr. K. Chandra examined the person of kidnapped child on 15.10.2000 at 12:40 p.m. He found abrasions and contusions on his body, which were inflicted by sharp edged weapon and blunt object on 12.10.2000. PW6 Constable Rishipal Singh was a formal witness, who proved chik FIR (Ext.Ka-13) and also proved the entry of the same in G.D. (Ext.Ka-14). In the cross-examination, PW6 said that the informant came to the police station on foot. The motorcycle, which was hit by Maruti van, was not produced in the police station. 8. All the five people allegedly involved in the kidnapping of Piyush were known to the informant. It was a daring action on their part, if Piyush was really kidnapped by the appellants. The appellants did not ask for the ransom from the father of victim. Why? When the father was going to drop the son to the school and was pushed, the appellants could have asked for the ransom, for they were known people and did not cover their faces. Neither there was prior demand of ransom, nor was there any post-incident demand for the same. Where was the demand of ransom then? Ingredients of Section 364-A were not made out. 9. Father of the victim went to the police after about 2 hours of kidnapping. Father did not go to police station on motorcycle immediately. Instead, he went to the P.S. concerned on foot, as was admitted by PW6 in his cross-examination. The same was unnatural conduct on the part of the father of the kidnapped child. PW1 did not chase the culprits on his motorcycle. He should have immediately gone to the police station, but he did not. He should have chased the kidnappers, but he did not. The same was unnatural conduct on the part of the father of the kidnapped child. PW1 did not chase the culprits on his motorcycle. He should have immediately gone to the police station, but he did not. He should have chased the kidnappers, but he did not. PW1 has not accounted for his motorcycle either. If motorcycle became unusable or non-functional, he should have said so, but he did not. Two hours’ delay in lodging FIR has not been accounted for. He was expected to explain two hours’ delay, but he did not. These facts were fatal to the prosecution story. 10. The boy was allegedly recovered from Goverdhan’s custody. No public witness was taken regarding the arrest of Goverdhan. The appellants were not hardcore criminals. They were known people to the father of victim. Why will they kidnap the child in presence of victim’s father? If they all are known people to the father of kidnapped boy, they will wait for the father of kidnapped child to go and only then they will do the kidnapping. Why will they take such a big risk? If they do it in the presence of the father of victim, they will say that they are doing it for ransom and then they would have disclosed the amount of ransom. But they did not do so. Further, if the kidnappers demanded Rs. 10 Lacs, as was disclosed to PW3 by them, prosecution was expected to ascertain, verify and bring on record the financial status of PW1. There was contradiction as regards the armaments in the possession of the appellants. Whereas PW1 said that the appellants were unarmed, PW2 said that they were armed but not specified such arms, PW3 said that they were carrying two small pistols and a big gun. All the three witnesses said that the appellants did not cover their faces. It seems unnatural that the daredevil act will be done by the appellants, who were known to the informant prior to this incident, in such manner, as was indicated by PW1, PW2 and PW3. Neither the ingredients of Section 364-A IPC nor of Section 364 IPC were made out on the basis of evidence on record. 11. In such a situation, prosecution case was not established, as a result of which the appellants are entitled to acquittal. 12. Neither the ingredients of Section 364-A IPC nor of Section 364 IPC were made out on the basis of evidence on record. 11. In such a situation, prosecution case was not established, as a result of which the appellants are entitled to acquittal. 12. Criminal Appeal filed on behalf of the appellants, viz., Suresh Kumar Wala, Karam Singh, Govardhan, Jassa alias Jaspal and Bijendra Singh is allowed. The judgment and order dated 13.07.2005, passed by learned ASJ/FTC Kashipur (Udham Singh Nagar), as also the conviction and sentence awarded to them, are set aside. They are on bail. Their bail bonds are cancelled and the sureties are discharged. They need not surrender. A copy of this judgment be sent to the court below. Lower court record be also sent back.