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Uttarakhand High Court · body

2013 DIGILAW 833 (UTT)

Sajjan Kumar Goel v. State of Uttaranchal

2013-12-30

U.C.DHYANI

body2013
JUDGMENT Since Mr. S.S. Chaudhary, Advocate has already been appointed Amicus Curiae in Government Appeal No. 30 of 2010, therefore, he is also appointed Amicus Curiae to defend accused-respondent Nos. 2 to 8 in Criminal Revision No. 138 of 2004. 2. Since the aforesaid criminal revision and Government Appeal have arisen out of the same order, therefore, they are being decided by this common judgment and order for the sake of brevity and convenience. 3. An FIR was lodged by PW2 Sajjan Kumar on 28.10.2001, at police station, Kotwali, Rishikesh against 5-6 unknown persons, which was registered as case crime No. 492 of 2001, under Section 364A of IPC. After the investigation, a charge-sheet was submitted against the accused persons, namely, Shiv Veer, Shyam Veer Singh, Ram Prakash, Viresh Mandal, Smt. Kanti, Pappu Singh and Jaibeer Singh for the offences punishable under Sections 364A and 368 of IPC. The case was committed to the Court of Sessions. When the trial commenced and prosecution opened it case, charge under Sections 364A and 368 of IPC were framed against accused persons, to which they pleaded not guilty and claimed trial. 4. PW1 Anuj Goyal, PW2 Sajjan Kumar, PW3 S.O. Bhagwati Prasad and PW4 H.C. Chandi Lal, PW5 Vasudev, PW6 Inspector Girish Chand, PW7 S.I. Vivekanand Tiwari and PW8 Inspector Mahendra Singh Rawat were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 of Cr.P.C., in reply to which they said that they were falsely implicated in the crime. DW1 Ram Sewak, DW2 Munna Jha and DW3 Babu Ram were examined on behalf of the defence. After considering the evidence on record, learned Addl. Sessions Judge / F.T.C. VI, Dehradun, exonerated the accused persons of the charges levelled against them, vide order dated 29.07.2004. Aggrieved against the same, present criminal revision was preferred by the complainant and Government Appeal was preferred by the State. 5. Prosecution led the evidence through PW2, who lodged FIR (Ext. Ka-10) against 5-6 unknown persons on 28.10.2001, at 09:15 a.m. According to informant, he was running a lime kiln in village Rainapur since 1984. PW2 along with his brother-in-law and son (victim) carried said business. On 27.10.2001, victim went to lime kiln at 10:00 a.m., as usual. On the selfsame day, at 11:30 a.m., two persons, who were in the age group of 25-30 years, came to him. PW2 along with his brother-in-law and son (victim) carried said business. On 27.10.2001, victim went to lime kiln at 10:00 a.m., as usual. On the selfsame day, at 11:30 a.m., two persons, who were in the age group of 25-30 years, came to him. They wanted to purchase one truck lime. 3-4 unknown persons accompanied those young persons, who wanted to purchase lime. They requested the victim to weigh the truck in Rishikesh. Victim went with them in a Tata Sumo car. Victim did not return. After one hour, PW2 went to the weighment machine, where he came to know that his son (victim) did not visit there. When victim was being taken by the accused persons, labourers, namely, Pappu, Satpal and Vasudev saw them, who could identify the abductors. PW2, therefore, lodged FIR suspecting that his son (victim) was abducted. 6. The incident allegedly took place on 27.10.2001, and the FIR was lodged against unknown persons on the next day, i.e., 28.10.2001, at 09:15 a.m. PW2 stated that his friend Pankaj informed police control room about said incident on 27.10.2001. Pankaj has not been examined by the prosecution. When, according to the own admission of PW2, his friend Pankaj informed about the incident to the police control room on 27.10.2001, what prevented PW2 from lodging FIR on the selfsame day? The complaint (Ext. Ka-2) was lodged on the next day, i.e., 28.10.2001, the scribe of which complaint was Manoj Kumar Goyal. Manoj Kumar Goyal has also not been examined by the prosecution. PW2 was a literate person. He could have written the complaint himself on the same day, when his friend Pankaj reported the incident to police control room. The delay in filing FIR was, therefore, not properly explained. In normal circumstances, a delay of one day in filing FIR is explainable, but in the instant case, it is not, primarily because, the police control room was informed about the incident on the selfsame day. What action was taken by the police on such information, has also not been disclosed. 7. PW1 (victim) was major, aged about 22-23 years. He was a matriculate. In his examination-in-chief, PW1 narrated the incident, that Shyam Veer and Pappu came to him to purchase lime. Tata Sumo was being driven by Ram Prakash. Shyam Veer and Pappu accompanied him in Tata Sumo. Near Kuanwala, his hands and feet were tied with a rope. 7. PW1 (victim) was major, aged about 22-23 years. He was a matriculate. In his examination-in-chief, PW1 narrated the incident, that Shyam Veer and Pappu came to him to purchase lime. Tata Sumo was being driven by Ram Prakash. Shyam Veer and Pappu accompanied him in Tata Sumo. Near Kuanwala, his hands and feet were tied with a rope. Victim was taken behind the bush and kept confined there. Victim was abducted on the point of knife and country made pistol. PW1 further stated that scooterists, cyclists were coming to the place where he was kept confined. Victim further stated that right from 28.10.2001 to 10.11.2001, he was kept confined in the bush in jungle. There he was being served with meals. Victim slept there and he went to jungle to respond to the call of the nature. No physical injury was caused to the victim and no injury was sustained by him. Why did he not come to his house during the said period of 10-12 days? He was an adult person. When he could go to the jungle for urination and for responding to the call of nature, what prevented him from running back to his house? This fact has also come on record that the victim was taken to Harrawala Railway Station and got seated in the train on the point of country made pistol, but it is surprising to note that no fellow passengers witnessed the scene / crime. PW1 did not raise alarm that he was being taken forcibly, which is not probable. Victim was also taken to Jaiveer house by bus. Jaiveer family members were present in their house, but PW1 did not utter a single word to them. He did not ask Jaiveer as to why he was being taken to his (Jaiveer) house. It is also surprising to note that victim was kept confined in the house of Jaiveer for two months from 11.11.2001 to 07.01.2002. The victim admitted that he roamed around freely in village Barban, met the people there, viewed television, went to ease himself, but he did not try to flee away to his own house. Prosecution story became doubtful on the basis of such statements of PW1. The victim admitted that he roamed around freely in village Barban, met the people there, viewed television, went to ease himself, but he did not try to flee away to his own house. Prosecution story became doubtful on the basis of such statements of PW1. An adult person, who was allegedly abducted, had ample opportunity of fleeing away to his house, but PW1 did not free himself from the clutches of his abductors for the reasons best known to him. The said fact casts a shadow of doubt on the testimony of PW1 (victim). 8. Otherwise also, no test identification parade of the accused persons was conducted to establish the fact that the accused-respondents and respondents alone, abducted PW1. Labourers, namely, Satpal, Pappu and others were also not examined on behalf of the prosecution. 9. The entire story revolves around the statements of PW1 and PW2, but their testimony does not inspire confidence. No prudent person will believe the story, as was projected by PW1 and PW2. It appears that the incident did not take place in the manner, as the same was indicated by PW1 and PW2. Prosecution story appears to be incredible. 10. Learned trial court discussed and correctly appreciated the prosecution evidence to come to the conclusion that the prosecution was unable to prove the case against the accused-respondents beyond a shadow of reasonable doubt. This Court has also independently assessed the prosecution evidence to come to the same conclusion, as was arrived at by the learned court below. 11. At this stage, it will also be apt to reproduce the observations made by Hon’ble Supreme Court in Ashok Kumar v. State of Rajasthan, (1991) 1 SCC 166 : ( AIR 1990 SC 2134 ). Para 2 of the aforesaid judgment is reproduced herein-in-below for ready reference: “2. Law is well settled. While caution is the watchword, in appeal against acquittal as the trial Judge has occasion to watch demeanour of witnesses interference should not be made merely because a different conclusion could have been arrived at; the provision does not inhibit (sic) any restriction or limitation. Prudence demands restraint on mere probability or possibility but in perversity or misreading interference is imperative otherwise existence of power shall be rendered meaningless. 12. This Court is unable to take a view different from what was taken by the court below. Prudence demands restraint on mere probability or possibility but in perversity or misreading interference is imperative otherwise existence of power shall be rendered meaningless. 12. This Court is unable to take a view different from what was taken by the court below. Criminal Revision as well as Government Appeal, therefore, fail and are dismissed. Appeal dismissed.