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2016 DIGILAW 3198 (ALL)

MAHENDRA @ GUDDAN v. STATE OF U. P.

2016-09-19

ARVIND KUMA MISHRA I, BALA KRISHNA NARAYANA

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JUDGMENT : Hon'ble Bala Krishna Narayana, J. Hon'ble Arvind Kumar Mishra-I, J. The arguments of this appeal was concluded on 19.09.2016, when, following order was passed by us: Heard Shri Arvind Kumar Dixit, assisted by Shri Raj Bahadur Verma, learned counsels for the appellant, Shri Saghir Ahmad, learned A. G. A. assisted by Sri J. K. Upadhyay, learned A. G. A., Kumari Meena, learned A. G. A. and Mrs. Manju Thakur, Brief Holder appearing for the State. We will give reasons later but we make the operative order now. The appeal is allowed. The impugned judgment and order dated 9.11.2006 passed by the Special Judge, Dacoity Affected Area, Etawah in Special Sessions Trial No. 104 of 2005, arising out of Case Crime No. 25 of 2005; State Vs. Mahendra alias Guddan convicting the appellant under sections-307/34, 364 A IPC and Sections-25/27 Arms Act and sentencing him to seven years' R. I. coupled with fine of Rs. 1,000/- and in default of payment of fine one year's additional R. I. on the first count and imprisonment for life coupled with fine of Rs. 5000/- and in default of payment of fine, three years' additional R. I. on the second count and three years' R. I. coupled with fine of Rs. 1000/- and in default of payment of fine, one year's additional R.I. on the third count, respectively is hereby set aside. The appellant is acquitted of all the charges framed against him. Appellant is in jail, he shall be released forthwith unless and until he is wanted in any other case. There shall, however, be no order as to cost. Here are the reasons:- By way of instant criminal appeal, challenge has been made by the appellant- Mahendra @ Guddan to the judgment and order of conviction dated 9.11.2006, passed by Special Judge (Dacoity Affected Area, Etawah), in Special Sessions Number 104 of 2005 arising out of case crime no.25/2005 and 26/2005, under Sections 307, 364A IPC and 25/27 Arms Act, Police Station Bakewar, District Etawah. Record reveals that first information report was lodged by Sri Ramnath Singh Yadav, Station House Officer, Police Station- Bakewar, District Etawah at police station Bakewar on 25.02.2005 at 11.30 P.M. regarding the alleged offence committed by accused-appellant, under aforesaid Sections of Indian Penal Code, Dacoity Affected Area Act, and Arms Act, respectively, with allegations that while he was on surveillance duty accompanied by S.I. Sri Suresh Kumar Yadav, Constable Shyam Singh in his area on 25.2.2005 and they reached at police out-post Lakhna, who were busy in patrolling duty and as soon as they reached near Jhal Canal Bridge area, across the Bumba Ki Puliay, and were going towards Ranipura Road leading to deserted place, they saw in the head light of jeep, three persons crossing Kharanja side of the road, along with one little child, in the loneliness of night. The police party became apprehensive and tried to stop them, whereupon, with the intention to kill, they fired on the police party, however, members of the police party somehow saved themselves believing that these people have kidnapped some child and are taking him to some deserted place, after combing and surrounding, the miscreants swooped upon them. Two, out of the three miscreants fled away from the scene, whereas one miscreant along with the child was caught ahead of culvert at 9.00 p.m. The child was crying. On being asked, he spelled his name as Rishabh @ Nishant and he spelled his father's name as Komal Kushwaha of village- Berikhera. The child was trembling with fear. When the miscreant was asked about his name, he spelled his name as Mahendra Singh @ Guddan, son of Sidh Gopal Jatav R/o Berikhera, police station Bakewar, Etawah. On search of his person, 0.12 bore country-made pistol with one empty cartridge from his possession were recovered and, beside this, the police party also recovered three live cartridges from the right pocket of his pant and took possession of the same. When they inquired about names of the other two accused, who had secured their escape, then name of one miscreant was spelled as Bhoorey Singh s/o Balram Dhanuk while another miscreant remained unidentified. The police party also inquired about the victim child, whereupon, it transpired that name of this child is Rishabh @ Nishant, son of Komal Kushwaha, (a resident of his- accused Mahendra- neighbouring village). The police party also inquired about the victim child, whereupon, it transpired that name of this child is Rishabh @ Nishant, son of Komal Kushwaha, (a resident of his- accused Mahendra- neighbouring village). He also stated that Bhoorey Singh son of Balram Dhanuk of his village had asked him 8-10 days ago that child of Komal Kushwaha, who studies in Lakhana school, should be kidnapped and he will get Rs.2000/- as remuneration out of ransom money thereof. It was also promised that whatever ransom is obtained as a result of this act, a share of the same, shall be given to him. The accused also stated that kidnapping was done around 4.00 P.M. when the child was returning after attending the school. Accused further told that he took the child to the Lakhna Bridge where he met with Bhoorey Singh s/o Balram Dhanuk and one more person was accompanying him, whom, he does not know. They along with child were proceeding towards some lonely and deserted place. Bhoorey Singh s/o Balram Dhanuk was saying that the child is to be handed over to notorious Karori Pathak. He also told that Bhoorey Singh s/o Balram Dhanuk and his accomplice fled away towards forest. Victim child told the police that Mahendra @ Guddan, who resides in his neighborhood, took him on pretension of giving strawberry along with co-villager Bhoorey Singh s/o Balram Dhanuk and one more person. The recovered gun along with cartridges was taken into possession and kept sealed. The entire process/episode of recovery was reduced in writing and after obtaining endorsement of all concerned, a memo of the same, was prepared, which is Exhibit Ka-1. The matter was reported at the police station by Sri Ram Nath Singh Yadav, Station House officer, Police Station- Bakewar, District Etawah at 11.30 p.m. on 25.02.2005. Relevant entry was made in the Check FIR at crime numbers 25/2005, under Sections 307, 364A IPC and 10/12 Dacoity Affected Area Act and at Crime No.26/2005 and under Sections 25/27 Arms Act. Check FIR is Exhibit Ka-2. This was followed by entries made in the concerned General Diary Constable Ramnayan Yadav P.W.6 and a case was registered by making entry at Serial No.40 on 25.02.2005 at 11.30 P.M. under aforesaid Sections of Indian Penal Code, D.A.A. & Arms Act, which General Diary entry is Exhibit Ka-3. Check FIR is Exhibit Ka-2. This was followed by entries made in the concerned General Diary Constable Ramnayan Yadav P.W.6 and a case was registered by making entry at Serial No.40 on 25.02.2005 at 11.30 P.M. under aforesaid Sections of Indian Penal Code, D.A.A. & Arms Act, which General Diary entry is Exhibit Ka-3. S.I. Sri Ranvir Singh Khokha P.W.5 was entrusted with the investigation of this case. He noted down relevant information in the case diary, recorded statement of various persons and also handed over custody of the victim Rishab @ Nishant to his father Komal Singh on 26.2.2005 and prepared a memo of the same as Exhibit ka-1. Thereafter investigation was taken over by S.I. Brijesh Kumar Yadav on 11.3.2005. He prepared site plan of the occurrence, Exhibit Ka-4. He also obtained sanction from District Magistrate, Etawah, for filing charge-sheet (for case under Arms Act). After completing investigation, charge-sheet was filed at aforesaid Crime Nos.25/05 and 26/05, under Sections 307, 364 (A) IPC and 10/12 Dacoity Affected Areas Act and under Section 25/27 Arms Act, which charge-sheets are Exhibit Ka-6 and Ka-7 respectively. Thereafter, this case was committed to the court of Sessions from where this case was made over for trial and disposal to the aforesaid court of Special Judge, Dacoity Affected Areas Act, Etawh, where the prosecution and accused both were heard on point of charge and the trial court was satisfied with, prima facie case against the accused, therefore, charges under Sections 364A IPC and 307 read with 34 IPC and under Section 25/27 Arms Act were framed. The prosecution was required to produce all its testimony, whereupon prosecution adduced seven witnesses in all. A brief reference of the same is ut infra : Rishabh P.W.1 is the victim and at the time of his testimony his age was of seven years. He has described about the incident. Komal Singh P.W.2 is the father of the victim. S.I. Suresh Kumar Yadav P.W.3 is the person, who accompanied the informant police party on the day of occurrence when the victim Rishabh was recovered from possession of accused Mahendra and has described about fact of alleged recovery of the child and arrest of accused Mahendra. S.I. Ramnath Yadav P.W.4 is the informant and also eye-witness of fact of recovery of the victim on the basis of recovery memo and has proved the same as Exhibit ka-1. S.I. Ramnath Yadav P.W.4 is the informant and also eye-witness of fact of recovery of the victim on the basis of recovery memo and has proved the same as Exhibit ka-1. S.I. Ranvir Singh Khokha P.W.5 is the Investigating officer. He has proved his part of investigation. Constable Ramnayan Yadav P.W.6 has made relevant entries in the concerned Check FIR and the GD. S.I. Brijesh Kumar Yadav P.W.7. He is the second Investigating Officer. He has proved his part of investigation and particularly filing of charge-sheets in this case against the accused persons. After the evidence of the prosecution was closed, the statement of the accused was recorded under Section 313 Cr.P.C., wherein, the accused pleaded innocence and alleged false implication on account of enmity. No testimony whatsoever was adduced on behalf of the defence. The learned trial court after hearing submissions of the parties and considering the case on its merit, returned the finding of conviction, whereby, accused Mahendra was convicted under Sections 307/34 IPC and under Section 364A IPC and also under Sections 25/27 Arms Act and was sentenced ut supra. It has been vehemently claimed on behalf of the appellant that the entire testimony on record is self explanatory and self speaking about the police high handed-ness played in-collusion with the first informant that because of village parti-bandi and election of Pradhan, a conspiracy was hatched to teach a lesson to the accused but this conspiracy stands exposed in the face of specific circumstances and particularly when we evaluate testimony of the victim qua unnatural behaviour of the police personnel, which aspect reflects deliberation, embellishment, improvement of testimony and tutoring of witnesses as well. The prosecution deliberately wanted to rope in several persons of opponent party, who had staked claim against P.W.2 Komal Singh in the election of Pradhan. The entire story is afterthought and concocted, full of drama. The testimony on record is inherently contradictory and the same does not inspire any confidence. Prosecution has failed to prove its case beyond reasonable doubt. Learned AGA, while refuting the aforesaid contentions, has retorted that the case of the prosecution is proved beyond reasonable doubt. The testimony of child witness is innocuous and inspires confidence. The police party has proved the factum of recovery of the child from possession of the accused around 9 P.M. on 25.2.2005 in forest/deserted place. Learned AGA, while refuting the aforesaid contentions, has retorted that the case of the prosecution is proved beyond reasonable doubt. The testimony of child witness is innocuous and inspires confidence. The police party has proved the factum of recovery of the child from possession of the accused around 9 P.M. on 25.2.2005 in forest/deserted place. The very motive for kidnapping, was demand for ransom and the accused was acting for another person- co-accused Bhooray, while the crime was unraveled by the police by making speedy recovery of the child. Whatever contradictions appear in the testimony of the prosecution witnesses of fact are not substantial contradictions, rather, such contradictions are on the face petty in nature having only little effect, which contradictions are bound to occur in testimony of the witnesses and uniformity of description of the incident, which uniformity cannot be expected from each and every witness of the case. Learned trial court has taken just view of the matter and has passed just decision and sentenced appropriately. We have also considered the aforesaid submissions and perused the record. The core consideration that crops up for adjudication of this appeal relates to fact whether the prosecution has been able to establish its case against the appellant beyond reasonable doubt? Upon perusal of the first information report, Exhibit Ka-2, we come across allegations against appellant that fact of recovery of the child and arrest of accused Mahendra took place on 25.2.2005 when the police party headed by informant- Station Officer of Police Station- Bakewar- Sri Ramnath Singh Yadav, caught the appellant at lonely and deserted area within vicinity of village Ranipura. As per allegations made in the FIR, the police party was in search of wanted criminals and on patrolling duty in the area and all of sudden, when the police party reached within periphery of village- Ranipura, after crossing Bumba Ki Puliya, then, they saw in the head light of Jeep three persons crossing the Kharanja road along with one little child at such secluded and deserted place, the police party apprehended some foul play and intercepted the miscreants, whereupon the miscreants fired on the police party but the police personnel somehow managed to save themselves and surrounded them and in the torch light, they saw the miscreants and caught one miscreant around 9 P.M., 50 yards ahead of the culvert along with a little child. On inquiry being made, it transpired that the kidnapped boy belongs to village- Berikhera and name of his father was Komal Singh when inquiry was made from the apprehended culprit, he spelled his name as Mahendra Singh @ Guddan Sidh Gopal Jatav R/o Berikhera, police station Bakewar, district Etawah. The police party also recovered 0.12 bore country-made pistol from his possession with one empty cartridge from its barrel besides recovering three live cartridges from the right pocket of pant and took possession of the same. On inquiry being made, it further transpired that accused Mahendra kidnapped the child at the instance of Bhoorey Singh Dhanuk of the same village and the accused was promised to get Rs.2000/- for this particular act. He was further promised that he shall also be given his share in the ransom. FIR also contains description to the fact that the child was kidnapped around 4.00 P.M. after closure of the school hours when he was returning home. The child was taken at the Lakhna Bridge where Bhoorey met with the accused along with one more person. Bhoorey was telling that this child is to be handed over to Karori Pathak and while they were proceeding further, the police party, apprehended him. First informant made a memo of arrest and seizure of the child and on the basis of the same, FIR was lodged at 25.2.2005 at 11.30 P.M. at Case Crime No.25/2005 Police Station- Bakewar under aforesaid sections of IPC and Dacoity Affected Areas Act and at Case Crime No.26 of 2005 under Sections 25/27 Arms Act. Thereafter, the investigation ensued and it was completed only following intervention of two Investigating Officers- the first one being Ranvir Singh Khokha P.W.5. who has proved his part of investigation till 1.3.2005. After him, S.I. Brijesh Kumar Yadav P.W.7, took over investigation and after completing the investigation filed charge-sheets Exhibit Ka-6 and Ka-7, respectively at aforesaid crime numbers. Now, the prosecution was required to prove its case on merit and the prosecution produced Rishabh @ Nishant P.W.1- the victim- who is the star witness for the prosecution. We have very carefully scanned testimony of this witness (P.W.-1- Rishabh), whereupon, we find that this witness has developed his intelligence to such a level that he was able to understand import of general questions put to him and to answer intelligently such questions. We have very carefully scanned testimony of this witness (P.W.-1- Rishabh), whereupon, we find that this witness has developed his intelligence to such a level that he was able to understand import of general questions put to him and to answer intelligently such questions. His testimony as a whole, is full of improvement and embellishments and sufficient to shatter the entire prosecution case, on specific points, that this witness was ever kidnapped for ransom by the accused. In the examination-in-chief of this witness, he has specifically stated that he was going back to home from his school, he met with Guddan near temple, Guddan lured him for giving (him) strawberry. This happened around 3.00 P.M. in the afternoon. This witness sat on the bicycle of Guddan then he met with Bhoora, Bhoora also accompanied them. Police saved him and took him to the police out-post. In the night his father came to the police out-post and brought him back home from there. Bhoora and Guddan were identified by this witness in the court also. But this testimony when appraised qua testimony emerging in cross-examination, the same becomes outcome of marvelous tutoring and embellishments. This witness has stated that his father used to drop him at the school then his father also used to take him back from the school and in his cross-examination, he says that police met him two hours after he left the school and daroga ji took him inside the jeep and daroga ji kept this witness with him for around four hours. Then, he stated that daroga ji took him to Berikhera at that time and night had not set in. This witness has conceded to the fact that it was daroga ji, who dropped him at his house and here a question in form of inquisitiveness surfaces; as to whether, the police came to his (P.W.1) home in the very night or not; then, the child witness (P.W.1) nodded in the negative. On page-13 of his cross-examination of the paper book, his testimony reflects that the entire evidence has been tutored either by his counsel or by his father and they had told him to spell name of two accused persons. He has also stated that police had caught Bhoora after one hour when it was day time. On page-13 of his cross-examination of the paper book, his testimony reflects that the entire evidence has been tutored either by his counsel or by his father and they had told him to spell name of two accused persons. He has also stated that police had caught Bhoora after one hour when it was day time. He has acceded to the suggestion that at the time when Bhoora was brought at the police station he saw him. He has also nodded in affirmative to the specific query that police told him that accused Bhoora resides in village- Berikhera. This testimony specifically establishes that the police is colluding with the father of the victim and in fact the child remained in possession of the police and the child was brought home, well, in the evening and was dropped at his home and, thereafter, because of village partibandi and enmity on account of election of Pradhan in the village with other party false accusation was made. It is obvious that the police managed and facilitated this occurrence at great ease and convenience. When father of the victim used to drop his child at the school and used to take him back from there, how, and why, the child was returning home on foot, has not been clarified. In this way, the very apprehension of the accused being present at the alleged place near Bumba Ki Puliya culvert, becomes extremely doubtful. The testimony of victim P.W.1 appearing in examination-in-chief, is in sheer contrast to what has emerged in his cross-examination. Claim of false implication due to enmity on account of village partibandi gets strengthened. Relevant to take note of testimony of first informant Ramnath Yadav P.W.4. He has testified that he was busy in search of wanted criminals and was doing patrolling duty within circle of his police station on 25.2.2005 and when he crossed Jhal Canal and Bumba ki puliya and was on way to Ranipura jungle then only, he saw three persons pulling a child with them and, thereafter, the police party after a little resistance by the miscreants overpowered the appellant and recovered the child from his possession. But testimony on record and particularly of the Investigating Officer on page-21 of the paper book indicates that no entry whatsoever regarding departure of S.O. Ramnath Singh from the police station for search of criminals or patrolling duty was ever made in the concerned GD, nor did Ramnath Singh name the wanted criminals for whose search he went out from the police station on 25.2.2005. In this view of the matter, it is obvious that the story of apprehending the accused at a place 50 yards ahead of Bamba Ki Puliya culvert, is not worth believing. The testimony on this aspect is tainted and improved one-full of material contradictions. One important aspect of this case deserves mention that after the child did not return home around 4 P.M. and in the face of fact that child's father used to pick up the child from the school after close of school hours, no concrete effort was made on behalf of the informant side to lodge any report at the concerned police station about disappearance of the child. But it was the police party and particularly the first informant, Station House Office of police station Bakewar, Etawah, who allegedly apprehended the accused and the child. The apprehended accused and the alleged recovery of the child from possession of the appellant around 9 P.M. on 25.2.2005 and then after elapse of about 2 and ½ hours, lodged the first information report at the police station Bakewar around 11.30 P.M. On this specific circumstance the prosecution, has failed to come out with cogent explanation. Why the father of the victim child kept silent from 4.00 P.M. upto 11.30 P.M. is beyond reason of an ordinary prudent man. The testimony of Ranvir Singh Khokha P.W.5, Brijesh Kumar Yadav P.W.7 and father of the victim Komal Singh P.W.2, respectively, contradicts each other in material particulars. On wholesome consideration of the occurrence and appraisal of evidence and facts vis-a-vis circumstances, lead us to conclusion that it is a case which was managed and handled by the police for embarrassing the accused in order to help his opponent- the other side- who had inimical intendments and for setting score with the accused. On wholesome consideration of the occurrence and appraisal of evidence and facts vis-a-vis circumstances, lead us to conclusion that it is a case which was managed and handled by the police for embarrassing the accused in order to help his opponent- the other side- who had inimical intendments and for setting score with the accused. The learned trial court while appreciating facts, evaluating testimony and apparent circumstances of the case misread the wholesomeness of the case and recorded findings of conviction on such shaky evidence, which is full of infirmity and hollowness. Consequently, the finding of conviction lacks the legal force and we are unable to uphold the same as such. These are the reasons upon which, we set aside the impugned judgment and order of conviction dated impugned judgment and order dated 9.11.2006 passed by the Special Judge, Dacoity Affected Area, Etawah in Special Sessions Trial No. 104 of 2005, arising out of Case Crime No. 25 of 2005; State Vs. Mahendra alias Guddan convicting the appellant under sections-307/34, 364 A IPC and Sections-25/27 Arms Act. However, we direct that the appellant will ensure compliance of provisions of Section 437A Cr.P.C. by furnishing security bonds before the concerned trial court at the earliest. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.