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2016 DIGILAW 3732 (ALL)

Amar Singh v. State Of U. P.

2016-11-17

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

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JUDGMENT : Arvind Kumar Mishra-I, J. 1. The aforesaid set of appeals have been preferred by the aforementioned appellants against judgment and order of the conviction dated 09.04.2013 passed by Additional Sessions Judge/Special Judge (Dacoity Affected Areas' Act) Etawah in Special Case No. 158 of 2008 arising out of Case Crime No. 173 of 2002, State Vs. Uday Veer and others, under Section 364-A IPC, Police Station Jaswant Nagar, District-Etawah, whereby the appellants have been sentenced to imprisonment for life coupled with fine of Rs.10,000/- each with default stipulation for serving six months additional simple imprisonment, under Section 364-A IPC. 2. Prosecution story, as emanates from record appears to be that a written report Exhibit Ka-1 was lodged at Police Station-Jaswant Nagar, District Etawah on 22.05.2002 at 6:40 p.m. by informant Suresh Chandra s/o Geeta Ram Jatav, r/o Buddhapura, P.S. Jaswant Nagar, District Etawah against three persons-Uday Veer s/o Mauji Lal Yadav, Ravi s/o Ram Narayan and Amar Singh s/o Sant Ram Jatav regarding kidnapping of his nephew Raj Bahadur, aged 13 years, for ransom on 18.05.2002, with allegation that a report had already been lodged at Police Station Jaswant Nagar in this case on 20.05.2002 thereafter, it transpired that on 16.05.2002, some conversation between Uday Veer s/o of Mauji Lal Yadav r/o Jhalokher, P.S. Civil Lines, Etawah and Amar Singh s/o Sant Ram Jatav r/o Janakpur, P.S. Civil Lines was overheard by the local people at the knitting shop at Ludhpura. After that on 18.05.2002, Amar Singh was seen by Bharat Singh and Shyam Singh in company with Raj Bahadur for getting him sewing machine. When they asked Raj Bahadur as to where he was going, then Uday Veer Yadav and Ravi s/o Ram Narayan Yadav, r/o village Jhalokher also arrived. They were going to Jhalokher for obtaining/availing sewing machine. Amar Singh, Uday Veer, Raviall the three took Raj Bahadur with them, but uptil now, whereabouts of Raj Bahadur is not known. These three persons have kidnapped informant's nephew for demand of ransom. Report be lodged and action be taken. 3. Contents of Exhibit Ka-1 were taken down in the check FIR no. 88/2002 on 22.05.2002 at 6:40 p.m. at Police Station-Jaswant Nagar at case crime no. 173/2002, under Section 364-A IPC. Check FIR is Exhibit Ka-5. These three persons have kidnapped informant's nephew for demand of ransom. Report be lodged and action be taken. 3. Contents of Exhibit Ka-1 were taken down in the check FIR no. 88/2002 on 22.05.2002 at 6:40 p.m. at Police Station-Jaswant Nagar at case crime no. 173/2002, under Section 364-A IPC. Check FIR is Exhibit Ka-5. The case was registered against the accused persons on the basis of the entries made in the check FIR at GD serial no.31 at 18:40 hours on 22.05.2002, carbon copy whereof, is Exhibit Ka-6. 4. The investigating officer R.P. Singh, PW-4, took over the investigation after registration of the case on 22.05.2002. He took account of previous missing report filed by the informant on 20.05.2002, which was noted at serial no. 23 at 12:30 hours on 20.05.2002 at Police Station-Jaswant Nagar. Investigating officer recorded statement of various prosecution witnesses, proceeded to the spot, prepared site plan-Exhibit Ka-4 and on 23.05.2002, investigation was handed over to SSI B.K. Singh PW-7, who after perusing the record of previous investigation, proceeded further in the matter and arrested Amar Singh and recovered Raj Bahadur the victim from Sirsa jungle at the instance of Amar Singh. The recovery memo of Raj Bahadur (the victim), has been proved as Exhibit Ka-8. He also recorded statement of various prosecution witnesses. The victim was given in the custody of his father on 23.05.2002. His statement was also recorded by the Investigating Officer. 5. Record reflects that third Investigating Officer Ashok Kumar Singh (P.W.6) took over investigation on 24.07.2002. He also recorded statement of various prosecution witnesses including the victim besides recording statement of the accused persons and after completing the investigation, he filed charge-sheet against accused Uday Veer, Ravi, Amar Singh, Atar Singh, Veer Bhan and Ram Narayan, which is Exhibit Ka-7. 6. Consequently, committal proceeding took place and the case was committed to the Court of Session where the accused persons were heard on point of charge and the learned Trial Court was satisfied with prima-facie case and accordingly framed charge under Section 364A IPC against aforesaid accused persons. Charge was read over and explained to the accused, who abjured charge and opted for trial. 7. The prosecution in order to prove guilt of the accused examined as many as seven prosecution witnesses. Brief reference of the same is ut infra:- 8. Suresh Chandra PW-1, is the first informant. Charge was read over and explained to the accused, who abjured charge and opted for trial. 7. The prosecution in order to prove guilt of the accused examined as many as seven prosecution witnesses. Brief reference of the same is ut infra:- 8. Suresh Chandra PW-1, is the first informant. The victim Raj Bahadur was his nephew. 9. Raj Bahadur PW-2, is the victim himself. He has described the incident and has been cross-examined by the defense. 10. Dr. D.P. Singh PW-3, has medically examined the victim Raj Bahadur at District 6 Hospital, Etawah on 23.05.2002. 11. R.P. Singh PW-4, is the first Investigating Officer of this case. He has detailed the various steps he took towards completion of the investigation. 12. Constable Mahendra Pal Singh, P.W.5 has proved relevant entries made in the check FIR and the concerned GD, Exhibit Ka-5 and Ka-6, respectively. 13. Ashok Kumar Singh PW-6, is the third Investigating Officer of this case, he has described about his investigation. 14. S.I. Brijesh Kumar Singh PW-7, is the second Investigating Officer. He arrested Amar Singh and recovered the victim Raj Bahadur. He has proved recovery/arrest of Amar Singh as Exhibit Ka-8. 15. Except as above, no other evidence was adduced by the prosecution, therefore, evidence for the prosecution was closed and statement of the accused persons was recorded under Section 313 Cr.P.C., wherein accused persons claimed to be innocent and to have been falsely implicated on account of enmity. 16. The defence did not lead any evidence. 17. After hearing both the sides on merit of the case and after appraising the facts and evaluating the evidence, the trial court returned finding of conviction and sentenced the appellants as ut supra. 18. Consequently, this appeal. 19. We have heard Shri Dharmendra Singh, Shri Ansar Ahmad, learned counsel for the appellants, Shri Vijay Shantam, learned amicus curiae and Shri A.N. Mulla, Shri J.K. Upadhyay, Shri Saghir Ahmad, assisted by Smt. Manju Thakur, learned A.G.As for the State. 20. It has been vehemently contented on behalf of the appellants that the entire case is fabricated and concocted by the first informant in collusion with the police on account of enmity with the accused persons. No such offence, as alleged, has been committed by the appellants. 20. It has been vehemently contented on behalf of the appellants that the entire case is fabricated and concocted by the first informant in collusion with the police on account of enmity with the accused persons. No such offence, as alleged, has been committed by the appellants. The facts and circumstances of the case, abundantly show that the things have been tried to be settled in a way that may give harmony to the prosecution story and be in tune with facts and circumstances of the case but the attempt to show such inherent harmony the entire fact stands exposed in view of cogent testimony on record replete with explicit and implicit contradictions in the testimony of prosecution witnesses of fact say P.W.1 and P.W.2respectively. The alarming point is testimony of Raj Bahadur, PW2, the victim, he himself has stated categorically that after he was recovered by the police, then only he told names of the accused persons and report was lodged. Learned counsel further claims that as per testimony of Suresh Chandra, PW1, he was informed about the incident on the very same day on 20.05.2002 by the two witnesses Bharat Singh and Shyam Singh that the victim was seen in company with Amar Singh and other accused persons, but the missing report given at the Police Station Jaswant Nagar on 20.05.2002, does not contain names of any accused person. This fact shows that things have been manipulated. In this way, the first information report becomes antetimed and hollowness of the prosecution case is proved to the hilt. Testimony of prosecution witnesses does not inspire confidence, instead it reflects motivation for false implication in collusion with the police. In fact, the entire episode against the present appellants is highly motivated for the reason that the informant side had to impart training fee/amount to Amar Singh for imparting training for sewing cloth at Amar Singh's shop. Therefore, as a pretext, instead of giving the money/fee for training course, Amar Singh along with others, was falsely named by the first informant. Non-mention of the names of the accused persons on 20.05.2002 in the first instance itself is sufficient for raising doubt on the veracity of the prosecution version. The learned trial court did not appraise facts as well as relevant evidence on record instead recorded casual finding of conviction which finding of conviction is not sustainable in the eyes of law. Non-mention of the names of the accused persons on 20.05.2002 in the first instance itself is sufficient for raising doubt on the veracity of the prosecution version. The learned trial court did not appraise facts as well as relevant evidence on record instead recorded casual finding of conviction which finding of conviction is not sustainable in the eyes of law. 21. Per contra, learned AGA submitted that the case of the prosecution was proved to the hilt. Whatever contradictions appear in the testimony of the prosecution witnesses of fact is of trivial nature, and the same cannot be said to be substantive in nature. Obviously, the victim was enticed away and the witnesses saw the very act being committed by the accused persons and under facts and circumstances of the case, the first informant could not write name of the appellants in the missing report dated 20.05.2002 then it shows perplexed mindset of the first informant. It does not credit any doubt on the veracity of the prosecution case. Testimony of Raj Bahadur, PW-2, the victim is enough for proving the charge in question. The case of the prosecution is proved beyond reasonable doubt. 22. We have also considered the above submissions and perused the evidence on record. The point for adjudication of this appeal revolves around the fact whether the prosecution has proved its case beyond reasonable doubt against the appellants. 23. Before proceeding with the evidenciary value of the prosecution witnesses it would be appropriate to have dip into the contents of the first information report, which describe the incident in manner that the first informant lodged written report at Police Station Jaswant Nagar on 22.05.2002 at about 6:40 p.m. regarding fact of disappearance of his nephew Raj Bahadur, aged about 13 years, apprehending his kidnapping for demand of ransom with allegation that one missing report had already been lodged at Police Station Jaswant Nagar whereby fact of disappearance of Raj Bahadur was made and in pursuance thereof, this information is being given that accused Amar Singh was seen enticing away his nephew (Raj Bahadur) along with other co-accused persons Uday Veer Yadav and Ravi. When intercepted by Shyam Singh and Bharat Singh they asked the victim as to where he was going with them? Then he told that these people are assisting him for availing sewing machine at village Jharokher. When intercepted by Shyam Singh and Bharat Singh they asked the victim as to where he was going with them? Then he told that these people are assisting him for availing sewing machine at village Jharokher. Thereafter, Amar Singh, Uday Veer and Ravi went away with Raj Bahadur. Raj Bahadur did not return. Amar Singh in collusion with his colleagues has kidnapped his nephew for extending demand for ransom. In this conspicuous background of this case, the evidence of Shyam Singh and Bharat Singh would have contributed a lot for arriving at just decision, but both these persons, who as per version contained in the FIR intercepted the victim on 18.5.2002, have not been produced by the prosecution, therefore, we have to scrutinize testimony of other prosecution witnesses of fact, in order to unravel the truth along with the facts and circumstances of the case. 24. Obviously, the incident of disappearance of Raj Bahadur is stated to have taken place on 18.05.2002, whereas a report regarding disappearance of Raj Bahadur was allegedly made on 20.05.2002 at Police Station Jaswant Nagar, however, that report has not been brought forth before the court, therefore, no reflection need be made on that particular aspect, however, it is admitted position that first information report was lodged on 22.05.2002 at 6:40 pm., wherein, names of the three accused persons, namely, Uday Veer, s/o Mauji Lal Yadav, Ravi, s/o Ram Narayan, Amar Singh, s/o Sant Ram Jatav were specifically mentioned and this first information report has been proved as Exhibit Ka-5 by constable Mahendra Pal Singh PW-5. In this particular factual background of this case the fact of disappearance of Raj Bahadur occurred on 18.05.2002, some missing report lodged on 20.05.2002 at Police Station Jaswant Nagar and then full-fledged first information report was lodged on 22.05.2002 at 6:40 pm. The only worthy testimony on point of occurrence has come from the star witness (PW2) who by explaining and encircling the entire episode can be said to be suggestive of fact that things have been managed. Raj Bahadur, the star witness has been examined as PW2. The only worthy testimony on point of occurrence has come from the star witness (PW2) who by explaining and encircling the entire episode can be said to be suggestive of fact that things have been managed. Raj Bahadur, the star witness has been examined as PW2. No doubt, Suresh Chandra PW-1, the first informant, the uncle of the victim has also touched certain aspects of this episode in his testimony, however, he is not a witness of fact that he either saw Raj Bahadur last time in company with accused persons or that he ever witnessed the incident in any manner, whatsoever. He was not present even at the time of recovery of Raj Bahadur, the victim. Therefore, the only testimony that relates to fact of occurrence in form of disappearance/kidnapping of Raj Bahadur by the accused persons assumes center point of this case. 25. It has been vigorously contended that the first information report is outcome of deliberation with the police and applicant have been falsely named on account of enmity and the FIR is ante-timed. We have suitable reply also on the aforesaid point but we would consider the entire magnitude of rival claims in view of the testimony of prosecution witnesses of facts vis-a-vis circumstances of this case. Suresh Chandra PW-1, the first informant, has got himself examined on 16.03.2004 before the trial court, wherein, he has stated that on 18.05.2002, his nephew Raj Bahadur, aged 13 years, had gone to the shop of Amar Singh for learning about sewing and knitting. But he did not return, therefore, in the evening the first informant started searching for him. He met with Shyam Singh and Bharat Singh, who told him that they saw Raj Bahadur in company with Amar Singh, Uday Veer, Ravi, Ram Narayan, Pappu and Atar Singh and they had assured Raj Bahadur of availing for him sewing machine. He also stated that he had given some report at the Police Station on 20.05.2002. Further, stated that while searching Raj Bahadur, he could not trace out his whereabouts, therefore, he at last lodged first information report on 22.05.2002 at the Police Station against Ravi, Uday Veer and Amar Singh. He has proved his written report as Exhibit Ka-1. He also stated that he had given some report at the Police Station on 20.05.2002. Further, stated that while searching Raj Bahadur, he could not trace out his whereabouts, therefore, he at last lodged first information report on 22.05.2002 at the Police Station against Ravi, Uday Veer and Amar Singh. He has proved his written report as Exhibit Ka-1. It is reflected from record that victim Raj Bahadur was recovered by the police on 23.05.2002 and the victim was given in his (PW-1) custody by the police and a custody memo was also prepared by the police, which is Exhibit Ka-2. He has been cross-examined at length by the defence, wherein he has clarified that accused Amar Singh is his nephew ('bhanja') and the victim Raj Bahadur is also his nephew ('bhatija'). He has been suggested by defense that in fact Raj Bahadur was being trained in sewing and knitting work by Amar Singh at his shop and some remuneration was agreed upon to be paid for the same to the tune of Rs. 2000/- and Raj Bahadur was trained for two and half months but no remuneration was paid and in order to evade payment, a cock and bull story pertaining to kidnapping for ransom was build up. This situation has been denied by the witness. Suresh Chandra PW-1 testifies that on the day of occurrence his nephew had gone for his training course around 10 a.m. and he met with two persons say Bharat Singh and Shyam Singh, while making search for Raj Bahadur, who told him names of Uday Veer Yadav, Ravi and Amar Singh as the persons who were seen in company with the victim but it is quite surprising that the testimony of PW-1, in so far as it relates to knowing names of the above three persons, raises serious doubts on the credibility of his testimony when he could not name even a single person in his first report on 20.05.2002 made at the police station. The next report which was lodged on 22.05.2002 was the de jure first information report it contained names of only three persons as the accused. Whereas testimony of PW-2 Raj Bahadur is quite interesting on point of naming of the accused persons. The next report which was lodged on 22.05.2002 was the de jure first information report it contained names of only three persons as the accused. Whereas testimony of PW-2 Raj Bahadur is quite interesting on point of naming of the accused persons. He says in his examination-in-chief that the accused personsay Amar Singh, Uday Veer, Ran Veer and Ravi had enticed away him and took him to village Jharokhar and kept him in the jungle. His eyes were tightened with strips and he was recovered by the police. On page 24 of the Paper Book, it has been testified by Raj Bahadur PW2, that first informant Suresh is his uncle, who lodged the report only when he told names of the accused persons to him. He further testifies on the same page that the residents of Jhalokhar had told names of Pappu, Atar Singh and Uday Veer and it was only on that count that he spelt their names and he knows Amar Singh prior to the incident. He continues in the same vein and testifies that he did not know prior to the incident Pappu, Uday Veer and Atar Singh. 26. This specific testimony by itself is sufficient to reflect on fact that the first information report which is claimed to have been lodged on 22.05.2002 becomes antetimed and outcome of deliberation made between the police concerned and the first informant and the victim and this report was lodged only after the victim was allegedly recovered by the police at around 10 a.m. on 23.05.2002. Testimony of Raj Bahadur PW-2, overwhelmingly shows that the first information report was claimed to have been lodged at 6:40p.m. On 22.05.2002. This specific claim falls squarely to the ground in view of specific testimony of PW2 Raj Bahadur. This way the entire prosecution case falls flat to the ground. The point for consideration takes us to reasonable supposition that as per contents of FIR if the first informant had come to know about names of the accused persons (on 18.05.2002) with whom the victim had gone missing, then how and why the first informant kept silent for about 34 days, i.e., from 18th to 22nd of May 2002 and in the evening at 6:40 pm. only he lodged the first information report. 27. Admittedly, the recovery of the victim was not made from any of the accused persons. only he lodged the first information report. 27. Admittedly, the recovery of the victim was not made from any of the accused persons. Although it is stated that the accused persons fled away from the scene after seeing the police. PW-2 Raj Bahadur has further stated that the police did not make any memo on the spot from where the police recovered him. This specific testimony appears on the last line of page 29 and top 2 lines of page 30 of the Paper Book. PW-2 says that the police did not obtain his signature on any paper on the spot. Again on page 30 in the concluding para of the testimony (of PW-2), he testifies that he told names of the miscreants to the police only then his uncle lodged the report. 28. In so far as point of demand for ransom is concerned, there is no iota of evidence on record justifying framing of charge for demand of ransom. PW-1 Suresh Chandra, himself has testified on page 17 of the Paper Book that he did not receive any message for any demand for ransom nor did he receive any telephonic call for any ransom. Raj Bahadur PW2, also 19 testifies to the ambit that he did not know qua any demand for ransom of his kidnapping being made by the accused persons. In view of the testimony of PW2, the entire prosecution case is found to be full of infirmity, deliberation, embellishments and improvements. 29. It is cardinal principle of criminal jurisprudence and trite law that in case the first information report is found to be bogus and outcome of deliberation and the same is found to be antetimed then the hollowness of the claim made in the first information report becomes fatal and stands exposed. Hollowness of prosecution case is established. 30. Here, we may observe that even the place of recovery in the face of conspicuous testimony of PW-2 that no paper was prepared on the spot becomes doubtful, thus, testimony of the Investigating Officer, that he prepared any such memo of the spot of recovery of victim, becomes false and doubtful claim and it gives vent to suspicion that the entire proceeding was completed at the police station in order to falsely implicate the accused persons. Testimony on vital points/facts and the case of both the witnesses of fact PW-1 Suresh Chandra and PW-2 Raj Bahadur is full of vital contradictions and both speak of different arena and their testimony on the whole is sketchy and does not inspire confidence and serious doubts creep in the prosecution story. 31. In view of aforesaid discussion, both on facts and law, the trial court misread the evidence and facts and erroneously returned finding of conviction, which finding of conviction cannot be said to be based on material on record, as such the same is liable to be set aside. accordingly, grounds urged in support of appeal carry force and are sustained by us. 32. Consequently, these appeals are allowed and the impugned judgment and order dated 09.04.2013 passed by Additional Sessions Judge/Special Judge (Dacoity Affected Areas' Act) Etawah in Special Case No. 158 of 2008 arising out of Case Crime No. 173 of 2002, State Vs. Uday Veer and others, under Section 364A IPC, Police Station Jaswant Nagar, District Etawah, convicting the appellants under Section 364-A IPC and sentencing them to life imprisonment is hereby set aside. 33. In this case, appellants are in jail. They be set free forthwith, if not wanted in connection with any other case after complying with the provisions of Section 437-A Cr.P.C. 34. Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.