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2017 DIGILAW 106 (ALL)

GYAN SINGH v. STATE OF U. P.

2017-01-09

ARUN TANDON, RAJUL BHARGAVA

body2017
JUDGMENT : 1. Heard Sri R.K. Vaishya, learned counsel for the appellants and Sri Syed Ali Murtaza, learned AGA for the State. 2. This criminal appeal under Section 374 (2) Cr.P.C. has been filed by convict-appellants Gyan Singh and Man Singh against the judgment and order dated 7.2.2009, passed by Additional Sessions Judge, Court No.1/Special Judge (Dacoity Affected Area) District Mahoba in S.T. No.47 of 2006, State Vs. Vrindavan and others, arising out of Case Crime No.175 of 2006, convicting and sentencing the appellants under Section 364-A IPC read with section 2-B of Dacoity Affected Area Act and have been sentenced to life imprisonment each and a fine of Rs.10,000/- each, in case of default in payment of fine to further undergo additional imprisonment for a period of one year. 3. The prosecution story as narrated from the record before us is as under :- The First Information Report was lodged at Police Station Charkhari District Mahoba on 7.3.2006 at 22.15 hours by one Ashish Tripathi. In the First Information Report, it was stated that in the night 6/7.3.2006 around 2.00 A.M., when father of the first informant Krishna Bihari along with one Rameshwar and Ram Kishore both sons of Bandi Kushwaha were lying in the Khalihan, one Panchu along with his accomplice reached and demanded water for drinking, thereafter they took away Krishna Bihari along with them for the purpose of showing the way. It was stated that the father of the first informant has not returned since then and the informant apprehend that some untoward incident has taken place. The First Information Report was registered as Case Crime No.175 of 2006, under Section 364 IPC, Police Station Charkhari, District Mahoba. 4. According to the prosecution, on 14.3.2006 when S.H.O. Karan Singh along with other police officials was investigating the present case, he received an information that Krishna Bihari is in the custody of the gang led by Panchu alias Pancham Singh, who at that point of time was present along his gang in the jungle of Hiluva. On the information, so received, the Investigating Officer along with other police officials reached at the place where the accused along with abductee Krishna Bihari were stated to be present. Police had reached there with the Government Jeep No. U.P.95/4546. On the information, so received, the Investigating Officer along with other police officials reached at the place where the accused along with abductee Krishna Bihari were stated to be present. Police had reached there with the Government Jeep No. U.P.95/4546. It is then stated that three groups of the police officials, first one led by constable Ram Singh, the other by Chandrabhan Singh and the third was led by Shailendra Singh. The police party had seen 8 to 10 criminals along with their fire arms sitting under the tree in the jungle. On challenge being made by the police, the criminals had fired upon the police, which was responded too and the criminals started running away from the place and Police arrested five of them along with illicit fire arms at 1.30 P.M. Police also recovered the victim, who disclosed his name as Krishna Bihari residence of village Soopa P.S. Charkhari. The remaining accused ran away towards south. Krishna Bihari along with arrested criminals were directed to be taken to the Police Station while other Police party started chasing other accused. Four of the said accused started firing upon the Police. It was again responded to and upon the firing from the side of the criminals stopped thereafter the Police reached at the place where the accused were earlier stationed. It was found that two of them had expired. The illegal fire arms and cartridges were also recovered. The other accused Panchu alias Pancham and other unknown fled away from the spot. The two accused, who were killed during firing, were identified as Devi Deen son of late Nirbhai resident of village Bhadesar police station Bhegaon District Chhatarpur and Raju son of Mandan, resident of Pawa, the Police also recovered fire arm and cartridges from the field. 5. After investigation, Police report was submitted under Section 364-A IPC and charges were framed vide order dated 17.1.2007. Prosecution in support of its case, produced Ashish Tripathi, the first informant as PW.1 and Krishna Bihari as PW.2 Ram Kishore and Rameshwar with whom the victim Krishna Bihari was stated to be lying on the field as PW.3 and 4 respectively. Ghanaram Chaudhary, Head Moharrir was examined as PW.5 to prove Chik FIR. Vijay Singh, Investigating Officer was produced as PW.6, while Karan Singh the second Investigating Officer was produced as P.W.7. 6. Ghanaram Chaudhary, Head Moharrir was examined as PW.5 to prove Chik FIR. Vijay Singh, Investigating Officer was produced as PW.6, while Karan Singh the second Investigating Officer was produced as P.W.7. 6. The appellants were examined under Section 313 Cr.P.C. wherein they categorically denied to have been arrested on the spot along with victim as alleged by the prosecution. They have stated that they were taken away from their house by the Police and a fake arrest was shown. 7. The Trial Court after considering the evidence brought on record, has convicted the accused Gyan Singh and Man Singh under Section 364-A IPC read with Section 2(B) of Dacoity Affected Areas Act and sentenced them as indicated above. The other accused, Vrindavan, Bharat and Kamta have been acquitted on the ground of benefit of doubt. 8. It has been contended by learned counsel for the appellants that they were not named in the first information report. There is no reliable and credible evidence against the appellants to connect them with the present crime. The prosecution story of arrest of appellants along with the victim has been fabricated by the Police, the appellants were not put up for identification during investigation from the victim and other witnesses. It is only on the basis of identification by P.W.1 Krishna Bihari in the trial conviction has been recorded. Lastly, it has been submitted that prosecution has utterly failed to lead any evidence of demand of ransom to constitute an offence under Section 364-A IPC. 9. Per contra, learned A.G.A. vehemently opposed the submission made by the learned counsel for the appellants and submitted that the prosecution has proved its case against the appellants beyond shadow of reasonable doubt. In support thereof he has argued that the victim has correctly identified the appellants who had abducted him during trial in Court. It is further stated that the appellants were arrested along with the victim as proved by P.W.6 and P.W.7. 10. On behalf of the appellants, it is submitted that from the testimony of P.W.1 Ashish Tripathi, it is apparently clear that he claims to have known Panchu only and that it is clear that he was not an eye-witness of the abduction of Krishna Bihari his father and further that the First Information Report was lodged by him on the basis of information, which, he received. In his testimony, there was no allegation about any ransom having been demanded for releasing Krishna Bihari. 11. It is pertinent to state that so far as testimony of P.W.2 Krishna Bihari, the victim is concerned, we find that subsequently he was declared hostile, while in his statement under Section 164 Cr.P.C., he had named the person, who had abducted him, but in his testimony as P.W.2, he has not named any of the person, who had abducted him on the night of 6/7.3.2006. It has been stated by him that he did not know Vrindavan, Kamta and Bharat prior to incident. However, they were not involved in abduction. In his cross-examination, the victim stated that he is not able to identify the accused who were present in the Court and he is also not sure as to whether they were party to his abduction or not. P.W.3, Ram Kishore the other witness of abduction was also declared hostile and in his testimony, he clearly stated that he had not informed the Police at any point of time that appellants had taken away Krishna Bihari. Similarly, P.W.4 Rameshwar in his testimony stated that he knew Panchu only and Krishna Bihari was taken away only for the purpose of showing the way. He also denied having made any abduction by the appellants before the Police officer. He was also declared hostile by the prosecution. 12. The Trial Court after considering the evidence which has been brought on record came to the conclusion that since the victim Krishna Bihari could identify Gyan Singh and Man Singh in Court, they were liable to be convicted for the offence under Section 364-A IPC read with section 2-B of Dacoity Affected Area Act for which they have been punished with life imprisonment with the fine as indicated above. The other accused Vrindavan, Bharat and Kamta have been acquitted for the charges levelled against them. 13. It has been submitted that the appellants were neither named in the first information report nor were known to the victim or any of the prosecution witnesses. No test identification parade was held during investigation and they were identified in the Court for the first time by the victim P.W.2, as such no reliance should have been placed on such an identification. No test identification parade was held during investigation and they were identified in the Court for the first time by the victim P.W.2, as such no reliance should have been placed on such an identification. More so, when there were no special circumstance to place the reliance upon his identification for the first time made in Court without the same being corroborated by previous identification, in the test identification parade or any other evidence. 14. In the case of Vaikuntam Chandrappa Vs. State of A.P. ( AIR 1960 SC 1340 ) which is a three-Judge Bench decision of this Court, Wanchoo, J. with whom A.K. Sarkar and K. Subba Rao, JJ. Agreed, speaking for the Court, observed that the substantive evidence of a witness is his statement in Court but the purpose of test identification is to test that evidence and the safe rule is that the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to the witnesses, generally speaking, requires corroboration which should be in the form of an earlier identification proceeding or any other evidence. 15. In Dana Yadav alias Dahu & others Vs. State of Bihar (2002)7 SCC page 295. Hon'ble Apex Court has held that, "it is also well settled that failure to hold test identification parade, which should be held with reasonable dispatch, does not make the evidence of identification in Court inadmissible, rather the same is very much admissible in law. Question is, what is its probative value? Ordinarily, identification of an accused for the first time in Court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in Court. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in Court. If a witness identifies the accused in Court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes as a rule of prudence and not law, unsafe to rely on such a piece of evidence." 16. Learned counsel for the appellants vehemently contended before us that there is absolutely no evidence and the circumstances for sustaining the demand of ransom. It is further contended that the prosecution did not produce any evidence for sustaining the statement of Krishna Bihari that phone calls were received for demanding ransom. Neither any phone was recovered from the accused, nor details of the telephone numbers from which such calls were received from Krishna Bihari had been produced before the trial Court. It is submitted that on the basis of evidence brought on record that there was nothing for establishing the demand of ransom and, therefore, offence under Section 364-A IPC would not be made out. 17. According to Section 362 of the Indian Penal Code "Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person." The ingredients of Section 362 are: (i) Forcible compulsion or inducement by deceitful means: (ii) The objects of such compulsion or inducement must be the going of a person from any place. Section 362 merely defines the term 'abduction'. Therefore, abduction per se is not offence under the IPC. It is an offence when it is accompanied by certain intent to commit another offence. Force or fraud is essential to make abduction punishable. Abduction, if falls in the categories provided under Section 364, 364A, 365, 366, 367 & 369, will amount to an offence. Thus, abduction is an offence only if it is done with intent to: (i) Murder (S.364); (ii) Abduction for ransom (S.364A); (iii) Secretly and wrongfully confining a person (S.365); (iv) Induce woman to compel her marriage (S.366); (v) Subject person to grievous hurt, slavery etc. (S.367). 18. Thus, abduction is an offence only if it is done with intent to: (i) Murder (S.364); (ii) Abduction for ransom (S.364A); (iii) Secretly and wrongfully confining a person (S.365); (iv) Induce woman to compel her marriage (S.366); (v) Subject person to grievous hurt, slavery etc. (S.367). 18. Thus, we may record that the prosecution in order to convict the appellants under Section 364A IPC had to prove by reliable evidence that the abduction was done for the purposes of demand of ransom to constitute an offence under Section 364A IPC. 19. We may record that the son of the victim, who was examined as P.W.1 could not establish demand of ransom by the accused. We find that there is no suggestion in the judgment and order of the Trial Court about demand of any ransom having been made by the accused for releasing the alleged abductee, Krishna Bihari. We further find that there is no finding with regard to demand of ransom having been made by the accused-appellants, which warrants evidence on record to prove it beyond any shadow of doubt. We find that the charges against the accused-appellants are not proved because Krishna Bihari stated to have identified only two accused-appellants and not the other accused that too in the Court. As noted above, no proper identification had taken place, the eye-witnesses had turned hostile and there are contradictions in the testimony of P.W.2, the victim, in his statement under Section 164 Cr.P.C. about the manner of having been taken him away by the four accused involved in this case. 20. In the light of the aforesaid judgment and order of the Trial Court convicting the accused-appellants cannot be sustained and charge has not been proved beyond shadow of reasonable doubt. The appeal is allowed. Judgment and order dated 7.2.2009 passed by Additional Sessions Judge, Court No.1/Special Judge (Dacoity Affected Areas) District Mahoba, in S.T. No.47 of 2006, State Vs. Vrindavan and others, arising out of case Crime No.175 of 2006, is hereby set aside. The appellants are in jail. They shall be released forthwith, unless otherwise wanted in some other case.