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2017 DIGILAW 2031 (ALL)

Prakash @ Om Prakash v. State of Uttar Pradesh

2017-08-30

SATYA NARAIN AGNIHOTHRI

body2017
JUDGMENT : Satya Narain Agnihotri, J. The instant both appeals have been directed against the impugned judgment and order dated 17.05.2013, passed by the learned Special Judge, SC/ST (P.A.) Act, Hardoi, in Session Trial No. 386 of 2011, arising out of Crime No. 91 of 2011, under Section 364 IPC and 3(2)(5) SC/ST (P.A.) Act, Police Station Kachhauna, District Hardoi, whereby learned Special Judge, SC/ST (P.A.) Act, Hardoi, hold guilty to the appellants Prakash @ Om Prakash and Kallu @ Raju Mistri, under Section 364 IPC and 3(2)(5) SC/ST (P.A.) Act, and sentenced them with 10 years rigorous imprisonment and fine of Rs. 5,000/- each and in default of payment of fine, the accused-appellants shall further undergo 6 months rigorous imprisonment. 2. The facts giving rise to these appeals may be summarized as under: 3. Complainant Kanhai submitted an application Ext. Ka.1 to the Police Station Kachhauna, District Hardoi on 28.01.2011 alleging therein that in the intervening night of 27/28.01.2011 some unknown kidnapped infant child of complainant aged about three and half years namely Abhishek from his house situated at Gram Raisho, Police Station Kachhauna, District Hardoi. He further alleges that the sister of his neighbor Ramashankar namely Smt. Meera was married with one Yograj, resident of Sikandarpur, Police Station Jalalabad, District Sahajahanpur. Smt. Meera fall in love with accused-appellant Kallu @ Raju Mistri and after some time she came at village Raisho and started living with the accused-appellant Kallu @ Raju Mistri as his wife in the house of his brother Ramashankar. 4. Appellant-accused Kallu @ Raju Mistri created nuisance in the village, that why he was externed from the village Raisho and he used to start living in town Sandila, where he kidnapped the son of one Mr. Suresh and murdered him. 5. Complainant Kanhai expressed his opinion that he had reason to believe that appellant-accused Kallu @ Raju Mistri has kidnapped his son because he was threatening to his in laws, and was seen so many times in the village Raisho. 6. In pursuance of Ext. Ka.1 a formal chick FIR Ext. Ka.2 was recorded on 28.01.2001 at 15.20 O'clock. This fact was entered in general diary Ext. Ka.3. The matter was investigated and investigator visited the place of occurrence and prepared site plan Ext. Ka.4. 6. In pursuance of Ext. Ka.1 a formal chick FIR Ext. Ka.2 was recorded on 28.01.2001 at 15.20 O'clock. This fact was entered in general diary Ext. Ka.3. The matter was investigated and investigator visited the place of occurrence and prepared site plan Ext. Ka.4. Later on kidnapped infant child was recovered by the police and was handed over to the complainant Kanhai and document of which was prepared as Ext. Ka.5. Investigating Officer prepared site plan of the place from where the infant child was recovered, which is Ext. Ka.6. After completion of investigation, the charge-sheet Ext. Ka.7 was submitted in the court. 7. To prove the guilt of accused-appellants prosecution examined prosecution witnesses (for brevity), P.W.-1 Kanhai the complainant, P.W.-2 Smt. Kamla, wife of complainant and mother of the victim, P.W.-3 Ramashankar neighbor of complainant and brother of Smt. Meera, P.W.-4 F.R. Arya the investigating officer. 8. In the statement recorded under Section 313 Cr.P.C., 1973 the accused-appellants admitted that they were trying to get the child of appellant Kallu @ Raju Mistri and sister of P.W.-3 Smt. Meera, the wife of Kallu @ Raju Mistri. The rest of evidence of the prosecution is false. Both the appellants further stated that first husband of Smt. Meera namely Yograj with the connivance of police falsely implicated them. The first marriage of Smt. Meera was preformed with Yograj. The Yograj tried to carry away Smt. Meera with him due to which, with the connivance of Ram Naresh, Barkat Ali and police of the concerned police station, the accused-appellants have been falsely implicated in this case. Son of complainant was never kidnapped, he was kept some where else by the complainant with the knowledge and assistance of the police. 9. The appellant Prakash @ Om Prakash further stated that he has never visited the place of incident. The accused-appellants examined D.W.1 Smt. Meera in their favour. 10. Heard learned amicus curiae Sri Rehan Ahmad Siddiqui and Sri Bal Keshwar Srivastava, learned AGA for the State and gone through the entire record including the evidence tendered by the prosecution and judgment of learned Trial Judge. 11. The accused-appellants examined D.W.1 Smt. Meera in their favour. 10. Heard learned amicus curiae Sri Rehan Ahmad Siddiqui and Sri Bal Keshwar Srivastava, learned AGA for the State and gone through the entire record including the evidence tendered by the prosecution and judgment of learned Trial Judge. 11. P.W.-1 complainant Sri Kanhai stated on oath that in the intervening night of 27/28.01.2011 he along with his wife and children was sleeping in the house situated at village Raiso, Police Station Kachhauna, District Hardoi, some unknown person one kidnapped the infant child namely Abhishek, aged about three and half year after 12.00 O'clock. When he awoke in the morning, he did not find his son Abhishek. He suspected that accused appellants kidnapped his son. He further narrated that sister of Ramashankar Smt. Meera was married to one Sri Yograj to whom she has left and started living with appellant-accused Kallu @ Raju Mistri in the house of his brother Ramashankar. Smt. Meera gave birth two children with the wedlock of appellant-accused Kallu @ Raju Mistri. Appellant-accused Kallu @ Raju Mistri started to create nuisance after consuming liquor, that’s why he was exerned from the village and Smt. Meera remained in village with his children at Raiso. The appellant-accused Kallu @ Raju Mistri was threading to Ramashankar and others and was asking to permit him to meet Smt. Meera and his children's. In retaliation to that the appellant-accused Kallu @ Raju Mistri kidnapped the son of complainant. 12. P.W.-2 Smt. Kamla, the wife of complainant supported the statement of P.W.1. 13. P.W.3 Sri Ramashankar who is the real brother of Smt. Meera and the brother in law of accused-appellant Kallu @ Raju Mistri did not support the theory narrated by the prosecution and stated on oath that it is true that Smt. Meera was firstly married to Sri Yograj, but later on Smt. Meera deserted her husband Sri Yograj and started living with accused-appellant Kallu @ Raju Mistri as his wife and she gave birth two children with the wedlock of accused-appellant Kallu @ Raju Mistri. Witness further stated that he along with his sister Smt. Meera, accused-appellant Kallu @ Raju Mistri and children were living in his house at Raiso, but accused-appellant Kallu @ Raju Mistri after consuming liquor created nuisance in the village, that's why he was exerted from the village. Witness further stated that he along with his sister Smt. Meera, accused-appellant Kallu @ Raju Mistri and children were living in his house at Raiso, but accused-appellant Kallu @ Raju Mistri after consuming liquor created nuisance in the village, that's why he was exerted from the village. Witness further stated that accused-appellants murdered the son of Suresh, resident of Sandila and they absconded. Accused-appellant Kallu @ Raju Mistri tried to meet his wife Smt. Meera and children and threatened the witness and complainant to facilitate meeting with Smt. Meera and children and if the complainant and other villagers create hindrance then they would eliminate the child of complainant. P.W.-3 further stated that on the date and time of crime the accused-appellants kidnapped the child of complainant namely Abhishek and left a paper in the house of witness, wherein he stated that handover his wife Smt. Meera and children to him otherwise he would killed the son of complainant. 14. In cross examination P.W.-3, did not supported the narration of prosecution and virtually he supported the case of accused-appellants and further stated that in examination in chief, he has given statement in pressure of police and statement given in examination in cross is correct one and without any fear and pressure. 15. P.W.-4, Sri F.R. Arya, the investigating officer stated on oath that he had investigated the matter and recovered the son of complainant from the custody of accused-appellants, in the forest of village Dammer Khera, District Sahajahanpur and kidnapped/recovered boy namely Abhishik was handed over to the complainant. 16. Witnesses proved chick FIR Ext. Ka.2, Karban copy of G.D. Ext. Ka.3, Site plan of place of incident Ext. Ka-4. The documents of handing over to the kidnapped boy namely Abhishek to his father Ext. Ka.5, site plan of alleged place from where the kidnapped boy was recovered from the custody of accused-appellants Ext. Ka.6 and charge-sheet Ext. Ka.7. 17. Learned amicus curiae Sri Rehan Ahmad Siddiqui submitted that the FIR was lodged after a considerable delay, because the incident took place in the intervening night of 27/28.01.2011 at about 12.00 O'clock to 1.00 A.M. in the night and the distance of Police Station from place of occurrence is only 9 Km. and FIR was lodged at about 15.20 O'clock. No explanation is tendered by the prosecution regarding this inordinate delay in lodging the FIR. and FIR was lodged at about 15.20 O'clock. No explanation is tendered by the prosecution regarding this inordinate delay in lodging the FIR. Since the delay was not explained, that's why the false implication of the accused-appellants is possible. 18. Sri Bal Keshwar Srivastava, learned AGA for the State refuted the argument of learned amicus curiae and submitted that there is no inordinate delay in lodging the FIR, because the distance of place of occurrence and Police Station is in higher side. 19. In the light of rival submissions of learned counsel for the parties I have visited the statement of P.W.-1 Kanhai complainant and find that complainant did not whisper even a single word regarding the delay in lodging the FIR. It is admitted fact that the place of incident is about 9 Km. away from the police station, if some one sailed on foot, he would cover this distance within 1 or 2 hours. The complainant came to know in the morning that his son Abhishek is missing. It was his primary obligation to lodge report as early as possible, but he did not chose so and waited, and lodged complaint at 15.20 O'clock. In the circumstances, it can be safely inferred that the consultation took place among the complainant and some other persons along with police as proposition of the accused-appellants. In the circumstances, the false implication of the accused-appellants could not be ruled out. 20. Sri Rehan Ahmad Siddiqui, learned amicus curiae further submitted that none has seen to the accused-appellants with kidnapping or carrying away the son of complainant and only on the ground of suspicion the accused-appellants are falsely implicated. The only evidence against the accused-appellants is that kidnapped boy namely Abhishek was recovered from the custody of the accused-appellants in the forest of village Dammer Khera. The recovery was not proved by the prosecution according to law, that's why the accused-appellants could not be hold guilty for the offence of kidnapping. 21. Sri Bal Keshwar Srivastava, learned AGA for the State countered the submission of learned counsel for accused-appellants and submitted that there is straight forward evidence that, the kidnapped boy namely Abhishek was recovered from the custody of the accused-appellants in the forest of village Dammer Khera, District Sahajahanpur. The accused-appellants failed to explain, how the son of complainant came in their custody and was recovered from their custody by the police. The accused-appellants failed to explain, how the son of complainant came in their custody and was recovered from their custody by the police. 22. On the aforesaid submissions of learned counsel for the parties I have again cogitate and the statement of P.W.-1, 2, 3 and 4 and find that none had seen the accused-appellants kidnapping or carrying away the boy namely Abhishek from lawful custody of complainant and only on suspicion the FIR was lodged against the accused-appellants. P.W.-1, 2 and 3 stated on oath that kidnapped boy namely Abhishek was not recovered from accused-appellants in their presence. Thus the evidence of recovery against the accused-appellants is of only one witness, P.W.-4, the investigating officer Sri F.R. Arya. P.W.-4, the investigating officer, who is a highly interested person, in this very matter to get punished the accused-appellants. P.W.-4 narrated on oath that he was also the member of police party which recovered the kidnapped boy namely Abhishek from the custody of accused-appellants and the child was recovered in his presence and a memo of recovery was prepared, but this memo of recovery was not produced in the court at the time of trial or before the trial. The memo of recovery which is the basic evidence has not been produced in the court, that's why the evidence of the prosecution regarding the recovery of child namely Abhishek from the custody of accused-appellants has not proved. Why the recovery memo did not produced in the court has not explained by the prosecution. 23. Perusal of evidence of P.W-4 demonstrate that at the time of recovery of kidnapped child namely Abhishek, there were two independent witness namely Sri Barkat Ali and Sri Ram Naresh, but the prosecution did not examined these two independent witnesses, who were best witnesses of recovery. Why they have not been examined, is not explained, by the prosecution. 24. In the facts and circumstances of the case, it depict that the prosecution failed to prove the guilt of the accused-appellants beyond reasonable doubt, that kidnapped child namely Abhishek was recovered from the custody of the accused-appellants. The trial Judge failed to consider the entire evidence in its right perspective and he erroneously opined that the prosecution succeeded in proving the guilt of the accused-appellants beyond any reasonable doubt. 25. The trial Judge failed to consider the entire evidence in its right perspective and he erroneously opined that the prosecution succeeded in proving the guilt of the accused-appellants beyond any reasonable doubt. 25. In the circumstances, the judgment and order of learned trial Judge could not be affirmed and liable to be set-aside. 26. The Judgment and order of learned trial Judge dated 17.05.2013 is hereby set-aside. The appeals are allowed in toto. 27. Accused-appellants are inside the jail, they shall be set at liberty at once, if they are not confined in any other crime. 28. Let this judgment be notified to learned Trial Judge for compliance, who will submit compliance report within one and half months. 29. The record of trial court be sent back forthwith.