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2020 DIGILAW 446 (UTT)

State Of Uttarakhand v. Ravi Kant Kiryana

2020-11-06

R.C.KHULBE, RAVI MALIMATH

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JUDGMENT R. C. Khulbe, J. - This appeal is preferred by the State challenging the judgment dated 18.11.2010 passed by learned Additional Sessions Judge/Second FTC, Dehradun in S.T. No.56 of 2009 (State v. Ravi Kant) whereby, the said Court has acquitted the respondent for the offence of Section 364 IPC. 2. The prosecution story unfolds that on 15.09.2008, PW1 Smt. Rizwana gave a written report at P.S. Patel Nagar, Dehradun to the effect that on 24.06.2007, his brother Sikandar @ Babbloo was taken away by the accused Ravi Kant Kiryana. The respondent kept on making phone calls assuring that Sikander was with him and there was no need to worry. When the informant wanted to have a talk with her brother, Ravi Kant informed her that near about 25.7.2007, her brother Sikander has been sent to the jail at Nepal due to some quarrel and he would soon get him released back. The informant's relatives searched for her brother in all the jails at Nepal but he was not found. It is stated in the report that the respondent has abducted informant's brother and got him murdered. With these averments, the FIR (Ex.Ka-1) was lodged. The case was investigated after culmination of which, a charge-sheet (Ex.Ka-5) was filed against the respondent- accused u/s 364 IPC. The case was, accordingly, committed to the Court of Sessions. Thereafter, a charge under Section 364 IPC was levelled against the accused to which he pleaded not guilty and claimed to be tried. 3. The prosecution, in support of its case, examined as many as seven witnesses, namely, PW1 Smt. Rizwana, PW2 Smt. Faimina Begum, PW3 Sher Mohammed, PW4 Omendra Singh Bhati, PW5 Asif Chaudhary, PW6 Constable Ashok Kumar and PW7 S.I. Yogesh Chandra Upadhayaya. 4. After completion of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. in which he denied the allegations levelled against him. However, no oral or documentary evidence was led in defence. 5. The Trial Court, at the end of trial, came to the conclusion that the prosecution had failed to prove its case against the respondent-accused beyond reasonable doubt, and accordingly, it acquitted the respondent for the offence u/s 364 IPC. Assailing the order of acquittal, present appeal is filed by the State. 6. We have heard learned counsel for both the parties and perused the entire material available on record. 7. Assailing the order of acquittal, present appeal is filed by the State. 6. We have heard learned counsel for both the parties and perused the entire material available on record. 7. Pw1 Smt. Rizwana testified that on 24.6.2007 at 7 AM, Ravi Kant had taken her brother Sikdander @ Babloo along with him in his car. Mahendra Bhaati and other people had seen the respondent taking away her brother. On 28.6.2007, phone call of her brother was received who said that he was along with the respondent-accused, and he would return soon. Since thereafter, no call of her brother was received. The accused Ravi Kant used to call her that Babloo was with him and there was no need to worry, and they would return soon. It continued for one month like this. The accused then called her and informed that her brother had a quarrel in Nepal and he is in prison in Lumbini Jail, and he would bring her brother back soon and he kept on making such phone calls for 6-7 months. When her brother in law went to see her brother in Nepal jail, he was not found there nor was any case registered against her brother. When her brother in law informed this fact to the accused, he switched off his phone thereafter. Thereafter, the report was lodged by her which is Ex.Ka-1. 8. Pw2 Smt. Faimida Begum is the mother of kidnapped Sikander @ Babloo and she narrated the same story as deposed by PW1 Smt. Farzana. She has deposed that on 24.6.2007 at 7 AM, the accused Ravi Kant had taken away her son Sikander @ Babllu from her house in his car. She has also corroborated the fact of doing phone calls by the accused and assuring that her son was fit and fine. She also stated that her son had a quarrel with some person and he is in Nepal Jail. When her son in law went to search for her son, he was not found anywhere. Thereafter, when she had a suspicion, then her daughter Rizwana lodged the report. 9. Pw3 Sher Mohammed is the brother-in-law of kidnapped Babloo. According to him, after 8-10 days of occurrence, he enquired from her mother-in-law of the whereabouts of Babloo, who informed him that he had gone somewhere along with the accused. Thereafter, when she had a suspicion, then her daughter Rizwana lodged the report. 9. Pw3 Sher Mohammed is the brother-in-law of kidnapped Babloo. According to him, after 8-10 days of occurrence, he enquired from her mother-in-law of the whereabouts of Babloo, who informed him that he had gone somewhere along with the accused. According to him, he along with his friends searched for Babloo in Nepal Jails but he was not found. 10. Pw4 Omendra Singh Bhatti has deposed that on 24.6.2007 at 7 AM, he was standing next to his house. Accused Ravi Kant was driving his car and Babloo was also present in the front seat of the car. He tried to stop the car but they went away. Since then, Babloo @ Sikander did not come back. The relatives of Rizwana (informant) also went to search for the kidnapped Sikander in Nepal jails but he was not found anywhere. 11. Pw5 Asif Chaudhary is the brother of Babloo. He has corroborated the evidence of PW1 Farzana and PW2 Smt. Faimida Begum. 12. Pw6 Constable Ashok Kumar is a formal witness who prepared the Chick FIR and made entry in the G.D. whereas PW7 S.I. Yogendra Chandra Upadhyaya is the I.O. of the case who investigated the matter and submitted charge- sheet against the accused. 13. Having heard the submissions put forth by either party and on perusal of the impugned judgment and the records carefully, we feel that the prosecution has failed to prove its case against the accused even for the least. Firstly, there is a delay of 01 year, 02 months and 21 days in lodging the report. In the report, although the date of occurrence is mentioned but no time is shown. None of the prosecution witnesses has explained any specific reason for lodging the report with delay. In the evidence given by the informant as PW1, she has stated that the accused kept on calling her mother for 6-7 months from the date of occurrence and thereafter, he stopped doing so. PW2 Smt. Faimida Begum on this point has testified that she lodged the report against the accused with such a long delay because she had full faith on the accused. PW2 Smt. Faimida Begum on this point has testified that she lodged the report against the accused with such a long delay because she had full faith on the accused. PW6 Constable Ashok Kumar has also stated in his evidence that when he asked the informant the reason of lodging the report with delay, she stated that she kept on searching till then whereas the I.O. (PW7) has not stated anything for lodging the report with delay. This way, from the evidence of these witnesses and the facts stated in the report, it is evident that two explanations have been stated by the prosecution, firstly that the accused kept on assuring the informant and her mother that the kidnapped Sikander was with him and secondly that they had full faith on the accused. Now, as per the evidence of PW1 Smt. Farzana, when the accused made phone calls for 6-7 months to her and her mother and thereafter her phone was switched off, then this period comes to about January or February, 2008. If the accused had stopped doing phone calls after that period and when they did not have any contact with the accused and particularly when they had the belief that the accused only had taken Sikander with him, then in any condition, the report should have been lodged at least in the month of January- February, 2008, however the report could be lodged only on 15.9.2008. The informant herself has mentioned in the report that the accused is a clever punk, and the sister in law of accused is also missing in the same manner. Now, the question arises that when the informant and her family members knew about the criminal antecedents of the accused, then on what basis they believed on the accused even for more than one year. This way, it becomes clear that there has been excessive delay in lodging the report of which no plausible reason is available with the prosecution. 14. There is a material contradiction in the evidence of prosecution witnesses. PW1 Smt. Rizwana has stated about taking her brother Sikander by the accused from her house and also stated that her mother and brother were also at home, who as well as Omendra Singh Bhati also saw the accused taking her brother Sikandar with him. 14. There is a material contradiction in the evidence of prosecution witnesses. PW1 Smt. Rizwana has stated about taking her brother Sikander by the accused from her house and also stated that her mother and brother were also at home, who as well as Omendra Singh Bhati also saw the accused taking her brother Sikandar with him. PW2 Smt. Faimida Begum (mother of kidnapped), PW4 Omendra Singh Bhati and PW5 Aasif Chaudhary have stated the same facts. Here it needs to be mentioned that in the report given by the informant, there is no mention of any person witnessing the fact of taking away of her brother by the accused. When the report is lodged with delay of more than one year, then this fact should have mentioned in the report of taking of Sikander by the accused. This creates a reasonable doubt in their testimony. 15. Moreover, there is no evidence available on record to show that the accused had forcefully kidnapped the brother of Sikander. PW1 Smt. Rizwana has stated in her evidence that Ravi Kant and Bablu did not have any previous rivalry. PW5 Asif Chaudhary too stated that Bablu had gone on his own with the accused. The I.O. did not mention any fact of any enmity between the accused and Sikander. 16. Pw2 Smt. Faimida Begum is the mother of informant, PW3 She Mohammad is brother in law and PW4 Omendra Singh Bhati is neighbour while PW5 Aasif is the brother of informant. All these are the interested witnesses. There is no clinching evidence available on record to connect the accused with the crime. 17. Pw3 Sher Mohammed (brother in law of informant) has stated that he had gone to Nepal along with his friends Anil and Kushal to search for Sikander but none of them was produced by the prosecution. Moreover, no document is filed on record to show that in which jail they had given any application to search for Sikander. 18. According to the prosecution story, the accused gave repeated calls to the informant that Sikander @ Babloo was with him. However, no 'call detail record' (CDR) is available on record to connect the accused with the crime. This further causes a dent in the prosecution story. 19. 18. According to the prosecution story, the accused gave repeated calls to the informant that Sikander @ Babloo was with him. However, no 'call detail record' (CDR) is available on record to connect the accused with the crime. This further causes a dent in the prosecution story. 19. Section 364 IPC speaks that whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished for kidnapping/abducting. The definition of abduction is given in Section 362 IPC, which provides that whoever by force compels, or by any deceitful means inducts any person to go from any place, is said to abduct that person. 20. It has become evident from the aforesaid facts and evidence that even on lodging the report with the delay of 01 year 02 months and 21 days, neither any specific time is mentioned in the report regarding taking away of Sikander by the accused. PW3 Sher Mohammed is also a hearsay witness. All the witnesses are the family members or the relatives of the informant. Thus, they are the interested persons. Nothing could be revealed about Sikander. The question whether Sikander @ Babloo is alive or not, is still unanswered. Even there is no evidence of taking away Sikander by the accused with any deceitful means. The report is lodged with excessive delay and there is no plausible reason available with the prosecution. Thus, in view of the above, the prosecution has utterly failed to prove its case against the accused beyond reasonable doubt u/s 364 IPC. 21. Furthermore, it is well settled that in a case where two views are possible and one of the views is possible which was taken by the trial court, then the appellate court shall not ordinarily interfere with the judgment of acquittal. We are fortified in our view by the judgment of the Hon'ble Supreme Court in the case of " Kalyan Singh v. State of M.P., (2007) 3 SCC(Cri) 173 " . The relevant portion of the said judgment is reproduced hereinbelow: - 7. "The High Court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned trial judge cannot be said to be wholly unsustainable. The relevant portion of the said judgment is reproduced hereinbelow: - 7. "The High Court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned trial judge cannot be said to be wholly unsustainable. It is now well known that if two views are possible, the appellate court shall not ordinarily interfere with the judgment of acquittal. We do not, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on record by the prosecution or by the State but we would like to point out that even if the High Court reversed the judgment of acquittal recorded by the trial court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible. 22. On the basis of the evidence discussed above, we are of the considered opinion that the view taken by the trial court is a possible view, and therefore, in light of the aforesaid judgment of the Apex Court in the case of Kalyan Singh (supra), the interference with the judgment of the trial court is not warranted. The appeal thus, lacks merit and it is liable to be dismissed. 23. Hence, the appeal preferred by the State is dismissed by affirming the judgment and order passed by the trial court. 24. Let a copy of this order along with the lower court record be sent back.