Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 1749 (ALL)

Dharam Singh alias Dharma v. State of U. P.

2024-07-26

BRIJ RAJ SINGH, SIDDHARTH

body2024
JUDGMENT Brij Raj Singh, J. Heard Sri. S.K. Tripathi, learned counsel for the appellants in Criminal Appeal No.7030 of 2010 and Sri. Anjani Kumar Dubey, learned counsel for the appellant in Criminal Appeal No.6564 of 2010, Sri. Gyan Narayan Kannaujia, learned AGA-I for the State and perused the material on record. 2. Custody report of accused-appellant Ajay @ Mantu dated 09.01.2024 issued by the Jail Superintendent, Kanpur Nagar is taken on record. 3. Both the appeals have been filed against the judgement and order dated 15.09.2010 passed by the learned Additional Sessions Judge, FTC No.1, Kannauj in Sessions Trial No.113 of 2014, arising out of Case Crime No.33 of 2003, State of U.P. v. Dharam Singh @ Dharma and others, thereby convicting and sentencing all the three appellants under Section 148 IPC for one year rigorous imprisonment; under Section 452 IPC for three years rigorous imprisonment with fine of Rs. 2,000/- each and in default of payment of fine, to further undergo one month additional imprisonment; under Section 364A read with Section 149 IPC for life imprisonment with fine of Rs. 10,000/- each and in default of payment of fine, to further undergo one year additional rigorous imprisonment. Further, appellants Ajay @ Mantu and Sanjeev Kumar Tripathi have been convicted and sentenced under Section 368 IPC for life imprisonment with fine of Rs. 10,000/- each and in default of payment of fine to further undergo one year additional rigorous imprisonment. However, all the sentences are run concurrently. 4. The brief facts giving rise to the present appeals are that in the night of 27/28.03.2003 at about 12'O Clock when the complainant, Bechelal was sleeping along with his son after taking food in his house, accused Dharam Singh @ Dharma, his younger brother Ajay @ Mantu both sons of Kalika Singh along with their companions Sureshpal S/o Nathu Singh, Anil Kumar Pathak S/o Sri. Krishna Pathak and Raj Kishore Dubey @ Tadtadia, who were armed with fire arms, entered into his house. As soon as they entered into his house, he heard noise, therefore, he woke up. Master Robin, son of the complainant aged about five years, who was sleeping on the cot of the complainant, was abducted by accused Dharam Singh @ Dharma and he took him towards eastern side of the village. As soon as they entered into his house, he heard noise, therefore, he woke up. Master Robin, son of the complainant aged about five years, who was sleeping on the cot of the complainant, was abducted by accused Dharam Singh @ Dharma and he took him towards eastern side of the village. On raising alarm, the villagers reached there and thereafter the complainant and his wife Vineeta Devi along with villagers chased the accused, who fired at them. On terror being created by the accused-appellants, the villagers had hidden themselves in the field after leaving their houses. It is further stated in the FIR that accused Dharma Singh @ Dharma is a history sheeter and used to demand ransom after abducting the family members of the villagers. On 29.03.2003 at 4 PM, the complainant was called and conversation was done through public telephone installed in front of the house of Master Siyaram and a ransom of Rs. 2 Lakhs was demanded by accused Dharam Singh @ Dharma. Thereafter, the FIR was lodged at Case Crime No.33 of 2003, under Sections 147, 148, 149, 452 and 364A IPC. 5. After lodging the FIR, Sub-Inspector, Shyamveer Singh investigated the case and the police recovered the child on 02.04.2003 and he was handed over to the complainant, Bechelal. Master Robin was medically examined and five injuries were found on his body. After collecting the evidence, the Investigating Officer submitted the charge sheet, on which cognizance was taken by the learned Magistrate and the matter was committed to the court of sessions. The Sessions Court framed the charges against accused Dharam Singh @ Dharma, Sureshpal, Anil Kumar Pathak, Sanjeev Kumar Tripathi and Ajay @ Mantu under Sections 148, 452, 364A/149 and 368/149 IPC. The accused denied the charges and pleaded not guilty and requested for trial. 6. The prosecution to prove its case, produced the following eight witnesses:- P.W.-1 Bechelal P.W.-2 Vineeta Devi P.W.-3 Master Robin P.W.-4 Dr. R.N. Mishra P.W.-5 Siyaram P.W.-6 Tukman Singh P.W.-7 S.I. Liyaqat Ahmad P.W.-8 S.I. Shyamveer Singh 7. The accused-appellants were confronted under Section 313 Cr.P.C. They denied the charges and pleaded before the court that they were falsely implicated in the case out of enmity. 8. The trial court after examining the witnesses and adducing the evidence on record, convicted the accused-appellants as mentioned above. Hence, the present appeals have been filed. 9. The accused-appellants were confronted under Section 313 Cr.P.C. They denied the charges and pleaded before the court that they were falsely implicated in the case out of enmity. 8. The trial court after examining the witnesses and adducing the evidence on record, convicted the accused-appellants as mentioned above. Hence, the present appeals have been filed. 9. P.W.-1, Bechelal has deposed the same facts in examination-in-chief as has been narrated in the FIR. He further deposed that he was sleeping on the cot in the night of 27/28.03.2003. Lantern was burning and his son Robin was also sleeping beside him on the cot. Wife of the complainant, Vineeta Devi was sleeping on the other cot beside him. The accused Dharam Singh @ Dharma, Ajay @ Mantu both sons of Kalika Singh along with their companions Sureshpal S/o Nathu Singh, Anil Kumar Pathak S/o Sri. Krishna Pathak, Raj Kishore Dubey @ Tadtadia entered into his house and abducted his son Robin and they were identified in the Lantern light. The accused surrounded him and thereafter they took his son Robin and proceeded towards eastern side of the village. On raising alarm, the villagers reached to the place of occurrence and all the accused ran away from the place of occurrence by firing. On 29.03.2003 at 4'O Clock in the evening, the complainant was called by accused Dharam Singh @ Dharma on the public telephone installed in front of the house of Siyaram and demanded Rs. 2 Lakhs as ransom to release his son. He proved the FIR before the Court. He further deposed that his son was recovered on 02.04.2003 and was handed over to him by the police. 10. P.W.-2, Vineeta Devi, wife of the complainant was examined. She deposed before the court that in the night of 27/28.03.2003, she was sleeping in her house and her son was also sleeping on the cot of her husband. She further deposed that all the accused armed with Rifle and Gun entered into her house. She also identified the accused in the light of Lantern. She deposed the same facts as stated by her husband, P.W.-1 Bechelal. 11. P.W.-3, Robin, who was abducted, was also examined by the trial court. He deposed before the Court that he was forcefully taken by accused uncles Dharam Singh @ Dharma and Ajay @ Mantu. She also identified the accused in the light of Lantern. She deposed the same facts as stated by her husband, P.W.-1 Bechelal. 11. P.W.-3, Robin, who was abducted, was also examined by the trial court. He deposed before the Court that he was forcefully taken by accused uncles Dharam Singh @ Dharma and Ajay @ Mantu. He was made captive in a colony and was not provided food by them. He further deposed that he was set free by the police. The police did not come to the place where he was made captive, rather the police came to the field, where the accused were arrested. He further deposed that at the place where he was made captive, one person was there and no weapon was with him and he could not identify him. 12. P.W.-4, Dr. R.N. Mishra was examined by the trial court. He deposed that he conducted the medical examination of Master Robin. He had received five injuries on his body, which were simple in nature. Similarly, P.W.-5 Siyaram was examined before the Court and he deposed that complainant, Bechelal was belonging to his village and Robin was his son. He further deposed before the Court that complainant Bechelal had told him that his son was abducted by the accused-appellants. He deposed that he had installed public telephone in front of his house, which was used by the villagers for conversation. He was present in the school at 4'O Clock in the evening on 29.03.2003 and returned at 4.30 in the evening. He further deposed that complainant Bechelal and the villagers told him that ransom of Rs. 2 Lakhs was demanded by the miscreants. 13. P.W.-6, Constable Tukman Singh was examined by the trial court. He deposed that Case Crime No.33 of 2003, under Sections 147, 148, 149, 452 and 364A IPC, Chik No.12 of 2003 was lodged by him and he identified his signature. P.W.-7, Sub-Inspector, Liyaqat Ahmad deposed before the court that Case Crime No.33 of 2003, under Sections 364A and 368 IPC was investigated by him and he filed the charge sheet against accused Ajay @ Mantu on 02.11.2003. P.W.-8, Sub-Inspector Shyamveer Singh deposed before the court that Case Crime No.33 of 2003, under Sections 147, 148, 149, 452, 364A IPC was lodged in his presence and he conducted the investigation and recorded the statements of the witnesses. P.W.-8, Sub-Inspector Shyamveer Singh deposed before the court that Case Crime No.33 of 2003, under Sections 147, 148, 149, 452, 364A IPC was lodged in his presence and he conducted the investigation and recorded the statements of the witnesses. On the basis of evidence, charge sheet was submitted in Case Crime No.33 of 2003 against accused Dharam Singh @ Dharma, Sureshpal and Anil Kumar Pathak under Section 364A IPC and charge sheet was submitted against accused Sanjeev Kumar Tripathi under Section 368 IPC, whereas charge sheet was submitted against accused Ajay @ Mantu, Shashi Kishore @ Raj Kishore @ Tadtadia under Section 364A IPC. 14. Sri. S.K. Tripathi, learned counsel appearing on behalf of the accused-appellants, Dharam Singh @ Dharma and Ajay @ Mantu in Criminal Appeal No.7030 of 2010 has submitted that statement of P.W.-5 Siyaram was recorded before the court and he deposed that he was in the school at 4'O clock in the evening and returned back to his house at 4.30 in the evening. In cross-examination, he has deposed that he does not know the accused Dharam Singh @ Dharma and his companions. He deposed that complainant Bechelal was belonging to his village and on his behest, he gave the statement before the court. He further deposed that he had knowledge on the information given by the complainant, Bechelal and he did not see the incident, rather he was not present at the time of incident. 15. Learned counsel for the appellants has further submitted that after looking to the statement of P.W.-5, Siyaram, it is clear that demand of ransom of Rs. 2 Lakhs is not proved because the complainant has stated that on 29.03.2003 at 4'O Clock in the evening, he was called by the accused-appellant Dharam Singh @ Dharma on the public telephone installed in front of the house of Siyaram and demanded a ransom of Rs. 2 Lakhs, whereas the statement of P.W.-5 Siyaram indicates that he had reached to his house at 4.30 in the evening; thus he was not present at 4'O Clock when there was telephonic conversation between the complainant and accused Dharam Singh @ Dharma. More over, call detail has not been proved in any manner and thus the demand of ransom is not proved. 16. More over, call detail has not been proved in any manner and thus the demand of ransom is not proved. 16. Learned counsel for the appellants has further submitted that statement of P.W.-3, Master Robin, who was abducted by the accused, does not indicate the demand of ransom of Rs. 2 Lakhs by the accused nor he has stated anything in this regard. Learned counsel for the appellants has further invited our attention towards statement of P.W.-3, Master Robin, wherein he has deposed that he had no idea, who brought him to the police station. He further deposed that the villagers had taken him to the police station from the field. The villagers had given him clothes and, thereafter, he was given shelter in the village and later on he was brought to the police station in the morning. He further deposed that police had taken him to his house on the motorcycle and thereafter the police had caught miscreants, who were not known to him. P.W.-3, Master Robin has further deposed that his parents came to the police station. It is submitted that recovery of P.W.-3, Master Robin is not from the possession of the accused-appellants. 17. Lastly, it has been submitted by the learned counsel for the appellants that at the most the case is falling under Section 365 IPC for kidnapping or abducting with intent secretly and wrongfully to confine a person and the maximum punishment is provided for seven years. The custody report of accused-appellant Ajay @ Mantu dated 09.01.2024 indicates that the actual custody period including custody during the pendency of this appeal and trial is 16 years, 2 months and 5 days and the custody period with remission is 19 years, 8 months and 8 days. Thus, more than 17 years of actual custody and 20 years custody with remission has undergone by accused-appellant Ajay @ Mantu and if the offence is altered to Section 365 IPC, the maximum punishment is of seven years, therefore, the accused-appellant Ajay @ Mantu is entitled for release. Similarly, accused-appellant Dharam Singh @ Dharma has also undergone nine years in jail during the pendency of this appeal as well as in trial, therefore, he is also entitled for the same benefit. 18. Similarly, accused-appellant Dharam Singh @ Dharma has also undergone nine years in jail during the pendency of this appeal as well as in trial, therefore, he is also entitled for the same benefit. 18. Learned AGA while rebutting the arguments of learned counsel for the appellants has submitted that accused-appellants had abducted P.W.-3, Master Robin for ransom, who was five years old. Statements of P.Ws.1, 2 and 3 have been corroborated with each other and all the witnesses have deposed before the Court that accused-appellants had abducted P.W.-3, Master Robin to get ransom of Rs. 2 Lakhs. It has further been submitted that accused-appellants Dharam Singh @ Dharma and Ajay @ Mantu are belonging to the same village, therefore, there could be no doubt that they were not identified by the complainant and his wife. He has further submitted that the prosecution has proved its case beyond reasonable doubt and there is no other motive to implicate the accused-appellants except the demand of ransom of Rs. 2 Lakhs, which has been proved in the statements of P.W.1, 2 and 3. He has, therefore, submitted that the learned trial court has rightly convicted the accused-appellants and no interference is called for by this Court. 19. Sri. Anjani Kumar Dubey, learned counsel appearing on behalf of the accused-appellant, Sanjeev Kumar Tripathi in Criminal Appeal No.6564 of 2010 has submitted that appellant has been falsely implicated in the case for the reason that he has not been named in the FIR by the complainant. However, the complainant before the court has stated the name of the appellant that he was also involved in commission of crime. Learned counsel for the appellant has also invited the attention of this Court towards cross-examination of P.W.-1, Bechelal held on 31.10.2008, wherein he has deposed before the court that he had not named the appellant in the FIR, rather he was caught by the police. The aforesaid statement of P.W.-1, Bechelal indicates that appellant has been falsely roped by the police and later on, on the pressure created by the police, the appellant has been implicated in the case. The aforesaid statement of P.W.-1, Bechelal indicates that appellant has been falsely roped by the police and later on, on the pressure created by the police, the appellant has been implicated in the case. He has also submitted that except P.W.-1, Bechelal, none of the other fact witnesses have stated that appellant was involved in abduction of Master Robin, and only on the basis of statement made by the complainant before the trial court, the appellant cannot be held guilty and he is entitled to get the benefit of doubt. 20. Learned AGA while rebutting the arguments of learned counsel for the appellant has submitted that accused-appellant, Sanjeev Kumar Tripathi was caught by the police at the place where the abductee was confined. Statement of Sub-Inspector, Satish Chandra Dubey has been recorded and he has supported the prosecution case to the extent that accused-appellant, Sanjeev Kumar Tripathi was arrested at the place where the abductee was confined. He has, therefore, submitted that the prosecution is able to prove the case beyond reasonable doubt and, therefore, the conviction and sentence awarded by the trial court needs no interference. 21. After hearing the learned counsel for the parties and going through the record as well as the impugned judgement and order, we find that the charges of abduction is proved against the accused-appellants Dharm Singh @ Dharma and Ajay @ Mantu. P.Ws. 1, 2 and 3 are very categorical in their statement regarding abduction. They have stated that the accused-appellants Dharm Singh @ Dharma and Ajay @ Mantu had kept the abductee by confining him in a room. Statements of P.Ws.1 and 2 go to indicate the fact that Master Robin was abducted from their possession while they were sleeping in the night in their house. Accused-appellants Dharm Singh @ Dharma and Ajay @ Mantu were identified by them as they belong to the same village; thus there is no reason to disbelieve the prosecution case as the same is established beyond reasonable doubt. So far abduction part is concerned, the prosecution case is proved and, therefore, the accused-appellants Dharm Singh @ Dharma and Ajay @ Mantu are not entitled to get benefit of doubt. 22. So far abduction part is concerned, the prosecution case is proved and, therefore, the accused-appellants Dharm Singh @ Dharma and Ajay @ Mantu are not entitled to get benefit of doubt. 22. We notice that if the statements of P.W.1 Bechelal and P.W.-5 Siyaram are taken into consideration, it is clear that P.W.-5 Siyaram had reached to his house at 4.30 in the evening and the alleged telephonic conversation between the complainant and accused-appellant Dharam Singh @ Dharma took place at 4'O Clock in the evening. Statement of P.W.-3, Master Robin also does not indicate the demand of ransom of Rs. 2 Lakhs was proved in any manner. The record also does not indicate that there is any attempt by the prosecution side to prove the telephonic conversation which took place between the accused-appellant Dharam Singh @ Dharma and the complainant by producing any call details. P.W.-5, Siyaram has clearly stated before the court that he did not know the accused and further admitted that at the behest of the complainant, he was giving the statement before the court. It is thus clear that the evidence pertaining to demand of ransom of Rs. 2 Lakhs is not proved in any manner. Considering the aforesaid facts, we are of the view that the case is not falling within the purview of Section 364A IPC, therefore, the offence is liable to be altered to Section 365 IPC. 23. Considering the aforesaid facts and circumstances of the case, we upheld the conviction and sentence of the accused-appellants Dharam Singh @ Dharma and Ajay @ Mantu under Sections 148 and 452 IPC. However, the conviction and sentence awarded by the trial court to the accused-appellants Dharm Singh @ Dharma and Ajay @ Mantu under Section 364A read with Section 149 IPC is altered to Section 365 IPC and sentence them to seven years rigours imprisonment. Similarly, the conviction and sentence of the accused-appellant Ajay @ Mantu under Sections 368 IPC is also altered to Section 365 IPC and sentence him to seven years rigours imprisonment. All the sentences will run concurrently. 24. Ordered accordingly. 25. Thus, Criminal Appeal No.7030 of 2010 is partly allowed and the judgement and order dated 15.09.2010 passed by the learned Additional Sessions Judge, FTC No.1, Kannauj in Sessions Trial No.113 of 2014, arising out of Case Crime No.33 of 2003, is modified to the aforesaid extent. 26. All the sentences will run concurrently. 24. Ordered accordingly. 25. Thus, Criminal Appeal No.7030 of 2010 is partly allowed and the judgement and order dated 15.09.2010 passed by the learned Additional Sessions Judge, FTC No.1, Kannauj in Sessions Trial No.113 of 2014, arising out of Case Crime No.33 of 2003, is modified to the aforesaid extent. 26. Since we have sentenced the accused-appellants Dharam Singh @ Dharma and Ajay @ Mantu under Section 365 read with Section 149 IPC for seven years and as per the record, the accused-appellant Dharam Singh @ Dharma has already undergone 9 years in jail and as per the custody certificate issued by the Jail Superintendent, Kanpur Nagar, accused-appellant Ajay @ Mantu has already undergone 20 years in jail, the fine imposed by the trial court is waived of and they need not deposit fine. 27. Accused-appellant Dharm Singh @ Dharma is on bail. He need not surrender unless wanted in any other case. 28. Accused-appellant Ajay @ Mantu is in jail. He shall be released forthwith. His bail bonds are cancelled and sureties are discharged. He need not surrender unless wanted in any other case. 29. So far the accused-appellant Sanjeev Kumar Tripathi is concerned, we have to see whether he was named by the complainant in the FIR or whether P.W.-3, Master Robin identified him before the trial court. The record reveals that P.W.-1, Bechelal has deposed before the court that he did not mention the name of accused-appellant Sanjeev Kumar Tripathi in the FIR and he was caught by the police at the place where the abductee was confined. Statement of P.W.-3 abductee further does not indicate that he identified accused-appellant Sanjeev Kumar Tripathi, rather he has identified accused-appellants Dharam Singh @ Dharma and Ajay @ Mantu before the court. He deposed before the court that the miscreant, who was arrested by the police, was not identified by him. The only evidence in respect of accused-appellant Sanjeev Kumar Tripathi is the statement of police witness, namely, Sub-Inspector Satish Chandra Dubey. P.W.-1, Bechelal did not name accused-appellant Sanjeev Kumar Tripathi while lodging the FIR, but later on he made a statement before the court at the behest of the police mentioning the name of the appellant. Thus, accused-appellant Sanjeev Kumar Tripathi is entitled to get benefit of doubt. 30. Ordered accordingly. 31. P.W.-1, Bechelal did not name accused-appellant Sanjeev Kumar Tripathi while lodging the FIR, but later on he made a statement before the court at the behest of the police mentioning the name of the appellant. Thus, accused-appellant Sanjeev Kumar Tripathi is entitled to get benefit of doubt. 30. Ordered accordingly. 31. Thus, Criminal Appeal No.6564 of 2010 is allowed and the judgement and order dated 15.09.2010 passed by the learned Additional Sessions Judge, FTC No.1, Kannauj in Sessions Trial No.113 of 2014, arising out of Case Crime No.33 of 2003, is hereby set aside so far it relates to accused-appellant Sanjeev Kumar Tripathi by giving benefit of doubt. 32. Accused-appellant Sanjeev Kumar Tripathi is on bail. He need not surrender unless wanted in any other case. 33. Let lower court record be sent back forthwith along with a copy of this judgement and order for compliance.