Hon'ble Arvind Kumar Mishra-I, J.
(Delivered by Hon'ble Arvind Kumar Mishra-I,J.) By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 22.09.2010 passed by the Special Judge (DAA) Agra, in Special Sessions Trial No. 111 of 2001 State of U.P. Vs. Banti alias Firoz alias Sikandar and others, arising out of Case Crime No.361 of 2001, under Section 364A IPC, Police Station- Etmaddaula, District- Agra whereby the appellant Banti alias Firoz alias Sikandar has been sentenced to life imprisonment coupled with fine Rs.20,000/- under Section 364A IPC, with default stipulation for six months' additional simple imprisonment.
Heard Shri Samit Gopal, learned Amicus Curiae for the appellant, Shri Saghir Ahmed, Shri J.K. Upadhyay, Kumari Meena, Smt. Manju Thakur, learned AGAs for the State and perused the record.
The prosecution story as unfolded through the record reflects that the informant Surendra Kumar Verma lodged the written report on 30.07.2001 at 4:30 a.m. against the appellant involving element of crime under Section 364 IPC with specific allegations that his son Sunny aged about 14 years was playing in his room along with his two brothers on 29.07.2001 around 2:30 p.m. At that time, the appellant Banti alias Firoz alias Sikandar son of Bhola alias Nasruddin who was friend of the informant's brother in law and used to visit his house often in the past also, came to his house and enticed away his son Sunny on allurement of giving him cold drinks but did not return. On query being made from his (informant) brother in law, it transpired that the appellant Banti alias Firoz alias Sikandar was not available at home. The informant apprehended that his son may be killed. Sunny was seen in company with the appellant while being taken away by Dharmendra Soni and the two sons of the informant. It was prayed that report be lodged and action be taken. The written report is Ext. Ka-1.
Contents of the aforesaid information were taken down in the Check FIR on 30.07.2001 at 4:30 a.m. at aforesaid police station at Case Crime No.361 of 2001 under Section 364 IPC. Check FIR is Ext. Ka-7. On the basis of entries so made in the check F.I.R., a case was registered in the relevant G.D. at serial no.6 on 30.07.2001 at 04:30 p.m. at aforesaid case crime number at Police Station Kishanpur under aforesaid section of I.P.C. against appellant, which is Exhibit Ka-8.
The investigation ensued and was taken over by Veer Sahai Gautam PW-8. He, after recording statement of various persons, proceeded to the spot and inspected the spot and prepared site plan Ext. Ka-5. The Investigation was also conducted by another Investigating Officer Shashi Kant Verma PW-6. He has effected recovery of the victim on 11.08.2001 on the tip off information at 22:30 hours that some miscreants will pass through Etmadpur to Anandpur whereupon the police intercepted them in an encounter near Anandpur crossing where three persons were seen coming on motorcycle. Seeing the police, two persons fled away from the scene leaving behind one boy with blind folded eyes, the police chased the two miscreants but could not succeed. The police enquired from boy about his identity whereupon he told his name as Sunny son of Surendra Kumar Verma, aged about 14 years, then the police came to know that the boy is connected with the aforesaid Case Crime No.361 of 2001. Memo of recovery was prepared on the spot. It was stated that because of sudden recovery at deserted place, no public witness could be availed. Recovery memo is Ext. Ka-3. The very day on 12.08.2001, the victim was given in the custody of the his father and custody memo was also prepared which is Ext. Ka-2. The Investigating Officer after completing other formalities filed charge-sheet Ext. Ka-4 against the appellant.
After filing of charge-sheet, committal proceeding took place and the trial court was entrusted with the task of hearing and disposal of the concerned Special Sessions Trial Nos.111 of 2001 (pertaining to Case Crime No.361 of 2000) under Section 364A IPC.
The learned trial Judge heard both the sides on point of charge and was prima-facie satisfied with case against the accused. Consequently, the trial court framed charge under Section 364A IPC. Charge was read over and explained to the accused who abjured charge and opted for trial.
In turn, the prosecution was asked to adduce its testimony whereupon the prosecution produced in all 8 witnesses. A brief sketch of witnesses is as under:-
Surendra Kumar Verma PW-1 is the informant and father of the victim. He has proved the written report Ext. Ka-1. Abhishek Verma @ Sunny PW-2 is the victim himself. Dharmendra Soni PW-3 is witness of fact. Similarly Ashish Verma PW-4 is also witness of fact and has stated to have seen the victim in company with the appellant. S.I. Rama Shanker Sonkar PW-5 is the Investigating Officer and also witness of recovery of victim Sunny on 11.08.2001 and has proved the same before the trial court. Shashi Kant Verma PW-6 is the second Investigating Officer who has effected recovery of the victim Sunny on 11.08.2001. Constable Suresh Singh PW-7 has witnessed the factum of recovery of the victim on 11.08.2001 and has proved the same that recovery of the victim was effected around 11:00 a.m. on 11.08.2001. Veer Sahai Gautam PW-8 is the first Investigating Officer of this case who has taken over investigation and prepared site plan and recorded statement of various persons including the prosecution witnesses and accused and has proved the relevant entries made in the concerned Check FIR and GD, Ext. Ka-7 and Ext. Ka-8, respectively, whereby, the case was registered against the appellants.
No further evidence was adduced by the prosecution. Therefore, evidence for the prosecution was closed. The statement of the accused was recorded under Section 313 Cr.P.C. wherein he has claimed his innocence and stated that he has been falsely implicated in this case. He was arrested by the police while he was going to Sasural of his sister. No evidence, whatsoever, has been led by the appellant.
The case was heard on merit by the learned Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against appellant under Section 364A IPC and sentenced the appellant to life imprisonment coupled with fine Rs.20,000/- under Section 364A IPC, with default stipulation for six months' additional simple imprisonment.
Consequently, this appeal.
It has been vehemently contended by Sri Samit Gopal, learned amicus curiae for the appellant that in this case there is not an iota of evidence that may link the appellant with the crime. Every piece of evidence on the face is shaky and wholesome testimony of the prosecution witnesses instead of giving rise to the fact of commission of any offence pronounces strongly innocence of the appellant. The informant and the victim have not supported the case against the appellant and they have only supported cause of the prosecution that the victim was enticed away on 29.07.2001. The victim himself has stated that he went to take cold drink with the appellant but he returned home. The entire prosecution story has been fabricated by the informant in collusion with the police just to harass the appellant.
Learned counsel for the appellant has further contended that testimony of witnesses of fact is on the face contradictory and full of hollowness. There is no point for making charge under Section 364A IPC as on the basis of allegations, no charge for demand of any ransom is made out. Charge itself is erroneous. Learned trial Judge while appraising facts and evaluating evidence and circumstances misread the same and recorded erroneous and illegal finding of conviction and sentence.
Per contra, the learned AGA retorted to aforesaid arguments by submitting that the factum of kidnapping of minor child aged about 14 years has been proved well from testimony of both the witnesses namely Surendra Kumar Verma PW-1 and Sunny PW-2 and no doubt can be raised on their innocuous testimony which positively proves guilt of the accused-appellant. There is no material contradiction in the testimony of the prosecution witnesses. Testimony of the prosecution witnesses, if looked carefully, will reflect that it was tried to be influenced and won over by the accused-appellant himself that is why some aberration has emerged in their testimony which aberrations are not of vital stature and do not hit at the root of the prosecution case. Learned trial court has judiciously recorded conviction and has passed appropriate sentence.
We have also considered the rival submissions and taken into consideration rival claims. In view of above, the point for determination of this appeal relates to fact as to whether the offence under Section 364 A IPC was committed by the accused-appellant by kidnapping the victim Sunny aged about 14 years on 29.07.2001 around 2:30 p.m. from his house and he was seen by the witnesses and the prosecution has proved charge under Section 364A IPC beyond reasonable doubt?
In this case undoubtedly, perusal of the first information report reflects that the allegations of kidnapping simplicitor have been made against the accused-appellant in the written report Ext. Ka-1 that he came to the house of the informant around 2:30 p.m. when his son Sunny was playing with his two brothers inside the house. The accused-appellant enticed away Sunny on pretext of giving him allurement of cold drinks and he was seen by his two sons and Dharmendra Soni PW-3.
On careful scrutiny of the prosecution witnesses of fact PW-1 informant, PW-2 victim, PW-3 Dharmedra Soni and Ashish Verma PW-4, we come across fact that the story of kidnapping of the victim Sunny by the accused-appellant has been positively denied by all witnesses in their cross-examination. The informant has gone to the extent by deposing that name of the accused-appellant was written in the first information report at the instance of the crowd. He has further deposed on page 12 of the paper-book that his son did not spell name of any accused when he came back to home. Even in the testimony of PW-2 the victim on page 16 of the paper-book in his cross-examination, it emerges that the appellant came to his house around 12:30 p.m. and took with him victim Sunny for entertaining him by providing cold drinks. The victim after taking cold drinks returned. The victim further deposed that no one saw him when he was accompanying the appellant. This specific testimony by itself is sufficient to throw doubt on the claim of the prosecution that the accused-appellant enticed away the victim Sunny on 29.07.2001 and the victim did not return. Further charge under Section 364 IPC is specific and speciality of charge lies in fact that it carries special element for constituting offence of kidnapping when kidnapping is committed for ransom. We have scanned the entire record wherein nothing positive has surfaced which may whisper about the cause that the accused-appellant ever demanded any ransom from the informant or any other person. Therefore, we are in agreement with the contention of the appellant that charge under Section 364A IPC was not required and the same was erroneously framed. We are also conscious of the fact that irregular charge which does not prejudice interest of the accused (appellant) or defence will not vitiate proceedings. Therefore, charge may be treated under Section 364 IPC, instead of, under Section 364A IPC.
Now both informant PW-1 and victim PW-2 have not supported the prosecution case, therefore, as a measure of caution, we may have recourse to the other testimony in the form of recovery of victim and testimony of other witnesses of fact Dharmedra Soni PW-3 and Ashish Verma PW-4. Before we deal with factum of recovery of victim, it would be convenient to scrutinize testiimoy of both the witnesses PW-3 and PW-4 as to what they deposed on point of occurrence and on point of involvement of the accused-appellant in this case.
On perusal of testimony of both the witnesses Dharmendra Soni PW-3 and Ashish Verma PW-4, we notice that both of them have not supported the prosecution case on point that they ever saw the accused-appellant enticing away the victim-Sunny. They have even denied having given any statement under Section 161 Cr.P.C. against the accused-appellant, therefore, requisite support and corroboration from independent source regarding commission of the offence is missing in this case.
Now we may switch over to the factum of recovery of the victim. Rama Shanker Sonker PW-5 has effected recovery after tip off information was received by him at 22:30 hours on 11.08.2001 that some miscreants will come with kidnapped person from Agra from Etmadpur side and will be going to Anandpur. On this tip off information, the police party reached Anandpur crossing when they saw three persons coming on motorcycle. As soon as driver saw the police, he wanted to speed away motorcycle, the motorcycle was disbalanced and it fell down. The miscreants somehow controlled motorcycle and one person was also with them with blind folded eyes. When police party came near to them, the two persons escaped away from the scene on motorcycle after starting it and leaving behind one person with blind folded eyes. The police party chased the miscreants but could not succeed and the miscreants secured their escape. The police party took control of the person who was left behind, he was very much perturbed and after unfolding his eyes, the police party asked about his identity whereupon he told his name Sunny. Thereafter, recovery memo was prepared on the spot, which has been proved as Ext. Ka-3 by Rama Shanker Sonker PW-5. He has been cross examined wherein he has specifically stated on page no.27 of the paper-book that no signature of the victim, whatsoever, was obtained on the recovery memo. In absence of signature of the victim on recovery memo, recovery memo cannot be said to have been properly prepared as such the same is legally not admissible in evidence against the accused-appellant, because the recovery proceedings can be drawn at will at any time anywhere. However, it does not contain signature of the victim. This omission on the part of the police to obtain signature of the victim on recovery memo when read in its entirety along with attendant facts and circumstances may create suspicion regarding authenticity of the recovery memo.
In this case, recovery of the victim Sunny was effected at 11:00 p.m. in the night. There is no independent witness to the fact of recovery and surprisingly, the police party failed to ask about name of the persons with whom he arrived at Anandpur crossing and no accused was named by the victim, which may give any clue about the persons who left behind the victim. In this view of the matter, even factum of recovery of child is also not authenticated, and the same is full of suspicion. Even the informant has testified in his cross examination that his son did not spell name of any accused person as to who kidnapped him. He does not know name of any such accused. In criminal jurisprudence, it is settled principle of law that testimony and circumstances of the case must positively point out guilt of the accused beyond reasonable doubt and in case evidence when taken together with facts and circumstance of the case appears to be shaky, vacillating and full of improvements then charge framed against the accused will lose its legal significance and the accused will be entitled for acquittal. In this case, there is no worthy evidence which may connect the accused with the commission of the crime but the trial court while taking stock of merit of the case overlooked this factual aspect and erroneously recorded finding of conviction and passed sentence against the accused-appellant under Section 364A IPC which is not sustainable in the eye of law.
Consequently, the arguments advanced by the learned counsel for the appellant carry force. Therefore, the judgment and order of conviction dated 22.09.2010 passed by the Special Judge (DAA) Agra, in Special Sessions Trial No. 111 of 2001 State of U.P. Vs. Banti alias Firoz alias Sikandar and others, arising out of Case Crime No.361 of 2001, under Section 364A IPC, Police Station- Etmaddaula, District- Agra is set aside by us. Accordingly, the present appeal is allowed.
The appellant is acquitted of charge under Section 364A IPC.
In this case, the appellant is in jail. He shall be released forthwith unless and until he is wanted in connection with any other case. The appellant shall ensure compliance of Section 437A Cr.P.C.
Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.
Order Date :- 14.12.2016 rkg