Reserved
Court No. - 48
Case :- CRIMINAL APPEAL No. - 5335 of 2007 Appellant :- Krishna Kumar @ Kk And Others Respondent :- State of U.P.
Counsel for Appellant :- Jai Narain,Abhijeet Mishra,Ajay Pal,Anvir Singh,Bhavya Sahai,Chandra Prakash Pandey,Narendra Kumar Singh Counsel for Respondent :- Govt. Advocate Connected with Case :- CRIMINAL APPEAL No. - 4674 of 2007 Appellant :- Jant Singh Respondent :- State of U.P.
Counsel for Appellant :- Jai Narain,Bhavya Sahai,Radhey Shyam,S.Shahnawaz Shah Counsel for Respondent :- Govt.Advocate
Hon'ble Anjani Kumar Mishra,J. Hon'ble Naveen Srivastava,J.
Heard Shri Bhavya Sahai, learned counsel for the appellants and learned A.G.A. for the State.
The instant appeal is directed against the judgment and sentence of life imprisonment and 3,000/- rupees fine awarded to each of the appellants in Sessions Trial No. 71 of 1996, State Vs. Deepak @ Kallu and others. The case arose out of an F.I.R. lodged on 18.10.1995 at 9.30 A.M. at Police Station Aalhaganj, District Shahjahanpur, registered as Case Crime No. 47 of 1995.
The allegation in the F.I.R. is that the first informant’s younger brother Rajesh Kumar aged about 19 year proceeded to Lijiganj Mandi, Farrukhabad on 10.10.1995, but he did not return that day. On the next day, the first informant went to look for him but did not receive any information about his whereabouts. Again on 12.10.1995, he proceeded to Farrukhabad along-with Rakesh @ Chini and made inquiries. During the course of inquiries, they reached Mohalla Arathiyan where near a Mandir they were met by one Kallu Pandey who informed that Rajesh had been kidnapped. Ransom of Rs. 5 lakhs, be arranged else Rajesh would be eliminated. On discussion the ransom amount was agreed as 1.5 lakhs, which would to be paid on 18.10.1995 at 12.00 P.M. and the first informant was required to come with the money to Vanshi Wale Ki Madhiya situated at village Manjha where his brother would be released. The police was not informed, fearing the safety of his brother. However, since the money could not be arranged, the first information report was being lodged.
On the report aforesaid, the Station Officer, Sub Inspector, four constables and four other persons namely, the first informant Brijesh Kumar, Ram Naresh, Hori Lal and Pramod Kumar approached Vanshi Wale Ki Madhaiya in village Manjha. There, six persons with fire arms were seen sitting and talking. On being challenged they stood up and started firing. However, police party also fired four shots and after using adequate force, the six persons were caught, they being Deepak Pandey @ Kallu Pandey, who was armed with a 12 bore SBBL gun and three live cartridges were also recovered from his possession. Krishna Kumar Dubey @ K.K. also armed 12 bore SBBL gun with one live cartridges, Jawahar Singh Lodhe armed with 12 bore Tamancha and two live cartridges and Jant Singh Lodha armed with .315 bore Tamancha and 2 live cartridges, Sukhram Lodhi armed with 10 inch knife and Rajdeep armed also with a ten inch knife.
On the pointing out of Deepak, the abductee Rajesh Kumar was found in the bushes at a distance of about 100 meters with his hands and legs tied with a dhoti and cloth stuffed in his mouth. On the spot, arrest and recovery memos were also prepared. The arms recovered as also 3 shell of 12 bore, one shell of .315 bore and 4 shells of .38 bore of the shots fired by the police were sealed and memo was duly prepared. The memos were transcribed by the S.I., Samar Singh on the dictation of the S.O., who did not prepare the memo himself on account of pain in his hand.
After investigation a charge-sheet was filed against under Sections 364-A, 147, 148, 149, 307 I.P.C. and cases also under Section 25 of the Arms Act were registered against the accused.
The trial court in ST No. 71 of 1996 framed a charge under Section 364-A I.P.C. against the accused, which was denied by him and they claimed trial. The offence regarding the alleged occurrence on 18.10.1995, under Section 307 IPC and allied sections as also the cases under the Arms Act was tried separately.
On the basis of the evidence available on record, the appellants were sentenced to life imprisonment with fine of Rs. 3,000/- each by the trial court.
The prosecution examined as many as five witnesses. PW-1, Brijesh Kumar Gupta is the elder brother of the victim and the first informant. PW-2 Rajesh Kumar Gupta is the victim. PW-3 Bhanu Pratap Singh is the Thana Incharge, P.S. Paraur, District Shahjahanpur and the Investigating Officer. PW-4, S.I. Har Prasad Singh is the investigating Officer who filed charge-sheets in the cases under the Arms Act, while PW-5, Ct. Natthu Khan, has proved the signature of the erstwhile Head Moharrer Radhey Shyam, on the chick F.I.R.
PW-1, Brijesh Kumar Gupta the first informant and brother of the abductee, has reiterated the allegations contained in the first information report and has stated that he went to Farrukhabad in search for his brother on 11.09.1995 but could not get any information about him. He again went to Farrukhabad on 12th along-with a relative and during the course of his inquiries he reached Mohalla Adhtiyan where a person met him and asked him as to why he was loitering around. This person informed the witness that his brother had been kidnapped and he should arrange ransom of Rs. 5 lakhs failing which his brother would be eliminated. After a discussion lasting 10 to 15 minutes, it was agreed that an amount of Rs. 1.5 lakhs would be paid for the release of his brother. It was also agreed that the ransom money would be brought by him on 18 October at 12.00 noon to Vanshi Wale Ki Madhaiya. He did not inform the police fearing the safety of this brother. Later, when the money could not be arranged by him, the first information report was lodged.
After the FIR was registered, the police personnel and the first informant along with three other persons stealthily approached Vanshi Wale Ki Madhaiya. Six armed persons were seen sitting there and talking. They stood up and started firing, when challenged, but were ultimately apprehended and from them the weapons as enumerated above were recovered. Kallu Pandey on being asked revealed that the abductee was amongst bushes about 100 yards away. The abductee was found with his hands and feet tight with a Dhoti and cloth stuffed in his mouth. These two pieces of cloth were taken into custody by the police and were sealed and a fard was prepared. The witness has also identified the arms that were recovered from the accused.
In his cross-examination, he has stated that he went of Farrukhabad by bus and did not know the accused from before. He first went to Lisiganj Mandi and inquired from various persons and during the course of inquires reached Mohalla Adhtiyan where he made inquiries from one Chandra Prakash. He was looking around in that area when, near a childrens’ school, he met Kallu who asked why he was loitering about. This meeting took place near a temple. The two talked about 10 to 15 minutes. He did not inform the police about this talk of ransom as he was afraid that his brother would be harmed. He has also denied knowing the accused from before. The actual time spent in Vanshi Wale Ki Madhiya was about 2 to 2/5 hours and this time was spent in preparing the various fards.
PW-2, Rajesh Kumar Gupta, the victim has stated that he had gone to Farrukhabad by bus on 10 October to sell khali. He reached at about 12 noon and proceeded towards Lisiganj Mandi. When he reached a deserted lane near Parag Dairy, the accused caught him at pistol point and took and locked him in a house, threatening to shoot him if he cried for help. He was kept in the house for about 5 to 6 hours. Thereafter at 9 pm he was blind folded and taken to a different place, which was across a river. The river was crossed in a boat. Sometime later he was taken to a sugar cane field and kept there for about 8 days. This sugar cane field was at a distance of 100 yards from the river.
After he was released the cloth stuffed in his mouth and the dhoti used to tie him up was taken into custody and a fard was prepared, which was signed by him. He has identified his signatures at this fard. He was released sometime around one to two or three p.m.
In his cross-examination, initially he has stated that he was not aware why he had been abducted but subsequently stated that it was for money. On being questioned by the Court, he has stated that the sugar cane field, where he has been hidden was not near the abadi and he is not aware whether any villagers or farmers came to the neighbouring fields or not. A few of the accused were always there to guard him. They had got written a note for his brother. He has also stated that he used to sell his khali in Farrukhabad to one Rajaram and this sale was always conducted by him and not by his brother. The money received from the sale of khali was always given to him. He visited the spot of his abduction only once thereafter, with the Investigating Officer and that this spot is situated at about one to two kilometers from his college and about half kilometer from the bus stand. He has also stated that the sugar cane field where he was kept for about 8 days and the bushes from where he was recovered are different and situated at a distance of about 100 meters from each other. The place from where he was recovered and released is situated at about 200 meters from Vanshi Wale Ki Madhaiya. He has also stated that he and the accused used to sleep upon the ground in the sugar cane field and as a result the sugar cane was broken in an area of about 4 sq. feet. He has also stated that he was fed by the accused but he ate nothing for first few days. Later he ate just enough to keep alive.
Upon his release he went home with his brother at about 2.30 P.M. He has also denied having shown the spot where he was detained and the spot where he was recovered to the Investigating Officer himself. He has in his cross- examination stated that the day he was released he had gone to the police station to see the accused. He is not aware of any motorcycle belonging to Krishna Kumar Dubey being kept at the police station or that if it was brought to the police station from his house. He has denied knowledge of any Chandra Prakash. He was asked by the abductors to put his signature on a note only once. He did not write that note himself. He studied in Farrukhabad from class 11 to B.A. part I and that he used to travel to Farrukhabad from his house everyday. He studied in Rastogi Inter College in class 11 and 12. After his abduction, his studies were disrupted. He was abducted during the period when the college was closed for vacations. He has also denied that he stayed with Chandra Prakash, brother of Ram Prakash, for two years, on rent. The suggestion that there was a business dispute between his brother and Krishna Kumar Dubey and that they had a fight or that the other accused worked as Palledar in Lisiganj Mandi and they had sided with Krishna Kumar Dubey in the fight. He has also during cross- examination stated that he did not suffer any injury during his detention by the accused.
He was wearing a white shirt with light blue stripes and that there were slight smears of soil on it. This fact was not communicated to the Investigating Officer, he did not inform anyone that this shirt had been taken away by the criminals and that he was without a shirt. He also denied the suggestion that the accused have all being arrested from there homes and that the alleged arrest and recovery as also recovery of the abductee has been fabricated on account of a business dispute which led to a fight between Krishna Kumar Dubey and his brother, Brijesh Kumar Gupta.
PW-3, Bhanu Pratap Singh is the Investigating Officer. He has stated that after the case was registered and since it was revealed therefrom that the accused would bring the abductee to Vanshi Wale Ki Madhiya at 12 noon to receive the ransom money, he along with four constables, first informant Brijesh Kumar and Ram Naresh, Hori Lal and Pramod Kumar departed for Vanshi Wale Ki Madhiya. There the six accused were found sitting and when challenged they started firing. He fired back and subsequently all six were caught. They revealed their names and the arms recovered from them were taken into custody and sealed along with live cartridges recovered from them, including the four spent cartridges from the shots fired by the police personnel. He has identified his signature on the various bundles opened in Court. It is also his statement that the abductee was recovered from the nearby bushes, on the pointing out of Kallu Pandey. The various documents, memos were thereafter prepared. These memos were transcribed by Sub- Inspector Sukhpal Singh and were signed by him as also the witnesses. The items were thereafter, sealed. He also prepared the site-plan on 31.10.1995. He went to the place of abduction and prepared its site-plan. He did not make any inquiries to find out as to who was owner of the sugar cane field where the abductee had been kept. When the accused were questioned in this regard, Krishna Kumar Dubey stated that Deepak Pandey would have information in this regard, but Deepak Pandey refused to divulge anything. He has also stated that there is no sugar cane field for about 200 meters surrounding the Madhaiya. He has also categorically denied that the abductee was recovered from a sugar cane field. He denied receiving any telegram through proper channel stating that Kallu Pandey had been taken by the police from Mohalla Arathiyan on 17.10.1995 or that accused Krishna Kumar Dubey were taken by the police on 17.10.1995 along with his Bullet Motorcycle UMF 3724 or that Jant Singh was held on 17.10.1995. He has also admitted that the police personnel were given an award of Rs. 2000/- for arresting Krishna Kumar Dubey. He has not mentioned this fact in any of the documents prepared by him in connection with the case as it was a departmental matter. He has categorically denied that the accused were arrested from different places and different points in time and that there was any enmity between Brijesh Kumar, on the abductee Rajesh Kumar with accused Krishna Kumar Dubey etc. or that he arrested Krishna Kumar Dubey to claim the cash award and for getting promotion. He has also denied the suggestion that the alleged recovery of arms from the accused is farzi.
PW-4, SI-Har Prasad Singh has stated that on 18.10.1995, he was posted as Sub Inspector in Police Station Allahganj, District Shahjahanpur. He was assigned investigation of Crime Nos. 54 to 60 of 1995. These are the cases under the Arms Act and after investigation, he filed charge-sheets in these matters on 23.10.1995. He has also prepared the site-plan of the site of their recovery. Permission to launch prosecution was obtained from the District Magistrate by his counter-part, another Sub-Inspector. He has denied the presence of any sugar cane field in the site-plan prepared by him. He has also denied the suggestion that the case under Section 307 IPC is false and concocted and a result of conspiracy between other police personnel and that a wrong investigation and charge-sheet has been filed. He has also stated that the investigation does not reveal as to which of the accused fired first and which of them fired later.
PW-5, Ct. Natthu Khan has stated that the chik FIR in the case was prepared by Head Moharrar Radhey Shyam. He has identified the handwriting and the signature of Radhey Shyam thereon. The relevant entries were made by Radhey Shyam in the GD.
The statement of the accused was recorded under Section 313 Cr.P.C. and have stated that their prosecution is a product of enmity and the case against them is false.
On the basis of the aforenoted evidence and after the hearing the parties the sentence as noticed above has been pronounced.
The contention of learned counsel for the appellants is that the sessions trial from which this appeal arises was one under Section 364-A IPC only. Cases registered under Section 307 IPC and etc. and under the Arms Act regarding the alleged events of 18.10.1995, were tried separately and therein the appellants have been acquitted and such acquittal has become final. Therefore, at least 50% of the case against the accused, especially as regards the allegations that they fired upon a police party and weapons were recovered from them has already been disbelieved.
It is next submitted that the person accompanying the first informant when information of the alleged abduction and demand of ransom was made, by Kallu Pandey, has not been produced to prove the same. There is total absence of any ransom note, although PW-2 in his testimony had stated that he was made to sign one. This also casts a serious doubt on the prosecution case.
It is next submitted that apart from the allegations in the FIR there is no independent and corroborative evidence to show that there was any intention on the part of the abductees to eliminate the abductee. The case is therefore beyond the scope of Section 364-A IPC and at best would be one under Section 342 IPC, namely, wrongful consignment, the maximum sentence where for is only one year. In any case, even if the prosecution case is believed in its entirety, the demand for ransom was made by Kallu Pandey. The abductee has been recovered on his pointing out. Kallu Pandey absconded and was never tried. He is the main accused and that there is absolutely no allegation against the other accused who have wrongly and illegally been convicted by the trial court. The only evidence against the appellants in the instant case is the uncorroborated evidence of two interested witness namely, PW-1 and PW-2. No independent witness, either the witness of the demand of ransom as also the independent witnesses alleged to have accompanied the police party to Vanshi Wale Ki Madhiya have not been produced by the prosecution. The prosecution has therefore been unable to prove the case against the appellants beyond reasonable doubt.
It has lastly been submitted that all the appellants were arrested from their houses on 17.10.1995 and thereafter a false case has been setup by the prosecution including a fake case of recovery of the abductee and of firing by the appellants upon the police party, which part of the prosecution case has in any case been disbelieved and the appellants have been acquitted of the charges under Section 307 IPC and under the Arms Act in a separate trial. The appellants have remained in jail at least from the date of the order of the trial court namely 07.07.2007 and have already undergone incarceration for almost 14 years and more.
It has also been submitted that a telegram regarding illegal and wrongful detention was sent by the sister of one of the appellants on 17.10.1995. These documents were filed along-with a list of documents and are paper numbers 98Ka1 and 98Ka2. They have also been referred to in the judgment of the trial court on page 95 of the paper book. This also conclusively establishes that the entire prosecution case as setup in the FIR as also subsequently, is entirely false.
Insofar as paper numbers 98ka1 and 98ka2 are concerned, the same in our considered opinion, cannot be looked into because the same have not been proved or exhibited during trial. They are therefore, necessarily required to be ignored as the defence failed to prove them. Mere filing of a document by the defence is of no consequence till such time it is actually proved and exhibited during trial.
Learned AGA on the other hand has supported the sentence and conviction awarded to the appellants. He has vehemently argued that there was a clear threat and danger to life of the abductee. Not only was he abducted at pistol point, he was also guarded by persons with firearms. Under the circumstances, it is necessarily to be inferred that there was a threat to life of the abductee and therefore, the contention that the case against the appellants would not travel beyond Section 342 IPC is without merit. He has also submitted that there was no reason or occasion for false implication especially because in their statements under Section 313 Cr.P.C. the appellants have not stated anything about any enmity between them and the first informant or the abductee.
It would be relevant to note that the submission that a separate case under section 307 IPC and other allied sections as also cases under section 25 of the Arms Act was registered against the accused as regards the events, which took place on 18.10.1995. The appellants were tried separately for those charges and have been acquitted. Learned AGA has also not submitted that this judgment of acquittal has been challenged any further.
The charge framed against the appellants in the instant trial was only one under Section 364-A IPC. There appears to be some merit in the submissions of learned counsel for the appellants that there was no corroborative evidence of the abductee being under a threat to his life. He has also not alleged in his oral testimony that he was subjected to any ill treatment by the appellants. The ingredient of an offence under Section 364-A are not establish beyond reasonable doubt especially in view of the fact that the appellants have been acquitted of the charges of having fired at the police party and also of the charges against them under the Arms Act as regards the events which are alleged to have taken place on 18.10.1995. Under the circumstances, it can be gainfully argued that the presence of the accused, armed with fire arms, which would raise apprehension of threat to life is not established conclusively.
Even the alleged demand for ransom which is stated to have made by Deepak @ Kallu Pandey to first informant Brijesh Kumar Gupta on 12.10.1995, near a temple in Mohalla Arthiyan becomes doubtful, since the prosecution has failed to corroborate the oral testimony of the first informant by the testimony of an independent person who is stated to have accompanied him at the relevant time. The first informant Brijesh Kumar Gupta is definitely an interested witness and it would be safer to accept the prosecution case if his testimony is duly corroborated, especially when an independent witness was admittedly present on the spot. This is more so because the events which took place on 18.10.1995 to which also Brijesh Kumar Gupta, the first informant was an eye witness has also been disbelieved in a separate trial. There is also no explanation as to why no ransom note was produced, especially when PW-2 in his oral testimony states that he was made to sign one. Absence of a demand for ransom in a case of kidnapping for ransom is unbelievable. The case of demand for ransom from the first informant, in a chance encounter in a public place is also very far fetched and hard to believe. Under the circumstances, the prosecution case of a demand for ransom has not been established beyond reasonable doubt.
In our considered opinion, the absence of proof of a demand for ransom as also absence of proof of threat to life of the abductee either by an overt act or even by implication has not been proved. The conviction under Section 364-A IPC is therefore not liable to be sustained. The offence will also not fall within Section 364-A IPC for the same reasons. Therefore, the contention of learned counsel for the appellants that the case would be at best fall within the purview of Section 342 IPC cannot be brushed aside.
Under the circumstances and since the prosecution has failed to prove the case against the appellants beyond reasonable doubt, the appeal is liable to be allowed and the appellants are liable to be acquitted of the charges against them.
Accordingly, we allow the appeal, set aside the conviction and sentence of the appellants, Krishna Kumar @ K.K., Jawahar Singh, Sukhram in Criminal Appeal No. 5335 of 2007 and Jant Singh in Criminal Appeal No. 4674 of 2007, under Section 364-A I.P.C. and acquit them of the charge against them.
In view of the acquittal recorded above the appellants are liable to be released from custody. Let the record of the Court below be transmitted forthwith to the Trial Court along-with copy of this judgment, for its compliance and for release the appellants, forthwith.
Order Date :- 23.9.2021 Mayank