Allowed

Ram Naresh and Another v. State of U.P.

Allahabad HC20 Feb 2018CRLA/1131/1986

Case brief

AI extract

What is this about?

In an appeal against conviction and sentencing for kidnapping, the High Court set aside the trial court's order. The Court held that the conviction was impermissible because the prosecution failed to prove the recovery of the victim satisfactorily, noting the absence of a site plan at the recovery spot, and observed that the demand for ransom was not reasonably proved, rendering the case doubtful.

What did the court decide?

The judgment and order of the trial court dated 03.04.1986 are set aside; the appellants are exonerated; the sentence is quashed; bail bonds are cancelled and sureties discharged.

Ram Naresh and Another Vs State of U.P. — Criminal Trial and Appeal | Allahabad HC (2018)

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AFR

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Court No. - 15

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Case :- CRIMINAL APPEAL No. - 1131 of 1986

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Appellant :- Ram Naresh And Another
Respondent :- State Of U.P.
Counsel for Appellant :- R.L. Bhardwaj,Himanshu
Counsel for Respondent :- A.G.A

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Hon'ble Arvind Kumar Mishra-I,J.

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By way of instant criminal appeal, challenge has
been made to the validity and sustainability of the
judgement and order dated 03.04.1986 passed by
Special Judge (Anti Dacoity), Etawah in Special Case
No.101 of 1984, (State Vs. Ram Naresh and another),
police station- Auraiya, district Etawah, whereby
the appellant- Ram Shanker s/o Kali Charan- has been
convicted and sentenced to undergo 4 years R.I.,
under Section 365 IPC.

¶8

Appropriate to mention that during the course of
appeal,appellant no.1 Ram Nareshexpired,
therefore, his appeal stood abated against him,
vide order of this Court dated 13.10.2017.

¶9

Brief facts of the prosecution case, as
discernible from record, is that a written report
was handed over to the police by the informant- Sri
Ram Pal s/o Chabinath Pal, r/o village- Daspur,
police station- Auraiya, district Etawah in police
station- Auraiya at 7.20 A.M. on 7.10.1981, wherein,
it was alleged, inter alia, that informant's son-
Shiv Kumar- was playing near his house. It was

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around 7 P.M., when Mahesh s/o Bachay Lal Nai, who
was living in the village, took with him (Shiv
Kumar) and proceeded towards the field, where they
came across two miscreants, one of them caught- Shiv
Kumar (informant's son) and the other caught-
Mahesh; and after making some inquiry from them,
Mahesh was let off; and Shiv Kumar was taken away by
them. This information was conveyed to the informant
by Mahesh. The informant searched for his son (Shiv
Kumar) whole night, but could not trace whereabouts
of his son. Informant was apprehensive that there
is conspiracy of Mahesh in the kidnapping of his
son- Shiv Kumar. He went to the police- station and
lodged the missing report, Exhibit K-1 (18.4.1985).

¶12

Initially, this information was not entered at
any case crime number, but an entry in the General
Diary was made at rapat no. 13 on 7.10.1981 at 7.20
A.M., true copy of the concerned G.D. is on record
as Ex. Ka.2 and thereafter aforesaid missing report
was treated an FIR.

¶13

The genesis of the entire episode has its base
in the tip off information to the I.O. on
17.10.1981 regarding presence of the miscreants in
the jungle. This information was received during
investigation by the Investigating Officer- Chhote
Lal Verma- P.W.4. It was informed that the kidnapped
boy- Shiv Kumar- has been captivated in a field
along with two miscreants in the forest of village-
Maghgawan- within the vicinity of Police Station-
Ajeetmal. Investigating Officer- Chhotey Lal Verma

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(P.W.4) along with S.I. B.D. Sharma and other police
personnels rushed to the spot where he came to know
that the miscreants had left the spot and had
proceeded towards Dibiapur. When the raiding party
chased the miscreants on a metador van, the
miscreants under pressure of police freed the
kidnapped boy- Shiv Kumar- from their truck.The
kidnapped boy- Shiv Kumar- was sighted by the
raiding party by the side of canal in Dibiapur. He
(kidnapped boy- Shiv Kumar) told the police party
that the miscreants freed him from their truck on
this place, whereafter, the police party came back
to the police station along with the kidnapped boy
and relevant entry of the same was entered at Serial
No.36 on 17.10.1981 at 8.45 P.M., which G.D. Entry
has been proved as Exhibit Ka-3.

¶16

Astheinvestigationprogressed,the
Investigating Officer also prepared the site plan,
Exhibit Ka-4, of the place of the incident where
initially kidnapped boy was kept and detained by the
accused. Upon completion of the investigation,
charge-sheet (Exhibit Ka.5) was filed against the
appellants.

¶17

The committal proceeding took place and the case
of the appellant was transferred to the court of
Special Judge (Anti Dacoity), Etawah after numbering
the case of the appellants as Special Case No.101 of
1984 for offence under Section 364 IPC.

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The appellant was heard on the point of charge

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and he was charged under Section 364 IPC. Charges
were read over and explained to the appellant, who
abjured the charge and opted for trial.

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The prosecution produced in all four witnesses.
A brief sketch of the same is herein under:-

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Sri Ram P.W.1 is the complainant/informant in
this case. He has proved his written report, Exhibit
Ka-1.

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Shiv Kumar P.W.2 is the victim boy. He has
detailed about the occurrence.

¶24

Head Constable Sri Rajjan Lal P.W.3 is the
formal witness, he has proved the G.D. of
information as Exhibit Ka-2 besides proving the G.D.
Entry regarding conversion of the case as Exhibit
Ka-3.

¶25

S.I. Sri Chhotey Lal Verma P.W.4 is formal
witness and the I.O. of the case. He has prepared
the site plan and proved the same as Exhibit ka-4
and after completing the necessary formalities, he
filed the charge-sheet against the appellant, which
is Exhibit Ka-5.

¶26

Evidence for the prosecution was closed and
statement of the accused was recorded under Section
313 Cr.P.C., wherein they have claimed to be not
guilty and termed their implication false due to
enmity and parti-bandi.

¶27

No other testimony was adduced, therefore the
evidence for the defence was closed and arguments
heard and after considering the entire facts and

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circumstances of the case and evaluating the
testimony on record, the trial court entered
finding of conviction and sentenced the appellant
under the aforesaid section of Indian Penal Code,
which paved way for this appeal before this Court.

¶30

Heard Sri Himanshu, learned counsel for the
appellant and Sri B.D. Nishad, learned AGA for the
State and perused the record of this appeal.

¶31

Learned counsel for the appellant vehemently
urged that in this case, the stream of coherence,
which was required to prove the case within four
corners of under Section 364 IPC, is missing from
very beginning itself. The genesis and the origin of
the episode revolves around Mahesh, a co- villager
and relative of the informant have expressed clear
cut apprehension about his involvement in
disappearance of Shiv Kumar, however, he has not
been examined by the prosecution for reasons best
known to it, therefore, the origin and genesis of
the offence itself becomes doubtful. It is
established tenet of criminal jurisprudence that if
the origin of an offence is found to be cryptic and
clandestine, then the whole case becomes doubtful.
There is no worthy evidence/testimony, which may
inspire confidence to the ambit that infact the
kidnapping was done by the accused. Accused had no
specific motive to commit the crime. Factum of
kidnapping is not supported either by any
independent circumstance or any independent witness.
Moreso, the written report itself is doubtful and it

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is ante- timed and cannot be believed to have been
given at the time and on the date, as claimed to
have been given and it was never given at the police
station on 7.10.1981. No recovery, whatsoever, was
effected from Dibiapur by the side of the canal as
claimed by the I.O. Things have been manipulated by
the informant in- collusion with the police for the
reason that parti- bandi between 'Nai' and 'Pal'
caste of the village is on high stream in the
village. Lastly, learned counsel for the appellant
submitted that assuming it to be that kidnapped was
done, which matured on the recovery of th victim
boy, then the factum of recovery loses significance,
in view of fact that no site plan of the very place
of recovery was ever prepared by the Investigating
Officer, that way entire case, on the face of it,
appears to be false, therefore, conviction so
recorded by the trial court becomes perverse against
the material existing on record and on the contrary
the apparent circumstances point and establish
innocence of the appellant.

¶34

Learned AGA has supported the judgement and has
submitted that the evidence on record justifies
conviction and the sentence imposed cannot be
interfered with, consequently, the appeal lacks
merit.

¶35

Also considered the rival submissions.

¶36

The moot point that crops up for adjudication of
this appeal relates to fact whether the prosecution
has been able to prove the charge levelled against

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the appellant beyond reasonable doubt?

¶39

Bare perusal of the written report, Exhibit Ka-
1, is indicative of fact that a missing report was
lodged at the police station- Auraiya on 7.10.1981
at 7.20 A.M., whereupon, relevant entry was noted in
the concerned GD and the investigation was taken
and carried out by the Investigating Officer- S.I.
Sri Chhotey Lal Verma P.W.4. After receiving the tip
off information to be effect that the kidnapped boy
has been captivated in the jungle of village-
Maghgawan within the Police Station- Ajitmal, a
raiding police party was constituted by the
Investigating Officer, thereafter the police party
reached to the spot from where they came to know
that the miscreants had left the place along with
the kidnapped boy for another destination towards
Dibiapur. The police party gave hot chase to the
miscreants, who were fleeing away with the kidnapped
boy in a truck. They (accused) became apprehensive
of their arrest, therefore, they freed the victim by
the side of the canal at Dibiapur. After 15-20
minutes, the police party arrived on the spot and
recovered the boy- Shiv Kumar- from the side of the
canal where the victim told the raiding party that
the accused had gone after freeing him. Thereafter,
Shiv Kumar was taken to the police station- Auraiya.
Returning of the recovered boy along with the police
party at police station Auraiya was noted in the
G.D. as Rapat No.36, Exhibit Ka.3. Statement of the
recovered boy was also recorded. At this juncture

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and a crime number was allotted to the case as Crime
No. 503 of 1981 at police station- Auraiya, under
Section 364 IPC. Thereafter the I.O. prepared the
site plan (Exhibit Ka-4) of the place where
initially the kidnapped boy was detained in the
field.

¶42

In so far as the factum of kidnapping is
concerned, obviously, the things started with the
intervention of Mahesh, who took the kidnapped boy
with him and he was intercepted on way by two
miscreants though not named by Mahesh. Mahesh was
relative of the accused. Ram Naresh also did not
name any accused and a suspicion was raised in the
written report by the informant against Mahesh alone
that his behaviour is intriguing on the
disappearance of his son Shiv Kumar.

¶43

It is admitted fact that prosecution has not
examined and produced Mahesh to prove the factum of
accompanying Shiv Kumar with him, though he is said
to be responsible for disappearance of Shiv Kumar,
as claimed by the informant in the FIR. As to how
and why, if the claim of the informant was laid to
the ambit that the kidnapped boy went in company
with Mahesh, then Mahesh did not spell name of the
accused, though, both the accused belong to the same
village. Therefore, contention to the extent that
the genesis and origin of the offence has been
concealed, appears to be genuine; and withdrawal of
Mahesh from being a prosecution witness in trial
court also strengthens the claim of the appellant.

¶44

¶45

Appearance of Mahesh on the scene was basically the
starting point which ordained and facilitated
kidnapping, but he was not produced in the trial
curt in support of claim made by the informant
himself.

¶46

In so far as demand of ransom is concerned,
there is nothing on record that may reflect and
convince this Court that and any such letter was
handed over to the I.O. during the course of
investigation by the informant- Sri Ram Pal P.W.1,
by which any ransom was demanded by the accused.
Sri Ram Pal P.W.1 himself has produced, these,
letters before the trial court, which also exposes
hollowness of the claim so made, as to how and why
when the kidnapped boy had already been recovered,
trial commenced and yet he found the appropriate
opportunity only at the time of his examination
before the trial court and only then he produced the
letters in court, is intriguing. These letters also
do not establish anything as such and are not of any
significance as the fact was never proved to the
magnitude that the same was ever sent or was managed
by the appellant himself.

¶47

In view of above, the claim of demand of any
ransom does not inspire confidence and appear to be
not established in this case against the appellant,
therefore, the allegation of demand of ransom cannot
be taken to have been reasonably proved.

¶48

In so far as point of testimony of the victim

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Shiv Kumar P.W.2 is concerned, he has testified in
clear- cut terms that the present appellant- Ram
Shanker- remained present throughout with him for
all the 11 days and he used to notice the face of
the appellant stealthily by removing part of the
strip wrapped around his eyes. He has recognized the
appellant before trial court as the same person.

¶51

If this testimony is taken to be correct and to
be acted upon, then this does not conforms to the
point of recovery of the kidnapped boy, and this
Court may conveniently switch over to the testimony
of S.I. Chhotey Lal Verma P.W.4. As per his
testimony, the site of the canal in Dibiapur- the
place of recovery- has not been satisfactorily
proved by any cogent evidence or circumstance that
he was recovered and a number of persons had
gathered on the spot. The Investigating Officer S.I.
Chhotey Lal Verma P.W.4 did not prepare any site
plan of the place of recovery. This gives vital blow
upon the prosecution case. In the absence of site
plan concerning the place of recovery of the victim,
the claim so raised by the prosecution is falsified
and the fact of recovery of the boy is not proved.
The trial court was oblivious of the aforesaid
particular aspect of this case as well as the legal
position and it wrongly and erroneously appreciated
the facts, vis a vis, circumstances of this case and
recorded perverse finding of conviction under
Section 365 IPC and awarded sentence.

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¶53

Consequently, the judgement and order of the
trial court dated 03.04.1986 passed by Special Judge
(Anti Dacoity), Etawah in Special Case No.101 of
1984, (State Vs. Ram Naresh and another), police
station- Auraiya, district Etawah is hereby set
aside and the appeal succeeds. The appellant is
exonerated of the charge and the sentence awarded is
quashed.

¶54

Appellant is on bail. He need not surrender. His
bail bonds are hereby cancelled and sureties
discharged. However, he will comply with the
provisions of Section 437-A Cr.P.C.

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Let a copy of this order be certified to the
concerned trial court for its intimation and follow
up action.

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Dt.20th February, 2018
Raj

Ram Naresh and Another v. State of U.P.

Case brief

What is this about?

What did the court decide?

Ram Naresh and Another v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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