Dismissed

Raju v. State of U.P.

Allahabad HC3 Mar 2021CRLA/5374/2019

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal against a conviction for kidnapping under Section 364 IPC. Upholding the trial court's judgment, the single judge held that the chain of circumstantial evidence was complete and complete beyond reasonable doubt, despite the absence of the victim and explicit motive.

What did the court decide?

Criminal Appeal dismissed; impugned judgment and sentence affirmed; appellant directed to serve remaining sentence.

Raju Vs State of U.P. — Criminal Trial and Appeal | Allahabad HC (2021)

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A.F.R Reserved on 10.2.2021 Delivered on 03.03.2021

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In chamber

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Case :- CRIMINAL APPEAL No. - 5374 of 2019

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Appellant :- Raju Respondent :- State of U.P. Counsel for Appellant :- Anuj Kumar Gupta, Bharat Singh, Irshad Ahmad Counsel for Respondent :- G. A.

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Hon'ble Subhash Chand,J.

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The instant Criminal Appeal has been preferred on behalf of the appellant-convict Raju against the judgment and order dated 20.07.2019 passed by the Additional Sessions Judge/Fast Track Court, Sambhal at Chandausi in Sessions Trial No. 395 of 2017 (State of U.P Vs. Raju) arising out of Case Crime No. 400 of 2016 under Sections 364 I.P.C., P.S. Rajpura, District Sambhal whereby the appellant was convicted for the offence under Section 364 of I.P.C and was sentenced for ten years rigorous imprisonment and fine of Rs. 20,000/-, in default of payment of fine the convict was also directed to under go additional rigorous imprisonment for one year.

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The brief facts giving rise to this criminal appeal are that the informant Ram Kishore moved a written information with the police station concerned with these allegations that his son Shivaji had gone to B.S.V.D school, Gava to study therein on 22.08.2016 at 7 'O' clock by his own cycle. His son was studying in class VIIIth, his age was 15 years. His son did not come back from the school to his house, on queries the informant came to know that the cycle and bag of his son was in the school. He made hectic search of his son but no whereabouts could be known. Someone has kidnapped his son. This written information was written by Pradeep Kumar son of Virendra resident of Jaigera Sagarpur, P.S Rajpura, same was signed by the informant Ram Kishore. On this written information case crime no. 400 of 2016 was registered against unknown persons under Section 363 of I.P.C. The Investigating Officer after having concluded investigation filed

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charge-sheet against the accused Raju son of Ramveer resident of village Rora, P.S Dhaneri, District Sambhal under Section 364 of I.P.C in the court of concerned Magistrate.

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The concerned Magistrate took cognizance on the chargesheet and the offence been triable by the court of Sessions committed this case to the court of Sessions Judge for trial.

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The trial court summoned the accused and the charge was framed against accused Raju under Section 364 of I.P.C. The charge framed was read over and explained to him who denied the charge and claimed for trial.

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On behalf of prosecution to prove the charge against the accused Raju in documentary evidence adduced the written information Exhibit Ka-1, photocopy of the register Exhibit Ka-2, the charge-sheet Exhibit Ka-3, chick F.I.R. Exhibit Ka-4, G.D entry in regard to registering case crime Exhibit Ka-5, site plan of the place of occurrence Exhibit Ka-6, carbon copy of the G.D Exhibit Ka-7, recovery memo of one mobile Exhibit Ka-8.

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In oral evidence examined P.W-1, Ram Kishore , P.W-2, Nazar Mohd. , P.W-3, Pitambar , P.W-4, Lokesh , P.W-5, Inspector Rajvir Singh Yadav , P.W-6, S.I Ravindra Singh, incharge Cyber Cell.

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The statement of accused Raju under section 313 Cr.P.C., was recorded in which he denied the incriminating circumstances in the evidence against him and said that he was not familiar with Naresh, nothing was recovered from his possession and Shivaji was never seen by anyone along-with him. He has been prosecuted in this case due to enmity.

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On behalf of prosecution in defence evidence examined D.W-1, Raju and D.W-2, Rajesh .

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The learned trial court after hearing the contentions of the learned counsel for the parties convicted accused Raju vide

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judgment and order dated 20.07.2019 for the offence under Section 364 of I.P.C and sentenced him with rigorous imprisonment for 10 years and the fine of Rs. 20,000/-, in default of payment of fine the convict was directed to under go additional rigorous imprisonment of one year. Half of the amount of the fine was to be paid to the victim party.

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Aggrieved from the impugned judgment and sentence dated 20.07.2019, this criminal appeal has been preferred on behalf of the appellant Raju on the grounds that the impugned judgment is based on circumstantial evidence. The learned trial court has passed the impugned judgment on the basis of wrong appreciation of the evidence of record. No alleged mobile or SIM was recovered from the possession of the appellant. During investigation Investigating Officer could not get any clue in regard to the abducted boy and filed charge-sheet against the appellant and trial court had convicted him while the case is still been investigated by C.B.C.I.D and further investigation is going on. The learned trial court did not consider the defence evidence adduced on behalf of appellant. Accordingly, prayed to allow this Criminal Appeal and to set aside the impugned judgment of conviction and to acquit the appellant from the charge framed against him.

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I have heard submissions made by the learned counsel for the appellant and also learned A.G.A. for the State, and perused the materials brought on record.

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In chain of circumstantial evidence first link circumstantial evidence adduced on behalf of prosecution is missing of the son of the informant Ram Kishore from the school on 22.08.2016 after he left his house at 7 'O' clock in the morning to attend the class in the school. When Shivaji did not came back after closing of the school, the informant Ram Kishore went to the school of Shivaji and came to know that the cycle and bag of his son was in the school but his son was not found there. Thereafter, the informant

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moved a report with the police station concerned Exhibit Ka-1 in regard to missing of his son Shivaji. The contents of this written information has been proved by P.W-1/informant Ram Kishore. The fact of leaving the house at 7 'O' clock in morning on 22.08.2016 by the son of informant to attend the school and not coming back to his house after closing of the school and on reaching to the school of Shivaji, the informant came to know that his son Shivaji was missing from the school while his school bag and cycle was there, has been proved by the statement of P.W-1, Ram Kishore . This circumstantial evidence is also linked with the statement of P.W-3, Pitambar Singh , principal of the school B.S.V.D, Inter College, Gava.

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The second link circumstantial evidence in the chain of circumstantial evidence on behalf of prosecution has examined P.W-3, Pitambar Singh, this witness in his statement says that he had been posted as principal of B.S.V.D, Inter College, Gava since 2007, he has brought the attendance register of the students and on its first page at serial no. 23 name of Shivaji son of Ram Kishore resident of village Mubarakpur and his mother name recorded as Smt. Urmila Devi, date of birth of Shivaji is 07.07.2003, Shivaji was studying in this school class VIIIth. On 22.08.2016 in the attendance register he was shown absent. The bag of Shivaji was in the classroom and cycle was parked at the cycle stand. Photocopy of the attendance register after having compared with the original attendance register and after having attested has been filed as Exhibit Ka-2 as marked.

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This witness in his cross-examination says that at that time there was no CCTV camera in the school and there was no arrangement of the chaukidar. This information was communicated to Shivaji's house that his bag and cycle was in the school. Therefore, from the statement of this witness, the fact of attending the school by Shivaji on 22.08.2016 and the fact of

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studying Shivaji in class VIIIth in B.S.V.D, Inter College, Gava is proved, although this witness says that in the attendance register Shivaji was shown absent on 22.08.2016 yet on the very date the school bag was in the classroom and cycle was in the school cycle stand proves this fact that on 22.08.2016 Shivaji had reached to the school B.S.V.D, Inter College, Gava and after leaving his bag and cycle in the school he remained absent from the class till the closing of the school.

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The third link circumstantial evidence in the chain of circumstantial evidence is the evidence of last seen of Shivaji with the accused Raju by the witness P.W-2, Nazar Mohd. and also missing of Raju on the very date of occurrence.. In this regard on behalf of prosecution P.W-1, Ram Kishore in his statement says that accused Raju present in the court is his relative, he usually helped him and Raju occasionally came to his house and stayed there. He had got complaint of Raju from his mother, therefore, he scolded Raju. Raju was also missing from the very day when son Shivaji was also missing. On the day of occurrence his son along-with Raju was seen by Nazar Mohd. Till date no whereabouts is known of his son and he has utter belief that his son was made missing by Raju . It is correct to say that his son is not recovered till date and he had moved an application for investigation by C.B.C.I.D.

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P.W-2, Nazar Mohd. in his statement says that on 22.08.2016 at 7 'O' clock of morning he was going to the shop where he does the labour of battery and self repair. He has acquainted with Shivaji. On the day of occurrence, he had seen Shivaji along-with accused Raju at the Sambhal Chauraha. Shivaji was also his friend and he was also acquainted with accused Raju who usually visited Shivaji at his house. It was 7 'O' clock and some minutes when he saw Shivaji at Sambhal Chauraha on the day of occurrence, he has heard the talks

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exchanged between Raju and Shivaji. Accused present in the court was saying to Shivaji to get his goods handed over to him. Both these went to take jalebi and he went to his shop. On that day Shivaji was in school uniform of school B.S.V.D. On the day of occurrence he came to know from the house of Shiivaji that Shivaji was missing, so he had told Ram Kishore that Shivaji was seen by him along-with Raju.

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Therefore, the statement of P.W-1, Ram Kishore is admissible in evidence. In view of the the direct evidence of P.W-2, Nazar Mohd. who had seen missing Shivaji along-with accused Raju on the date of occurrence and since the date no whereabouts of Shivaji was known.

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14. Next link evidence in the chain of circumstantial evidence is the messages and phone call on the mobile phone of P.W-1, Ram Kishore in the night of date of occurrence on 22.08.2016. In this regard P.W-1, Ram Kishore in his statement says that on missing of his child on the date of occurrence in the night he got two messages on his mobile 9759708801 . In that messages it was said that his son was with them, thereafter, phone call was also came on his mobile in which the same statement as in the message was repeated. In cross-examination this witness says that he does not recollect the complete number of the person sending the message on his mobile phone but the last digit was 50, he is not aware whose number was it. It was also in those messages that his son was wearing white shirt and pant of B.S.V.D school, he was of sharp intellect and was with him, if he wanted the life of his son come to him in failure, the life of his son would be finished. The second message was that if he wanted to know his name, he was terrorist Kangaroo who hated India. These two messages came on 23^rd day. One call also came in which same statement was reiterated. He could not recognize the sound of the persons calling him. After these messages he reached to the police station to

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show his mobile Darogiji arrested Raju on the 25^th day and took in custody two mobiles and three SIMS from the possession of Raju, his mobile was given back to him by Darogiji. 15. Next link evidence in the chain of circumstantial evidence is the testimony of P.W-4, Lokesh , this witness in his statement says that his shop of mobile repair is at Gava. He sells vodaphone SIM. The SIM number 9719058850 was purchased from his shop. It was purchased by Raju and Naresh, it was 1 'O' clock of the day time this SIM was issued on the I.D of Naresh and it was activated on 22^nd day while the SIM was issued on the 19^th day. The entry of this SIM is at serial number 5 of his register. The attested photocopy of the same was filed by him which is Exhibit Ka-3. On the 22^nd day Raju came to him taking the mobile to activate this SIM on his mobile and he activated this SIM in mobile of Raju. This witness identified Raju who was present in the court and stated that he was the very Raju who had came to his shop to get the SIM activated on his mobile . In cross-examination this witness says that he is a authorized seller of Vodaphone company. He had got the summon to give evidence in the court.

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This link evidence in the chain of circumstantial evidence is further corroborated with the link evidence of CDR details on the mobile set and recovery of the mobile and also the evidence of sending messages and calling with the SIM 9719058850 from the mobile set of accused Raju . In this regard on behalf of prosecution has examined P.W-6, Ravindra Singh . This witness in his cross-examination says that on 24.08.2016, he had got information that on the mobile number of informant 9759708801 the message were received in regard to kidnapped Shivaji from mobile number 9719058850. He received CDR of mobile no. 9719058850. This CDR is paper no. 9Kha(3). From the CDR it is evident that the mobile set of EMEI 911483706280880 was of dual SIM in which a few days before

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SIM no. 7409221184 was also used which was of Raju. He being the Investigating Officer recorded the statement of informant who had told Raju to be his relative and also recorded the statement of eye witness Naresh Mohd. who had seen Shivaji along-with Raju on the date of occurrence at the Sambhal Chauraha. On 27.08.2016, he also recorded the statement of Lokesh who had issued the SIM no. 9719058850, it was told by Lokesh to him that this SIM was on the I.D of Naresh which was activated on mobile of Raju. He also recorded the statement of Naresh. Thereafter, on 30.08.2016 he arrested Raju and a mobile was recovered from the possession of the Raju . The entry of the same was made in the G.D No. 65 at 23:40 hrs on 30.08.2016. Carbon copy of the G.D 9Kha/5 is recorded which is in his writing and signed by him Exhibit Ka-7 was marked on it. The mobile which was recovered from the accused Raju is the material Exhibit-1 and the cloth in which it was packed material Exhibit-2. The recovery memo of this mobile was prepared by him, it is in his hand writing and signature Exhibit Ka-8 was marked therein. He informed DCRB and adjoining district Delhi, NCR but nothing was known in regard to whereabouts of Shivaji, publication was made in the newspaper on 12.10.2016. He was transferred. In cross-examination this witness says that as per CDR call details, it was found that the messages and calls were made by the device recovered from the possession of Raju . From the beginning of investigation till the closing of investigation Shivaji was not recovered. During investigation no such evidence was collected by him in regard of murder of Shivaji or any evidence of dead body of Shivaji. The EMEI number was of this mobile recovered from the accused Raju from which messages was sent .

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P.W-5, Rajvir Singh Yadav , filed the charge-sheet against accused Raju after collecting the evidence under Section 364 of I.P.C.

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On behalf of accused in defence evidence has examined D.W-1 Raju son of Harpal . This witness says that he is the real nephew of informant and accused Raju is real brother-in-law (bahnoi). His maternal uncle wanted to get his sister-in-law married with his younger brother and same was opposed by Raju and due to this enmity Raju has been falsely implicated in this case. This witness in his cross-examination says that this fact he has told in the court for the first time. The complaint of the same was never made by him to any of the police station concerned.

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D.W-2, Rajesh in his statement says that Ram Kishore is the maternal father-in-law of his sister. Ram Kishore wanted to get his nephew Viresh married with their 14 years old minor sister. Raju was falsely implicated in this case by Ram Kishore due to enmity of opposing by Raju. In his cross-examination this witness says that Raju is his real brother-in-law.

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It is submitted by the learned counsel for the appellant that there is no motive of committing the offence and the appellant has been falsely implicated in this case due to enmity. The motive of commission of any crime gets locked in the mind of the maker. It is very difficult to prove the motive for the commission of crime if it is proved. It would supply the chain of links but absence of the motive is no ground to reject the prosecution case. Since the motive of any crime is always hidden in the mind of the perpetrator of the crime, therefore, in case of circumstantial evidence the evidence of motive becomes relevant if the motive is given in the prosecution version. In present case no motive has been mentioned in prosecution case, therefore, the absence of motive could not be ground to reject the prosecution evidence. The Hon'ble Apex Court in Ravindra Vs. State of Punjab 2001 (2) JIC 981 SC held:

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“in a case based only on circumstantial evidence, prosecution should prove the motive as well; as it would supply the link in

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chain of circumstantial evidence. Absence thereof cannot be ground to reject the prosecution case.”

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From the evidence adduced on behalf of prosecution, it is found that the chain of circumstantial evidence is interlinked none of the link is missing to indicate the perpetrator of the crime all above circumstantial evidence proved that it is the accused Raju who had committed the offence.

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The Hon'ble Apex Court in G. Parsavnath Vs. State of Karnataka AIR 2010 SC pg. 2914, held:

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“the circumstantial evidence appreciation of the same must be made to the common course of natural events and human conduct. Facts established should be consistent only with hypothesis of guilt of accused. It is not mean that each and every hypothesis suggested by the accused must be excluded by the brief facts.

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The case based on circumstantial evidence absence of motive is of no consequence when the chain of proved circumstances is complete.”

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The Hon'ble Apex Court in Mujendra Langeshwaran Vs. State (NCT, Delhi) AIR 2013 pg. 2790 SC, held:

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“in case of circumstantial of the circumstances must lead to the conclusion that the accused alone committed crime none else.”

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The plea in defence taken by the accused is plea of enmity in false implication. The false implication is the enmity of refusal of getting married of the relatives of accused Raju as per wish of informant is not found sustainable. This fact is well proved from the statement of eye witness P.W-2, Nazar Mohd. Which is also corroborated with the statement of P.W-4, Lokesh and also from the statement of P.W-6, Ravindra Singh that missing Shivaji was seen with accused Raju last time on the dated of occurrence and the CDR details on the mobile set of Raju also affirm this fact that Shivaji was with Raju on the day of occurrence, therefore, burden

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to proof under Section 106 of Evidence Act shifts upon the accused Raju to explain how he dealt with Shivaji after having kidnapped him on the day of occurrence.

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The Hon'ble Apex Court in Paramshivam Vs. State through Inspector of Police, AIR 2014 SC pg. 2936, held: “burden of proof the evidence of the eye witness that the accused had abducted deceased. No explanation by the accused as to how he dealt with abducted persons. Presumption could be drawn that the accused persons have murdered deceased.”

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In this case in view of the testimony of eye witness P.W-2, Nazar Mohd. kidnapped Shivaji was last seen along-with accused Raju on the day of occurrence but no explanation was given on behalf of accused in defence to rebutt this fact which has been proved beyond reasonable doubt by the prosecution evidence.

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In present case kidnapped Shivaji is not recovered till date. Section 364 of I.P.C reads as under:

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“364. Kidnapping or abducting in order to murder.- 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 with [imprisonment for life] or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.”

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From the bare perusal of this Section 364 of I.P.C, it is evident that the kidnapping or abduction is made of made of any person in order such persons may be murdered.

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Kidnapped or abducted person may be disposed of as to put such person in danger of being murdered.

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Even if the victim Shivaji is not recovered but in view of the strong circumstantial evidence of which chain in itself complete the conviction of appellant under Section 364 of I.P.C is proper.

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Hon'ble Apex Court in Ramji Rai and others Vs. State of Bihar, 2007 (57) ACC pg. 385 SC, held:

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“ Now it is the trite law that the corpus delicti need not be proved. Discovery of the dead body is a rule of caution and not of law. In event there exists strong circumstantial evidence, the judgment of conviction can be recorded even in absence of dead body under Section 364 and 302 of I.P.C”.

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Therefore, in view of the over all assessment and reappreciation of the evidence on record, it is found that the prosecution had proved its case beyond reasonable doubt. The impugned judgment of conviction and sentence passed by the court below does not bear any infirmity and needs no interference. Accordingly, criminal appeal deserves to be dismissed.

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Accordingly, Criminal Appeal is dismissed. Judgment and order dated 20.07.2019 passed by the Additional Sessions Judge/Fast Track Court, Sambhal at Chandausi in Sessions Trial No. 395 of 2017 (State of U.P Vs. Raju) is hereby affirmed. The appellant is in jail. He is directed to serve the remaining sentence as has been awarded by the trial court.

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Let a copy of this judgment/order be certified to the court concerned for necessary information and follow up action.

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(Subhash Chand, J.)

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Dated: 03.03.2021 PS

Raju v. State of U.P.

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Raju v. State of U.P.

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