State Vs Om Prakash & Ors.

State takes exception to the judgment dated 07^th December, 1999, whereby respondents Om Prakash and Ram Prakash have been acquitted of all the charges levelled against them.

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Respondent Om Prakash has since expired during the pendency of the present appeal, and therefore, the proceedings qua him stand abated.

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3. The brief facts of the case, as noted by the learned Trial Court, are as under:-

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“On 15^th March, 1996, Smt. Saroj Devi (PW6), lodged a complaint at PS Sultan Puri that her husband Ram Prakash (PW-11) had gone missing after telephoning her on the previous night around 9.00 pm that he was at the house of her brother Sharvan Kumar and would return shortly, but did not turn up. Despite efforts to trace him, he could not be found. PW-6 made complaint to the police. An FIR was registered under Section 365/506 IPC. On 21^st March,1996, PW-6 produced two ransom letters to the police, wherein, Rs. 15 lakhs were demanded for the production of Ram Prakash. Section 364-A/506 IPC were invoked. Trap was laid at the places where the amount was to be delivered, but none turned up. Thereafter, two more ransom letters were received, in which, the name of Om Prakash figured. He was accordingly arrested on 23^rd March, 1996. Another trap was laid at Fatehganj, Bareily, There also, none turned up. On 06^th April, 1996, Ram Prakash, son of Ganeshi Lal (respondent) surrendered in court and his police custody remand was obtained. Upon interrogation, he disclosed that he along with his co-accused Om Prakash, Sukhbir and Madhu had kidnapped PW-16 and had confined him at Madhya Pradesh. A raid was conducted to recover PW-16, but he could not be traced.

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On 16^th April, 1996, an information was received that PW-16 was present at PS Fatehganj, Bareily, UP. PW-16 was brought to Delhi. His statements under Section 161 Cr. PC and 164 Cr. PC were got recorded, wherein, he stated that he was abducted by respondents Om Prakash, Ram Prakash and their three associates. The other three associates of the respondents could not be traced. Statements of witnesses were recorded,

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and upon completion of investigation, charge sheet was filed against the respondents.”

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Charge under Section 364-A Indian Penal Code 1860 [“IPC”] was framed against the respondents, to which, they pleaded not guilty and claimed trial.

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In order to bring home the guilt against the respondents, the prosecution examined 15 witnesses in all. Statements of respondents were recorded under Section 313 of the Code of Criminal Procedure [“Cr. P.C.”]. The stand of both the respondents was one of total denial, and according to them, they were innocent and were falsely implicated by PW-11 because of a land dispute. They did not lead defence evidence before the learned Trial Court.

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After considering the evidence on record and hearing rival submissions, the learned Trial Court vide judgment dated 07^th December, 1999, acquitted the respondents. 7. Mr. Usman, learned Additional Public Prosecutor [“ APP ”] for the State, submitted that the impugned judgment passed by the learned Trial Court is manifestly erroneous, contrary to law and against the facts and evidence on record. It was submitted that the prosecution’s case stood fully established through the testimony of PW-11, who unequivocally supported the prosecution’s version and duly corroborated his earlier statement recorded under Section 164 Cr.P.C before the learned Magistrate. It was argued that the learned Trial Court fell into grave error in discarding the testimony of PW-11 on the basis of minor contradictions and alleged improvements, which were

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natural and insignificant, particularly when the witness had consistently maintained that he was abducted by the respondents for ransom.

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The learned APP further submitted that the Trial Court gave undue importance to the alleged enmity between the parties on account of the property dispute, overlooking the settled principle that enmity may also furnish a motive for the commission of the offence. It was further argued that the finding of the learned Trial Court regarding the absence of medical evidence is wholly misconceived, as for the offence under Section 364-A IPC, medical evidence is not a sine qua non and the credible oral testimony of the victim alone is sufficient to sustain a conviction. It was, thus, submitted that the acquittal of the respondent in a serious offence involving abduction for ransom has resulted in a grave miscarriage of justice, and therefore, the impugned judgment is liable to be set aside.

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Per contra , the learned counsel for respondent Ram Prakash submitted that the prosecution’s case entirely rests upon the testimony of PW-11 Ram Prakash, but his evidence suffers from material contradictions, inconsistencies and substantial improvements, going to the very root of the case. The learned Trial Court, after an elaborate appreciation of evidence, has meticulously recorded numerous contradictions between the statements of PW-11 recorded under Sections 161 and 164 Cr.P.C. and his deposition before the Court. It was submitted that the strained relations between the families of the respondents and PW-11, owing to a long-standing property dispute,

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materially affected the credibility of PW-11 and is rightly weighed by the learned Trial Court. It was further argued that PW-11 made statements contrary to the basic facts, including the identity and name of his brother-in-law, whom he referred to as “Subhash Kumar”, whereas, as per the prosecution narration, the brother-in-law of PW-11 residing at Rohini, Delhi was “Sharvan Kumar”, thereby, rendering his testimony wholly unreliable.

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It was further submitted that PW-11 made material improvements and embellishments in his deposition before the Court, which were conspicuously missing in his earlier statements to the police and the Magistrate, including the alleged rate of the plot transaction, the sequence of events preceding the alleged kidnapping, the manner of abduction, the alleged weapons used, threats extended, confinement, escape and duration of detention. The learned counsel further submitted that the essential ingredients of Section 364-A IPC were not proved, as the prosecution failed to establish any credible threat or demand of ransom attributable to the respondents. The alleged ransom calls were not proved, the purported recipient was not examined, the ransom letters were not subjected to handwriting examination and thus not connected to the respondents by cogent evidence.

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It was further submitted that PW-11 is a person with criminal antecedents, inasmuch as, he himself was facing criminal prosecutions under Sections 376 IPC and 365 IPC. It was, thus, contended that in the absence of reliable ocular testimony, corroborative medical

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evidence, proof of ransom demand or linkage of the accused with the alleged offence, the learned Trial Court rightly extended the benefit of doubt and acquitted the respondents and the well-reasoned judgment warrants no interference by this Court.

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We have heard the learned counsels for the parties, who have taken us through the evidence recorded during the trial. We have also given our thoughtful consideration to the submissions made before us. 13. The scope of interference by the Appellate Court, while dealing with an appeal against acquittal under Section 378 Cr.P.C., is well settled and circumscribed by self-imposed restraints. An acquittal reinforces the presumption of innocence, and unless the findings of the Trial Court are perverse, manifestly illegal or wholly unreasonable, interference therewith is not warranted. In the present case, the learned Trial Court has undertaken a detailed and meticulous appreciation of the entire evidence on record. The conclusions drawn are based on cogent reasons and supported by the material available. Merely because another view is possible, this Court cannot substitute its own opinion for that of the Trial Court.

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Before we deal with the rival submissions of the learned counsels for the parties, we deem it appropriate to refer to the testimonies of some of the material witnesses in detail. The case of the prosecution rests on the testimonies of PW-4 Yograj, PW-5 Phool Singh, PW-6 Smt. Saroj, PW-7 Smt. Raj Kumari, PW-10 Smt. Anita and PW-11 Ram Prakash.

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PW-11 Ram Prakash, in his testimony deposed that he was doing the job of a property dealer, and that on 11^th March, 1996, a person by the name Arvind, came to his office and made an enquiry for the purchase of a 100 sq. yard plot. He showed him the plot and a deal was struck for the purchase of plot at the rate of Rs. 1600/- per sq. yard. Arvind told him to collect the earnest money on 14^th March, 1996 from his house. On 14^th March, 1996, he reached the house of Arvind at Mangol Puri at 8.30 p.m., but found the house locked. On a query from the neighbours, it was revealed that no such person was residing at that address. While on his way back to his house, he went to the house of his brother-in-law Subhash at Sector 20, Rohini. From there, he rang up in the neighbourhood of his house. He told his wife on the telephone that he would be coming in 15-20 minutes. He deposed that the wife of his brother-in-law Subhash met him, who offered him tea but he just took a glass of water and left. On the way near plots of 22 yards, at about 9.00 pm, he noticed that a van was going ahead of him and a two-wheeler scooter was coming from behind. The two-wheeler scooter hit his scooter from behind. The persons who were on the scooter and two persons from the van, came to him. One of them caught hold of his hair and other of his collar and dragged him towards the van. One of them was having a revolver and the other, who was having a knife, said “ Pet Phaad Denge ”. They forced him into the van. Respondents were already sitting in the van. Respondent Ram Prakash hit him on his forehead and said “ Teri Lugai 10-20 Lakh Rupaye Aur Degi Aur Tere Maas Ko Machchliyon Ko

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Khilayenge ”. Then he was forcibly made to eat 2 ½ pieces of Burfi . After having the Burfi, he lost consciousness. When he regained his consciousness, he found himself lying on the floor. His hands and legs were tied and there was a patti on his eyes. After sometime, a person came and opened the ties on his hands and legs. For 10-12 days, he was kept there on the floor. Thereafter, for 8-9 days, he was kept in the field of sugarcane. Then, for 8-9 days, he was kept in the heap of grain. Throughout that period, his eyes were closed with patti . He was given severe beatings. Those persons were saying that they had already killed his sons and will kill him now, and that whenever they ask for money, his family members used to bring the police. He further deposed that on 14^th April, 1996, he was taken in the van where two persons were sitting upon him. Upon regaining consciousness, he told them that he wanted to ease out himself. They then removed patti from his eyes and was taken by one of them by the side of the road to ease out there. He managed to reach near the water pond and picked up a stone and gave a blow with the stone to one of the persons and ran away. He reached at a hotel but the hotel people did not listen to him and made him run away from there. He then went to another hotel and begged for help. The hotel persons hid him behind a coal bag and on 15^th April, 1996, he was sent to police post on a cycle. From where, he was sent to Kotwali Police Station Bareilly. There his statement was recorded. At about 10.00 am, the S.P. of the area came and he also recorded his statement. He was sent for medical examination and information was sent at his residence at Delhi. He was kept at PS

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Bareilly for two days and two nights, and thereafter, the police officials of PS Sultanpuri brought him to Delhi. On 23^rd April, 1996, his statement Ex. PW-11/A was recorded under Section 164 Cr. P.C. by the Magistrate.

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The learned Trial Court noted contradictions and improvements in the testimony of PW-11 Ram Prakash, in paragraphs No. 30 & 31 of the judgment, which are reproduced below:-

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“30. The contention of ld. Counsel for the accused is that the statement of PW11 Ram Prakash is not only contradictory on material points but also consists of improvements rendering his version doubtful. In his initial statement to the police of P.S. Fateh Ganj, Bareilly on 15-4-96, PW11 Ram Prakash stated that he was surrounded by the persons near the jhuggies of Pooja Kalan but in the statement before the Magistrate Ex. PW11/A he stated that when he reached near the plots of 22 yards a maruti van was going ahead of him and a scooter which came from his back hit him. In his such initial statement made to the police of P.S. Fateh Ganj, Bareilly, he referred to a white maruti car from which the persons came and surrounded him but in his statement to the Magistrate Ex. PW11/A and in Court he referred to a white maruti van. As per the prosecution case kidnapped Ram Prakash had gone to the house of his brother-in-law namely Sharvan Kumar at sector-20, Rohini. PW6 Smt. Saroj, the wife of kidnapped Ram Prakash, also stated that her brother Sharvan Kumar is living in sector-20, Rohini. PW7 Raj Kumari, the wife of said Sharvan Kumar also stated that kidnapped Ram Prakash came to her house but strangely enough PW11 Ram Prakash in his statement in Court stated that he had gone to the house of his brother-in-law

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Subhash as he was to deliver some message to him. He clarified in his cross-examination that he had five cousin brothers-in-law out of which two are Subhash and the name of his wife is Raj Kumari. Further, as per the complaint Ex. PW6/A, on enquiry by Smt. Saroj from her sister-in-law at Rohini she came to know that her husband Ram Prakash had left the house after taking tea but PW6 Smt. Saroj as well as PW11 Ram Prakash stated that he left the house of his brother-inlaw at Rohini after taking water, so all this creates a doubt whether, in fact, PW11 Ram Prakash visited the house of his brother-in-law at Rohini. Moreover, it can hardly be believed that he would not know the name of his brother-in-law. He categorically stated in his cross-examination that he did not remember the name of his other brother-in-law except Subhash, so how residing in Delhi whose residence in Delhi brother-in-law by the name of Subhash is residing because as per the complaint and the case of the prosecution the alleged brother-in-law residing at Rohini was Sharvan Kumar and not Subhash.

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31. Apart from all this, PW11 Ram Prakash gave an improved version in Court. He stated many facts in Court, which were not told by him either to the police u/s 161 Cr.P.C. or to the Magistrate in his statement u/s 164 Cr.P.C. He did not state to the police that the deal of the plot was settled at Rs. 1600/- per sq. yard. He did not state to the police that he had gone to the house of his brother-in-law Subhash. He did not state to the police that he had shown a plot to the person at 22 yards and that Pintu told him that on 14-4-96 he may collect the earnest money from his house. He stated that the two-wheeler scooter hit him from behind and he stopped the scooter and asked that person if the driver of the scooter had fallen when the statement Ex. PW11/DA was confronted to him the words “scooter” were

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not mentioned. Again, he stated that two persons, one of them caught hold of him from his hair and the other from his collar, dragged him to the van but when his statement Ex. PW11/DA was confronted, the person catching hold of him from his hair and the other from his collar was not found mentioned. He stated that one person was having revolver and the other was having knife and one said that “tera pet phaddenge”, but these words again were not found mentioned when his statement PW11/DA was confronted. He also stated that Om Prakash sitting in the van pulled him in the van by catching him from his hair but this fact again was not found mentioned in his statement PW11/DA when confronted. He also stated that his legs were also tied but this fact was also not found mentioned in his statement Ex. PW11/DA. Again the fact that someone came and opened his hands and legs was also not found mentioned in his such statement. It was also not found mentioned in his statement that he told those persons that if he was released he would provide them whatever they wanted. The fact that on 14-4-96 when he was in van two persons were sitting on his rear was also not found mentioned in his statement PW11/DA. The fact that when he reached near the pond he picked up the stone and while running he had fallen in a pit was also not found mentioned in his statement PW11/DA. The fact that he reached the road and through the nearby park he reached the hotel and the owner of the hotel did not listen to him and then he had gone to another hotel was also not found mentioned in the statement PW11/DA. In his statement to the police he stated that he was kept for 10/12 days on the floor but in his statement PW11/DA 5/7 days were mentioned. All these improvements would show that he concocted some version which he did not prefer to reveal in his earlier statements to the police and to the Magistrate.”

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The above-mentioned contradictions and inconsistencies are not minor or peripheral, but strike at the core of the prosecution narrative relating to the manner of abduction, detention, threats and escape. The extensive improvements introduced for the first time during the trial clearly create serious doubt regarding the veracity of the witness. In such circumstances, the Trial Court was justified in treating his testimony as unreliable.

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The existence of admitted enmity between the parties arising from a long-standing property dispute further weakens the prosecution’s case. The previous enmity is a double-edged weapon. While enmity can indeed be a motive for committing an offence, it can equally furnish a motive for false implication, especially where the evidence is otherwise shaky. The Trial Court has rightly taken this factor into consideration while assessing the credibility of PW-11. Additionally, the incorrect narrative of PW-11 of basic facts including the identity of his own brother-in-law, significantly erodes confidence in his testimony. These infirmities cannot be brushed aside as trivial.

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It is evident from the testimony of PW-11 that after he regained consciousness, the ties on his hands and legs were opened. PW-11 remained in confinement at different places for more than a month. However, it is not explained whether PW-11 made any effort to escape. Investigation is silent as to whether any effort was made to identify the places of confinement. There is nothing on record to indicate as to if any investigation was made at the place from where PW-11 was abducted. No witness has deposed about the recovery of

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the two-wheeler scooter of PW-11 and how it was recovered.The seizure memo of the scooter of PW-11 is neither on record nor proved by any witness. If the testimony of PW-11 is to be believed, he made multiple statements at PS Bareilly, but no such statement is part of the record. No witness from PS Bareilly has been examined to corroborate the testimony of PW-11. The investigation is therefore deficient on material aspects.

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The essential ingredients of Section 364-A IPC, as elucidated by the Supreme Court in Shaik Ahmed v. State of Telangana (2021) 9 SCC 59, have also not been satisfactorily established by the prosecution. There is no reliable evidence to prove a credible threat, demand of ransom, or conduct giving rise to reasonable apprehension of death or hurt attributable to the respondents. As per prosecution narrative, the ransom call of Rs. 12 lakh was received by Chhatar Singh for the release of PW-11 and PW-6 Saroj came to know about the same from Chhatar Singh. However, Chhatar Singh, who received the ransom call, has not been examined by the prosecution for the reasons best known. PW-10 Smt. Anita, daughter of Chhatar Singh, deposed that on 16^th March, 1996, she received a telephone call, and someone on telephone told her that money should be arranged and that they will inform later on where to deliver the money. The caller sought confirmation from her as to whether it was the house of Pahalwan. After she confirmed in affirmative, the caller disconnected the phone. She categorically stated that she does not know as to who had given that call. She was declared hostile and was cross examined

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by the learned APP with the permission of the Court, but such cross examination did not yield anything. PW-10 nowhere stated that the person on telephone had enquired about Ram Prakash. In Mark PW10/A, a statement made by her to the police, she had stated that the caller had threatened that two persons who had been arrested be released or they would kill Ram Prakash. She denied having stated that the caller told her on the phone that Rs. 12 lakhs be arranged. Thus, the ransom call, relied upon by the prosecution, is not duly proved.

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Prosecution also strongly relies upon the ransom letters Ex. PW-6/B & Ex. PW-6/C dated 18^th March, 1996, received by Saroj on 21^st March 1996 and Ex. PW-6/E & Ex. PW-6/F received on 02^nd April, 1996. However, no specimen handwriting of the respondents was obtained for comparison with the writing on the ransom letters. The ransom letters are, thus, not connected with the respondents by any scientific or independent evidence. It is, therefore, not proved that any ransom demand was made by the respondents. The lack of corroborative material assumes greater significance when the sole ocular testimony itself is doubtful.

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The deposition of PW-4 Yograj, the hotel owner, merely proved that PW-11 approached him for his safety, telling him that some persons were trying to kill him and that he escaped from their clutches to attend the call of the nature. However, he does not say if PW-11 had named the respondents as the persons who had abducted him. The

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testimony of PW-4 Yograj is, therefore, also of no help to the prosecution in establishing the guilt of the respondents.

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Even though, PW-11 deposed in his testimony that he was beaten up by the abductors, there is no medical evidence proved on record to corroborate such a version. The contention of the State that medical evidence is not sine qua non for the offence under Section 364-A IPC, is legally correct but factually material in the present case. Where the oral testimony of the victim is found to be unreliable, the absence of medical or other corroborative evidence becomes material. Moreover, the Trial Court has not acquitted the respondents solely on account of absence of medical evidence, but on a cumulative assessment of multiple serious deficiencies in the prosecution case. The reasoning adopted is neither perverse nor contrary to law. Therefore, no case for appellate interference is made out.

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In Mohan v. State of Karnataka , (2022) 12 SCC 619, the Supreme Court inter alia held as under;

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“ 20. Section 378CrPC enables the State to prefer an appeal against an order of acquittal. Section 384CrPC speaks of the powers that can be exercised by the appellate court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the appellate court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The appellate court is expected to involve itself in a deeper, studied

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scrutiny of not only the evidence before it, but is duty-bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the appellate court shall remind itself of the role required to play, while dealing with a case of an acquittal. ”

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The Supreme Court, in a subsequent judgment in Arulvelu & Anr. v. State Represented by the Public Prosecutor & Anr. , (2009) 10 SCC 206, it was inter alia held as under;

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“40. Unquestionably, the appellate court has power to review and re-appreciate the entire evidence on record. The appellate court would be justified in reversing the judgment of acquittal only if there are substantial and compelling reasons and when the judgment of the trial court is found to be perverse judgment. Interfering in a routine manner where other view is possible is contrary to the settled legal position crystallized by aforementioned judgments of this Court. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. This fundamental principle must be kept in view while dealing with the judgments of acquittal passed by the trial court.”

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26. Similarly, in Ghurey Lal v. State of U.P, (2008) 10 SCC 450, the Supreme Court, inter alia , held as under;

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“69. The following principles emerge from the cases above:

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1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

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2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

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3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.

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70. In light of the above, the High Court and other appellate courts should follow the wellsettled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

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1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has “very substantial and compelling reasons” for doing so. A number of instances arise in which the appellate court would have “very substantial and compelling reasons” to discard the trial court's decision. “Very substantial and compelling reasons” exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong;

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(ii) The trial court's decision was based on an erroneous view of law;

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(iii) The trial court's judgment is likely to result in “grave miscarriage of justice”; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. (vii) This list is intended to be illustrative, not exhaustive.

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2. The appellate court must always give proper weight and consideration to the findings of the trial court.

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3. If two reasonable views can be reached— one that leads to acquittal, the other to conviction—the High Courts/appellate courts must rule in favour of the accused.”

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Upon an overall consideration of the evidence and the impugned judgment, this Court finds no infirmity in the reasoning or conclusions arrived at by the learned Trial Court. The acquittal is founded on a plausible and well-reasoned view of the evidence. The prosecution has failed to establish the guilt of the respondents beyond reasonable doubt. The benefit of doubt extended by the Trial Court is both justified and in accordance with settled legal principles. Interference by this Court would amount to re-appreciation of evidence without compelling reasons.

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The testimony of PW-11, being the solitary foundation of the prosecution’s case, does not inspire confidence due to material contradictions and substantial improvements. The Trial Court has

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rightly concluded that such testimony cannot be safely relied upon to record a conviction for a grave offence under Section 364-A IPC. The alleged ransom demand and threats, which form the heart of the offence, remain unproved. The prosecution’s failure to produce independent or corroborative evidence further weakens its case. In criminal jurisprudence, suspicion, however strong, cannot take the place of proof.

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The principles governing appeals against acquittal mandate that when two views are possible, the one favourable to the accused must prevail. The Supreme Court in Samsul Haque v. State of Assam, (2019)18 SCC 161 held that judgment of acquittal, where two views are possible, should not be set aside, even if the view formed by appellate court may be a more probable one. Interference with order of acquittal can only be justified when it is based on a perverse view. In the present case, the view taken by the Trial Court is not only possible but reasonable. The impugned judgment does not suffer from perversity, illegality, or misapplication of law. The learned APP has been unable to demonstrate any grave miscarriage of justice warranting interference. Consequently, the presumption of innocence in favour of the respondents stands reinforced.

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For the foregoing reasons, the present appeal is devoid of merit and is accordingly dismissed. The impugned judgment vide which the Respondents were acquitted is affirmed. The acquittal of the respondents calls for no interference by this Court.

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