Allowed

Ishwar and Anr. v. State

Uttarakhand HC30 Oct 2013CRLA/29/2003

Case brief

AI extract

What is this about?

This is a criminal appeal challenging a conviction under Section 363 IPC for kidnapping. The High Court of Uttarakhand allowed the appeal, setting aside the conviction and sentencing due to insufficient evidence, uncorroborated child testimony, a hostile corroborating witness, lack of injury to the victim, and alleged procedural lapses in arrest documentation.

What did the court decide?

Impugned judgment and order set aside; conviction and sentence quashed; appellants discharged on bail with cancellation of bonds.

Ishwar and Anr. Vs State — Child Sexual Offences (POCSO) | Uttarakhand HC (2013)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Criminal Appeal No. 29 of 2003

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Ishwar Lal and another …….... Appellants

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versus

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State of Uttaranchal ………. Respondent

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Mr. Vinod Sharma, Amicus Curiae , present for the Appellants. Mr.S.A.Siddiqui, learned AGA, assisted by Mr. S.S.Adhikari, Brief Holder, present for the State of Uttarakhand/ Respondent.

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JUDGMENT

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Hon’ble U.C. Dhyani, J. (oral)

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PW 2 Brahm Singh wrote a complaint (Ext. Ka-1) to chowki in-charge Gowardhanpur, PS Manglore, District Haridwar, which was registered as case crime no. 2/36/2000 on the selfsame date against the accused-appellants Ishwar and Sundar Lal for the offence punishable under Section 364 IPC. After the investigation, charge-sheet was submitted against the accused-appellants for the selfsame offence. The case was committed to the Court of Sessions.

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When the trial began and prosecution opened it’s case, charge for the offence punishable under Section 364 IPC was framed against the accused persons, to which they pleaded not guilty and claimed trial. PW 1 Anil Kumar, PW 2 Biram Singh, PW 3 Dharampal and PW 4 SI Kripal Singh were examined on behalf of the prosecution. Incriminating evidence was put to the

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accused persons under statements under Section 313 Cr.P.C., in reply to which they said that they were falsely implicated on account of enmity. DW 1 Rajendra was examined in defence. After considering the evidence on record, learned Additional Sessions Judge /FTC, Roorkee vide impugned judgment and order dated 02.01.2003 convicted the accused persons under Section 363 IPC and were directed to undergo rigorous imprisonment for three years along with a fine of Rs. 2000/each. Aggrieved against the same, present Criminal Appeal was preferred.

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Prosecution led the evidence through PW 1 Anil (victim). His vire dire was conducted by the trial court. After being satisfied that he was capable of understanding the things, he was permitted to enter into the witness box. PW 1 was aged ten years when he deposed.

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PW 1 said, in his examination-in-chief, that he was at his home when the incident took place on 18.02.2000. He was sent by his father (PW 2) to purchase bidi from the shop of DW 1 Rajendra. He purchased bidi for Rs. 2/- from the Rajendra’s shop. When he was returning to his house, co-villagers Ishwar Pradhan and another met him on his way back to his home. Ishwar Pradhan told PW 1 to take some money from him. It was dusk. PW 1 went with Ishwar pradhan and his companion. They took PW 1 out of the village forcibly and also threatened him that he would be killed, if he raised alarm. Accused persons took him to a jungle. They were conspiring to kill PW 1. PW 1 was taken to sugarcane field. They were unarmed. They were conspiring to bring a spade on the pretext that PW 1 would be kept in a ditch (khud) after killing him. When PW 1 heard the noise of the villagers, he started crying. The villagers entered into the sugarcane field. Ishwar fled away after leaving PW 1 along with

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Sundar in the field. The villagers caught hold of PW 1 and other person (Sundar) who accompanied Ishwar pradhan . Had the villagers not reached in the sugarcane field, accused persons would have killed PW 1. The accused, who was apprehended on the spot, disclosed his name as Sundar Lal. PW 1 identified the accused persons before the trial court. The accused persons wanted to take revenge from his father and therefore, conspired to kill him (PW 1). Sundar Lal along with PW 1 was taken to Govardhan chowki on the next morning.

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In the cross-examination, PW 1 said that his father owned 50 bigha of land. He was the only son of his parents. He has a sister. Ishwar pradhan was co-villager. Accused persons were not armed either with country made pistol or with knife. There was house of Rishipal and Baburam on way to his house. 2-3 people met him on the way when he was being taken by the accused-persons. It was a moonlit night. When PW 1 went to the shop, it was 5:00 p.m. when he purchased bidi , none else was there. The accused persons caught hold of PW 1’s hands. He further said that the accused persons wanted compromise after pressurizing PW 1’s parents. Anandpal, Motiram, Chandrpal and Dharmapal also accompanied PW 1 and PW 2 to police chowki . They came to police chowki on the next morning. They stayed there for 2-3 hours. The villagers came on the sugarcane field after 5-6 hours. Dharampal, Motiram, Chandrapal and his father came to the sugarcane field.

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PW 2 was father of PW 1 and supported the prosecution story. PW 2 said that he sent PW 1 for purchasing bidi. When PW 1 did not return for 2-3 hours, PW 2 got worried. When he started search for PW 1, co-villagers Satpal and Motiram met him. They said that they saw PW 1 in the company of Ishwar and Sundar Lal. Satpal and Motiram joined PW 2 in

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the search of PW 1. Another co-villager Dharampal (PW3) met PW 2. Dharampal (PW 3) said that he saw PW 1 in the company of Ishwar and Sundar Lal. All of them reached near the field of Relhu. They heard the cries of PW 1. They entered into the sugarcane field and saw that Ishwar and Sundar Lal caught hold of PW 1. Ishwar fled away from there. Sundar Lal was apprehended along with PW 1 at 2:00 a.m. (night). PW 1 informed PW 2 that the accused conspired to kill him. Had the villagers not reached there in time, they would have killed PW 1.

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Ishwar was not happy with his transaction of land with co-villager Tayab Ali. Co-accused Sundar Lal was kept in confinement by the villagers till 3:00 p.m. on the next day. When officer in-charge of the police station came, report was lodged. PW1 was medically examined. His custody was given to his father, memo (Ext. Ka-2) whereof was prepared.

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In the cross-examination, PW 2 said, among other things, that Satpal and Motiram met him at 9:00 p.m. No telephone facility was available at village. He saw accused persons in torch light. It was a moonlit night. No country made pistol was found at the place of incident. He however admitted that PW 1 did not sustain any injury. He did not sustain even an abrasion.

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PW 3 Dharampal, in his testimony initially supported the prosecution story and said that he saw PW 1 in the company of accused persons, but in the cross-examination, he resiled and said that he (PW 3) did not see PW 1 in the company of the accused persons. He did not know whether the accused-persons kidnapped PW 1 or not? He was declared hostile by the prosecution and was permitted to be cross-examined by the ADGC (crime).

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PW 3 also said that PW 1 remained in the custody of the accused-appellants till 2:00 a.m. of the next day. Accusedappellant Ishwar was on the place of incident. The accusedappellant Sundar Lal was apprehended by the villagers and was taken to the police chowki, where he was kept in jail, when the station officer came around 3:00 p.m. PW 3 did not remember the day, year and month of the day of incident. He admitted that there was enmity between PW 2 and the accused persons. Ishwar’s wife was gram pradhan of the village. She did not grant lease in favour of PW 2. PW 3 also said that the investigating officer did not record his statements. At internal page no. 5 of the deposition, he specifically said that he did not see PW 1 being taken by the accused-appellants. He also said that he did not disclose the same to PW 2. In his cross-examination by the learned ADGC (crime), he did not say anything which might benefit to the prosecution.

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PW 4 (I.O.) recorded the statement of PW 1 after 23 days of the incident. The statement of the PW 2 was also taken on the same day when PW 1’s statement was taken (by the I.O.). The statements of other witnesses including DW 1 were recorded subsequently. Nothing incriminating was found at the place of incident.

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DW 1 Rajendra denied kidnapping of PW 1 by the accused-appellant. He stated that no incident took place on 18.02.2000. PW 1 did not come to his (DW1’s) shop. He further stated that since PW 2 was not given patta of the land by the wife of Ishwar, therefore, PW 2 harboured grudge against him (Ishwar). He further stated that the residents of the village were divided on party lines.

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Accused Ishwar said in his statement under Section 313 Cr.P.C. that PW 1 and PW 2 were respectively son and father. Since his (Ishwar’s) wife, who was pradhan of the village, did not grant patta to PW 2 therefore, he implicated the accused persons in a false case. Patta was however granted to Chandrapal, brother of PW 2. Accused Sundar Lal has stated in his statement under Section 313 Cr.P.C. that PW 2 purchased buffalo from him. He had gone to take money from PW 2, who offered liquor to him and implicated him in a false case.

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It was indicated in the first information report that Satpal and Motiram saw PW 1 in the company of accused-persons on 18.02.2000 at 6:00 p.m. Satpal and Motiram were not examined by the prosecution. It was further stated in the first information report that when PW 2, Satpal and Motiram started making a search for PW 1, PW 3 met them and said that accused-appellants took PW 1 along with them. PW 3 initially tried to support the prosecution story, but resiled subsequently. He did not support the prosecution story and was declared hostile. Even if it is conceded for the sake of argument that PW 3 was won over by the appellants, the fact remains that the quality of evidence tendered by him is not such, so as to convict the appellants, relying upon his testimony.

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The incident allegedly took place on 18.02.2000, at 6:00 p.m. PW 1 was recovered in the intervening night of 18.02.2000/19.02.2000, at 2:00 a.m. First information report was lodged on 19.02.2000 at 5:30 p.m. There was, therefore, delay of 24 hours in lodging the first information report. Learned trial court has, however, come to the conclusion that the delay in lodging the first information report was explained by the

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prosecution and therefore, ruled out the possibility of embellishment in the prosecution story.

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Be that as it may, there was no reference of the place of incident, time of recovery and ransom in the first information report. Motive of kidnapping of PW 1 was also not indicated in the first information report.

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The reason assigned for kidnapping of PW 1 was attributed to the fact that PW 2 wanted to purchase a piece of land from Tayab Ali, to which PW 2 disliked. It is said that in order to divert his attention from the said sale and purchase, PW 1 was kidnapped. It has come in evidence that it was winter season, when the incident took place. PW 1 went to the shop of DW 1 while wearing undershirt and pant. Is it possible that a boy, aged about 8 years, will come to purchase bidi in the evening while wearing undershirt only during winter season? DW 1 has denied the same and said that PW 1 did not come to his shop.

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PW 1 and PW 2 were respectively son and father. PW 1 was a child witness when he deposed. It is settled law that the testimony of a child witness should be scrutinized with care and caution, in as much as, a child witness is mischievous witness. Hon’ble Apex Court has cautioned time and again that the testimony of a child witness should be examined with vehemence. Although, PW 2 conceded that he went to make a search of PW 1 and saw the accused-appellants with PW 1 in the sugarcane field, but it is the prosecution story that accused Ishwar fled away from the scene and only Sundar was apprehended. No recovery memo of such arrest by the public was prepared. Even when Sundar Lal was taken to the police chowki , no memo of arrest was prepared by the police. It has not been brought on record whether the arrest of accused Sundar Lal was entered into

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the general diary of the police station or not? The investigation, in the instant case, appears to have been done cursorily. Villagers who arrested the accused Sundar Lal did not come forward to support the prosecution story. It is being said at the cost of repetition that PW 3 did not support the prosecution story and Satpal along with Motiram were not brought to depose in favour of the prosecution.

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It is also an admitted fact that PW 1 did not sustain any injury. He did not sustain even an abrasion. Accusedappellants were unarmed when the incident took place. Had there been any intention on their part to commit murder of PW 1, they must be having some armaments or weapons in their hands, which were not there. It is also surprising that the accused persons kept PW 1 with them for eight hours without causing him any bodily harm in the jungle. Learned trial court himself has come to the conclusion that the motive to kidnap PW 1 was not the murder, for why would the accused-appellants have kept PW 1 along with them unharmed? Essentials of offence for which the accused-appellants were charged were therefore, not proved against them. Kidnapping of PW 1 from legal guardianship was not proved.

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It will not be safe to rely upon the uncorroborated testimony of a child witness in such circumstances. The enmity of PW 2 with the accused-appellants was brought to the fore. In such a situation, are the accused-appellants not entitled to be given benefit of doubt?

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Criminal Appeal thus filed on behalf of the accusedappellants is allowed. The impugned judgment and order, as also the conviction and sentence awarded to the accused-appellants is

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set aside. Appellants are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender.

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Let a copy of this judgment and order along with the lower court record be sent to the court below for compliance.

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Dt. October 30, 2013 Kaushal

Ishwar and Anr. v. State

Case brief

What is this about?

What did the court decide?

Ishwar and Anr. v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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