RESERVED JUDGMENT HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.465 OF 2001 (OLD NO.337 OF 1995) 1. Ashok S/o Chohal Singh 2. Raj Kumar S/o Baljit Singh .……….. Appellants Versus State of Uttarakhand ...…….. Respondent Dated: February 23, 2010 Sri Manish Arora, Advocate for the appellants Sri M.A. Khan, Brief Holder for the State Hon’ble Dharam Veer, J. This criminal appeal, preferred by the appellants u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) is directed against the judgment and order dated 22.2.1995 passed by Additional Sessions Judge, Roorkee in S.T. No.177 of 1990, State Vs. Ashok & another, whereby the learned Addl. Sessions Judge has convicted the accused/appellants under Section 365 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced each of them to five years’ R.I. with a fine of Rs.1,000/- each. In default of payment of fine, each of them was sentenced to additional imprisonment for a period of six months. 2. Heard learned counsel for the parties and perused the entire material available on record. 2 3. In brief, the prosecution case is that Prem Singh (PW1) lodged a FIR at Police Station Manglore stating therein that on 23.9.1988 at about 02:30 PM his nephew (BHANJA) Sushil Kumar was grazing buffaloes in the forest. He was along with his two cousin brothers. After sometime, both the companions of Sushil came in the village and told that four miscreants have caught hold Sushil and after closing his mouth have taken him in the sugarcane field. On this information, all the villagers armed with Lathies ran towards forest and surrounded the sugarcane field. On 24.9.1988, two out of four miscreants have been caught by the complainant and villagers. However, two others namely Babu and Kalu Jat have succeeded in fleeing. The two miscreants which were caught by the villagers are Raj Kumar and Ashok (the appellants herein). These miscreants were taken to the police station. With the same averments, Prem Singh lodged the FIR at Police Station Manglore on 24.9.1988 at 07:00 PM. That FIR is Ext.Ka-1. On the basis of FIR Ext.Ka-1, Chik FIR (Ext.Ka-2) of the case was prepared by Head Mohirror Jaipal Singh. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-3. The investigation of this case was entrusted to Sub Inspector Sri Gajram (PW5), who during the course of investigation recorded the statement of the witnesses and prepared the site-plans Ext.Ka-4 and Ka-5 of place from where the victim Sushil was kidnapped and the place from where the victim was recovered and the accused persons were arrested, respectively. On completion of the investigation, the I.O. submitted the charge sheet (Ext.Ka-6) against the accused/appellants Ashok and Rajkumar and the co- accused Babu (who died during trial and therefore the 3 trial abated against him vide order of the Addl. Sessions Judge dated 16.9.1991). 4. On receipt of the charge sheet, learned Additional Munsif Magistrate, Roorkee committed the case to the court of Sessions on 24.8.1990, after giving necessary copies to the accused/appellants as provided u/s 207 Cr.P.C. 5. It appears from record that the case was then transferred to Additional Sessions Judge, Roorkee for hearing and disposal according to law. 6. Learned Addl. Sessions Judge, Roorkee framed the charge of offence punishable under Section 364 IPC against the accused/appellants and co-accused Babu. The charge was read over and explained to each of the accused persons to which they pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution examined PW1 Prem Singh, complainant of the case, PW2 Sushil, the victim, PW3 Sachin Kumar, eyewitness, PW4 Hanif, father of the victim and eyewitness of the recovery of Sushil and PW5 Gajraj Singh, Investigating Officer of the case. 8. Thereafter the statements of the accused/appellants were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. In reply, they have stated that they have been falsely implicated in the said case due to enmity. However, they did not produce any oral or documentary evidence in their defence. 4 9. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Additional Sessions Judge, Roorkee vide his judgment and order dated 22.2.1995 convicted and sentenced the accused/appellants as stated above. Against the said judgment and order, the accused/appellants have preferred this appeal. 10. To prove its case, the prosecution examined PW1 Prem Singh, who has stated that on the date of incident his nephew (BHANJA) Sushil was grazing buffaloes in the forest of Ghusipura. His two cousin brothers namely Sachin (PW3) and Pradeep were with him. After sometime Sachin and Pradeep came in the village and told that four miscreants, after covering the mouth and eyes of Sushil, had taken him in the sugarcane field. On this information, near about 300 to 400 villagers armed with Lathies ran towards the sugarcane field and surrounded the field. Next day at about 3 or 4 PM two miscreants were caught by the villagers. Those who were caught on the spot were Ashok Kumar and Rajkumar (the present appellants). The other two, namely, Babu and Kalu have fled from the spot. He further stated that the accused persons have tied the hands of Sushil with Tehmed to which they opened. Thereafter Sushil narrated the entire incident to them. Sushil was caught by the accused persons for the demand of money. He further stated that whole night villagers had surrounded the sugarcane field. He has proved the report Ext.Ka-1 which was lodged by him in the police station. The miscreants which were caught by the villagers were handed over to the police. This witness was cross-examined at length by the defence counsel but nothing has come out from his 5 evidence which may create any doubt in his evidence. The evidence of this witness is reliable, believable and inspires confidence. 11. PW2 is Sushil Kumar, who has stated that on the date of incident he had gone to graze his buffaloes at Ghusipura forest. His two cousin brothers Sachin and Pradeep Kumar were also with him. Meanwhile, four miscreants came there. Out of them, face of one was uncovered and rest of the faces was covered. One of them was Babu Ram. These miscreants asked them to bring Bidi (a crude form of cigarette rolled within a leaf) for them to which they refused. Then the miscreants enquired about the address of Village Thande which they (Sushil, Sachin and Pradeep) told them. After 15-20 minutes all the four miscreants came back. He deposed that it was 02:30 in the daytime. Babu and Ashok (accused/appellant) were armed with Tamancha. They caught hold him and tied his hands and legs. He also recognized Raj Kumar (accused/appellant). All the accused persons took him in the sugarcane field. Sachin and Pradeep ran towards the village and told the entire incident to his father. Thereafter 300-400 villagers reached in the forest and surrounded the sugarcane field. Out of them, accused Kalu and Babu had gone to bring food. Accused Kalu’s name was disclosed by accused/appellant Raj Kumar. The villagers caught hold the accused/appellants Raj Kumar and Ashok and released him from their clutches. He deposed that he was released from the possession of the accused/appellants next day at about 04:00 PM. The apprehended accused/appellants were taken to the police station and were handed over to the police. The report of the said incident was lodged by his maternal 6 uncle. He had told the entire incident to his maternal uncle and the other people. He further deposed that the miscreants had kidnapped him for the demand of money. This witness was cross-examined at length by the defence counsel but nothing has come out from his evidence which may create any doubt in his evidence. The evidence of this witness is reliable, believable and inspires confidence. 12. PW3 Sachin Kumar is the eyewitness of the case. He has corroborated the statement of PW2 Sushil Kumar and PW1 Prem Singh. 13. PW4 Hanif is also the eyewitness of the recovery of Sushil (PW2) and the arrest of the accused persons. He too has corroborated the statement of PW1 Prem Singh and PW2 Sushil Kumar. 14. PW5 Gajraj Singh is the Investigating Officer of the case. He has stated that on 23.9.1988 he was posted at Manglore Police Station. On that day, a case u/s 364 IPC was registered in the police station on the basis of report lodged by Prem Singh. Chik FIR Ext.Ka-2 of the case was prepared by Head Mohirror Jai Pal Singh and necessary entries in the G.D. were also made by him. He has proved the copy of G.D. i.e. Ext.Ka-3. During the course of investigation, he recorded the statement of the witnesses and prepared the site-plan Ext.Ka-4 of the place from where Sushil Kumar was kidnapped and also prepared the site-plan Ext.Ka-5 of the place of recovery of Sushil Kumar. On completion of the investigation, he filed the charge sheet Ext.Ka-6 against the accused persons. He further stated that the accused Babu has died and accused/appellant Ashok 7 has been sentenced to life imprisonment u/s 302/379 IPC in some other case. 15. Thereafter the statements of the accused/appellants were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. In reply, they have stated that they have been falsely implicated in the said case due to enmity. However, they did not produce any oral or documentary evidence in their defence. 16. Sri Manish Arora, learned counsel for the accused/appellants has submitted that the prosecution has not proved the case against the accused/appellants beyond reasonable doubt. I do not find substance in the submission of learned counsel for the accused/appellants. As per the evidence of PW2 Sushil Kumar on the date of incident he had gone to graze his buffaloes at Ghusipura forest. His two cousin brothers Sachin and Pradeep Kumar were also with him. Meanwhile, four miscreants came there. Out of them, face of one was uncovered and rest of the faces was covered. One of them was Babu Ram. These miscreants asked them to bring Bidi (a crude form of cigarette rolled within a leaf) for them to which they refused. Then the miscreants enquired about the address of Village Thande which they told them. After 15-20 minutes all the four miscreants came back. It was 02:30 in the daytime. Babu and Ashok (accused/appellant) were armed with Tamancha (country made pistol). They caught hold him and tied his hands and legs. He also recognized Raj Kumar (accused/appellant). All the accused persons took him in the sugarcane field. Sachin 8 and Pradeep ran towards the village and told the entire incident to his father. Thereafter 300-400 villagers reached in the forest and surrounded the sugarcane field. Out of them, accused Kalu and Babu had gone to bring food. Accused Kalu’s name was disclosed by accused/appellant Raj Kumar. The villagers caught hold the accused/appellants Raj Kumar and Ashok and released him from their clutches. It is deposed by him that he was released from the possession of the accused/appellants next day at about 04:00 PM. The apprehended accused/appellants were taken to the police station and were handed over to the police. The evidence of this witness finds full support from the evidence of PW3 Sachin Kumar, who is the eyewitness of the case and the eyewitness of the recovery of Sushil Kumar as well. Besides this, the statement of PW2 Sushil Kumar further gets corroborated from the statement of PW1 Prem Singh and PW4 Hanif, who are the eyewitness of the recovery and the arrest of the accused/appellants. Apart from this, one point which I think necessary to mention about is that the Investigating Officer of the case has deposed in his statement that accused/appellant Ashok has also been convicted u/s 302/379 IPC and has been sentenced to life imprisonment. This accused has previous criminal history which seems that he is of criminal nature. 17. Thus, as per the aforesaid detailed discussion, I am of the considered view that on 23.9.1988 at about 02:30 PM the accused/appellant Ashok and Rajkumar alongwith two other accused persons kidnapped Sushil Kumar, aged about 14 years, from the forest of Ghusipura, P.S. Manglore, and secretly and wrongfully confined him in the sugarcane 9 field for more than 24 hours. It has also been successfully proved beyond reasonable doubt that Sushil was recovered from the possession of accused/appellants on 24.9.1988 at 04:00 PM from the sugarcane field. As such, the prosecution has successfully proved the case beyond reasonable doubt against the accused/appellants under Section 365 IPC and the judgment and order of the court below, in view of the above narrated facts and circumstances of the case, is correct and justified and requires no interference. 18. For the reasons recorded above, the appeal is dismissed. The judgment and order dated 22.2.1995 passed by Additional Sessions Judge, Roorkee in S.T. No.177 of 1990, State Vs. Ashok & another, is confirmed. Consequently, the conviction and sentence as directed by the court below, which has been discussed above, is also confirmed. 19. A copy of this judgment shall be sent forthwith to the trial court concerned for compliance of the order. (Dharam Veer, J.) 23.02.2010 RG