Judgment reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1721 of 2001 Old Number Criminal Appeal No. 1420 of 2000 Parvaze and others. ……..…Appellants. Versus State of U.P. Now State of Uttarakhand. …….….Respondent. Present: Mr. R.P. Nautiyal, learned counsel for appellants. Mr. Nandan Arya, learned AGA for the State of Uttarakhand/ respondent. Hon’ble Nirmal Yadav, J. Accused appellants Parvez, Firoz alias Afroz and Sattu alias Satya Prakash have challenged the judgment and order dated 29.05.2000 whereby all the three accused have been convicted for the offence punishable under section 364 Indian Penal Code (hereinafter referred to as “IPC”) read with section 34 IPC and have been sentenced to undergo rigorous imprisonment for a period of eight-year and fine of Rs. 4000/- each. The facts in brief are that Kallu (since missing) had been selling rickshaw on instalments. Whosoever used to purchase the rickshaw would either pay the instalment at the house of Kallu in Rampur or he would himself go and collect the instalments. On 24.07.1997 at about 8.00 a.m. accused appellants Parvez, Firoz alias Afroz and Sattu alias Satya Prakash came to the house of Kallu and asked him to accompany them to Udham Singh Nagar so that they 2 could make payment of instalment. Even other persons, who purchased rickshaw from him, also wanted to make payment of their instalments. Relying on the statement of the accused appellants Parvez, Firoz alias Afroz and Sattu alias Satya Prakash, Kallu accompanied them. At about 9.00 a.m. he left the house and told his wife that he was going along with above mentioned persons to collect the instalments and would return in the evening. When he did not return in the evening, Saddique, brother of Kallu, along with Sazid Khan, Naeem and Safdar went to Kashipur to enquire about the whereabouts of his brother. At Kashipur, persons, who had paid the instalments to Kallu, informed the complainant that Kallu was seen by them collecting the instalments between 2.00 p.m. to 5.00 p.m. When complainant could not trace his brother, he went to police station of Udham Singh Nagar, who refused to record the first information report stating that his brother was allegedly abducted from Rampur so report should be lodged at police station Rampur. Thus, he went to police station Rampur, where he was told that report would be lodged at Kashipur. However, he submitted the written complaint (Exhibit Ka 1) on 04.08.1997 before Incharge Inspector, Police Station Kashipur narrating the above facts. He suspected the accused appellants for committing the murder of his brother. On the basis of the complaint (Exhibit Ka 1) chick FIR (Exhibit Ka 2) was recorded on 04.08.1997 at 2.30 p.m. 3 Initially, the investigation was handed over to Sub Inspector S.D. Gupta, who recorded the statements of the complainant, Yaseen, Liyaqat, Shakeel and other witnesses. He also made inquiries from the mother and sister of Parvez accused. On 23.08.1997, he recorded the statement of Firasat Jahan, wife of Kallu. He submitted a report to Superintendent of Police on 23.08.1997 that this case pertains to Kashipur as occurrence took place at Kashipur, therefore, investigation be also conducted at police station Kashipur, District Udham Singh Nagar. Thereafter, the investigation was transferred to Kashipur and was conducted by PW8 SI T.C. Sharma. He arrested all the three accused on 31.12.1997. On completion of the investigation, he submitted the challan in the court and accused were chargesheeted under section 364 IPC read with section 34 IPC to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined as many as nine witnesses. PW1 Liyaqat Husain, PW2 Mohd. Yasin and PW3 Shakeel Ahmad are the rickshaw pullers, who purchased rickshaws from Kallu in instalments. PW4 Saddique is the complainant and brother of Kallu. PW 5 Smt. Firasat Jahan is the wife of Kallu. PW6 Zakir is the witness of last seen. PW7 Head Moharir Jagdish Chandra recorded the chick FIR on the basis of written complaint. PW8 SI T.C. Sharma and PW9 SI S.D. Gutpa, are the Investigating Officer. 4 Accused when examined under section 313 Cr.P.C. denied the allegations put to them by the prosecution and pleaded false implication. However, they did not produce any evidence in defence. I have heard learned counsel for the appellants and learned AGA for the State and perused the entire evidence on record. Learned counsel for the appellants argued that prosecution has miserably failed to prove the essential ingredients of section 364 IPC. There is no evidence on record that Kallu was forced or compelled or by any deceitful means had been made by the accused persons to go from his house, for the purpose of committing his murder or putting him in danger of being murdered. Learned counsel pointed out that none of the witnesses namely PW1 Liyaqat Husain, PW2 Mohd. Yasin and PW3 Shakeel Ahmad produced by the prosecution have stated that Kallu was accompanied by anyone of the accused appellants. Rather they have categorically stated that they have not seen appellants with Kallu but they have simply stated that Kallu had told them that he was going to the house of Sattu alias Satya Prakash. Even brother of Kallu, PW4 Saddique, had not seen Kallu in the company of the accused appellants. According to him, he was informed by his sister-in-law on the next day that Kallu had accompanied the accused appellants. Learned counsel for the appellants further argued that PW5 Firasat Jahan, wife of Kallu, stated 5 that accused appellants had been visiting their house even prior to the present occurrence and on earlier occasions her husband had been accompanying the appellants. She has not disclosed any motive on the part of the accused appellants to abduct Kallu for the purpose of committing his murder. Learned counsel further pointed out that she would be the best person to disclose, if accused appellants had any enmity with Kallu or they had any dispute with him. Learned counsel for the appellants argued that with regard to the evidence of last seen, only PW6 Zakir has stated that he had seen Kallu and accused appellants sitting in the bus at Kashipur, which went towards Moradabad. He pointed out that as per this witness, he talked to Kallu by going inside the bus. In case, accused appellants had used any force or compelled Kallu to go with them, he would have certainly disclosed something to this witness; however, there is nothing on record that Kallu was abducted by using force or deception. Learned counsel for the appellants further argued that as per statement of PW6 Zakir, Kallu was seen by him going with the accused persons on 25.07.1997 but the FIR was registered after a delay of 11 days. It certainly creates serious doubt in the prosecution case, if the complainant was informed by the wife of Kallu and PW6 Zakir that Kallu was seen going with accused appellants, he should have immediately informed the police. It was further 6 submitted that dead body of Kallu has not been recovered, thus, there is no evidence on record if Kallu is still alive or dead, therefore, prosecution has miserably failed to prove that the appellants had abducted Kallu in order to commit his murder or to put him in danger of being murdered. On the other hand, learned AGA submitted that it is well proved from the statements of PW5 Firasat Jahan that on the asking of accused appellants that they as well as some other rickshaw pullers would like to clear the accounts of instalments of rickshaw and on their asking Kallu accompanied them. Even PW6 Zakir had seen Kallu on 24.07.1997, who was sitting in the bus at Kashipur, which was going towards Moradabad. He had talked to him and it was disclosed by Kallu that he had come to collect the instalment of rickshaws from the accused appellants. On careful consideration of rival submissions and scrutinizing the evidence on record, this court is of the view that prosecution has failed to prove that accused appellants had abducted Kallu with an intention to put him in danger of being murder. There is no doubt that conviction can be based on circumstantial evidence, but the prosecution must establish that chain of circumstances consistently points towards the guilt of the accused and is inconsistent with his innocence. Circumstances, as is well known, from which an inference of guilt is sought to be drawn are required to cogently and firmly 7 established the guilt of the accused. The circumstances should be such that they must be able to conclude within all human probability that accused committed the crime. In the present case only evidence propounded by prosecution is the evidence of last seen. The evidence of last seen may provide a link in the chain of circumstances but this link of evidence only cannot be a proof to prove the guilt of accused persons. The last seen theory comes into play where the time gap between the point of time when the accused and Kallu were last seen alive and when Kallu is found missing is so small that possibility of any person other than the accused being the person who committed the crime becomes impossible. In the absence of any positive evidence to conclude that the accused appellants and Kallu were last seen together, it would be hazardous to come to the conclusion of guilt against the accused in such a case. Except the statement of PW6 Zakir that he had seen the accused sitting in the bus there is no other evidence. However, this witness also stated that he was known to Kallu as he had been purchasing rice from him. Except this, there is nothing on record to show that Zakir was known to Kallu or he had met Kallu on the fateful day. The prosecution case suffers from serious infirmities as referred to above. Besides the other infirmities, the delay in lodging the FIR causes serious doubt in the prosecution case. Admittedly, wife of Kallu had told the complainant Saddique on 25.07.1997 about Kallu having accompanied the accused 8 appellants. PW6 Zakir also informed the complainant that he had seen Kallu with accused appellants but FIR was lodged by him on 04.08.1997 i.e. after an inordinate delay of 11 days. The explanation given by the complainant does not appear to be satisfactory. According to him, the police had raised a dispute with regard to the place of lodging the FIR. He first approached to the police of Rampur to lodge the report but they did not record the same, thereafter, he reported the matter in police station Kashipur but this would not take 11 days for the complainant to decide with regard to place of lodging the report. The prosecution has not been able to prove that accused appellants had any motive to commit the crime. As per the statement of PW5 Firasat Jahan, wife of Kallu, accused appellants had been visiting her husband and he had been accompanying the accused appellants even on earlier occasions also. Thus, from the above facts, this court is of the considered opinion that prosecution has miserably failed to prove its case. The evidence adduced by prosecution is not sufficient and adequate to establish the guilt of the accused appellants and thus, is not acceptable to sustain the conviction as recorded by the trial court. For the reasons recorded above, the appeal is allowed. Impugned judgment and order dated 29.05.2000 is set aside. Appellants are on bail. They 9 need not surrender. Their bails bonds are cancelled and sureties are discharged. Let the lower court record be sent back. (Nirmal Yadav, J) 02.07.2010 SKS