HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 38 of 2009 Saurabh Sachdeva. ……..Appellant Versus State of Uttarakhand …….Respondent WITH Criminal Appeal No. 39 of 2009 Saurabh Sachdeva ……..Appellant Versus State of Uttarakhand …….Respondent WITH Criminal Appeal No. 40 of 2009 Saurabh Sachdeva ……..Appellant Versus State of Uttarakhand …….Respondent WITH Criminal Appeal No. 43 of 2009 Baljeet Yadav @ Bobby ……..Appellant Versus State of Uttarakhand …….Respondent WITH Criminal Appeal No. 44 of 2009 Baljeet Yadav @ Bobby ……..Appellant Versus State of Uttarakhand …….Respondent WITH Criminal Appeal No. 45 of 2009 Baljeet Yadav @ Bobby ……..Appellant Versus State of Uttarakhand …….Respondent Mr. S.K. Agarwal, Senior Advocate with Mr. Swapnil Bisht and Ms. Charanjeet Kaur, Advocates and Mr. Ram Ji Srivastava, Advocate for the appellants. Mr. Amit Bhatt, Asstt. Government Advocate for the State. Dated: September 1, 2011 2 Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. Barin Ghosh,C.J. (Oral) A First Information Report was lodged around 9:30 p.m. on 19th February, 2002 with the Kotwali Police Station, Dehradun. This First Information Report was lodged by the uncle of the victim. It was alleged in the First Information Report that his nephew, about 11 years old, used to go for tuition and used to return therefrom around 6:00 p.m. in the evening. It was alleged that on that day, he did not return at or after 6:00 p.m. and, accordingly, he was searched. In course of such search, the Mobike, by which he went to attend tuition was found abandoned on National Road. It was alleged that, thereafter, a call came to the mobile phone of his brother i.e. the father of the victim, from another mobile connection, when the father of the victim was asked to make arrangement for money holding out that the victim is in the custody of the caller. On the basis of this First Information Report, investigation started, which resulted in filing of a charge sheet, accusing the appellants, before us, of kidnapping the victim for obtaining ransom. 2. The victim was recovered at around 9:00 p.m. of 20th February, 2002 from a Maruti Car, which was parked outside the gate of Doiwala Sugar Factory Ltd. It was alleged that at or about the time, when the victim was thus recovered, the appellants fired upon the police party, who ultimately apprehended the appellants. It was alleged that 3 such firing was aimed at the police party and the same was committed by using two country made pistols. It was alleged that the appellants did so, while getting out from the self same Maruti Car, where the victim of kidnapping was found. In respect of the incident, that took place at around 9:00 p.m. of 20th February, 2002, a First Information Report was lodged with Doiwala Police Station, which was investigated upon and thereafter two charge sheets were filed, holding out that the appellants are accused of committing crime punishable under Section 307 of Indian Penal Code and since, they were found in possession of illegal arms, they have also violated the provisions of the Arms Act. Upon acceptance of the police reports thus filed, charges were framed and those having been denied, trial commenced. One trial was conducted for proving three several charges framed against the appellants, on the basis of three several charge sheets. On conclusion of the trial, the court below has upheld the contention of the prosecution and, accordingly, has appropriately awarded punishments to the appellants. In the premise, each of the appellants have filed three appeals, against the consolidated judgment and order. We have heard the parties on the three appeals and propose to dispose of the same by this common judgment and order. 3. According to the prosecution, victim-PW1 was kidnapped from an isolated part of Park Road by the appellants. It has come in the evidence of PW-1 that 4 immediately before he was kidnapped, appellant Saurabh Sachdeva was sitting in the driving seat of the Maruti Car, whereas appellant Baljeet Yadav, who was sitting on the passenger seat of the front portion of the said car, got down from the car and asked from PW-1 matters pertaining to tuition and, while talking, forced him on the rear passenger seat of the self same Car. It is the case of the prosecution, and as deposed by PW-1, appellants and PW-1 remained in the self same car since then until 9:00 p.m. of 20th February, 2002. It is the case of the prosecution, and as asserted by PW-7, at around 6:30 p.m. of 20th February, 2002, he received an information from an informer that a Maruti Car, bearing no. UA-08- 4546, is proceeding from Haridwar to Dehradun and in the car, apart from the kidnappers, the person kidnapped is also present. It is the case of the prosecution that having had received the said information, PW-7 went to Doiwala Police Station, incidentally, PW-7 is the Station House Officer of Kotwali Police Station, Dehradun. From Doiwala Police Station, he gave instructions to many other police officers and personnel, working in the Police Department, to assemble at Doiwala Police Station. In all 21 such police personnel assembled. The assembly had many vehicles at their disposal, one of them, at least, was a Police Jeep and another a Motorcycle. Subsequent to such assembly of the police personnel at Doiwala Police Station, PW-7 received yet another information from an informer and came to learn that the said Maruti Car has crossed 5 Doiwala Police Station and is proceeding towards Doiwala Sugar Factory. No sooner such information was received, the police party proceeded towards Doiwala Sugar Factory, when they noticed that the said Maruti Car is parked in the vicinity of the gate of Doiwala Sugar Factory. The appellants, who were inside the Maruti Car, noticed arrival of the Police, they left the Maruti Car and started coming towards the police party and fired simultaneously towards the police party. The Police at the same time, fired upon. There was a chase, appellants being fearful of being hurt by the police firing, stopped nearby the wall of Doiwala Sugar Factory, where they were apprehended, when two country made pistols were recovered from the appellants. It was alleged that each of the pistols was recovered from each of the appellants. It was alleged that when the pistols were opened, it was found that each of them contained an empty shell. It was contended that on smelling, it was noticed that each of the pistols was used very recently. It was alleged that one of those pistols was a 12-bore pistol and other was a 315-bore pistol. It was also alleged that two 12-bore cartridges and two 315-bore bullets were recovered from the appellants. 4. After the appellants were apprehended and the illegal arms, empty shells, and cartridges were recovered, the victim boy was recovered from the car, when a mobile phone containing a sim-card was also recovered. 6 5. In order to prove the cases, as were made out in the charge sheets, prosecution led evidence through the victim, his father and uncle. Prosecution also led evidence through three of the Police Officers, who were part of the Police team, which apprehended the appellants and made recovery of the victim boy, the mobile phone and the sim-card thereof. In addition to that, prosecution brought the Investigating Officers of the cases to give evidence. Only two private personnel gave evidence on behalf of prosecution. One of them was an associate of the Franchise of the service provider, who allegedly sold the seized sim-card to appellant Saurabh Sachdeva. The other private witness was also an associate of the said Franchise. The purpose of bringing the said private witnesses was to establish that the sim-card used, through the seized mobile, was obtained by appellant Saurabh Sachdeva on 19th February, 2002. These two private witnesses tendered a register, brought by them. The said register contained an entry of sale of the subject sim-card to Saurabh Sachdeva on 19th February, 2002. The register does not contain signature of the appellant Saurabh Sachdeva acknowledging delivery of said sim-card. The application made by the person, entailing the service provider or its Franchise, to sell the said sim-card, was not brought on record of the case. No one appeared for the service provider, nor any document from the service provider was tendered in evidence suggesting that, in fact, a call was made from the mobile telephone, using the said sim-card 7 to the mobile telephone of the father of victim PW-1. The mobile telephone of the father of the victim was also not tendered. At the same time, no effort was made by the prosecution to establish that the mobile phone, which was seized from the Maruti Car on 20th February, 2002, belonged to appellant Saurabh Sachdeva or to the other appellant. 6. According to the evidence of the father and the uncle of the victim, on 19th February, 2002, victim left for tuition in his Scooty, which was found parked on National Road. According to the victim PW-1, he was at an isolated place, situate on Park Road, when appellant Baljeet Yadav came out from the Maruti Car, talked to him for a while, and thereupon pushed him on the back passenger seat of the said car. What was the reason for the victim PW-1 to park his Scooty on National Road and going to the isolated place at Park Road, has not been attempted to be explained by the prosecution, at all. According to victim PW-1, since 6:00 p.m. of 19th February, 2002, until 9:00 p.m. of 20th February, 2002, he and the appellants were in the said Maruti Car, during which time they ate, drunk and slept in the said Maruti Car. According to victim PW-1, water was available in the car, kept in containers. According to him, they ate in the car and the foodstuff was brought by Baljeet Yadav, once in the night of 19th February, 2002 when the car was parked inside a Jungle, near Haridwar. According to him, he slept under blanket. When the car with the victim PW-1, was found, no water container was 8 found, no left over food was found, no food packet was found and no blanket was found. It is doubtful whether the car was, at all, found, inasmuch as, the car was not seized. It was alleged that appellant Sachdeva used to frequent the house of the victim to insinuate that he knew how wealthy the father of the victim was. Appellant Sachdeva is the son of a person known to the father of the victim. Nothing further was brought on record. Son of a known person frequenting the house is absurd, without more pertaining to relationship. 7. According to the police witnesses, namely, PW- 6, 7 & 8, who were present when the victim, the mobile, the sim-card and the car were found, they did not perchance got hold of the appellants. They had specific input through informers. The informers were not called to give evidence. Therefore, the information, that was received from those informers, in law, could only be treated as hearsay evidence. In the circumstances, there is nothing on record to suggest the reason for 21 police personnel assembling at Doiwala Police Station at around 6:00 p.m. of 20th February, 2002. Furthermore, the prosecution has not brought on record any evidence, which is normally kept and maintained in the form of G.D. entries in the police stations, that, in fact, such number of police personnel or even lesser number of them had assembled at Doiwala Police Station at or around 6:00 p.m. of 20th February, 2002. In the absence of proof of such assembly, believing the assertions that the police 9 party, in their respective vehicles, went towards Doiwala Sugar Factory and found the Maruti Car parked, and no sooner the police party approached the Maruti Car, the appellants sprang out from the Maruti Car fired upon the police party, which ensured a chase and lateron apprehension of the appellants and recovery of the car, the victim, the mobile as well as the sim-card, if believed, would be by a person, who dwells in dream land and interested in hearing suspense stories. According to prosecution one call was made in the night of 19th February, 2002 when the place of delivery of the ransom was not indicated. In view of absence of proof of information received from the informer, there was nothing on record to suggest presence of alleged kidnappers at Doiwala. In other words, the evidence on record in no circumstances, can persuade a prudent man to accept what had been contended by the prosecution before the Court below. It is, therefore, a case of not proved. 8. In addition thereto, there are large number of discrepancies in the matter. There is one most important discrepancy, assertion by the victim PW-1 that he was bounded by ropes, which was totally brushed aside by feigning ignorance by the police officers who are said to have recovered the victim. The other one is the evidence of PW-1 that the police as well as the appellants fired in air, whereas the three police witnesses alleged that the appellants fired upon them. In addition to that, 10 there are other discrepancies thereto, which need not to be discussed. 9. The manner, in which the case has been handled, as is evidenced on the evidence on record, it is crystal clear that there was utter failure on the part of the police to discharge its obligations pertaining to such a serious allegation, as was made in the First Information Report. There is nothing on record to suggest that the police made any effort to ascertain or verify the background facts leading to filing of the First Information Report, namely, whether the victim used to go to tuition and used to return at 6:00 p.m. and while doing so, used to use a Scooty. The police utterly failed to find out from the service provider, whether any call was made from the seized mobile phone by using the seized sim-card, to the mobile phone of the father of the victim. The police totally failed to ascertain why the victim would go to Park Road. The police, despite having information that the victim is being moved in an identified car, and despite discovering the car and the victim from the car, did not seize the car, nor made any effort to ascertain the owner of the car and how the appellants got hold of the same. 10. We are of the view that in view of what has been stated above, the police has failed to prove that the appellants were involved in kidnapping the victim PW-1, the police has failed to prove recovery of PW-1 from a car, alongwith a mobile and a sim- card and the police has totally failed to link the 11 appellants with the alleged kidnapping of the victim PW-1. In view of the conduct of the police in relation to alleged kidnapping of the victim PW-1, can a prudent person, being aware that there is no evidence of linking the appellants with the alleged kidnapping of the victim PW-1, come to the finding that evidence is sufficient to hold that there was, in fact, an occasion for the appellants to fire upon the police party and for that purpose to retain not only the illegal arms, but also cartridges and bullets to be used for further use? The answer would be no. Significantly, no attempt was made by the prosecution to prove that the police party also fired upon. 11. In the circumstances, the one and the only logical conclusion would be that the prosecution has utterly failed to prove any of the charges, those were levelled against the appellants in the three independent charge sheets, filed against them separately. 12. Accordingly, the appeals are allowed. The judgment and order under appeal, is set-aside. Let the appellants be set free forthwith. (V.K. Bist, J.) (Barin Ghosh, C.J.) 01.09.2011 NCM: