Munna v. For
Case Details
1 Court No.45 Appellants Respondent Criminal Appeal No. 4377 of 2016 1. Shyam Sundar 2. Kunkun State of U.P. Vs :WITH: Criminal Appeal No. 4378 of 2016 Munna Appellant State of U.P. Respondent Vs For Appellants : Sri Manish Tiwary, Senior Advocate, Sri Atharva Dixit & Sri Aushim Luthra, Advocates For Respondent :
Legal Reasoning
Sri Amit Sinha, AGA Hon'ble Pritinker Diwaker, J. Hon'ble Nalin Kumar Srivastava, J. Per: Pritinker Diwaker, J (1.11.2022) 1. As these two appeals arise out of a common judgment and order dated 4.8.2016 passed by Additional District and Sessions Judge, Auraiya in Sessions Trial No.583 of 1999 (State vs. Shyam Sundar and others), arising out of Crime No.82 of 1998 u/s 364 of IPC, Police Station Sahayal, District 2 Auraiya, convicting and sentencing the appellants u/s 364 of IPC to undergo imprisonment for life with a fine of Rs.20,000/- each, in default thereof, they have to undergo one year additional simple imprisonment,
Decision
both the appeals are being disposed of by this common order. 2. In the present case, the name of victim is Ramesh Chandra Tiwari (PW-2), aged 55 years. It is alleged that on 4.12.1998, at about 10:00 a.m., the victim was abducted from the house of his relative Triyugi Narayan Pathak (PW-1) and was taken to unknown destination fromwhere, on the second day, he was recovered. It is alleged that accused persons, four in number, namely Shyam Sundar (since deceased), Kunkun, Munna, Tinku (since deceased) abducted victim, Ramesh Chandra Tiwari, while he was sitting in the house of informant Triyugi Narayan Pathak (PW-1) and was discussing about his land dispute. Further case of the prosecution is that the appellants took the victim in a blue Maruti Van and thereafter he was searched by PW-1 and some other persons, but they could not get any clue of the abductee and on the second day, he was found. On the basis of written report Ex.Ka-1, dated 4.12.1998 by PW-1, FIR Ex.Ka-3, was registered against the accused persons and 2-3 unknown persons under Section 364 of IPC. 3. While framing the charge, the trial judge has framed charge against the accused appellants under Section 364 of IPC. 4. So as to hold accused persons guilty, prosecution has examined six witnesses. The statement of accused persons were recorded under Section 313 Cr.P.C. in which, they pleaded their innocence and false implication. 5. Here, it is relevant to note that during trial, accused Tinku has expired and by the impugned judgment, the trial judge has convicted accused appellants Shyam Sundar, Munna and Kunkun as mentioned in paragraph no.1 of this judgement. However, during the pendency of this appeal, accused appellant no.1-Shyam Sundar has also expired and hence appeal in respect of accused appellant Shyam Sundar has already been dismissed as abated vide order dated 7.4.2022 and now, these appeals confine only in respect of accused appellants Kunkun and Munna. 6. Learned counsel for the appellants submits: 3 (i) that the basic ingredients of Section 364 of IPC are completely missing and a total concocted case has been lodged against the accused persons; (ii) that even if the entire prosecution case is taken as it is, it appears that the victim has gone along with the appellants of his own without offering any protest or resistance; (iii) that when the victim was recovered from the alleged custody of the accused appellants, he was standing all alone without offering any protest; (iv) that the victim had enough opportunity to escape from the custody, but he did not make any such effort. He submits that neither any force was applied on the victim nor he was deceived. (v) that the Investigating Officer has categorically stated that the victim was recovered from an open space, he was standing all alone and accused Munna was also standing in a little far of place; (vi) that even victim himself has admitted the fact that the place fromwhere he was allegedly dropped by the accused persons, was a busy place and after dropping him there, accused persons ran away. The victim further admits that on the second day, he was recovered from the same place where he was dropped on the earlier day and it was a busy public place; (vii) that the vehicle which is alleged to have been used for 4 abducting the victim has not been recovered; and (viii) the fact that the appellants have been falsely implicated, is also clear from the timing of lodging the FIR, as the victim was abducted at about 10 a.m. and the report was lodged at 2:15 p.m. disclosing the alleged abduction of the victim though there was apprehension and reason that the victim was abducted. 7. On the other hand, supporting the impugned judgment, it has been argued by the State counsel that the conviction of the appellants is strictly in accordance with law and there is no infirmity in the same. 8. We have heard learned counsel for the parties and perused the record. 9. Triyugi Narain Pathak (PW-1), the informant, has stated that on 4.12.1998, victim Ramesh Chandra came to his house and at about 10.00 a.m. when he, his brother Jai Narayan, nephew Sri Chandra and the victim were having a chat, the accused appellants and 2-3 unknown persons came in a Maruti Van and told the victim that today, the real judgment of his land would be done. They took the victim alongwith them, and when the victim was searched, then he (this witness) was quite confident that the accused persons have abducted the victim for committing his murder. He stated that thereafter he lodged the written report Ex. Ka-1. In the cross-examination, he has admitted that none of the accused from village Kathautu used to come to his house and at the time of recording his 161 Cr.P.C. statement, he had informed the police that he knew the accused persons because of their relation at Kathautu and this fact was disclosed to the police, but same could not be recorded by the police for the reasons best known to the police. He admits that no test identification parade was conducted and he did not know the accused persons by name. He stated that he knew about the land dispute between Shyam Sunder and the victim and victim Ramesh Chandra Tiwari accompanied the accused persons on being asked by them. After the 5 departure of victim Ramesh Chandra Tiwari and the accused persons, he waited for half an hour, inquired about the accused persons and then had a suspicion in his mind that accused persons may have abducted him. He further states that after the arrival of Shri Chandra i.e. his nephew, he had gone to police station and lodged the report. He states that he did not know as to fromwhere abductee, Ramesh Chandra Tiwari was recovered, but on 5.12.1998, he was informed by the police that the victim has been recovered. He has categorically stated that he cannot see anything from his one eye, whereas from his second eye, he can hardly see anything. He has further clarified that his one eye is completely damaged since last 25 years and since last 10 years, he cannot see from that eye also. 10. Ramesh Chandra (PW-2) is the victim, whose age was 55 years on the date of commission of offence. He states that on 4.12.1998, he had gone to Triyugi Narain Pathak (PW-1) and informed him about his land dispute with accused Shyam Sunder and quite often there used to be hot talks between them. On the date of occurrence, when he was sitting in the house of PW-1 alongwith his nephew and bother, accused persons alongwith three unknown persons came in a Maruti Van and asked him to join them, so that land dispute can be settled. He further states that as he was not in the mood of quarrel, he sat in the Maruti Van and in the Van, he was informed by the accused persons that they are going to the house of Chaubey at village Bhikhani for mediation. But instead taking him to the house of Chaubey, they took him near a jungle, beat him and on the next morning, accused persons dropped him near the road. He further states that at about 11.00 a.m., police reached there and after seeing the police, accused persons fled away from the spot, however, accused Munna was detained by the police. He states that in the incident number of injuries were sustained by him and even his X-ray was also taken. He has clarified that he knew the accused persons because accused Munna, Kunkun and Tinku are relatives of accused Shyam Sunder. He further states that he did not disclose the police about the physical appearance of the accused persons. He states that he did 6 inform the police that he was not keen to quarrel over the land in question and therefore, he sat in the Maruti Van alongwith accused persons, but if the said fact is not recorded by the police, he cannot tell the reason. He states that a day prior to the incident, there was some quarrel between him and the accused persons, but no report of the said incident was lodged, but thereafter he states that the report was lodged. He admits that on 5.12.1998 at about 11.00 a.m., in a busy Auraiya – Kannauj road, he was dropped near the road and then Maruti Van returned. 11. Rajveer Singh (PW-3) recorded the chick F.I.R. 12. Dr. R.D. Gautam (PW-4) did M.L.C. of the victim vide Ex. Ka-5 and found the following injuries: “1. Contused abrasion 3 cm x 1 cm on rt. side of forehead 4 cm above rt. eyebrow. 2. A lacerated wound 1.5 cm x 0.5 cm x muscle deep on the base of rt. Ear on the upper part. 3. Contusion 3.5 cm x 3 cm around the rt. eye. Reddish in colours. K.U.O. 4. Contusion 4 cm x 3 cm around left eye. Reddish in colour. K.U.O. 5. Contused swelling 8 cm x 4 cm on the dorsal aspect of left hand including left index finger. Reddish K.U.O. 6. Contused swelling 3.5 cm x 3 cm on the dorsum of left wrist. Reddish in colour. 7. Contusion 2 x 1 cm on the dorsal aspect of rt. index finger. Reddish in colour.” According to this witness. injuries sustained by the victim were simple in nature and the could have been sustained because of fall. 13. Dr. B.B. Prakash (PW-5) did X-ray of the victim vide Ex. Ka-6 and found fracture of metacarpal and parietal bones. 14. Ram Veen Singh Solanki (PW-6) is the Investigating Officer and he has duly supported the prosecution case. He states that the place from where the victim was recovered was an open place and when the police 7 reached there, victim was standing all alone, whereas accused Munna was also standing but at a separate place. 15. Close scrutiny of the evidence makes it clear that prosecution has utterly failed to prove the fact that the victim was kidnapped/abducted by the accused persons in order to commit his murder. Even if the prosecution case is taken as it is, it appears that on 4.12.1998, victim joined the company of the accused persons when they met in the house of PW-1. No protest or resistance whatsoever was offered by the victim, while he was being asked to sit in the Maruti Van. At the relevant time, when the victim was taken, PW-1 and other witnesses were present, but none of them have made any attempt to save the victim. They did not even raise any voice and likewise, the victim also quietly sat in the vehicle/Van. Thus, it appears that the victim was a consenting party. Similar is the position when victim was recovered on the next day and as per prosecution case itself, the accused persons dropped him in a busy locality and when the police party reached to the place of occurrence, the victim was standing all alone, whereas one of the accused Munna was standing on the other side. 16. The story put forth by the prosecution appears to be unrealistic and difficult to believe. At 10.00 a.m., a person aged 55 years has been abducted, he allegedly joined the company of four accused persons but there was no protest whatsoever. It is relevant to note that the relation between the accused persons and that of victim was strained and there was pending litigation between them. If the relation between them was inimical, why the victim accompanied with the accused persons, is a big question to be answered by the prosecution. The F.I.R. was lodged by PW-1 and according to him, he knew only accused Shyam Sundar, but yet a report has been lodged naming the other accused persons. Here again, the prosecution case becomes doubtful. There is absolutely no evidence as to whether any attempt has been made by the police to trace the Maruti Van allegedly used in the commission of offence. 8 There is no further evidence that the victim was taken away by the accused persons for committing his murder, which is basic ingredients of Section 364 IPC. It is further relevant to note that the incident took place at 10.00 a.m. and the report was lodged at 2.15 p.m. disclosing the alleged abduction of the victim. The evidence further reveals that the victim had sufficient opportunity not to accompany the accused persons, he had sufficient opportunity to escape from the custody of accused persons, but no such effort was made by him and it appears that he was happily moving in the company of accused persons. No resistance or force has been offered by him to get himself relieved from the clutches of the accused persons. 17. Taking cumulative effect of the evidence adduced by the prosecution, we are of the considered view that the prosecution has failed to prove the offence under Section 364 IPC against the accused persons beyond all reasonable doubts and the trial court has erred in law in convicting the accused persons. 18. Both the appeals are, accordingly, allowed and the impugned judgement of the trial court is set aside. 19. Accused Munna and Kunkun are reported to be in jail. They be set free forthwith, if not required in any other case. Date:1.11.2022 RK/RKK/- (N K Srivastava, J) (Pritinker Diwaker, J) Digitally signed by RAJESH KUMAR Date: 2022.11.18 14:14:21 IST Reason: Location: High Court of Judicature at Allahabad