# Prempal & Ors v. State of U.P

- **Citation:** (2022) 9 ILRA 1588
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-03
- **Case number:** Criminal Appeal No. 2175 of 2016
- **Bench:** Manoj Misra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prempal-ors-v-state-of-u-p-49054
- **Pages:** 29

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2) - Indian Penal
Code,1860-Sections 364-A, 120-B, 368Kidnapping-injury marks found on the
body of victim which may suggest he was
tied
or
chained
but
all
prosecution
witnesses failed to prove the case beyond
reasonable doubt as they are inconsistent
and
contradictory-no
independent
witnesses-
no
CDR
on
record
to
demonstrate that the mobile instrument
of the abductee was used by the accusedassuming that victim was abducted and
was detained, but who incarcerated him
and for what purpose is a matter and in
what manner the incident occurred has to
proved by the prosecution-Thus, accused
entitled for benefit of doubt.(Para 1 to 37)
The appeal is allowed. (E-6)

## Text

_Characters 0–39,476 of 98,858. This is a partial read: ask again with offset=39476 for what follows._

1588 INDIAN LAW REPORTS ALLAHABAD SERIES
26.2.2011 and 28.2.2011 passed by court
below, in so far as it relates to accused
Pohpee @ Pohap Singh, is liable to be
modified.
Accordingly,
the
same
is
modified. Accused Pohpee @ Pohap Singh
shall stand convicted under Section 365
IPC. He shall accordingly undergo simple
imprisonment of seven years alongwith fine
of Rs. 10,000/-. In case of default he shall
undergo simple imprisonment for a period
of three months. However, in case accused
Pohpee @ Pohap Singh has already
undergone the sentence and has also
deposited the fine, he shall be released
forthwith, unless he is wanted in any other
case.

96. All the other accused i.e. Pooran
Singh, Ramesh @ Chhote, Padam Singh
and Rahees, however, shall be set at liberty
forthwith, unless, they are wanted in any
other case, subject to their executing a bond
in terms of Section 437-A Cr.P.C.

97. Criminal Appeal Nos. 1684 of
2011, 1741 of 2011, 1945 of 2011 and
2636 of 2011 are allowed; whereas Jail
Appeal No. 1262 of 2012 is partly allowed.
----------
(2022) 9 ILRA 1588
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.08.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 2175 of 2016

Prempal & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Anup Ghosh, Sri Arun Kumar Mishra, Sri
Ghan Shyam Das, Sri Om Prakash Chaube,
Sri Pradeep Kumar Mishra, Sri Pratap
Ghosh,
Sri
Rajendra
Kumar
Dubey,
SriSantosh Kumar Pandey, Sri Shravan
Kumar Mishra, Sri Vinay Saran (Sr. Adv.)

Counsel for the Opposite Party:
Govt. Advocate

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2) - Indian Penal
Code,1860-Sections 364-A, 120-B, 368Kidnapping-injury marks found on the
body of victim which may suggest he was
tied
or
chained
but
all
prosecution
witnesses failed to prove the case beyond
reasonable doubt as they are inconsistent
and
contradictory-no
independent
witnesses-
no
CDR
on
record
to
demonstrate that the mobile instrument
of the abductee was used by the accusedassuming that victim was abducted and
was detained, but who incarcerated him
and for what purpose is a matter and in
what manner the incident occurred has to
proved by the prosecution-Thus, accused
entitled for benefit of doubt.(Para 1 to 37)
The appeal is allowed. (E-6)

(Delivered by Hon'ble Manoj Misra, J.
&
Hon'ble Syed Aftab Husain Rizvi, J.)

1. This appeal is against the judgment
and order dated 04.03.2016 passed by the
Special
Judge
(Dacoity
Affected
Areas)/Additional Sessions Judge, Court
No.3, Farrukhabad in S.S.T. No.37 of 2015
(arising out of case crime no.553 of 2014,
P.S. Kayamganj, district Farrukhabad)
connected with (i) S.T. No.135 of 2015
(arising out of Case Crime No.562 of 2014,
P.S. Kayamganj, district Farrukhabad); (ii)
S.T. 136 of 2015 (arising out of Case
Crime No.563 of 2014, P.S. Kayamganj,
district Farrukhabad); and (iii) S.T. No.137
9 All. Prempal & Ors. Vs. State of U.P.
1589
of 2015 (arising out of Case Crime No.565
of
2014,
P.S.
Kayamganj,
district
Farrukhabad), whereby the appellants Prem
Pal, Sipahi Lal and Omveer have been
convicted under Sections 364-A/120-B and
368 IPC in connection with Case Crime
No.553 of 2015 (supra) and, in addition to
above, Prem Pal and Omveer have also
been convicted under Section 25 of the
Arms Act in connection with Case Crime
Nos.563 of 2014 and 565 of 2014 (supra),
respectively. Sipahi Lal, Prem Pal and
Omveer have been sentenced as follows:-
Imprisonment for life as well as fine of
Rs.20,000/- to each of the three, coupled
with a default sentence of two years, under
Section 364-A read with Section 120-B
IPC; and 7 years R.I. as well as fine of
Rs.10,000/- to each of the three, coupled
with a sentence of two years, under Section
368 IPC. Whereas, Prem Pal and Omveer
have also been sentenced to imprisonment
of three years R.I. as well as fine of
Rs.5,000/-, coupled with a sentence of two
years each, under Section 25 of the Arms
Act. All sentences to run concurrently. As
all these appellants were in jail during the
course of trial, it was observed that the time
spent in jail by the appellants shall be
counted/adjusted
against
the
sentence
awarded.

2. In S.S.T. No.37 of 2015, seven
persons, namely, Sipahi Lal (appellant
no.2), Prem Pal (appellant no.1), Omveer
(appellant no.3), Ramu alias Raju, Ram
Kishore, Smt. Malti and Smt. Santoshi
were tried in connection with Case Crime
No.553 of 2014 (supra). Out of those seven
persons, four, namely, Ramu alias Raju,
Ram Kishore, Smt. Malti and Smt.
Santoshi, were acquitted. Whereas, in S.T.
No.135 of 2014, arising out of Case Crime
No.562 of 2014 (supra), four persons,
namely, Prem Pal (appellant no.1), Ram
Kishore, Ramu alias Raju and Omveer
(appellant no.3) were tried. All four were
acquitted.
This
appeal,
therefore,
is
confined to the judgment and order of
conviction of the appellants to the extent
indicated above in S.T. No.37 of 2015,
arising out of Case Crime No.553 of 2014
(supra); S.T. No.136 of 2015, arising out of
Case Crime No.563 of 2014 (supra); and
S.T. No.137 of 2015, arising out of Case
Crime No.565 of 2014( supra).

INTRODUCTORY FACTS

3. On 12.12.2014, at 12.30 hours,
Chheda Khan (PW-1) submitted a written
missing report (Ex. Ka-1) alleging that in
the night of 11/12.12.2014 his son Salman
and Kunwarpal son of Siyaram, at about 2
am, had gone to village Amaliya Mukeri on
their tractor but they did not return. (Note:
Kunwarpal is real brother of Prempal-
appellant no.1). A GD entry of the missing
report was made vide Report No.27 (Ex.
Ka-2),
at
P.S.
Kayamganj,
district
Farrukhabad. On 15.12.2014 information
was given by PW-1 that his son (Salman)
and Kunwarpal appear to have been
abducted. Consequently, vide GD Entry
No.45, at 17.45 hours, the missing report
was converted into Case Crime No.553 of
2014
under
Section
364
IPC.
On
16.12.2014, investigating officer (I.O.)
Meghnath Singh - PW-6 recorded the
statement of Chheda Khan (PW-1) and on
his instructions prepared a site plan (Ex.
Ka-6) of the place from where the two
missing persons were allegedly abducted.
The I.O. also recorded the statement of
Rajeev (not examined) and Subhash
Chandra (not examined) and went to
village Amaliya Mukeri where he recorded
statement of Master Janmajay Singh (not
examined) and his son Dhananjay Singh
(not examined) and also enquired from
1590 INDIAN LAW REPORTS ALLAHABAD SERIES
Prempal (the appellant no.1) and obtained
his phone number. On 21.12.2014, the I.O.
with his fellow Sub-Inspector, Ravindra
Kumar (not examined) and Constables
Awadhesh Kumar (not examined), Sunil
Kumar (not examined) and Shadab (not
examined) left the police station in a
private vehicle with government issued
weapons to investigate the case in respect
whereof entry was made in the general
diary vide Report No.20, at 10.35 hours
(morning). When the police party reached
industrial area Papri, they met Chheda
Khan (PW-1) and Rajesh Kumar son of
Agya Ram (not examined). These two
witnesses informed the police party that
they have been required to arrange for
ransom amount of twenty lacs (ten lacs
each for release of Salman and Kunwarpal).
They also informed the police party that
they suspect Prempal (appellant no.1) and
his family members of cheating them.
Apart from that they also informed the
police party that they are poor persons and
are not in a position to arrange the ransom
money. On getting this information, PW-6
(I.O.) contacted Brijesh Kumar Yadav
(PW-7) i.e. incharge SWAT. The SWAT
team headed by PW-7 arrived and a plan
was hatched to trap/arrest the abductors. As
per the plan, two wads of plain papers, with
currency notes of Rs.1,000/- denomination
at the top and at the bottom, were prepared
so as to pass off as two bundles of notes of
Rs.1 lac each. After preparing these wads
of notes they were handed over to Chheda
Khan (PW-1) and Rajesh Kumar to proceed
to the designated spot to trap the abductors.
According to the prosecution case, the
police team along with SWAT lied in
ambush awaiting arrival of ransom money
collector; after 10-15 minutes, a person
arrived there, took the two wads of notes
from Chheda Khan (PW-1) and started to
count them; on being satisfied that that
person had arrived to collect the ransom
money, the team, lying in ambush, emerged
and arrested that man with two wads of
notes;
on
interrogation,
that
person
disclosed his name as Sipahi Lal (appellant
no.2); on further probe, it was found that
Samsung
mobile
instrument
IMEI
No.356126054535450 used by Salman for
no.9616681877, which was on surveillance,
had
been
used
by
Sipahi
Lal's
No.8853359413 and from that number, on
15.12.2014, call of 174 seconds was made
on No.9026053760 at 18:27:59. When
Sipahi Lal was interrogated in respect of
No.9026053760, he informed that Prempal
has used this number to call him (Sipahi
Lal). The team thought that as Salman's
mobile had been missing since the date of
his abduction, the abduction must have
been planned by Prempal and, therefore, he
got his brother Kunwarwal abducted to
mask the entire operation. On further
interrogation, Sipahi Lal told the police
team that Prempal had planned the
abduction of Salman along with his brother
Kunwarpal, Ram Kishore, Ram Kishore's
wife Santoshi and his mother Malti along
with Raju and Omveer because Salman's
father (Chheda Khan) had sold his land for
Rs.22,00,000/- and therefore, they thought,
he would be having enough money. Sipahi
Lal confessed that he had to pay off his
tractor's instalments therefore, he also
participated in the plan. As a part of that
plan, in the night of 11/12.12.2014,
Kunwarpal drove the tractor to Salman's
house to fetch him from his house
thereafter he was abducted and kept blind
folded. According to prosecution case, after
getting information from Sipahi Lal that
Salman, in furtherance of that plan, is being
detained in the sugarcane field of Prempal,
the police team including SWAT team
proceeded to the spot on separate vehicles
along with PW-1 and Rajesh Kumar (not
9 All. Prempal & Ors. Vs. State of U.P.
1591
examined). There, in a police action, after
facing resistance in the shape of firing at
the police party, the police team with the
help of SWAT team apprehended Prempal
(appellant no.1), Jitendra (who was later
found juvenile and his trial was separated),
Omveer (appellant no.3) and Kunwarpal
(who was later found juvenile and his trial
was separated). Whereas, three persons,
namely, Raju (acquitted by the trial court),
Ram Kishore (acquitted by the trial court)
and
Sarjeet
(found
juvenile)
were
successful in escaping from the spot. The
arrested accused led the team to the spot
where Salman was detained. The spot was
in the shape of a ditch, about 10 feet deep,
and was covered with leaves etc. When
leaves etc were removed, Salman son of
Chheda Khan was found tied in a chain. In
connection with this entire operation six
memorandums
were
prepared
on
21.12.2014 namely, Ex. Ka-7 to Ex. Ka-12.
These memorandums reflected seizure of
various articles from the spot such as chain,
mattress, notes, etc including (a) country
made pistols/ cartridge from Prem Pal
(appellant no.1), Jitendra and Omveer
(appellant no.3); (b) Samsung mobile,
alleged to be of Salman, from Jitendra; and
(c) a ransom letter, making a demand of
Rs.10,00,000/- for release of Salman and
Kunwarpal, from Omveer (appellant no.3).

4. On the basis of the aforesaid police
action and recoveries, on 21.12.2014, at
19.30 pm, four separate cases were
registered at P.S. Kayamganj, namely, Case
Crime No.562 of 2014 under Section 307
IPC; Case Crime No.563 of 2014 under
Section 25/27 of the Arms Act; Case Crime
No.564 of 2014 under Section 25/27 of the
Arms Act; and Case Crime No.565 of 2014
under Section 25/27 of the Arms Act. GD
entry with regard to the registration of Case
Crime Nos.562 of 2014 to 565 of 2014 was
made by constable Prakash Narayan
Pushkar (PW-5), vide report No.34, at
19.30 hours (Ex. Ka-5) of which Chik FIR
was also prepared by him (Ex. Ka-4).

5. At this stage, it be clarified that
though, as per the chik FIR (Ex. Ka-4),
Case Crime Nos.562 of 2014 to 565 of
2014 were registered against seven persons
in
total,
namely,
Prempal,
Jitendra,
Omveer, Ram Kishore, Raju, Sarjeet and
Kunwarpal but since co-accused Jitendra,
Sarjeet and Kunwarpal were found juvenile
their cases were separated.

6.

After
investigation,
the
investigating
officer
submitted
charge
sheets in the following manner:-

(i) In respect of Case Crime
No.553 of 2014, the investigating officer
submitted two charge sheets: (a) charge sheet
dated 22.01.2015 (Ex. Ka-17) against Sipahi
Lal (appellant no.2), Prempal (appellant
no.1), Omveer (appellant no.3), Ramu, Ram
Kishore, Malti, Jitendra, Kunwarpal and
Sarjeet;
and
(b)
charge
sheet
dated
30.05.2015
(Ex.
Ka-18)
against
Smt.
Santoshi. Both charge sheets were submitted
under Section 364-A/368/120-B IPC

Note:- In Case Crime No.553 of
2014, on the basis of said two charge sheets,
Special Sessions Trial No.37 of 2015 was
instituted in which only Sipahi Lal (appellant
no.2); Prempal (appellant no.1); and Omveer
(appellant
no.3)
have
been
convicted
whereas, Ramu @ Raju, Ram Kishore, Smt.
Malti and Smt. Santoshi were acquitted. In so
far as the accused Jitendra, Kunwarpal and
Sarjeet are concerned, they being juvenile,
the inquiry against them was separated.

(ii) In respect of Case Crime
No.562 of 2014 charge sheet dated
1592 INDIAN LAW REPORTS ALLAHABAD SERIES
22.01.2015 (Ex. Ka-21) was submitted
against Prempal (appellant no.1), Ram
Kishore, Ramu alias Raju and Omveer
(appellant no.3) giving rise to S.T. No.135
of 2015, under Sections 147, 148,149, 307
IPC.

Note:-
Kunwarpal,
Jitendra
and
Sarjeet, who were also implicated in this
case, upon being found juvenile were
deleted from the charge sheet and their
matter was referred to the Juvenile Justice
Board for enquiry. It be noted that in this
case all the accused persons have been
acquitted by the trial court. And there is no
appeal against the order of acquittal.

(iii) In respect of Case Crime
No.563 of 2014, charge sheet dated
22.01.2015 (Ex. Ka-24) was submitted
against Prempal (appellant no.1), under
Section 25/27 of the Arms Act, giving rise
to S.T. No.136 of 2015.

Note:- In this case Prempal
(appellant no.1) has been convicted under
Section 25 of the Arms Act.

(iv) In respect of Case Crime
No.565 of 2014, charge sheet dated
22.11.2015 (Ex. Ka-27) was submitted
against Omveer (appellant no.3), under
Section 25/27 of the Arms Act, giving rise
to S.T. No.137 of 2015.

Note:- In this case Omveer
(appellant no.3) has been convicted under
Section 25 of the Act by the order of the
trial court.

7. On the basis of the material placed
in the police reports/ charge sheets, the trial
court famed charges accordingly. On denial
of the charges and claim for trial by the
accused, trial commenced. By order of the
trial court dated 15.12.2015, the aforesaid
four sessions trial were consolidated. S.T.
No.37 of 2015 was made the leading
sessions trial in which the evidence was
laid by the prosecution.

PROSECUTION EVIDENCE

8. The prosecution in support of its
case apart from the documentary evidence
which we shall refer to at the appropriate
stage, examined 10 witnesses. Their
testimony, in brief, is as follows:-

9. PW-1- Chheda Khan - the
informant of Case Crime No.553 of 2014
- father of abductee Salman. PW-1 stated
that he and his son Salman worked as
labourers to earn their livelihood; that
accused Kunwarpal and Prempal are real
brothers, they used to visit PW-1's village
in
connection
with
transportation
of
sand/mud on their tractor trolley. In respect
of the incident, PW-1 stated that it was
winter night; Prempal and Kunwarpal
contacted his son (Salman) and told him
that sand has to be unloaded at a particular
place;
that
in
connection
therewith,
Prempal and Kunwarpal came and took his
son to unload sand at village Amaliya
Mukeri. His son (Salman) did not return
that night. Despite hectic search, when his
son could not be found, PW-1 gave a
missing report (Ex. Ka-1). Fifth day
thereafter, Prempal contacted PW-1 to
inform PW-1 that his son has been
abducted and if Rs.10,00,000/- is paid, his
son would be released. On getting this
information, PW-1 told Prempal that he
does not have the money. After stating as
above, PW-1 reverted to the date when his
son did not return that night. He stated that
when his son did not return that night, he
visited village Amaliya Mukeri. There, he
noticed the tractor trolley, which was
9 All. Prempal & Ors. Vs. State of U.P.
1593
owned by Kunwarpal, standing in the field
of Raghunandan; that day, he searched for
his son at village Amaliya Mukeri and also
visited the house of Janmejay Singh Master
from where he learnt that Salman after
unloading the sand/mud had left at about 2
am in the night. PW-1 stated that thereafter,
he went to Pradhan Narendra Singh who
confirmed
the
information
given
by
Janmejay. There, he also met Prempal
(appellant no.1), brother of Kunwarpal,
who joined PW-1 in his search for the two
missing persons. Only when PW-1 failed in
his
endeavour,
written
report
was
submitted.

In respect of the police action
leading to recovery of the abductee, PW-1
stated that 9 days after the incident, while
he was with co-villager Rajesh (not
examined), he met the police at village
Papri industrial area. He informed the
police that for release of his son and
Kunwarpal a demand of Rs.10,00,000/-
each has been raised. On that information,
the police team prepared two wads of
notes. Each wad had 98 plain cut papers
and two notes of Rs. 1000/- denomination,
one on the top and the other at the bottom
of the wad. The police personnel thereafter
parked their vehicles to lie in ambush.
After some time, Sipahi Lal came from
Mangaliyapur to collect the ransom money.
The police arrested him. On his arrest, he
told the police that since PW-1 had sold his
land for Rs.22,00,000/-, to extract the
money, Salman was abducted. Sipahi Lal
told the police team that he can get Salman
recovered. PW-1 stated that the police team
took Sipahi Lal with them in the vehicle
along with the cash. Sipahi Lal led the team
to the spot and pointed towards the field of
Prempal. The police surrounded the place.
There was exchange of gunshots. Six
persons
were
arrested.
Immediately
thereafter, he clarified that only four
persons were arrested. Rest three had
escaped from the spot. The persons arrested
were Prempal, Jitendra, Omveer and
Kunwarpal. PW-1 stated that he knew all
four of them from before. Those arrested
informed that three persons who escaped
were Raju, Ram Kishore and Sarjeet. PW-1
stated that from the arrested accused,
country made pistol, etc was recovered and
from the pocket of the trouser worn by
Omveer, a parcha (i.e. ransom letter) was
recovered in which the ransom demand of
Rs.10,00,000/- for release of Salman and
Kunwarpal was mentioned. At this stage,
PW-1 was shown the memorandum/papers
prepared by the police. He identified his
signatures thereon and stated that they were
all prepared at the spot. PW-1 stated that he
had got information to hand over the
ransom money at a nursery between village
Papri and village Bhagaliyapur and it was
at that place where the police had arrested
Sipahi Lal. At this stage, the witness was
also shown the recovery memo of the
ransom letter, the recovery memo of the
mobile phone, recovery memo of the wads
of notes and recovery memo of clothes etc.
The witness identified his signatures
present on those recovery memos and
stated that they were prepared at the spot.
The witness also stated that his son Salman
was recovered from a ditch at the spot. The
wads of notes that were sealed at the time
of recovery were opened before the court.
There were two wads of notes each having
98 plain papers with one currency note of
rupee 1,000/- at the top and the other of the
same denomination at the bottom. The
genuine currency notes were marked
material Ex.-1 to material Ex.4 and the
plain paper placed in those wads of notes
were marked as material Ex. 5 to 200.
Another sealed bundle containing a black
colour samsung mobile was opened which
1594 INDIAN LAW REPORTS ALLAHABAD SERIES
was identified as that of Salman. The same
was made material Ex.-201. A third bundle
was opened which contained a ransom
letter which was marked material Ex.202.
Material Ex.-202 read as follows:-

^*lyeku dks vxj NqM+kuk pkgrs gS rks
nl yk[k :i;s ysdj iiMh ds [kqnZ ds ikl
ysdj vk tkuk dqWojiky ds ?kj okyks dks Hkh crk
nsuk nl yk[k :i;s ysdj vk tk;s ugha rks nksuks
dks ekj fn;k tk;sxkA iqfyl dks Hkh crkvksxs rks
Hkh ekj fn;s tk;saxsA :i;s vkt 12 o 1 cts ds
chp igqWpkus gSA 21-12-2014 dks igWqpkus gSA
rqEgkjk 'kqHk fpUrd^*

The envelops containing the wads
of note were also exhibited and were
marked material Ex.203 to 205. Another
sealed bag (potli) was opened which
contained Tirpal (canopy), tiffin box,
bottle,
rope,
chain
etc
including
Angauchha, Tala, quilt and mattress. Those
were made material exhibits 206 to 222.

PW-1 stated that Salman was
tied with a chain which was locked and
was blind folded with cotton plugged in
his ears.

During cross examination, PW1 stated that neither he nor his son Salman
owns a tractor; they do not mine sand or
have Theka relating thereto. On the date of
the incident, Kunwarpal had come to his
house to take Salman. He took Salman
from the house at 1 am. Salman used to
work as a labourer. In respect of his
financial condition, PW-1 stated that he
did not sell any property; he does not
own a bank account; he just has two
thousand rupees.

In respect of the time of the
operation leading to recovery of Salman,
PW-1 stated as follows:-

^*ftl fnu esjk yM+dk cjken gqvk
ml fnu iqfyl jkf= esa vkB cts ges feyh FkhA
ml jkf= vkB cts eSa yM+ds dks ryk'k esa tk jgk
FkkA ml vkB cts rd ges ;g ugha ekyqe Fkk fd
esjk yM+dk dgk gSA ftl le; jkf= esa iqfyl
vkB cts ges feyh Fkh ml le; esjs lkFk jkts'k
FkkA ml fnu rkjh[k chl FkhA yM+ds ds xk;c
gksus dh fjiksVZ eSus ckjg rkjh[k dks dh FkhA^*

As to when PW-1 was interrogated
by the I.O, PW-1 stated as follows:-

^*ckjg rkjh[k dks njksxk th us gels
Fkkus esa iwWNrkWN dh FkhA esjk njksxk th us C;ku
pkSng] iUnzg] lksyg] l=g o vB~Bkjg rkjh[k dks
C;ku fy;s FksA

In respect of ransom demand,
PW-1 stated as follows:-

^*ges rhu ckj fQjkSrh dh fpV~Bh
izseiky us nh FkhA ,d fpV~Bh iUnzg rkjh[k dks
'kke dks nh Fkh nwljh fpV~Bh l=g dh lqcg dks
rhljh fpV~Bh mUuhl dks 'kke dks nh FkhA
fpV~Bh;ksa esa fy[kk Fkk ^*lyeku o dqWojiky nksuks
dks ?kj okys dkyh unh lfdlk ds ikl cnek'k
'kke dks lkr cts ikWp&ikWp yk[k :i;s djysA
ugha nksxs rks tku ls ekj fn;s tk;saxsA^* izseiky
ds lkFk ryk'kus vius iq= dks lfdlk dkyh unh
ij fd;k x;k FkkA rkjh[k ges ;kn ugha og
fpV~Bh;kW geus izseiky dks okil dj nh FkhA

After stating as above, PW-1
stated as follows:-

^*eSus njksxk th dks izseiky ds }kjk
fpV~Bh nsus okyh ckr crk;h FkhA izseiky ds ikl
ls gh rhuks fpV~Bh;kW cjken gq;h FkhA ftl fnu
idM+k Fkk mlh fnu iqfyl us fpfV~B;kW yh FkhA
izseiky dks fnukad mUuhl dh 'kke dks idM+k
FkkA mlh ls fpfV~B;kW o eksckby cjken gq;s FksA

Thereafter,
in
respect
of
recovery of his son, PW-1 stated as
follows:-
9 All. Prempal & Ors. Vs. State of U.P.
1595

^*esjk cPpk chl rkjh[k dks lqcg ikWp
cts feyk FkkA tc esjk cPpk feyk Fkk rc jktw
ekStwn FkkA jktw o eSa cPps dks [kkstus ds fy;s x;s
FksA jktw esjs lkFk FkkA jktw ls iqfyl us iwWNrkWN
dh Fkh rFkk C;ku fy;s FksA

At this stage, the witness was
given a suggestion that his son was never
abducted and the entire prosecution story
has been developed in collusion with the
police.
The
witness
denied
those
suggestions.

To extract the reason for false
implication, when cross examined, PW-1
stated that in his village, Asharam was once
elected as Pradhan. At the time of the
incident, Asharam's nephew was the
Pradhan. He was very influential and had
links with politicians and officers. The
police personnel often visited his house. On
further probe, PW-1 feigned ignorance as
to whether Asharam supported Ajeet
Kateriya in the last assembly election. He
also feigned ignorance as to whether
Asharam was a supporter of Samajwadi
party. PW-1, however, admitted that
Asharam and his son Rajesh Gangwar were
very helpful and Rajesh Gangwar is also a
witness in this case.

In respect of the conduct of PW-1
when his son went missing, PW-1 stated that
he went to search for his son in the morning
at 5 am and during search, when he reached
Bhaisa Tiraha, he noticed that the tractor was
parked in the sugarcane field of Raghunandan
Gangwar. He stated that the police had
arrived at the spot, near the tractor, at 8 am
and they took away the tractor to the police
station. The relevant extract of his statement
in this regard is as follows:-

^*frjkgs ls VaSDVj iqfyl Fkkus ys x;s Fks
gedks Hkh iqfyl Fkkus ys x;s FksA iqfyl VaSDVj ds
ikl lqcg vkB cts vk x;h FkhA iqfyl okys ikWp
FksA iqfyl okys ljdkjh thi ls vk;s FksA iqfyl
dks lwpuk pkSdhnkj us nh FkhA pkSdhnkjh xkWo esa
ppkZ gksus ds ckn ekSds ij igqWpk x;k ge jksus
/kksus yxs blh nkSjku mlus iqfyl dks Qksu dj
fn;kA VaSDVj Fkkus esa izseiky pykdj ys x;k FkkA
Fkkus djhc 12 cts igWqp x;s FksA vkB cts ls 12
cts rd iqfyl ekSds ij jgh rFkk b/kj m/kj xUus
ds [ksr o ljlks ds [ksr ryk'k djrh jghA^*

At this stage, the witness again
reiterated that his son was recovered on
date 20.12.2014. He stated that at the time
of the recovery from the spot a canopy
(Tirpal) was recovered. When questioned
about the colour and dimensions of the
Tirpal recovered, PW-1 stated as follows:-

^*frjiky fdl jax dk Fkk ges ugha
ekyqeA frjiky fdruk yEck vkSj fdruk pkSM+k
Fkk gesa ugha ekyqeA fVfQu Hkh cjken gqvk Fkk
fVfQu LVhy dk FkkA fVfQu rhu fMCcs okyk Fkk
fd pkj fMCcs okyk Fkk ges ugha ekyqe [kqn dgk
fd fVfQu ij uke fy[kk Fkk vkSj mlds lkFk
xn~nk o [kknh 2 yaxksV ,d vaxksNk ,d cksry
ikuh dh rFkk vkSj gfFk;kj ckjg cksj 315 cksj dk
dV~Vk ok ns'kh cUnwd rFkk esjk yM+dk cjken gq;s
FksA^*

^*vaxksNk dk jax gedks ekyqe ugha gSA
lwrh diM+s okyk VsjhdkV dk Fkk ekyqe ughaA
cksry IykfLVd dh Fkh jax ;kn ugha cksry ,d
yhVj dh FkhA xn~ns ds jax dk /;ku ugha xn~ns
ij doj p<+k Fkk ges /;ku ugha gSA jtkbZ fdl
jax dh Fkh /;ku ugha jtkbZ dk doj p<+k gqvk
Fkk o fdl jax dk Fkk /;ku ughaA^*

In respect of the place where the
memorandums of recovery were prepared,
PW-1
stated
that
the
recovery
memorandums were prepared at the spot
and not at the police station and it took
about 4 hours in its preparation. On further
questioning as to how much time was spent
in preparation of the papers, the witness
stated that he does not exactly remember
1596 INDIAN LAW REPORTS ALLAHABAD SERIES
the time but when they had left the spot, the
night had set in. He further stated that at
that time, with him, Rajesh Gangwar was
there. They arrived at their house by about
11 am. When questioned as to how many
persons were there when the recovery was
made and the place where the wads of
notes were arranged, PW-1 stated as
follows:-

^*ftl fnu esjs yM+ds dks Fkkus ij
cjkenxh gq;h ml fnu xkWo ds chl ckbl yksx
x;s FksA uksVks dh xM~Mh eSus vius ?kj ij rS;kj
dh Fkh jkts'k Hkh lkFk x;s FksA uksVks dh xfM~M;kW
rS;kj djus dh lykg jkts'k us nh FkhA uksVks dh
nks xM~Mh cuk;h FkhA xM~Mh ysdj ?kj ls 'kke dks
lkr cts pys FksA eksVj lkbZfdy ,d gh Fkh mlh
ij ge o jkts'k FksA eksVj lkbZfdy jkts'k dh
FkhA uksVksa dh xfM~M;kW ysdj ge yksx iiMh o
exfy;kiqj ds chp ckx esa igaqWps FksA^*

After narrating as above, on being
questioned as to how the trap was laid to
recover the victim, PW-1 stated as
follows:-

^*ckx esa jkf= ds ukS cts igaqp x;s FksA
ml le; vW/ksjh jkr FkhA ?kj ls VkpZ ysdj ugha
x;s Fks eksckby Qksu FksA eksckby esjs o jkts'k ds
ikl FkkA eksckby ls geus iqfyl dks Qksu djds
cqyk;k FkkA iqfyl ds vkus ds ckn geus iqfyl
okyksa dks uksVksa dh xfM~M;kW fn[kk;h FkhA iqfyl
okys djhc vkB yksx FksA

During cross examination, on
20.01.2016, to a question whether Prempal
was there when PW-1's son was taken from
home, PW-1 stated that Prempal had
arrived in the night but was not driving the
tractor. He was lying in the tractor. When
his son left that night, before leaving he had
informed PW-1 that Kunwarpal is waiting
outside and is calling him. His son told
PW-1 that he is going to Amaliya Mukeri
and would return in half an hour. PW-1
stated that he waited till 5 am in the
morning and then when his son did not
return, he went to search for him.

In respect of how the police was
called on the date of the recovery, PW-1
stated that he had called the police on
phone and they arrived within 20 minutes.

In respect of the spot where the
ransom money had to be paid, PW-1 stated
that it was a nursery kind of Bagh (grove)
measuring four bigha which had no access
to a chakroad.

In respect of the time when the
accused arrived for taking the ransom
money, PW-1 stated as follows:-

^*ml ckx esa fQjkSrh dh jde ysus ds fy;s
cnek'k djhc 10 cts vk;s FksA cnek'k nks Fks ;k
rhu Fks vW/ksjs dh otg ls ge ugha ns[k ik;s FksA^*

In respect of light condition at
the time of operation, PW-1 stated as
follows:-

^*ml le; dkQh vW/ksjk Fkk ,d nwljs
ds psgjs fn[kk;h ugha nsrs FksA okguksa ds ikl
iqfyl okys fy[kk i<+h djrs jgs vkSj eq>s vius
?kj yM+dk cjken gksus dh [kcj nsus ds fy;s Hkst
fn;k FkkA eSa tc xkWo igWqpk Fkk rc mtkyk gks
x;k FkkA^*

After stating as above, PW-1
stated that the I.O. had called him on
telephone to come to the police station with
10-20 villagers and at the police station he
recognized the accused and his signatures
were also obtained on the papers. The
statement to that effect is extracted below:-

^*Fkkus ls njksxk th us Qksu fd;k Fkk
fd xkWo ds nl chl yksx vk tkvksA eSa Fkkus nks
9 All. Prempal & Ors. Vs. State of U.P.
1597
cts nl chl yksxksa dks ysdj igaqp x;k FkkA Fkkus
esa igaqpus ij fnu ds mtkys esa eSaus ogkW ekStwn
lHkh cnek'kksa ds psgjs ns[ks rFkk mUgsa igpkuk Fkk
vkSj ogha ij Fkkus esa gh esjs gLrk{kj djok;s x;s
FksA xokg us QnZ cjkenxh fpV~Bh cjkenxh uksVksa
dh xM~Mh cjken ,d vaxkSNk o nqiV~Vk vkfn o
cjkenxh vi~g`r cjkenxh eksckby lSelu dh
QnksZ dks ns[kdj dgk fd ;g gh izi= gS ftu ij
iqfyl Fkkus esa esjs gLrk{kj djok;s x;s Fks rFkk
jkts'k dqekj dks Hkh gLrk{kj djok;s x;s FksA^*

At this stage, to show that there
were political reasons for the implication of
accused persons, questions were put to PW1, upon which, PW-1 stated as follows:-

^*eqfYteku yks/kh tkfr ds gSaA ;gkW ds
Hkktik lkaln eqds'k jktiwr Hkh yks/kh tkfr ds gSaA
;g lHkh eqfYteku Hkkjrh; turk ikVhZ ds
leFkZd gSaA

At this stage, PW-1 denied the
suggestions: that at Kayamganj one Kallu
Yadav, who is a member of Samajwati
party, has large scale mining operation and
since the accused were also in the same
business therefore, they have been falsely
implicated by wielding influence; and that
there was no abduction or recovery.

10. PW-2- Salman- abductee/victim.
PW-2 stated that the incident is of
12.12.2014;
to
unload
sand,
Prempal
(appellant no.1) had called PW-2; to fetch
him from his house, Prempal sent his brother
Kunwarpal; whereafter, he went on the
tractor of Kunwarpal to village Amaliya
Mukeri to drop sand at the house of Janmejay
Master; after unloading the sand, on the way
return, near the Tiraha, Kunwarpal stopped
the tractor; there, one person arrived; that
person hit him with a butt; upon which, PW-2
scuffled with him; then, 6-7 armed men came
and pulled him down from the tractor;
thereafter, PW-2 was tied with a chain and
taken to the sugarcane field of Prempal; PW2 was kept there and used to be assaulted and
threatened by saying that if he raises his
voice, he will be killed. PW-2 stated that he
was detained by Prempal, Kunwarpal, Ram
Kishore, Ramu alias Raju, Sipahi Lal,
Omveer, Jitendra and Sarjeet. PW-2 used to
be fed by Prempal's mother and wife, namely,
Malti and Santoshi, respectively. PW-2 stated
that he was abducted for ransom. In his
presence, Prempal wrote the letter demanding
ransom. He stated that he remained in the
custody of the accused for about 9 days.
Thereafter,
police
arrived.
There
was
exchange of fire between police and the
accused. Police arrested Omveer, Prempal,
Kunwarpal, Jitendra, Sipahi Lal and Raju at
the spot. He identified the accused in the
court and stated that the I.O. prepared the
papers in his presence. He also stated that at
that time his father Chheda Khan and village
Pradhan's son Rajesh were there. After stating
as above, PW-2 stated that the accused
Jitendra had snatched his mobile phone and
the same was seized at the time when he was
recovered. The mobile was unsealed from a
bundle. The witness identified the mobile and
the same was marked as material exhibit.

During cross examination, PW-2
stated that he is a poor person and is a student
of B.Sc final year, which he is doing from a
private college. In respect of going to the
institution for his course, PW-2 stated that he
leaves for his college by noon and returns by
5 pm. But he was not regularly going to the
college. When questioned as to when he last
went to the college, PW-2 stated that he does
not remember. When questioned about his
roll number, PW-2 stated that he does not
remember. Thereafter, PW-2 stated that he
has passed B.Sc final.

In respect of financial status, PW2 stated that his father has four bigha land;
1598 INDIAN LAW REPORTS ALLAHABAD SERIES
his elder brother is in service and an
engineer, who stays separate. His mother is
receiving old age pension. At this stage, the
witness stated that he does not work as a
labourer but goes outside to work. Then, he
clarified that he was not working outside
since before the incident. PW-2 stated that
he does not have any mining Theka.

In respect of the incident in which
he was abducted, PW-2 stated that the night
was dark. There was mist/fog. He did not
have a torch. As soon as the tractor had
stopped, miscreants had arrived and one of
them had hit him on the head with butt.
After he fell, he was blind folded. His blind
fold was opened only when his father
arrived. The relevant extract of his
statement to that effect is extracted below:-

^*?kVuk okyh jkr vW/ksjh Fkh dksgjk fxj
jgk FkkA dksgjs esa vkneh dks pkj ikWp fQV dh
nwj ls igpkuk tk ldrk FkkA esjs ikl VkpZ ugha
FkhA VaSDVj :dus ds rqjUr ckn cnek'k vk x;s
FksA cnek'kksa us esjs flj esa cV ekjdj fxjk fn;k
FkkA fxjkus ds ckn gekjh vkW[kksa esa iV~Vh ckW/k nh
FkhA iV~Vh esjh vkW[k dh rc [kqyh tc esjs ikik
vk x;sA iV~Vh ckW/kdj cnek'k eq>s ?klhVrs gq;s
ys x;s Fks ckn esa eksVj lkbZfdy ls ys x;s FksA
cnek'k dkSu ekSVj lkbZfdy pyk jgk Fkk D;ksa fd
esjh vkW[k ij iV~Vh cW/kh gq;h FkhA dkuksa esa :bZ
ugha yxk;h Fkh vkW[k o dku ij iV~Vh ckW/kh FkhA
iV~Vh yky o lQsn jax dh FkhA ;g iV~Vh
flikgh yky us ckW/kh FkhA^*

After stating as above, the witness
stated that he did not know Raju from before
and only when Raju was arrested by the
police, he came to know that he was Raju. He
stated that the police got him examined for
the injuries on his body.

In respect of the date and time
when he received injuries, PW-2 stated as
follows:-

^*eq>s esjs ikik feyus ls igys cnek'kksa
us eq>s pkj fnu igys ekjk ihVk FkkA^*

In respect of the place and time
when the memorandums were prepared,
PW-2 stated as follows:-

^*fy[kk i<+h izseiky ds [ksr esa gq;h
FkhA ;g fy[kk i<+h lqcg 8&9 cts ds djhc gq;h
FkhA^*

During cross examination at the
instance of accused Malti Devi and
Santoshi Devi, who have been acquitted by
the trial court, PW-2 stated as follows:-

^*eq>s iV~Vh ckW/kdj jD[kk x;k Fkk fdlh ls
feyus tqyus ckrphr djus ugha fn;k tkrk FkkA
iV~Vh cW/kh gksus ds dkj.k ugha ns[k ikrk Fkk dkSu
vkrk gS dkSu tkrk gSA^*

On 22.01.2016 when PW-2 was
further cross examined in respect of the
time taken by him to unload sand at
Janmejay's place in the night when he was
abducted, PW-2 stated as follows:-

^*veyS;k eqdsjh eas ckyw tuosn xaxokj
ds ?kj esa ckyw Mkyh FkhA igys tkus esa nl feuV
dk le; yxk FkkA ckyw iyVus esa rhu feuV dk
le; yxk FkkA izslj okyh Vakyh Fkh vkSj vkVks
eSfVd flLVe ls og Vkyh myV tkrh gSA Vkyh
ls ckyw mrkjus esa fdlh etnwj dh t:jr ugha
iM+rh gSA eSus ckyw ugha mrkjh Fkh ckyw vkVks
eSfVd flLVe ls Lo;a gh uhps fxjk nh x;h FkhA^*

After
stating
as
above,
the
witness stated that Kunwarpal used to pay
him rupee 100 per trolley and this deal with
him continued for last one year. The
relevant statement in this regard is
extracted below:-

^*dqWojiky ,d nks Vakyh ij ges 100
:i;s izfr Vakyh dh nj ls iSlk nsrk FkkA gekjk
9 All. Prempal & Ors. Vs. State of U.P.
1599
blds lkFk ckyw ij deh'ku dk dk;Z pyrk FkkA
yxHkx ,d o"kZ ls deh'ku dk dk;Z mlds lkFk
py jgk FkkA {ks= o vkl ikl ds yksxks dks ckyw
dh vko';drk gksrh Fkh rc ge budks Qksu djds
ckyw eWxok nsrs FksA tc gels dksbZ ckyw eaxokus
ds fy;s crkrk Fkk rHkh ge muls Qksu ls ckyw
ykus ds fy;s dgrs FksA igys ckyw eSa vius ;gkW
ij eWxokrk Fkk fQj tgkW ckyw igWqpkuh gksrh Fkh
ogkW ij ge VaSDVj ds lkFk tkdj ds ckyw igWqpkrs
FksA ckyw fdlds ;gkW igWqpkuh gSA fdlls iSlk
ysus gSA lkjh ftEesnkjh esjh gksrh FkhA eSa Qksu ls
izseiky dqWojiky dks dsoy ;g crk;k Fkk fd ,d
Vakyh o nks Vakyh ckyw esjs ;gkW igWqpk nks vkSj ckyw
dgkW igWqpkuh gS mldh tkudkjh eq>s jgrh Fkh
vkSj vius ;gkW ckyw vkus ij tgkW ckyw igWqpkuh
gksrh Fkh ge ckyw dks igWqpok nsrs FksA ?kVuk okys
fnu gels Qksu ls vius ?kj ckyw eWxok;h Fkh vkSj
tc ;g ckyw ysdj vk x;s rc eSus izseiky ls
dgk fd ckyw veyS;k eqdsjh tuest; ekLVj ds
;gkW ys pyksA ml fnu og vdsyk FkkA^*

When questioned in respect of
political reasons for the implication of
accused, and about his relationship with
Agya Ram, Rajesh and Kallu Yadav, PW-2
stated as follows:-

^*eS vius xkWo ds vkKkjke iz/kku dks
tkurs gS vkSj muds yM+ds jkts'k xaxokj dks Hkh
tkurs gSA vkKkjke igys iz/kku jg pqds gSA
?kVuk ds le; mudk Hkrhtk iz/kku FkkA vkKkjke
iz/kku ds ;gkW vDlj iqfyl okys o vU; vf/kdkjh
deZpkjh vkrs jgrs gSA ckgj ds usrk vkrs gS og
buds ;gkW vkrs tkrs jgrs gSA dYyw ;kno
lektoknh ikVhZ ds usrk dks ge tkurs ugha gSA
mudk uke geus lquk gSA gesa ugha ekyqe fd
vkKkjke iz/kku o muds Hkrhtksa dk dYyw ;kno
ds ;gkW vkuk tkuk gSA ges ;g ugha ekyqe fd
mudk dk;e xat esa reke dkjksckj gS vkSj muds
ikl reke VaSDVj o ts0lh0ch0 eh'ku gSA gesa ;g
Hkh ugha irk fd og ckyw feV~Vh dk dk;Z djrs
gSA ges ;g irk gS fd jkts'oj ;kno Q:Z[kkckn
ls yksdlHkk dk pquko yM+s Fks ijUrq ges ;g ugha
ekyqe fd dYyw ;kno o jkts'oj ,d nwljs ds
fj'rsnkj gSA jkts'oj orZeku esa fo/kk;d vyhxat
{ks= ls gSa Hkkjrh; turk ikVhZ ls yksdlHkk dk
pquko eqds'k jktiwr yM+s FksA ges ;g ugha ekyqe
fd eqds'k jktiwr yks/kh tkfr ds gSA ;g ekyqe gS
fd eqds'k jktiwr Hkh fdlku gS vkSj vfHk;qDrx.k
Hkh fdlku tkfr ds gSA ges ;g ugha ekyqe fd
eqfYteku Hkkjrh; turk ikVhZ ds leFkZd gSA gesa
ugha ekyqe fd eqfYteku o dYyw ;kno ckyw dk
/kU/kk djrs gksA ges ugha ekyqe fd eqfYteku
dYyw ;kno ds ckyw ds /kU/ks esa ck/kk igaqpkrs gksA
bl fy;s dYyw ;kno buls jaft'k ekurs gksA
vkKkjke o muds yM+ds jkts'k us gekjh bl
eqdnesa esa cgqr lgk;rk dh gS vkSj cjkcj lkFk
jgs gSA^*

In respect of the place where PW2 was detained, PW-2 stated as follows:-