# Rakesh (In Jail) v. State of U.P

- **Citation:** (2022) 9 ILRA 1147
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-07
- **Case number:** Criminal Appeal No. 8168 of 2008
- **Bench:** Manoj Misra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-in-jail-v-state-of-u-p-48969
- **Pages:** 16

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 313 & 437(a) -
Indian Penal Code, 1860 - Section - 326,
364-A - Arms Act, 1959 - Section 25 -
Appeal against conviction and Sentence -
offence of abduction of three person i.e. PW2 &
PW3 and one minor child - unnamed FIR -
Appreciation of evidence - abductees were
abducted by one Balram Khangar and two
members of his gang to whom he used to call
by name of 'Raka' & 'Saka' - Eye-witnesses PW2
& PW3 were not examined during trial -
complete guess work on the part of police by
putting the name of appellant Rakesh for 'Raka'
& Sattideen for 'Saka' - there is no material on
record to showed how the police submitted
charge sheet against Rakes (Appellant) when
even his parentage & place of residence were
not disclosed in any testimonies - further, police
has not adopted neither test of identification
pared nor dock identification for appellant as
they have carried out in case of co-accused - no
any recovery of cash - no any recovery of
weapon used in crime - charges were framed
against the appellant much before taking
St.ments of eyewitnesses - prosecution appears
to be hiding some relevant facts - all these
things
creates
a
serious
doubt
on
the
prosecution story - held - 'benefit of doubt'
would goes in favour of accused appellant -
impugned order of conviction is set aside -
appellant shall be release forthwith subject to
compliance of section 437-A of Cr.P.C.(Para 29,
30, 31)

Criminal Appeal is allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,877 of 57,445. This is a partial read: ask again with offset=39877 for what follows._

9 All. Rakesh Vs. State of U.P.
1147
----------
(2022) 9 ILRA 1147
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.09.2022

BEFORE

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

Criminal Appeal No. 8168 of 2008

Rakesh ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri D.S. Parmar, Sri Asharfi Lal, Sri Ashok
Pandey, Sri Brijesh Sahai, Sri Gopal Singh,
Sri Sushil Kumar Dwivedi, Smt. Usha
Srivastava, Sri Lal Chandra Misra

Counsel for the Opposite Party:
Govt. Advocate

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 313 & 437(a) -
Indian Penal Code, 1860 - Section - 326,
364-A - Arms Act, 1959 - Section 25 -
Appeal against conviction and Sentence -
offence of abduction of three person i.e. PW2 &
PW3 and one minor child - unnamed FIR -
Appreciation of evidence - abductees were
abducted by one Balram Khangar and two
members of his gang to whom he used to call
by name of 'Raka' & 'Saka' - Eye-witnesses PW2
& PW3 were not examined during trial -
complete guess work on the part of police by
putting the name of appellant Rakesh for 'Raka'
& Sattideen for 'Saka' - there is no material on
record to showed how the police submitted
charge sheet against Rakes (Appellant) when
even his parentage & place of residence were
not disclosed in any testimonies - further, police
has not adopted neither test of identification
pared nor dock identification for appellant as
they have carried out in case of co-accused - no
any recovery of cash - no any recovery of
weapon used in crime - charges were framed
against the appellant much before taking
St.ments of eyewitnesses - prosecution appears
to be hiding some relevant facts - all these
things
creates
a
serious
doubt
on
the
prosecution story - held - 'benefit of doubt'
would goes in favour of accused appellant -
impugned order of conviction is set aside -
appellant shall be release forthwith subject to
compliance of section 437-A of Cr.P.C.(Para 29,
30, 31)

Criminal Appeal is allowed. (E-11)

List of Cases cited:

1. Mulla& anr. Vs St. of U.P., (2010) 3 SCC 508,

2. Brij Mohan Vs St. of Raj., (!994) 1 SCC 413,

3. Mohd. Abdul Hafeez Vs St. Of Andhra
Pradesh, 1983 (1) SCC 143.

(Delivered by Hon'ble Manoj Misra, J.)

1. This appeal is against the judgment
and order dated 19.11.2008 passed by the
Special Judge (Dacoity Affected Area),
Hamirpur in Special Sessions Trial No. 70
of 1997 connected with Special Sessions
Trial No. 29 of 1998, arising out case crime
no.64 of 1997, P.S. Kurara, district
Hamirpur, convicting and sentencing the
appellant-Rakesh under Section 364-A IPC
to imprisonment for life coupled with fine
of Rs. 5,000/- and a default sentence of
three months additional R.I. It be noted that
the appellant was also tried for offence
punishable under Section 326 I.P.C. but he
was acquitted thereunder.

INTRODUCTORY FACTS

2. Dev Singh (PW-1) submitted a
written
report
(Exb.
Ka-1),
dated
27.03.1997, scribed by Rihal Singh (not
examined), at PS Kurara, district Hamirpur,
on 27.03.1997, at 11 am, against unknown
persons, giving rise to case crime No. 64 of
1997, under Section 364-A I.P.C. The GD
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
entry of that report was made vide report
no. 16 (Exb. Ka-4) and a Chik FIR (Exb.
Ka-3) was also prepared. According to the
FIR, in the evening of 26.03.1997 while
informant's son Virendra Singh (PW-3) and
informant's younger brother Guman Singh
(PW-2) were returning from their field on
their tractor, near Jalla canal culvert, the
tractor developed a snag, as a result, PW-3,
left PW-2 near the tractor, came to his
house for help; thereafter, PW-3 and his
uncle (Tau-Man Singh) (not examined)
took another tractor, at about 10 pm, to
tow-chain the other tractor. It is alleged that
when they did not return, the informant
went to look for them in the morning. At
about 7 am, on 27.03.1997, informant
found the two tractors parked near the
culvert. He also noticed that there was no
tow-chain lock put on the tractor that had
developed a snag whereas the other tractor
was standing with tow-chain on it. By
narrating the above story and by alleging
that despite hectic search the three persons
could not be found, the FIR was lodged
suspecting that informant's two brothers
and his son have been abducted by
unknown criminals for ransom.

3. After the FIR was lodged combing
operation was conducted by the police but
none could be found. On 29.03.1997, at
Kasba Kurara in the Clinic of doctor Prajapati
(not examined), two of the abductees,
namely, Man Singh (not examined) and
Guman Singh (PW-2) were noticed by the
first investigating officer (I.O. - Sri Vijay
Varma-PW-8). According to the first I.O.
(PW-8), from the statement of Man Singh
and Guman Singh, he could gather that Man
Singh was released by the abductors in the
night of 27.03.1997 to fetch Rs. 1.5 lacs for
release of the other two abductees. Man
Singh informed the first I.O. that Balram
Khangar, who was known to him from
before, with a rifle; a short-statured person,
with rudimentary moustache, having a
country made pistol, called once by Balram
Khangar
as
Rakesh;
and
one
dark
complexion person with good height, having
a country made rifle, called by the name
Saka, were responsible for his abduction.
Man Singh also informed the first I.O. that
Balram Khangar, addressed the other two
persons by the name of Raka and Saka; and
that as the money could not be paid, Guman
Singh's (PW-2's) left hand fingers, except
thumb, were chopped off and he was released
in the evening of 28.03.1997 on a condition
that he would get Rs. 1.5 lacs or else his
nephew (Virendra Singh - PW-3) would be
cut into pieces. PW-8 disclosed that all the
above facts were confirmed by Guman Singh
(PW-2) whose statement he recorded. PW-8
also disclosed that Guman Singh had
informed him that the ransom money had to
be paid on 29.03.1997 between 9 and 11. On
29.03.1997, the first I.O. inspected the spot
from where the abductees were abducted and
prepared a site plan (Exb. Ka-8). On
30.03.1997 Virendra Singh (PW-3) earned
his freedom. According to the first I.O., on
01.04.1997 the statement of the third
abductee, namely, Virendra Singh was
recorded.

4.

In
the
meantime,
medical
examination of the two abductees, namely,
Guman Singh (PW-2) and Virendra Singh
(PW-3), was carried out. PW-2 was
medically examined on 30.03.1997 by doctor
R.S. Gupta (PW-6) at 3 pm. As per the injury
report (Exb. Ka-5), PW-2 - Guman Singh
was brought for medical examination by CP
No. 195 Ravindra Singh of PS. Kurara.
Injuries noticed were as follows:-

"Chopped wound in area of 10
cm x 10 cm x bone deep on the back of left
hand with traumatic amputation of fingers
9 All. Rakesh Vs. State of U.P.
1149
of hand except thumb. All through
metacarpal bones and tendons exposed.
Wound infected with puss. Clotted blood
present. Advise X-ray left hand.

OPINION

Above injury is caused by sharp edged
weapon. Grevious in nature. Duration
about two days old. Advise X-ray left
hand."

5. Injury report of Virendra Singh (PW3), which has been exhibited as Exb. Ka-6,
was prepared by doctor R.S. Gupta (PW-6). It
reveals that PW-3 was brought by CP No.195
Ravindra Singh and was medically examined
on 30.03.1997 at 2.45 pm. Injuries noticed
were as follows:-

"Complain of pain on the right
arm. Complain of pain on the left side of
chest. No external injury mark seen during
examination time."

6. A supplementary injury report (Exb.
Ka-2) of Guman Singh dated 31.03.1997 was
obtained, which suggested that a radiological
examination of the left hand was carried out.
As per the report, 2, 3, 4th metacarpal bones
were found cut/fractured. Fifth metacarpal
bone was found missing. All the fingers
except thumb were found missing.

7. The first I.O. (PW-8) conducted
investigation and recorded statement of the
witnesses including the abductee till he was
transferred. Interestingly, during the course of
his cross-examination, PW-8 stated as
follows:-

^^xokgku nso flag] vksdkj flag] f'ko flag]
guweku 'kju eku flag xqeku flag ohjsUnz flag ftuds eSus
c;ku fy;s gS us eq>s cyjke [kaxjk ds vykok fdlh
vfHk;qDr dk uke irk ugh crk;k Fkk cfYd ;g crk;k
Fkk fd lkeus vkus ij igpku ldrk gwaA fdlh vig`r
O;fDr;ksa us eq>s cyjke ds vykok fdlh cnek'k dh
ofYn;r o 'kdwur ugh crkbZ FkhA^^

8. On 30.09.1997, the investigation
was taken over by PW-7. According to his
testimony, the appellant Rakesh was
arrested on 15.01.1998 by police of P.S.
Khanna. Upon information, PW-7 went
there to record his confessional statement.
It is interesting to note that charge sheet
against the appellant was submitted on
20.10.1997 by PW-7 vide Ex. Ka-7. What
is also interesting is that PW-7 confirmed
that neither Dev Singh (informant) nor the
witnesses Man Singh, Guman Singh and
Virendra Singh had disclosed the parentage
of Rakesh or that Rakesh was known to
them. PW-7 also stated that the witnesses
had only told that Balram Khangar was
calling one person by the name of Rakesh.
After transfer of PW-7, the investigation of
the case was taken over by Satish Chand
Sagaun
(PW-9).
According
to
his
testimony, he took over investigation of
Case Crime No. 64 of 1997 on 30.03.1998.
He took police custody remand of coaccused
Sattideen
and
arranged
for
identification parade of Sattideen on
02.04.1998. He took the statement of
Sattideen on 03.04.1998 and submitted
charge-sheet No. 71-A/98 against Sattideen
under Sections 364-A and 326 I.P.C which
was marked Exhibit Ka-10. During crossexamination, PW-9 stated that when he took
over investigation of the case, Sattideen was
already in jail since 21.08.1998 and if he had
been in jail since before, he was not aware of
it. He stated that he had taken the witnesses to
identify Sattideen in jail. He also admitted
that the name of Sattideen had surfaced
during the course of investigation conducted
by the previous I.O. He stated that he had not
recorded the statement of the Magistrate in
whose presence the identification was carried
out.

9. At this stage, it would be relevant
to observe that the third accused, namely,
1150 INDIAN LAW REPORTS ALLAHABAD SERIES
Balram Khangar was killed in an encounter
and, therefore, he was not put to trial.
Whereas,
the
appellant
Rakesh
and
Sattideen were separately charge-sheeted
giving rise to two special sessions trials,
namely, 70 of 1997 and 29 of 1998, against
Rakesh and Sattideen, respectively, which
were consolidated. Charges were framed
against
the
appellant
accused
on
15.06.1998. On denial of the charges, trial
commenced. In these two trials, a common
set of evidence was led by the prosecution.

PROSECUTION EVIDENCE

10. The prosecution examined as
many as nine witnesses, namely, Dev Singh
(PW-1 - informant); Guman Singh (PW-2,
one of the abductees); Virendra Singh
(PW-3, another abductee); Doctor Sita Ram
Gupta (PW-4, radiologist who proved the
supplementary report - Exb. Ka-2, already
noticed above); Kishan Lal (PW-5 -
constable who made GD entry of the
written report and prepared Chik FIR
thereof); Doctor R.S. Gupta (PW-6 who
conducted medical examination of PW-2
and PW-3 and proved injury reports - Exb.
Ka-5 and Exb. Ka-6, already noticed
above); Harish Chand - PW-7 (the second
investigating officer who submitted chargesheet against the present appellant; relevant
part of his testimony has already been
noticed above); Vijay Verma (PW-8, the
first investigating officer- relevant part of
his testimony has already been noticed
above); and Satish Chand Sagaun - PW-9,
who submitted charge-sheet against coaccused Sattideen
after
carrying test
identification parade, as already noticed
above.

11. At this stage, it would be useful to
notice the testimony of PW-1, PW-2 and
PW-3 i.e. the witnesses of fact.

12. PW-1 - Dev Singh. (His
statement in chief was recorded on
14.10.1998). He is the informant. He
reiterated the allegations made in the first
information report and proved the written
report, which was marked Exhibit Ka-1.
Apart from above, he stated that on the date
of the incident, his son Virendra Singh had
taken the tractor at 2 pm and had returned
at 8.30 p.m. to inform PW-1 that he is
going back with the other tractor to towchain the faulty tractor.

During cross-examination, PW1 stated that after his son and brothers were
abducted, he had searched for them but
could get no information about them. When
he did not get any information about them,
he came to believe that they have been
abducted.
Interestingly,
in
his
entire
deposition, PW-1 made no statement with
regard to the demand of ransom for release
of the abductees.

13. PW-2 - Guman Singh. (His
statement in chief was recorded on
31.08.1999). He stated that in the night of
26.03.1997, he and his brother Man Singh
and his nephew Virendra Singh were
abducted. Prior to that, on 26.03.1997, at
about 5 pm, Virendra Singh had loaded his
tractor with "Laakh" (a kind of crop). On
way, the tractor developed a fault. Virendra
(PW-3) went home to fetch another tractor.
PW-2 stayed with the tractor. At quarter to
10 in the night, Virendra came with the
other tractor. Along with him, Man Singh
(not examined) was also there. With the
help of the other tractor, an effort was made
to tow-chain the tractor which had
developed fault. At that moment, three
criminals
came.
They
were
Balram
Khangar, Raka and Saka. They abducted
PW-2, PW-3 and Man Singh. They took the
abductees to the jungle and kept them in
the jungle through out the day. In the night,
9 All. Rakesh Vs. State of U.P.
1151
at about 9 pm, near the Naala adjoining the
Betwa river, Man Singh (not examined)
was released on a condition that he would
get Rs. 1.5 lacs for release of the remaining
two abductees. Then Balram left. The
remaining two abductees were taken to
another place by Raka and Saka awaiting
return of Balram. When Balram returned,
he gave strict instructions that only when
money is received, the abductees should be
released. After giving such instructions,
Balram left again. Raka and Saka took the
two abductees to Bajeraha jungle, near Sher
Mata temple. At this stage, it would be
appropriate to extract relevant portion of
the statement of PW-2 made during the
course of trial:-

^^bruk dgus ds ckn cyjke pyk x;k
FkkA rFkk jkdk o mldk lkFkh lkdk ge yksxks dks
ysdj vk/kh jkr ds le; ctsgjk ds taxy es 'ksj ekrk
ds eafnj ds if'pe igqWaps Fks vkSj vkWa[kks esa iV~Vh cka/k
dj o iSjks dks cka/k dj ge yksxks dks Mky fn;k FkkA
jkr dks dqN Hkh [kkuk ugh fn;k FkkA fnukad 28-3-97
dks cyjke ugh ykSVk FkkA nksuks cnek'kks us gekjh
iV~Vh [kksyh Fkh rFkk fuxjkuh djrs jgs FksA fQj 'kke
dks 5 cts ds djhc taxy es ge yksxks ds ikl ykSVk
Fkk vkSj vkrs gh dgk Fkk fd bu lkyks dks cka/k nks
vkSj vHkh xksyh ekjrk gwaA vkSj dgk fd blds HkkbZ us
/kks[kk fn;k gS vkSj iSLkk ugha fn;k gS vkSj iqfyl ls
fey x;k gS eS fdlh rjg iqfyl ds idM+us ls cp
x;k gwaA fQj cyjke dks ekjus ohjsUnz dk nkfguk gkFk
dU/ks ls dkVus ds fy;s dgk rc eSus dgk Fkk fd esjk
gkFk dkV yks ij esjs Hkrhtk dk gkFk er dkVksA bl
ij VSaDVj ij j[kk gekjk QlkZ dks cnek'k mBk dj ys
vk;s Fks mldks cyjke us ysdj esjs cka;s gkFk dh
Åaxyh VqdM+ks es dkVuk 'kq# dj fn;k FkkA vkSj yEck
okyk cnek'k esjs ihB ds ihNs jk;Qy lVk;s dgrk
Fkk fd 'kksj fd;k rks xksyh ekj nwaxkA rFkk cyjke dg
jgk Fkk fd ;g esjh rhljh vnkyr gS ,d vnkyr
mij gS nwljh uhps gS vkSj rhljh esjh vnkyr gS eS
tks dgrk gwa ogh gksrk gS vkSj esjs nka;s gkFk ds vaxwBs
dks NksM+dj Åaxfy;ks lesr iats dks dkV Mkyk FkkA
vkSj ml dkVus ds ckn cyjke us dgk fd dy rsjs
Hkrhts dh cksVh cksVh dkVdj csrok unh es fQadok
nwaxk rks eSus cyjke ls dgk Fkk fd mldks ekjuk
ihVuk ugha eS iSlk ykdj nwaxk] eq>s NksM+ nks rc
cyjke us dgk Fkk ,d fnu es viuh iV~Vh djk ysuk
o nwljs fnu ;kfu 29 rkjh[k dh jkr dks 9 cts Ms<+
yk[k #i;k ysdj rqe cSyxkM+h es cSBdj vkSj mldh
ckal cYyh fudyk dj cka;s rjQ ifg;s ds ikl iVhys
ij tyrh gqbZ VkpZ dks uhps dh rjQ djds vdsys
vkuk fdlh dks lkFk ysdj ugha vkukA fQj eq>s tkus
ds fy;s dgkA eS fdlh rjg vk/kh jkr dks 12 cts
vius ?kj igqapkA^^

After stating as above, PW-2
stated that after reaching home at midnight,
he went with his son Bhupa Singh (not
examined) to have his hand bandaged.
Thereafter, PW-2 stated as follows:-

^^fQj esjk Hkrhtk fnukad 30-3-97 dks
cnek'kks ds paxqy dks fdlh rjg NwV dj vk;k FkkA
tc cnek'k idM+dj ys x;s Fks mu cnek'kks es ls eS
cyjke [kaxkj o jkds'k dks igys ls tkurk FkkA
cyjke xSax xzke tYyk ds ikl vkrk tkrk FkkA o
tYyk es esjh [ksrh gSA rHkh eSus jkds'k o cyjke dks
dbZ ckj ns[kk o igpkuk gSA rhljs cnek'k dh
f'kuk[r djus eS ftyk dkjkxkj gehjiqj x;k FkkA
vkSj ogak mldh lgh f'kuk[r dh FkhA og vkt
gkftj vnkyr es gSA xokg us vfHk;qDr lRrhnhu dks
ns[kdj U;k;ky; es f'kuk[r dh vkSj dgk fd ;g
ogh vfHk;qDr gS ftldh eSus ftyk dkjkxkj es
f'kuk[r dh FkhA ,oa nwljs gkftj vnkyr vfHk;qDr
dks ns[kdj fd ;g jkds'k gS ftldh lgh f'kuk[r
dhA

During cross-examination at
the instance of Sattidin, PW-2 stated that
accused Balram Khangar called the other
two accused by the name of Raka and Saka.
PW-2 clarified that he was released on
28.03.1997 whereas his nephew was
released on 30.08.1997; he met the I.O. on
29.03.1997; that day, his statement was
recorded. On that day, statement of his
brother Man Singh was also recorded. On
30.03.1997, he again went to Balram and
delivered ransom. He went there alone. He
stated that he, Man Singh and Virendra
Singh were all abducted on 26.03.1997.
When they were abducted, the abductors
had only tied their hands. He stated that
when the accused had taken them to the
jungle, they had not blind folded them.
Immediately
thereafter,
he
stated
as
follows:-
1152 INDIAN LAW REPORTS ALLAHABAD SERIES

^^jkr dks psgjk ugha fn[krk Fkk fnu ds iV~Vh
ck/kh FkhA eS f'kuk[r ds gehjiqj ,d ckj vk;k FkkA ;g
dguk xyr gS fd eS f'kuk[r ds fy;s nks ckj vk;k FkkA
fnukad 25-3-98 dks ge yksx f'kuk[r ds fy;s gehjiqj ugh
vk;s FksA ;g dguk xyr gS fd eS mDr rkjh[k dks
vnkyr gkftj vk;k gwa o mDr rkjh[k dks eSUks vnkyr es
eqfYtekuks dks ns[kk gSA ?kVuk ds rhu eghuk ckn ges irk
py x;k Fkk fd eqfYte idM+ x;k gS ftldh ges
f'kuk[r djuk gSA f'kuk[r djus ds fy;s tkus okyh ckr
eq>s njksxk th us crykbZ FkhA njksxk th us ;g crk;k Fkk
fd lRrhnhu dh f'kuk[r djus tkuk gSA njksxk th ds
crkus ds ckn eSus f'kuk[r dh FkhA^^

On further cross-examination at the
instance of the counsel representing Sattideen,
PW-2 stated as follows:-

^^;g dguk xyr gS fd vfHk;qDr lRrhnhu
dks igys ls tkurk FkkA ;g Hkh dguk xyr gS fd njksxk
th us eq>s vfHk;qDr lRrhnhu dks igys ls igpuok fn;k
gksA vt [kqn dgk fd esjk HkkbZ eku flag o njksxk th
fQjksrh ysdj Ms<+ yk[k #i;k ysdj vk jgs Fks og iSlk
ugha vk ik;k Fkk rc nqckjk eS iSlk ysdj x;k FkkA vxj
njksxk th us esjs C;ku es fQjkSrh nsus okyh ckr u fy[kh
gks rks eS mldh otg ugh cryk ldrkA^^

During cross-examination, at the
instance of accused Rakesh (the appellant),
PW-2 specifically stated that after March 29,
1997, the I.O. did not record any further
statement of PW-2 though he had met the I.O.
thereafter. At this stage, the witness was
confronted with an omission in his earlier
statement, made during the course of
investigation, wherein he had not stated that he
knew Rakesh from before. Upon this, PW-2
stated as follows:-

^^ jkds'k dks igys ls igpkuus okyk C;ku eSUks
njksxk th dks fn;k Fkk ;fn mUgksus u fy[kh gks rks mldh
dksbZ otg eS ugh cryk ldrkA^^

The witness denied the suggestion
that what he has stated in Court is for the first
time, on being tutored.

At this stage, the witness was
confronted with another piece of his previous
statement, under Section 161 Cr.P.C. The
extracted portion of the previous statement and
PW-2's response is reproduced below:-

^^ eSus njksxk th dks ;g c;ku fd ^^,d
cnek'k tks dkys jax dk Fkk] eawN fudy jgh Fkh tks dV~Vk
315 cksj fy;s Fkk ftldk uke jkds'k ekywe gqvkA cyjke
mldsk jkdk ds uke ls iqdkjrk FkkA^^ eSus njksxk th dks
ugha fn;k Fkk] njksxk th us irk ugha dSls fy[k fn;kA^^

After stating as above, PW-2 stated
that he knew Balram from before. Balram
used to visit his village though he did not
know the name of Balram's father. He stated
that
sometimes
there
were
four
and
sometimes
six
persons
accompanying
Balram. Amongst them, he knew Rakesh but
he did not know anybody else. He stated that
he has seen Rakesh at Hamirpur and he had
informed the I.O. about having seen Rakesh
at Hamirpur but if that had not been
mentioned by the I.O., he cannot give reason
for the same. He stated that Rakesh is a
resident of Mohar Purwa. He does not know
whether Mohar Purwa is 15 km east of
Sumerpur. He stated that Shivpal Singh is his
relative in Chandpurwa. But he is not aware
whether Rakesh has relations at Chandpurwa.
At this stage, the witness stated that 2-3
months after the incident, Balram was killed
in an encounter in village Khaderi Lodhan
and with him six persons of his gang, namely,
Kariya, Chote Lal, Smt. Guddi, Smt. Rekha
and Bhura were killed. After stating as above,
the witness stated that now the entire gang of
Balram has been killed. The witness also
stated that few months after the encounter of
Balram, he got information that Rakesh has
been chalaned under Section 25 Arms Act.
He, however, denied the suggestion that after
challan of Rakesh under Section 25 Arms
Act, he came to know that there is an
associate of Balram by the name of Rakesh.
He denied the suggestions that accused
Rakesh and Sattideen were not involved in
the abduction; that Balram and his associates
had not assaulted them; that he falsely
implicated Rakesh at the instance of his
relations in village Chandpurwa.

14. PW-3 - Virendra Singh -
another abductee. (His statement in chief
9 All. Rakesh Vs. State of U.P.
1153
was
recorded
on
31.08.1999).
After
narrating the FIR story, he stated that he
arrived at the spot, at about 10 pm, with
Man Singh. When he was tow-chaining the
faulty tractor, his uncle Guman Singh and
Man Singh were present. Then criminals
came from village Jalla and started abusing
and threatening the abductees by saying
that if they run, they will be killed. One
criminal was wearing black Pathani suit
with red bandana on head. He was Balram
Khangar, whom PW-3 knew from before.
The other was a short height man, wearing
pant shirt, his name was Raka; and the third
was a tall person, whose name he did not
know. He stated that he knew Raka from
before. He identified the accused Rakesh in
court and stated that he is Raka, who was
involved in his abduction. He stated Raka
is the alias name of Rakesh. He stated that
initially he saw the accused in the back
light of the tractor and, thereafter, he saw
them again while they were in the jungle
and the temple. PW-3 stated that criminal
Balram had a rifle. In so far as the other
two criminals were concerned, one was
having a country made pistol whereas the
other was having a country made rifle. He
stated that he visited district jail Hamirpur
to identify one of the two accused and
could identify him. He stated that the
accused whom he had identified, is not
currently present in Court. His name is
Sattideen. He stated that Balram used to
call Sattideen as Saka and Rakesh as Raka.
He stated that the accused had snatched
lathi of his uncle and had assaulted him.
Thereafter, the accused took them to the
jungle. The entire night they roamed in the
jungle. Next day morning, at about 4-5 am,
they brought them (abductees) near a
temple. The abductees were dumped in a
Naala (ditch). At that time, their hands
were tied and they were blind folded. PW-3
stated that the accused had kept them there
till night and in the night of 27.03.1997,
took them to the banks of a river. There, the
accused, released Man Singh and asked
him to fetch Rs. 1.5 lacs for release of the
other two. The accused had warned that if
the money is not brought, they will kill the
other two. He stated that, at that time, it
must have been 9-11 pm in the night.
Thereafter, the accused took the remaining
two abductees including PW-3 to Barauli
Ghat and after crossing it, they took them
to Baraitha Jungle. At Baraitha jungle, the
abductors waited for Man Singh to arrive;
at that time, there were just two abductors.
The third abductor, namely, Balram, after
instructing Man Singh to fetch ransom
money, had left the spot and had instructed
the other two abductors to keep the other
two abductees in the jungle till he returns.
When Balram returned, he told his other
two associates that Man Singh has not kept
his promise and appears to have informed
the police, as a result, the abductors
assaulted the two abductees and threatened
to cut their hand. When the abductees were
being assaulted, PW-2 pleaded that they
should leave his nephew (PW-3) unscathed
though they may chop off his hand. On this
suggestion, the abductors, cut four fingers
of the left hand of PW-2 with the aid of a
farsa. At this stage, PW-3 informed the
Court that at the time when his uncle's
fingers were chopped, accused Rakesh had
caught hold PW-3 and was having a
country made pistol to threaten him. PW-3
stated that when his uncle (PW-2) was
released by the abductors, Balram had
instructed that if he does not get the money,
then his nephew would be cut to pieces,
which would be thrown in the village.
Abductor Balram had also instructed PW-2
as to how he should the get money. PW-3
further stated that after his uncle (PW-2)
was released, the accused, at about 8 pm,
had taken him to Sahurapur village jungle
1154 INDIAN LAW REPORTS ALLAHABAD SERIES
where they kept him in a vacant field. The
statement made by PW-3 in this regard, as
stated in Court, is being extracted below:-

^^pkpk dks NksM+us ds ckn cnek'k eq>s jkr
es vkB cts ds djhc mDr taxy ls lqrkekiqj ds
taxy es ysdj vk;s FksA tgka [kkyh [ksr es cnek'k
eq>s dkQh le; rc fcBkys j[[ksA ckn esa [kkyh [ksr
es eq>s nkSM+krs jgs vkSj eq>ls fn'kk;s iwNrs jgsA ckn es
eq>s lgqjkiqj xkao ds taxy es ys x;sA vkSj ckn es
eq>s okil eksjk dkMj xkao ds taxy es ys vk;sA^^

After stating as above, PW-3
stated as follows:-

^FkksM+h nsj ckn cnek'kks us vkil es
ckrphr djrs gq, dgk fd yxrk gS fd iqfyl vk jgh
gSA vkSj eq>s NksM+dj Hkkx x;sA FkksM+h nsj ckn esjs
pkpk us vkdj esjs gkFk o iSj [kksys vkSj vius lkFk
?kj fyok yk;sA cnek'k eq>s NksM+dj djhc vk/kh jkr
ds ckn Hkkxs FksA lgh le; eS ugha tku ik;k FkkA^^

During cross-examination, PW3 stated that at the time of abduction, the
night was dark; it must have been 9-10 pm;
in the darkness one could not recognise a
person from a distance; when the accused
had arrived, the light of both the tractors
were on; crop was loaded on the tractor of
PW-3; the other tractor was brought by
Man Singh; the accused wore turbans but
had not covered their faces.

PW-3 also stated that the accused
had not blind folded him though had tied
him. He stated that he knew Balram from
before; he used to sell Chana (grams); that
the entire gang of Balram has been finished
off; that accused Sattideen was arrested by
the police but he does not remember as to
how many days after the incident he was
arrested.
In
respect
of
identification
exercise, PW-3 stated that persons to be
identified were standing in one line; there
were 7-8 persons; and none had covered
their faces; that S.O. Kurara had brought
him to the jail to identify the accused; and
at the place of identification, S.O. Kurara
was also sitting.

On further cross-examination, he
stated that his sister is married to Gulzar
Singh in village Pipreda; that he used to
visit that village and had learnt that
Sattideen was a resident of that village. He
denied the suggestion that Sattideen was
not involved in the abduction. He also
denied the suggestion that he identified
Sattideen at the instance of the police.

During cross-examination at
the
instance
of
accused-appellant
Rakesh, PW-3 stated as follows:-

^^esjk c;ku njksxk th us ?kVuk ds nwljs
fnu fy;k FkkA bl oDr eq>s njksxk th dk uke ;kn
ugh gSA c;ku ,d njksxk th us fy;k FkkA nksckjk
fdlh nkjksxk us ?kVuk ds ckjs es esjk c;ku ugha
fy;kA eqfYte jkds'k dk uke cyjke ds crkus ij
fy;k Fkk jkds'k ds cki dk uke o xkao dk uke ugh
ekyweA jkds'k dk uke ;fn cyjke u crkrk rks eq>s
mldk uke irk u pyrkA bl ?kVuk ds igys esjh
jkds'k ls dHkh eqykdkr ugh gq;h u eSus mls dgh
dHkh ns[kk lqukA eSus vius c;ku es eqfYTke jkds'k dk
uke ugha crk;k FkkA^^

At the fag end of his crossexamination, the witness stated as follows:-

^^;g ckr lgh gS fd eSUks U;k0 es jkds'k
dk uke ?kVuk es 'kkfey gksus ds ckcr igyh ckj dgh
gSA eS cyjke o lRrhnhu dks igys ls tkurk FkkA^^

STATEMENT U/s 313 CrPC

15. The incriminating circumstances
appearing in the prosecution evidence
against the appellant were put to the
appellant for recording his statement under
Section 313 Cr.P.C. The appellant denied
the
incriminating
circumstances
and
claimed that he has been falsely implicated
by the police to show their good work.

TRIAL COURT FINDING

16. The trial court convicted the
appellant-Rakesh on the basis of the
testimony of PW-2 and PW-3 as well as
dock identification. However, co-accused
9 All. Rakesh Vs. State of U.P.
1155
Sattideen was acquitted upon finding that
the test identification parade was not in
accordance with law.

17. We have heard Sri Ashok Pandey
for the appellant and Ms. Kumari Meena,
learned A.G.A. for the State and have
perused the record.

SUBMISSIONS ON BEHALF OF THE
APPELLANT

18. The learned counsel for the
appellant submitted that admittedly the FIR
was against unnamed accused; during the
course of investigation, on 29.03.1997 the
statement of eye-witnesses PW-2 and PW-3
as well as Man Singh (who has not been
examined during trial), were recorded; in
their statement they had not disclosed the
name with parentage and place of residence
of any of the accused except Balram; they
had only stated that if those accused are
produced before them, they can identify
them therefore, on what basis, the chargesheet was submitted against the accusedappellant, even before his arrest, is a
mystery. None of the investigating officers,
who were examined by the prosecution, has
stated as to when he could fix the identity
of the accused Raka, as called by the main
accused Balram, as Rakesh (the present
appellant). It was submitted that if the other
co-accused Saka @ Sattideen was chargesheeted only after identification, what was
the reason to charge-sheet Rakesh without
putting him for identification. This by itself
casts a serious doubt on the truthfulness of
the prosecution case as against the
appellant.

19. Learned counsel for the appellant
submitted that as per prosecution story
coming through eyewitnesses PW-2 and
PW-3, the abductees were abducted on
26.03.1997 in the night, which was dark,
and, thereafter, were taken to a jungle in
the night; next day, they were dumped in a
Naala; whereafter, one abductee, namely,
Man Singh (not examined) was released in
the evening of 27.03.1997 with instructions
to get ransom money; when Man Singh did
not get money, other abductee, namely,
PW-2, was released, after chopping fingers
of his left hand. PW-2 too, was released in
the night. At one stage in the testimony of
PW-3, it has come that the abductees were
blind folded and at another stage it has
come that they were not blind folded but
their hands and feet were tied. It was
submitted that from the statement of PW-3
it appears that when the second abductee
was released, PW-3 was taken to a field
where he was asked to run and tell the
directions. This statement of PW-3 would
suggest that PW-3 was kept blind folded
otherwise, there was no occasion for the
abductors to ask him to tell the direction in
which he was running. The circumstances
of the case suggest that the abductors
abducted the abductees in the night, which
was dark; the abductors thereafter traveled
across the jungle with the abductees who
were kept blind folded; thereafter, one of
the abductee, namely, Man Singh was
released in the night of 27.03.1997; the
second abductee was released in the night
of 28.03.1997, after his fingers were
chopped; and the third abductee was not
released by the abductors but could manage
to escape, either on his own, or with the
effort of the police, or otherwise. The
sequence of events and the manner in
which the abductees were kept clearly
suggest that the abductors had taken due
precaution to hide their identity.

20. It was submitted that from the
statement of PW-3 it appears he could
somehow escape from the clutches of the
1156 INDIAN LAW REPORTS ALLAHABAD SERIES
abductors. It also appears from his
statement that the accused had left him by
saying that the police has arrived and only
when he was abandoned by the abductors,
his uncle had arrived to untie his hands and
feet.
According
to
PW-3,
he
was
abandoned by the abductors at about
midnight. It was submitted that from the
statement of PW-3 it does not appear that
ransom was paid. Moreover, the date of
PW-3's release is not specifically there in
his statement but as PW-3 was examined
for his injuries at 2.45 pm on 30.03.1997, it
appears he must have been released on or
about midnight of 29/30.03.1997. All these
circumstances would suggest that all
relevant events took place in the darkness
of night, which is indicative of the fact that
the abductors took precaution to hide their
identity.

21. Learned counsel for the appellant
also submitted that from the statement of
PW-8, it appears, the statement of PW-3
was recorded on 01.04.1997 and, thereafter,
no statement of PW-3 was recorded.
Interestingly, PW-8 stated that except for
the name of Balram Khangar, none of the
abductors' name was disclosed by PW-3 or
any of the eye-witnesses. They had only
disclosed that they could recognise the
accused if produced before them. Thus, in
absence of test identification parade, there
appears no basis for the investigating
officer to make the appellant an accused. It
has been submitted that this is a case where
the appellant was made accused to show
good work and, thereafter, he was shown to
the eye witnesses, and by tutoring the
witnesses,
a
dock
identification
was
effected, which resulted in conviction. It
has been submitted that such belated dock
identification,
particularly,
when
the
abduction took place in the night and the
abductees were kept tied and one of the
abductees stated that they were blind
folded, dock identification for the first time
in court after more than 2 years of the
incident is unreliable and cannot form the
basis of conviction. It has been submitted
that the trial court committed manifest error
in convicting the accused-appellant. It was
thus prayed that the judgment and order of
conviction be set aside and the appellant be
acquitted of the charges for which he has
been tried.

SUBMISSIONS ON BEHALF OF THE
STATE

22. Per contra, the learned A.G.A.
submitted that it is a case where one of the
abductees had lost his fingers; the medical
examination report proved that the fingers
of PW-2's left hand were chopped; the
evidence led before the Court clearly
disclose that the abductees were kept by the
abductors for as long as two days and
therefore, they had every opportunity to
carefully memorise the face of the accused
and recognise the accused, whenever
required; hence, even if there had been no
test identification parade for the appellant,
as the appellant has been identified during
the course of trial by an injured witness
who has also proved that there had been a
demand
of
ransom under
threat
of
extermination,
the
trial
court
rightly
convicted the appellant. Learned A.G.A.
further submitted that although it may not
have come in the deposition of the
investigating officer as to on what basis the
appellant was charge-sheeted but from the
material brought on case diary it appears
that the parentage of the accused was fixed
on the basis of information received.
Therefore, merely because there was no
disclosure
of
the
parentage
by
the
eyewitnesses, it cannot be a ground to
disbelieve the prosecution case against the
9 All. Rakesh Vs. State of U.P.
1157
appellant or extend the benefit of doubt to
him. Learned A.G.A., accordingly, pleaded
that the appeal be dismissed and the
judgment and order of conviction recorded
by the trial court be affirmed.

ANALYSIS

23. On a careful consideration of the
rival submissions and the entire prosecution
evidence, there are certain features of the
case which stand out and have a material
bearing on the evaluation of the evidence.
We, therefore, enumerate them herein
below:-

(i) Abduction took place in the
night of 26/27.03.1997 any time after 10
pm and before 7 am;

(ii) The first information report
was lodged on 27.03.1997 at 11.00 am by
PW-1, father of PW-3 and brother of the
other two abductees, against unknown
persons in respect of abduction of three
persons;

(iii) The first abductee, namely,
Man Singh, who has not been examined,
was released in the night of the day
following the day of abduction i.e. in the
night of 27.03.1997. This abductee was
released to fetch ransom money of Rs. 1.5
lacs for release of the remaining two;

(iv) When Man Singh could not
get ransom, one of the other two remaining
abductees, namely, Guman Singh (PW-2),
was released in the night of 28.03.1997,
after chopping his left hand fingers. The
left hand fingers were chopped by Balram
Khangar (non-appellant) with a warning
that if he does not bring the ransom money
then the other abductee, namely, Virendra
Singh (P.W.-3), nephew of PW-2, would be
cut into pieces;

(v) Guman Singh (PW-2) reached
home at about midnight of 28/29.03.1997;

(vi) On 29.03.1997, according to
the testimony of PW-8 (the first I.O.), at
Kasba Kurara, in the clinic of doctor
Prajapati (not examined), PW-8 met Man
Singh (not examined) and Guman Singh
(PW3) and recorded their statement;

(vii) According to PW-2, in his
statement made during cross-examination,
the ransom was arranged and paid on
30.03.1997 whereafter, PW-3 managed to
escape. But how the ransom money was
arranged and when, and to whom, it was
handed over is not disclosed by PW-2 in
his testimony. Interestingly, PW-3, in his
testimony, states that just before he was
released he could hear the abductors
conversing inter se that the police is
coming therefore, sensing danger from the
police, the abductors escaped and soon
thereafter PW-3's uncle, namely, PW-2,
arrived and untied his hands and feet to
take him home and he reached home by
about midnight. The discrepancy in the
statement of PW-2 and PW-3 in respect of
how the release of PW-3 was secured, in
absence of details in the testimony of PW-2
as to how the ransom money was arranged
and paid, bearing in mind that there is no
disclosure about it by PW-1, lead us to
infer that release of PW-3 was secured
without payment of ransom money, may
be, because, the abductors sensing danger
of a police intervention left the spot,
leaving PW-3 behind; and

(viii) The statement of PW-2 and
Man Singh was recorded, under section 161
CrPC, on 29.03.1997 and not any time
thereafter, as is confirmed by the statement
of the I.O. Notably, in his previous
statement,
with
which
PW-2
was
confronted, PW-2 had not stated that he
knew Rakesh (the appellant) from before;
PW-2 had also not disclosed the parentage
and the address of the accused-appellant
Rakesh.
Likewise,
in
the
previous
1158 INDIAN LAW REPORTS ALLAHABAD SERIES
statement of PW-3, as it appears from the
statement of the I.O. (PW-8), it was not
disclosed that he knew Rakesh (the
appellant) from before.