Ameer Ahmad vs State Of Uttarakhand

R. C. Khulbe, J

This criminal appeal has been filed under Section 374 (2) Cr.P.C. against the judgment and order dated 14.08.2006 passed by the learned Sessions Jude Udham Singh Nagar (Rudrapur) in Session Trial No.55A of 2001, State Vs. Ameer Ahmad, whereby the appellant was convicted under Section 364 IPC sentencing him to undergo rigorous imprisonment for the period of seven years.

Factual matrix of the case are that when the informant Vasant Kumar was going to drop his son Piyush Bansal, aged 12 years to St. Mary's School on his motorcycle on 12.10.2000 at 07:30 a.m., an unnumbered Maruti van hit his motorcycle near sugar mill gate. Informant's motorcycle lost balance and fell down. Blue coloured Maruti van was being driven by Suresh Kumar. Karam Singh, Chhota Musalman and Bijendra Jatav were sitting in the Maruti van. All of them caught informant's son Piyush, threw his bag and dragged the victim inside the van and Maruti van speedily ran towards Nandpur-nar-ka-topa. In the meantime, Jai Bhagwan, Raje Kumar Gupta and Tilak Raj Sharma came and they tried to stop the van but to no avail. Chik FIR (Ex. Ka-13) was lodged on 12.10.2000 at 09:30 a.m. The same was registered as case crime no.777/2000 under Sections 363 and 364 IPC.

After completion of the investigation a charge sheet under Section 364-A IPC was filed and charges were framed against the accused persons to which they pleaded not guilty and claimed trial.

In support of its case, the prosecution produced as many as 6 witnesses, namely, PW1 Vasant Kumar, PW2 Jai Bhagwan, PW3 Piyush Bansal, PW4 SI Rakesh Chandra Thapliyal, PW5 Dr. K. Chandra and PW6 Head Constable Rishipal Singh.

After completion of the prosecution evidence, statements of accused under Section 313 Cr.P.C. was recorded in which they denied all the charges and claimed innocence. However, no evidence was produced in defence.

After considering the evidence on records, the trial Court below convicted the appellant under Section 364 IPC and sentenced him to seven years rigorous imprisonment. Aggrieved by it, the present criminal appeal has been filed.

PW1 Vasant Kumar, who is the informant, in his examination-in-chief proved his complaint (Ex.Ka-1) and also supported the prosecution story. He stated that on 12.10.2000, at around 07:00 a.m., when he was going to drop his son on motorcycle and reached near sugar mill gate at Bajpur, an unnumbered blue coloured Maruti van hit his motorcycle from the back. Motorcycle lost its balance. The van was being driven by Suresh Kumar. Karam Singh, Jassa, Chhota Musalman alias Aamir Hasan and Bijendra Jatav got down from the van and caught Piyush. They threw his bag and dragged him inside the van and ran away towards Nandpur-nar-ka-topa. In the meantime, witnesses Jai Bhagwan, Rajendra Gupta and Tilak Raj Sharma reached there, who saw the incident and tried to stop Maruti van.

PW2 Jai Bhagwan stated that on 12.10.2000, he was going on scooter to take his daughter Sonia, who had gone for tuition. At 07:30 a.m., Rajendra Gupta and Tilak Raj Sharma were going on their motorcycle to drop their children to St. Mary's School, when he reached near the sugar mill gate, he saw that Vasant Kumar's motorcycle had fallen on the ground. Piyush Bansal was aged about 12 years and was a student of St. Mary's School. A blue coloured Maruti van was being driven by Suresh. Karam Singh, Chhota Musalman alias Ameer, Jassa and Bijendra Jatav kidnapped Piyush Bansal forcibly. They took the victim inside the van, which ran away towards Nandpur-nar-ka-topa. Jai Bhagwan, Tilak Raj Sharma and Rajendra Gupta chased the van, but to no avail. But in cross-examination he stated that the ban did not hit the motorcycle in his presence. When he reached on the place of occurrence, the van had left the place.

PW3 Piyush Bansal was the victim. He was a student of class IX when he came to depose. He said that on 12.10.2000, at about 07:00 a.m., when his father was going to drop him in the school, one Maruti van hit the motorcycle, which was being driven by his father. He was a pillion rider. He fell down from the motorcycle at sugar mill gate, Bajpur. Appellant got down from the ban and forcibly took dragged him inside the van. They stopped Maruti van when they reached a river. He was taken to a jungle. He was escorted by five miscreants. They were addressing each other by their names. He was not provided food inside the jungle for two days. The kidnappers were telling him that they will release him once they received rupees 10 lacs from his father. They were carrying two small pistols and a big gun. The police reached the jungle on the third day. The appellants fired upon them. Three miscreants fled away. The four one, namely, Goverdhan was arrested by the police. When the victim was taken to jungle, the appellants covered his face. Police recovered him and was handed over to his father. But in the cross-examination, he stated that when the identification parade was conducted he could not connect the identity of the appellants with their names and even he could not recognize the face of the driver of the Maruti van. He wrongly identified accused Bijendra as Suresh in the trial Court. He further stated that he was not assaulted by the appellant in the jungle and was simply threatened.

PW4 SI Rakesh Chandra Thapliyal was the Investigating Officer, who recovered the kidnapped child. He stated that only Goverdhan was arrested and others fled away. A rifle and cartridges were found from the possession of Goverdhan. He prepared the site plan (Ex. Ka-10) and after recording the statements of the witnesses submitted the charge sheet (Ex.Ka-11) against the appellants.

PW5 Dr. K. Chandra medically examined the kidnapped child on 15.10.2000 at 12:40 p.m. He found abrasion and contusions on his body, which were inflicted by sharp edged weapon and blunt object on 12.10.2000.

PW6 Constable Rishipal Singh was a formal witness, who proved chik FIR (Ex.Ka-13) and also proved the entry of the same in G.D. (Ex.Ka-14. The motorcycle, which was hit by Maruti van, was not produced in the police station.

It is argued by the learned counsel for the appellant that initially after submitting the charge sheet the case was committed to the Court of Sessions and it was registered as S.T. No.55/2001, State Vs. Suresh Kumar Wala and others in which the present appellant was one of the accused. It is also argued that after recording of evidence of PW6, the present appellant had absconded due to which the case of the present appellant was separated and it was registered as S.T. No.55A of 2000, State Vs. Ameer Ahmad @ Chotta. In the main S.T. No.55/2001, State Vs. Suresh Kumar Wala and others the five accused namely, Suresh Kumar Wala, Karam Singh, Goverdhan, Jassa @ Jaspal and Bijendra Singh were convicted under Section 364 IPC and the learned Sessions Judge awarded them life imprisonment and fine of Rs.5,000/- each. Aggrieved by the judgment, the above five accused filed criminal appeal before the High Court, which was registered as Criminal Case No.127 of 2005, Suresh Kumar Wala and others Vs. State of Uttaranchal, in which a Division Bench of this Court allowed the appeal and acquitted the appellants on 26.11.2012. It is also argued by the learned counsel for the appellant that since the above five appellants have been acquitted by a Division Bench of this Court, the present appellant cannot be convicted and liable to be acquitted on the same ground.

From the evidence produced by the prosecution, it is clear that the present appellant did not make any demand for ransom from the father of the victim neither there was prior demand of ransom nor was any post incidental demand for the same.

As per the FIR, the incident took place at 07:30 a.m. on 12.10.2000 and the FIR was lodged at 09:30 a.m. while there was a distance of only 1.5 kms between the place of occurrence and the police station. This delay in lodging the FIR was not properly explained by the prosecution. As per the FIR, PW1 Vasant Kumar was going to drop his son on his motorcycle but he did not chase the culprits on his motorcycle neither he chase the culprit with his motorcycle nor he went to police station on his motorcycle.

As per the evidence, PW3 Piyush Bansal was allegedly recovered from the possession of Goverdhan's custody not from the custody of the present appellant. Apart from that, the police did not try to take the public witnesses at the place of arrest. There is no evidence on record, which shows that the appellant is a hardcore criminal. If there was intention for ransom in that situation, the appellant did say that he was doing it for the ransom and definitely, he would have demanded the amount of ransom at the spot but he did not do so. PW2 Jai Bhagwan said that he was armed but not specified the arm. PW3 Piyush Bansal, who is the victim and stated that the accused were carrying two small pistols and two big guns but he did not specifically mentioned about the present appellant.

As per the evidence of PW1 Vasant Kumar, PW2 Jai Bhagwan and PW3 Piyush Bansal the appellant did not cover his face but PW3 Piyush Bansal could not identify the present appellant at the time of Test Identification Parade (TIP).

From the evidence, I came to the conclusion that there is no clinching evidence against the present appellant and the prosecution could not establish its case beyond reasonable doubt. In such a situation, the present appellant is also entitled for acquittal.

Accordingly, the present criminal appeal filed by the appellant Ameer Ahmad is allowed. The judgment and order dated 14.08.2006 passed by the learned Sessions Jude Udham Singh Nagar (Rudrapur) in Session Trial No.55A of 2001, State Vs. Ameer Ahmad, whereby the appellant was convicted under Section 364 IPC sentencing him to undergo rigorous imprisonment for the period of seven years is hereby set aside. The bail bonds of the appellant are cancelled and sureties are discharged accordingly.