Ravindra Singh Gusain And Another vs State Of Uttarakhand

R.C. Khulbe, J

The present appeal is directed against the judgment and order dated 05.04.2004 passed by the Additional Sessions Judge/Second Fast Track Court, Haridwar in Sessions Trial No.47 of 2002, State vs. Ravindra Singh Gusain and another, whereby the appellants were found guilty for the offence punishable under Section 363 of IPC, and were sentenced to undergo seven years' rigorous imprisonment along with fine of Rs. 2,000/- each.

Brief facts of the present case, inter alia, are that the complainant Dharmpal submitted an application to the Police Station Kotwali Haridwar on 3.11.2001 with the allegation that he was a government employee in Railway Department and was living at New Basti, Gosain Wali Gali, Bheemgoda, Haridwar. His neibhours Rakesh s/o Lalu, resident of Noorpur, Budh Bazar, Bijnor took away Km. Reena on 22.10.2001, who is the daughter of informant. On the basis of the said information a chick FIR Ex. Ka-2 was lodged on 03.11.2001 at about 11:00 AM at Kotwali Haridwar.

Investigating Officer conducted investigation in the matter and submitted the charge-sheet against the appellants under Sections 363 and 366 of IPC.

The trial court framed charges against the appellants-accused for the offences punishable under Sections 363 and 366 IPC, to which they pleaded not guilty and claimed trial.

To prove the prosecution story, PW-1 Dharmpal, PW-2 Deepak Kumar, PW-3 Dinesh Kumar, PW-4 Gaje Singh and PW-5 SI Arun Kumar Goyal, were examined as prosecution witnesses. Thereafter, the statements of appellants-accused were recorded under Section 313 of Cr.P.C.

The trial court, having perused the entire material made available on record, vide judgment and order under appeal, convicted and sentenced the appellants, as mentioned hereinabove. Feeling aggrieved, appellants have preferred present appeal.

Heard learned counsel for the respective parties and perused the entire material available on the record.

PW-1 Dharmpal, who is the informant, stated that his daughter aged about 15-16 years old. She used to work of stitching, on 22.10.2001 at the time of Navratri Festival, when they woke up at 4 o'clock in the morning, then they saw his daughter was not present in his house, then he gave an application at Police Station with the allegation that the accused Rakesh, Ravindra Singh and Anita had taken away his daughter-Km. Reena by influencing her.

PW-2 Deepak Kumar stated that his sister Reena was 15-16 years of age. She used to do the work of stitching. On 22.10.2001 at 4 o'clock in the morning, he saw his sister Reena was not in the house. His neibhour Dinesh told him that on 22.10.2001 at about 5-5:30AM, he saw the accused, namely, Rakesh, Anita and Ravindra along with Reena at roadways bus station.

PW-3 Dinesh Kumar stated that on 22.10.2001 when he was going to his native place Aligarh, he saw Rakesh, Anita, Ravindra along with Reena at roadways bus station. After returning back from his native place Aligarh, he received information that Km. Reena had been kidnapped, thereafter he informed Deepak @ Deepu regarding it.

PW-4 Constable Gaje Singh stated that on 3.11.2001 he was posted at Kotwali Haridwar as Constable Clerk, on that day he lodged a chick FIR Ex. Ka-2, on the basis of information given by PW-1 Dharmpal. Accordingly, G.D. Ex.Ka-3 was prepared by him.

PW-5 S.I. Arun Kumar Goyal, stated that he received the investigation of the case and prepared site plan, recorded the statements of witnesses under Section 161 Cr. P.C. and submitted charge sheet Ex. Ka-4 against the present appellants/accused.

It is argued by learned counsel for the appellants that the appellants have been falsely been implicated in the crime and there is no clinching evidence against them and if the appellants have been acquitted under Section 366 of IPC then they cannot be convicted under Section 363 of IPC. It is further argued that, in the present matter, neither the minor girl Reena nor the accused Rakesh were recovered till the decision of the trial. Apart from that the FIR is silent against the appellants.

On the other hand, learned counsel for the State argued that PW-1 Dharmpal, PW-2 Deepak Kumar and PW-3 Dinesh Kumar categorically stated in their statements that the present accused had kidnapped Km. Reena from her natural guardianship and PW-3 Dinesh Kumar was the eyewitness; there is a clinching evidence against the present accused and the accused were rightly convicted by the trial court; there is no infirmity in the impugned judgment passed by the lower court and the appeal is liable to be dismissed.

As per the FIR as well as statements of PW-1 Dharmpal and PW-2 Deepak Kumar, on 22.10.2001 their neibhour accused Rakesh had kidnapped Kr. Reena, she was aged about 15-16 years old, from her natural guardianship.

From the statement of above PW-1 Dharmpal, it is clear that he did not see the occurrence. From the perusal of his statement it is not proved that the present accused kidnapped his minor daughter Km. Reena. PW-2 Deepak Kumar, who is the son of PW-1 Dharmpal, stated that his neibhour PW-3 Dinesh Kumar informed him that he saw the accused along with Reena at roadways bus station Haridwar on 22.10.2001 at about 5-5:30 AM.

From the evidence of PW-2 Deepak Kumar, it is clear that he also did not see the occurrence. From the perusal of his statement it is also not clear that the present accused kidnapped his sister-Reena. The prosecution has produced PW-3 Dinesh Kumar, who is the star witness of this case and he stated in his statement before the lower court that on 22.10.2001, he was going to his native place Aligarh, he saw four persons, namely, Anita, Ravindra, Rakesh and Reena at roadways bus station. After returning from his native place, he informed to PW-2 Deepak Kumar accordingly.

From the evidence of PW-3 Dinesh Kumar, he returned from his native place after one and a half month after the occurrence and thereafter he informed PW-2 Deepak Kumar about the incident.

From the evidence of PW-3 Dinesh Kumar, it is not clear that in what date, time, day and month, he actually informed PW-2 Deepak Kumar about the incident. Apart from that, he did not give any such type of evidence to the I.O. during the investigation. As per his statement he saw the present accused at the bus station, while they were taking their seats in the bus.

PW-4 Gaje Singh, who is the formal witness of the case, who lodged the chick FIR Ex. Ka-2, on the basis of information Ex. Ka-1 given by PW-1 Dharpal, while PW-5 SI Arun Goyal, who is the I.O. of the case, who investigated the matter and submitted charge sheet accordingly, against the accused.

PW-1 Dharmpal, who is the informant as well as the father of Reena, but he did not see the occurrence and PW-2 Deepak Kumar, who is the brother of Reena, he also did not see the occurrence.

From the perusal of the statement of PW-3 Dinesh Kumar, this Court reached to this conclusion that his statement is not reliable. Mere presence of the appellants at the bus station Haridwar would not presume that they committed the crime and enticed away Kr. Reena from her natural guardianship.

It is very unfortunate that in the present case, neither Km. Reena nor Rakesh were recovered during the trial. It is not clear that whether they are alive or not.

From the reassessment of the evidence, I came to this conclusion that the trial court convicted the accused only on the basis of statements given in chief by PW-3 Dinesh Kumar, while there is no sufficient evidence on record against the present appellants. I reached to this conclusion that there is no clinching evidence to convict the accused under Section 363 of IPC.

For the reasons, as recorded hereinabove, the appeal preferred by the appellants is allowed and the judgment and order dated 05.04.2004 passed by the Additional Sessions Judge/Second Fast Track Court, Haridwar in Sessions Trial No.47 of 2002, State vs. Ravindra Singh Gusain and another is, accordingly, set aside. Accordingly, the accused are acquitted under Section 363 of IPC.

Accused are on bail. They need not to surrender. Their bail bonds are cancelled and sureties are discharged.

A copy of this judgment and order along with the LCR be sent to the Court below.