Ved Prakash vs State of U.P.

Vinod Prasad, J.—The sole appellant Ved Prakash has challenged his conviction u/s 364, I.P.C. with implanted sentence of four years R.I. recorded by Second Additional Session''s Judge, Agra by impugned judgment and order dated 19.1.1979, passed in S.T. No. 191 of 1978, State v. Ved Prakash, under Sections 364 and 302, I.P.C., P. S. Firozabad North, district Agra. By the impugned judgment trial Judge had disbelieved prosecution allegation of murder u/s 302, I.P.C. and has acquitted the appellant for the said charge but it had concluded that the prosecution had established appellant''s guilt u/s 364, I.P.C. beyond all reasonable doubt and, therefore, has convicted and sentenced him as above. Charge against the appellant, in nutshell, were that he being a resident of the same locality and having his house across the road had abducted Raju alias Vimal, a young boy aged about five and half years son of informant Om Prakash, on the pretext of showing him pigeons. According to the disclosure made by Smt. Shailendri wife of Om Prakash P.W. 1, Raju alias Vimal was taken away by the appellant at 2.45 or 3.00 p.m. Sushil P.W. 9 and Rajendra P.W. 10 had witnessed the missing child in the accompany of the appellant. Informant first traced out the child by all possible means including seeking information on loudspeaker but the child remained untraceable. At about 9.00 a.m. on 23.2.1976, Om Prakash P.W. 1 lodged F.I.R. regarding missing of his son at police station Firozabad North as Ext. Ka-1. On the next day at about 8.00 or 8.30 p.m., S. I. Roshan Singh P.W. 11 informed the informant Om Prakash that the corpse of his son has been recovered from the house of one Saleem son of Naim near a mosque in mohalla Hajipura. From the clothes, material Exts. 1 and 2, found on the body that P.W. 1 identified it that it was of his son. S.I. Anang Pal Singh P.W. 4 had performed inquest on the dead body of the young boy which was discovered lying in a corner of the room. The seizure memo about clothes of the deceased is Ext. Ka-2 and the inquest memo is Ext. Ka-3. Other relevant papers prepared simultaneously alongwith inquest report were proved as Exts. Ka-4 to 6.

Shiv Kumar constable had registered the case by preparing chik F.I.R. Ext. Ka-10 and G.D. entry Ext. Ka-11. S. I. Roshan Singh P.W. 11 had conducted the investigation into the offence. During trial he had also proved extracts of statements of Sushil P.W. 9 and Rajendra P.W. 10 as Exts. Ka-12 and Ka-13, who both had turned hostile during trial and had not supported the prosecution case. Two site plans, one of the place from where Vimal alias Raju was abducted and other from where his dead body was recovered were prepared as Exts. Ka-14 and Ka-15. On 11.3.1975, appellant was arrested, who had taken the Investigating Officer and other police personnel to the house of Saleem to point out that the missing boy was confined there. Recovery memo regarding recovery of corpse was proved as Ext. Ka-8. S.I. Roshan Singh had concluded the investigation by laying down a charge-sheet against the accused appellant vide Ext. Ka-16.

Dr. R. P. Sharma had conducted post-mortem examination on the deadbody of the deceased on 25.2.1975. According to his testimony, death had occurred about one or two days prior, there was no visible mark of injury on the dead body but it''s internal examination disclosed that memberances of the scalp, brain, base, pleura, both lungs, tracheas, pancreas, spleen and kidney were congested. There was froth in the mouth and in both the nostrils. There was semi-digested food in the stomach. Small intestines were empty and large intestines contained faecal matter. Both the chambers of heart were full of blood. In the opinion of the doctor death was due to asphyxia. Viscera was also preserved. The post-mortem examination report of the deceased was proved as Ext. Ka-9.

After submission of charge-sheet appellant was summoned and his case was committed to session''s court where it was registered as S.T. No. 191 of 1978, State v. Ved Prakash. Appellant was charged with offences under Sections 364 and 302/34, I.P.C. on 28.9.1978 by IInd Additional Session''s Judge, Agra.

To establish appellant''s guilt, prosecution tendered oral evidences of 11 witnesses, out of whom P.W. 1 Om Prakash and Smt. Shailendri P.W. 2, (parents of the deceased boy) alongwith Km. Chandra Kanta P.W. 3 were fact witnesses. Formal witnesses included S.I. Anangpal, P.W. 4. who had prepared inquest report of the deceased, constable Chandra Bhan Singh P.W. 5, who had taken the deadbody for post-mortem examination, Jahan Singh P.W. 6 witness of search of house of appellant, Nasiruddin P.W. 7 witness of the recovery of corpse of a Hindu boy and Dr. R. A. Sharma P.W. 8, autopsy doctor. Besides these other witnesses were Sushil P.W. 9 and Rajendra P.W. 10 (both witnesses of last seen of the deceased alongwith the appellant turned hostile) and P.W. 11 Roshan Singh is the Investigating Officer.

In his statement u/s 313, Cr. P.C. appellant denied all the prosecution evidences and pleaded his false implication because of verbal altercation with P.W. 2 Smt. Shailendri. He had pleaded that he had gone to give food to his father and since noon there were rumours that the deceased had run away with a utensil (bowl) and was not traceable and he has been falsely implicated.

At this juncture I put a note with serious concern that perusal of the original record of the trial court in respect of recording of statement u/s 313, Cr. P.C. indicates that the same was recorded by the trial Judge in a most careless manner without any application of mind. Neither age nor address nor vocation of the appellant is mentioned in the columns for recording of these entries although columns were penned down in handwriting. It seems that the trial Judge has not cared to perform his duty as was expected of him and was utterly careless in recording statement u/s 313, Cr. P.C. This I have mentioned also for the reason that while sentencing the appellant trial Judge himself has observed that the appellant was 15 or 16 years of age at the time of commission of offence. From where the trial Judge deciphered such an age is not perceptible because, as stated above neither any age, address or vocation was noted while recording statement u/s 313, Cr. P.C.

The trial Judge, opined that the charge u/s 302, I.P.C. had not been established and guilt of the appellant was proved beyond any shadow of reasonable doubt only for offence u/s 364, I.P.C. and, therefore, convicted and sentenced him for the said crime only as has already been mentioned above, hence this appeal.

9.At the time of hearing, some of the papers were not available on the record and therefore, reconstruction of the record was ordered. A report has been sent by Court No. 18, Agra dated 22.6.2009 wherein it was mentioned that Exts. Ka-1 to Ka-6, Ka-10, Ka-11, Ka-15 and Ka-16 could not be traced out and, therefore, reconstruction about the said Exhibits is not possible. Existing available record however indicated that depositions of all fact witnesses are available on the original record alongwith other Exts. Ka-7 and Ka-8, post-mortem examination report Ext. Ka-9, charge framed against the appellant dated 28.9.1978 and the original judgment alongwith other Exts. Ka-12 and Ka-13. In my humble view unless it is shown that prejudice has been caused to the appellant, on available record, the appeal could not be dismissed as the same can be considered on merits. It is recollected that primary evidences against an accused are testimonies of witnesses recorded during trial which are admissible evidences and exhibits are only corroborative pieces of evidences to support the depositions of witnesses during trial. In such a view I have not abated the appeal because of non-availability of the aforesaid documents, and have considered the appeal on it''s merit.

Since no body appeared to argue the appeal, Sri Bhupendra Pandey, advocate was appointed as amicus curiae. I have heard learned amicus curiae and learned A.G.A. Sri Patanjali Misra for the State.

Castigating the impugned judgment it is contended that there is absolutely no evidence that the appellant had kidnapped the child. The appellant himself was a child on the date of the incident as was noted by the trial Judge himself in his impugned judgment. It is submitted that P.W. 1 is not an eye-witness of the incident and whatever he testified regarding the incident was all hearsay being informed to him by P.W. 2 his wife. It is further submitted that P.W. 3 was not relied upon by the trial Judge who discarded her as having of immature understanding. It is further submitted that the sole witness on whom the trial Judge relied was the evidence of P.W. 3, mother of the deceased but her entire deposition does not make out any offence of kidnapping. It is further submitted that how the boy was recovered and what was the motive for kidnapping had not been spelt out by any of the prosecution witnesses. It has also not been stated that as to with whom deceased had gone. Who informed the Investigating Officer regarding presence of deceased corpse in Salim''s house is also not known and, therefore, conviction of the appellant, in absence of all these evidences, cannot be sustained. It is further submitted that since the appellant has been acquitted u/s 302, I.P.C. therefore, substantial part of the prosecution allegation itself has been disbelieved by the trial Judge. Primarily on the aforesaid submissions, alongwith other arguments, it was contended that conviction of the appellant cannot be sustained. Moreover it was argued that once trial Judge had opined that the appellant was less than 16 years of age, he could not have sentenced him even after recording his conviction as the appellant was entitled to the benefit of U. P. Children''s Act. It is, therefore, contended that the appeal be allowed or in any case appellant''s sentence be scored of.

Shri Patanjali Mishra learned A.G.A. representing the State endeavoured to support the judgment of the conviction and sentence.

I have considered the arguments raised by both sides and have vetted the evidences brought on record. From the perusal of the material on record and evidences tendered before the trial Judge, I find that the arguments of appellant''s counsel are well merited. So far P.W. 1 is concerned, it is unambiguous prosecution version that he was at his shop where he was informed about missing of the child Raju alias Vimal. On receiving such an information, P.W. 1 returened to his house where he was informed by his wife P.W. 2 Smt. Shailendri that at 2.45-3.00 p.m., in the afternoon, on that date, i.e., 23.2.1976, that appellant had taken away the deceased boy Raju alias Vimal on the pretext of giving him a pigeon. Thus, P.W. 1 had no personal knowledge about the incident and his entire deposition regarding actual happening is hearsay and inadmissible. Turning towards P.W. 2, her cross-examination does not make her reliable and truthful witness at all. She had taken a complete U-turn from her examination-in-chief statements and, therefore, her entire deposition is inter se contradictory and no reliance can be placed on her depositions. She seems to be a confused witness and, therefore, her testimony is incredible. To cement the view, some of her depositions are transliterated as under :

Ved Prakash used to come to our house since last 11 years when we had come to reside in this house. My issues used to go to the house of Ved Prakash often. My daughters used to go to the house of Ved Prakash often. My son and daughters used to play with Ved Prakash outside the house. I had never objected to my issues to go to Ved Prakash or to his house.

P.W. 2 further stated :

My son had not started bathing when Ved Prakash had called him. I objected but Raju did not pay any heed and rushed away to play with Ved Prakash. I had no conversation with Ved Prakash. Ved Prakash had said that he will come soon. I do not enquire from my son where he is going to play.

She further testified as under :

Ved Prakash mother and sister used to visit my house. Their visit was not taken to be offending to me.

In view of the aforesaid depositions, what had been stated by P. W.2 were that when victim child was going for a bath he was called by the appellant on which he (child) himself ran away in spite of refusal by his mother P.W. 2. This is no evidence of kidnapping. No force was applied and the child went away on his own volition hearing call from Ved Prakash. In such a view, it cannot be concluded that appellant had kidnapped the child. No inducement or enticement was applied as the call was in routine course of natural happening.

Further, unsatisfactory feature of the prosecution case is that there is absolutely no motive for the appellant to kidnap the child. None of witnesses had made any statement in that respect and entire prosecution version is completely silent on the said aspect of the matter. Additionally, how the Investigating Officer came to know about lying of the dead body inside the house of Salim is not known. Prosecution has not furnished any evidence on record to prove said fact in issue and, therefore, most material aspect of the entire episode remained unknown. It has not been brought on record as to how and in what manner Investigating Officer came to know that the dead body of the deceased boy was lying under wooden ''Takhat'' inside house of Salim and attour neither Salim nor his associate were apprehended. Another unsatisfactory aspect of the prosecution case is that inquest on the deceased cadaver was conducted as an unknown dead body and if F.I.R., in respect of missing of the child, was already in existence lodged on 23.2.1976 at 9.15 p.m. then inquest could not have been conducted as an unknown person. No recovery or discovery had been made at the pointing out of the appellant. It is noted here that the appellant was arrested on 11.3.1975 and 18 days prior to his arrest, dead body had already been recovered by the Investigating Officer and post-mortem examination and inquest were already over. In such a view, appellant does not seem to be involved in kidnapping of the deceased.

It is further noted that two witnesses P.W. 9 Sushil aged about 30 years and P.W. 10 Rajendra aged about 22 years, according to the prosecution case, were witnesses of the last seen of the incident but none of them supported the prosecution case at all and were declared hostile. Perusal of statements of these witnesses, as are available on the record, does not indicate any incriminating circumstance against the appellant for the charge of kidnapping. The trial Judge had also not placed reliance on their testimonies.

On an overall analysis I am of the view that the charge of kidnapping has been failed to be established by cogent, reliable and acceptable evidences against the appellant and therefore, conviction of the appellant cannot be sustained.

Although not necessary but it is pointed out that while convicting the appellant trial Judge himself recorded that on the date of incident the appellant was 15 or 16 years of age but instead of conferring benefit of U. P. Children''s Act on him, trial Judge had sentenced him to imprisonment, which was not an exercise in damnum. This appeal is allowed. Conviction of the appellant Ved Prakash for offence u/s 364, I.P.C. is hereby set aside. He is acquitted of that charge. Appellant is on bail. He need not surrender, his personal bond and surety bonds are hereby discharged.

Let copy of the judgment be certified to the trial court for it''s intimation.