SHIV DAYAL Vs. STATE

JUDGEMENT

(1.) THIS is a jail appeal filed by convict Shiv Dayal from judgment and order dated 16tui of January, 1997 passed by Sri R.S. Gupta Special Judge Anti Dacotiy District Jalaun at Oral in Sessions trial No. 141 B of 1986 State v. Shiv Dayal convicting the appellant under Section 364A IPC and sentencing him to imprisonment for life there under. Brief facts giving rise to this appeal are that at about 7.00 a.m. on 11th of April, 1980 Mani Ram lodged an FIR at police station Rampura District Jalaun at Oral alleging that he and Ram Siya had a contract of Naraul Ghat, and for realizing the theka charges he and Radhey Shyam, brother of Ram Siya used to live at Naraul Ghat in a shanty: that at about 6.10 p.m. on 10th of April, 1980 some 4-5 persons reached there who tied both of them with strings at the gun point and took them towards the rugged area and some three bandits accompanied them from a well situate at a short distance from their shanty and all of them reached at some place situate at a distance of about one mile where some 10-12 bandits were already present and that then by making both of them sit apart the bandits talked together and handed over a letter to Mani Ram relieving and asking him that he would hand over that letter to the brother of Radhey Shyam. Mani Ram returned back and informed Ram Siya that his brother Radhey Shyam had been adducted by the gang of Ghan Shyam. It was also mentioned in the FIR that ransom of Rs. 1,05,000/- (Rs. one lac and five thousand) was demanded for the release of Radhey Shyam. The police registered a crime against Ghan Shyam and seven unknown persons and investigated the case, After completing the investigation the police submitted charge-sheet against the accused. It appears that since accused Shiv Dayal was confined in Gwalior Jail in connection with several other cases launched against him in Madhya Pradesh he was transferred on B Warrant here after hearing of the case against him there and hence his trial was separated from the other co-accused. After framing of charge against the accused the prosecution examined Radhey Shyam (PW 1), Durgai (PW 2), Han Ram (PW 3), Ram Swarup (PW 4), Mani Ram (PW 5), and Ram Siya (PW 6) in its support. PW 1 Radhey Shyam PW 2 Durgai, P.W.3 Han Ram, P.W.4 Ram Swarup and PW 5 Mani Ram have been examined by the prosecution as eyewitnesses of the alleged abduction. Out of five witnesses only PW 1 Radhey Shyam has supported the prosecution case against the accused. P.W. 2 Durgai, P.W. 3 Han Ram and P.W.4 Ram Swarup consistently stated in their examination-in-chief that they did not witness the alleged incident of abduction of Radhey Shyam and Mani Ram and that they heard in the village that both of them were abducted. P.W. 5 Mani Ram stated in his examination-in-chief that the alleged evening some bandits abducted him and Radhey Shyam and took them at a distance of about one mile from their shanty at Naraul Ghat and about half an hour thereafter they relieved him and since his eyes were tied he could not say if accused Shiv Dayal standing in the dock was among those bandits or not. P.W.6 Ram Siya also supported the prosecution case stating that he got his brother Radhey Shyam relieved from the clutches of the bandits on payment of ransom of Rs. 1,05,000/- and Shiv Dayal was among those bandits. On an appraisal of the parties evidence and after hearing the parties learned counsel the learned Trial Court found that the charge against the accused was established and recorded his conviction awarding sentence to him accordingly. Feeling aggrieved by the impugned judgment and order the accused preferred this appeal from Jail for redress. We have heard Sri Raghuraj Kishore learned Amicus Curiae for the appellant and learned AGA for the State. After going through the record of the case and the impugned judgment and order we do not find ourselves in agreement with the findings recorded by the learned Trial Court for the following reasons: The statements of the witnesses examined by the prosecution are inconsistent and incongruent on the material points. P.W.1 Radhey Shyam, the victim stated in his examination-in-chief that at about 5.00 p.m. on 10th of April 1980 some eight bandits abducted him and Mani Ram from Naraul Ghat and some eight persons met them in the Jungle and all of them put their signatures on a letter demanding ransom of Rs. 2,50,000/- for his release and handed over that letter to Mani Ram relieving him and asking that he should hand over that letter to his brother and at that time he saw accused Shiv Dayal for the first time among the bandits and recognized him. However. PW 5 Mani Ram who was also abducted with Radhey Shyam stated that all the time he was detained there eyes of both of them were tied and hence he could not see if Shiv Dayal was among the bandits who abducted him and Radhey Shyam. However, the letter allegedly handed over by the bandits to Mani Ram asking for ransom for the release of Radhey Shyam has not been brought on the record. P.W. 5 Mani Ram stated that bandits had demanded ransom of Rs. 1,00,000/- for the release of Radhey Shyam. However, a perusal of the FIR goes to show that ransom of Rs. 1,05,000/- was demanded for the release of Radhey Shyam. P.W. 6 Ram Siya brother of Radhey Shyam stated that Mani Ram gave him a letter sent by the bandits demanding ransom of Rs. 5,00,000/- for the release of his brother Radhey Shyam. These inconsistent and incongruent statements of the witnesses regarding the amount of ransom demanded in the letter allegedly sent by the bandits through Mani Ram (PW 5) for Ram Siya brother of Radhey Shyam go to the very root of the case and cannot be taken lightly and ignored by saying that because of lapse of time the inconsistencies regarding the amount of ransom demanded occurred in the statements. Even the investigating officer who investigated the crime has not been examined by the prosecution so that these witnesses could be contradicted with their earlier statements given by them to the investigating officer and recorded by him under Section 161 of the Code of Criminal Procedure. Further the original letter asking for ransom allegedly sent by the bandits through Mani Ram for Ram Siya brother of Radhey Shyam has not been brought on the record. Further. PW 6 Ram Siya does not appear to be a truthful and straightforward witness as he stated in his examination-in-chief that accused Shiv Dayal was present among the bandits at the time he got his brother Radhey Shyam relieved by paying ransom to them and that at the time of the abduction of his brother Radhey Shyam also he was among the bandits. Admittedly PW 6 Ram Siya did not witness the alleged incident of abduction of his brother Radhey Shyam. Hence, it is incomprehensible and unintelligible as to how he could state that accused Shiv Dayal was among the bandits in the incident of abduction of his brother Radhey Shyam. THIS witness Ram Siya could not withstand his cross-examination as he stated in his cross-examination that when he went accompanied with his younger brother and one Durjan Yadav to get his brother Radhey Shyam relieved after paying ransom to the bandits some five bandits namely Karan Singh. Mani Ram. Avadhesh. Munni Singh and Munni Devi were present to receive the money that he did not know any of them since before and all the five themselves told their names and that Munni Singh received the money and Karan Singh counted the same and that he did not talk to any of the other bandits accompanying them and standing there. In view of this statement of PW 6 Ram Siya it is unintelligible and unfathomable as to how Ram Siya came to know that Shiv Dayal was present among the bandits who relieved Radhey Shyam after receiving the ransom. He has nowhere stated that he knew Shiv Dayal since before. Furthermore, the prosecution did not examine younger brother of Ram Siya and Durjan Yadav who allegedly accompanied Ram Siya at the time of release of Radhey Shyam from the clutches of the bandits. In view of the above infirmities and incongruities in the prosecution case and evidence implicit reliance cannot be placed on the interested testimony of PW 1 Radhey Shyam and PW 6 Ram Siya. Admittedly the case of Shiv Dayal was separated from the other co-accused and the co-accused were acquitted of the charge levelled against them by the learned predecessor of the Special Judge (Anti Dacoity) passing the impugned judgment and order. For the above, reasons given by the learned Special Judge for holding the accused guilty of the charge levelled against him do not appear to be convincing to us. Since the impugned judgment and order does suffer with manifest illegalities in appreciation of the parties evidence the same cannot be sustained in law. The impugned judgment and order is therefore set aside and the accused is held not guilty of the charge levelled against him. The appeal is allowed. The impugned judgment and order recording conviction of the accused under Section 364A IPC and awarding sentence to him there under is set aside. Accused Shiv Dayal is hereby acquitted of the charge levelled against him. He is in jail. He shall be released from the jail forthwith if not wanted to remain therein in any other case. CJM concerned shall do the needful. Rs. 1000.00 (Rs. one thousand) shall be paid to Sri Raghuraj Kishore Amicus Curiae appearing on behalf of the accused as his legal remuneration. Office to send copy of the judgment to the Court below alongwith record of the case for compliance immediately. Compliance report within one, month from the date of receipt of the copy of judgment. Appeal allowed.