ASHWANI DUBEY Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri Rajrshi Gupta, learned counsel for the appellants, Sri J.K. Upadhyay and Kumari Meena, learned A.G.A. for the State.

(2.) These three criminal appeals have been preferred by the appellants, Ashwani Dubey, Usha Gupta, Kallu, Neelam, Shyam alias Radhey Shyam and Raja Yadav alias Anurudh Yadav alias Raja Bhaiya against the judgement and order dated 28.11.2006 passed by the learned Special Judge (D.A.A.) Act, Etawah in Special Session trial no. 79 of 2004 (State of U.P. vs. Usha Gupta and others), by which all the appellants have been convicted under Section 364A I.P.C. and section 27 Dacoity Affected Areas (D.A.A.) Act and sentenced to life imprisonment and fine of Rs. 10,000 each and in default of payment of fine one year R.I.

(3.) The facts of the case are that one Shivam son of Updesh Babu Mishra who had gone to attend Bhagwatpath in Friends Colony pandal near Ramnagar, Etawah with his parents on 09.05.2004 went missing from there on the same day at about 7 p.m. during "Prasad Vitran". A missing report in this regard was lodged by the PW1, Updesh Babu Mishra at Police Station-Civil Line, district-Etawah on10.5.2004 at 8:30 p.m. Thereafter on the basis of a written complaint given by the father of the missing boy on 18.05.2004 at about 14:15 p.m., Case Crime no. 130 of 2004 was registered at Police Station-Civil Line, district-Etawah against the appellants and one Meera Gupta who died during the trial. The prosecution case as spelt out in the F.I.R. dated 18.05.2004 (Ext.Ka-2) is that the son of the informant PW1, Updesh Babu Mishra had gone missing from Bhagwatpath Pandal, Friends Colony, Etawah on 09.05.2004 where he had gone with his parents, with regard to which a missing report was lodged by PW1 at the same police station stating therein that he suspected either his son had lost his way or had mistakenly gone with someone else. He further stated in the F.I.R. that when he did not find his son in Friends Colony and the other nearby localities of the city he went in his search to Ashok Nagar where he met one Sri Amar Nath Tiwari, s/o not known, resident of Ashok Nagar near Tiwari Hospital who told him that on 09.05.2004 at about 7:00 p.m. he had seen his son Shivam with Usha Gupta, Meera Gupta, daughter of Sri Ramchand Gupta and Gopeshwar alias Sonu son of Rajkumar Tiwari, Raja Yadav, Anirudh Yadav son of Sri Bharat Singh Yadav, Sri Ashwani Kumar Dubey son of Umashankar Dubey sitting in a white Maruti van bearing registration no. DL 26-A 8462 at Bharsana crossing from where they had gone towards Bharsana. He also stated that although he was related to the missing boy but he did not inform his parents as he was not aware that the boy had been kidnapped. The chek F.I.R. (Ext.Ka10) and the G.D. entry (Ext.Ka9) were prepared by constable, Mahesh Pal Singh, PW8. The investigation of the case was entrusted to PW7 Chatrapati Singh, S.H.O. of Police Station-Civil Line who recorded the statement of Updesh Babu Mishra and prepared the site plan of the spot at the behest of PW1 after inspecting the same (Ext.Ka-8). Thereafter the investigation was transferred to PW6 S.H.O, Ramesh Singh Rathod who continued with the search of the missing boy and after completion of investigation submitted charge sheets Ext.Ka-5, Ext.Ka-6 and Ext.Ka-7 under Sections 364A, 368, 120B, 216A I.P.C. and section 10/12 (D.A.A.) Act against Usha Gupta and other accused. Since the offences enumerated in the charge sheet were triable by Court of session, the case was committed to the Court of session for trial of the accused thereafter the matter was transferred to the court of Special Judge (D.A.A.) Act. Charge was framed against all the accused under Section 364A I.P.C. and 16/12 Dacoity Affected Areas (D.A.A.) Act. The accused on being produced before the Court denied the charges framed against them and claimed trial.