AMBARISH Vs. STATE OF U P

JUDGEMENT

(1.) The present criminal appeal has been filed challenging the validity and sustainability of the judgment and order dated 20.5.2018 passed by the Additional Sessions Judge, Court No. 15, Ghaziabad in S.T. No. 09 of 2011, State Vs. Ambrish arising out of case crime no. 132 of 2009, under section 364-A I.P.C, P.S. Kotwali, District Ghaziabad whereby the appellant has been convicted for the offence under section 364-A IPC and awarded the sentence of life imprisonment and fine of Rs. 5000/-. In default of payment of fine to undergo additional imprisonment of one year.

(2.) Heard Shri Gaurav Kakkar, learned counsel for the appellant and Shri J.K. Upadhyaya, lerned A.G.A and perused the record.

(3.) The prosecution story as unfolded in the F.I.R. is that the first informant, Sumit Jain is the permanent resident of 52-53/A, Radha Krishna Kunj, Ghaziabad and on the date of incident the appellant, Ambrish was carrying on the job of fittings of the electric work at his house. Appellant's shop is also situated in the residential colony itself and he very often used to carry out the electrical repairing work at his house. On the date of incident i.e. 7.2.2009, the appellant without informing the inmates left his house at about 4.30 p.m after completing his work and at that very time his niece Navya Jain aged about 2 and years who was sleeping in the room was found missing. The family members and others residents of the colony started searching her. Meanwhile, three calls were received on his telephone number 2866490. On two occasions on addressing "Hello" the telephone was disconnected,. However on the the third occasion on addressing "Hello" a voice was heard stating that her younger daughter has been lifted and within two hours Rs. 7.00 lacs be paid else the child would be killed. It was further stated that at 8.00 p.m. the phone call would be again repeated. The voice of the caller of the phone was identified by his wife Niyati Jain, to be that of Ambrish. The informant alongwith his family members and other residents of the colony reached at the house of Ambrish and inquired about the whereabout of his daughter, however, he did not disclose anything. On search, the child was recovered from the room of his house. The first informant reached at the police station alongwith the child and the appellant Ambrish and gave a written report for lodging the F.I.R. On the basis of the aforesaid written report, the Check F.I.R. was registered vide case crime number 132/09, under section 364-A IPC at P.S. Kotwali, District Ghaziabad which is marked Ex. Ka 7. Corresponding G.D. entry for registration of F.I.R. was drawn at Sl. No. 49 at 17.45 hrs which has been marked as Ex. Ka 8. After registration of the F.I.R. the investigation of the said case was handed over to P.W.5, Akhilesh Kumar, Sub-Inspector and thereafter the victim was sent for medical examination. P.W.4, Dr. A.K. Singh examined the victim and has found no internal injury on her person but only smell of alcohol was coming from her mouth but the victim was not in a state of intoxication. The injury report was proved by P.W.4, Dr. A.K. Singh which is marked Ex. Ka 2 and thereafter the custody of the victim was handed over to the first informant. The investigating Officer after collecting the relevant material and recording the statements of the witnesses and preparing the site plan submitted the charge sheet against the appellant before the Chief Judicial Magistrate, Ghaziabad. The case being triable by court of Sessions the same was committed to the court of Sessions and registered vide S.T. No. 09 of 2011. The Sessions Judge made over the case for trial before the court of Additional Sessions Judge, Court No. 6, Ghaziabad. The trial court after hearing the prosecution as well as accused framed charge under section 364-A I.P.C. against the appellant, to which he did not plead guilty and claimed to be tried.