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2020 Supreme(UK) 326
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Ravi Malimath, R.C. Khulbe, JJ.
State Of Uttarakhand - Appellant
Versus
Ravi Kant Kiryana - Respondent
Government Appeal No. 16 of 2011
Decided On : 06-11-2020
J.S. Virk, Advocate, Tapan Singh, Advocate
Headnote:
Criminal Procedure Code, 1973, Secs. 313 and Indian Penal Code, 1860, Sec. 364 – Allegation of kidnapping for murder – F.I.R. – Charge-sheet – Acquittal of Trial Court – Criminal appeal by State challenging the legality of the judgment of acquittal – F.I.R. is lodged after a delay of one year, 2 months and 21 days – None of the prosecution witnesses has explained any specific reason for lodging the report with delay – PW1 has said that accused made phone calls for 6-7 months to her and her phone was switched off, this period comes to about January or February, 2008 – But the report was lodged on 15.9.2008 – In FIR it is mentioned that in the same manner sister-in-law of accused is also missing – When the informant and her family members knew about the criminal antecedents of accused then on what basis they believed on the accused even after more than one year – No evidence on record to show that accused had forcefully kidnapped the victim – No CDR on record to connect the crime with accused – All the witnesses are interested witnesses – No interference required with the trial Court’s order – Sustained – Appeal dismissed. (Paras 13, 14, 18 and 20)
n.M izfØ;k lafgrk] 1973] /kkjk 313 o Hkkjrh; n.M lafgrk] 1860] /kkjk 364 & gR;k ds fy, vigj.k djus dk vfHkdFku & izFke lwpuk fjiksVZ & vkjksi i= & fopkj.k U;k;ky; }kjk nks"keqfDr & ltk }kjk nks"keqfDr ds fu.kZ; dks pqukSrh nsrs gq, nkf.Md vihy & izFke lwpuk fjiksVZ] ,d o"kZ nks ekg vkSj bDdhl fnuksa ds foyEc ds i’pkr ntZ djkbZ xbZ Fkh & fdlh Hkh vfHk;kstu lk{kh us foyEc ls fjiksVZ ntZ djkus dk Li"Vhdj.k ugha fn;k gS & PW1 us ;g dgk gS fd vfHk;qDr us mlh 7 ekg rd Qksu fd;k Fkk vkSj ckn esa mldk Qksu cUn gks x;k Fkk] ;g vof/k yxHkx tuojh&Qjojh] 2008 dh gS & ijUrq fjiksVZ fnukad 15-9-2008 dks ntZ djkbZ xbZ Fkh & izFke lwpuk fjiksVZ esa ;g mfYyf[kr gS fd blh izdkj ls] vfHk;qDr dh flLVj&bu&ykW Hkh xqe’kqnk gq;h Fkh & tc lwpuknkrk vkSj mlds ikfjokfjd lnL;ksa dks vfHk;qDr ds vkijkf/kd iwoZo`Ùk dh tkudkjh gq;h Fkh] rc fdl vk/kkj ij] mUgksaus vfHk;qDr ij ,d o"kZ ds i’pkr Hkh fo’okl fd;k Fkk & ;g n’kkZus ds fy, vfHkys[k ij dksbZ lk{; ugha gS fd vfHk;qDr us ihfM+rk dk cyiwoZd vigj.k fd;k Fkk & vfHk;qDr ds lkFk vijk/k tksM+us ds fy, vfHkys[k ij dksbZ dky fMVsy fjiksVZ ¼lh-Mh-vkj-½ miyC/k ugha gS & lHkh lk{khx.k fgrc) lk{khx.k gSa & fopkj.k U;k;ky; ds mDr vkns’k esa fdlh gLr{ksi dh vko’;drk ugha gS & la/kk;Z & vihy [kkfjtA ¼izLrj 13] 14] 18 ,oa 20½
JUDGMENT
R. C. Khulbe, J. - This appeal is preferred by the State challenging the judgment dated 18.11.2010 passed by learned Additional Sessions Judge/Second FTC, Dehradun in S.T. No.56 of 2009 (State v. Ravi Kant) whereby, the said Court has acquitted the respondent for the offence of Section 364 IPC.
2. The prosecution story unfolds that on 15.09.2008, PW1 Smt. Rizwana gave a written report at P.S. Patel Nagar, Dehradun to the effect that on 24.06.2007, his brother Sikandar @ Babbloo was taken away by the accused Ravi Kant Kiryana. The respondent kept on making phone calls assuring that Sikander was with him and there was no need to worry. When the informant wanted to have a talk with her brother, Ravi Kant informed her that near about 25.7.2007, her brother Sikander has been sent to the jail at Nepal due to some quarrel and he would soon get him released back. The informant's relatives searched for her brother in all the jails at Nepal but he was not found. It is stated in the report that the respondent has abducted informant's brother and got him murdered. With these averments, the FIR (Ex.Ka-1) was lodged. The case was investigated after culmination of which, a charge-sheet (Ex.Ka-5) was filed against the respondent- accused u/s 364 IPC. The case was, accordingly, committed to the Court of Sessions. Thereafter, a charge under Section 364 IPC was levelled against the accused to which he pleaded not guilty and claimed to be tried.
3. The prosecution, in support of its case, examined as many as seven witnesses, namely, PW1 Smt. Rizwana, PW2 Smt. Faimina Begum, PW3 Sher Mohammed, PW4 Omendra Singh Bhati, PW5 Asif Chaudhary, PW6 Constable Ashok Kumar and PW7 S.I. Yogesh Chandra Upadhayaya.
4. After completion of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. in which he denied the allegations levelled against him. However, no oral or documentary evidence was led in defence.
5. The Trial Court, at the end of trial, came to the conclusion that the prosecution had failed to prove its case against the respondent-accused beyond reasonable doubt, and accordingly, it acquitted the respondent for the offence u/s 364 IPC. Assailing the order of acquittal, present appeal is filed by the State.
6. We have heard learned counsel for both the parties and perused the entire material available on record.
7. Pw1 Smt. Rizwana testified that on 24.6.2007 at 7 AM, Ravi Kant had taken her brother Sikdander @ Babloo along with him in his car. Mahendra Bhaati and other people had seen the respondent taking away her brother. On 28.6.2007, phone call of her brother was received who said that he was along with the respondent-accused, and he would return soon. Since thereafter, no call of her brother was received. The accused Ravi Kant used to call her that Babloo was with him and there was no need to worry, and they would return soon. It continued for one month like this. The accused then called her and informed that her brother had a quarrel in Nepal and he is in prison in Lumbini Jail, and he would bring her brother back soon and he kept on making such phone calls for 6-7 months. When her brother in law went to see her brother in Nepal jail, he was not found there nor was any case registered against her brother. When her brother in law informed this fact to the accused, he switched off his phone thereafter. Thereafter, the report was lodged by her which is Ex.Ka-1.
8. Pw2 Smt. Faimida Begum is the mother of kidnapped Sikander @ Babloo and she narrated the same story as deposed by PW1 Smt. Farzana. She has deposed that on 24.6.2007 at 7 AM, the accused Ravi Kant had taken away her son Sikander @ Babllu from her house in his car. She has also corroborated the fact of doing phone calls by the accused and assuring that her son was fit and fine. She also stated that her son had a quarrel with some person and he is in Nepal Jail. When her son in law went to search for her son, he was not found anywhere. Thereafter, when s
