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Upendra Singh v. State Of U.P. - CRIMINAL APPEAL No. - 6471 of 2006 [2007] RD-AH 16514 (9 October 2007)

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(COURT NO. 46)



CRL. APPEAL NO. 6471 OF 2006: Upendra Singh Vs. State


CRL. APPEAL NO. 6535 OF 2006: Sumant @ Chumma Chauhan Vs. State


CRL. APPEAL NO. 6536 OF 2006: Dilip Singh Vs. State


Hon. Amar Saran, J.

Hon'ble S.K. Jain, J.

A prayer for bail has been made in the aforesaid appeals on behalf of the appellants, Upendra Singh, Sumant @ Chumma Chauhan and Dilip Singh.

We have heard learned counsel for the appellants, learned counsel for the complainant and learned AGA.

It was argued by the learned counsel for the appellants that there was no reliable evidence in this case as the victim Abhishek Kumar Misra, who was then 9 years in age when he was abducted while he was going to school on 23.3.1994, has given his evidence in court as PW 3 when he was 17 years in age and in the absence of test identification proceedings, no reliance could be placed on his testimony. The other witness PW 2, Ram Pyare Pandey, who had deposed that when he was going for meeting his relatives from Mehrauna at the UP-Bihar border, he saw the child Abhishek going on a scooter along with Sumant and Dilip. It was contended that he is a chance witness and his testimony could not be relied upon because he was the brother of father-in-law of the informant, Awadhesh Kumar Misra, and in spite of the fact that he had seen the child going on the scooter with the two persons he did not intervene and reached the village of the informant only the next day when he disclosed about the fact that the boy had been seen along with these two accused-appellants.

Two letters, Ext. Ka 3, which is a letter demanding ransom, and Ext. Ka 2, which was the letter written in the handwriting of the boy, Abhishek to the effect that he was in Sadalpur and he should be recovered from there, have also been produced. The person who handed over the said ransom letter, viz. Mohan Singh in the case of letter, Ext. Ka 3, wherein ransom was demanded and who had stated in his 161 Cr.P.C. statement that the said letter was handed over to him by Pappu @ Hanuman and Upendra at Ajay's shop, has not been examined in court. The three other witnesses, who had appeared at that time when the informant and two other witnesses were thinking of proceeding to Kotwali, viz. Paras Yadav and Gauri Shanker Shukla, who had also arrived there and disclosed that they had seen the informant's son on a green colour scooter on 23.3.1994 along with Sumant @ Chumma and Upendra Singh going in the direction of Bihar, however, have also not been produced in the case. Two accused persons, Ajay and Hanuman, who were assigned the role of conspiracy and about whom the victim Abhishek had deposed that when he was being abducted, the abductors stopped the scooter at Khukhundu chauraha, then out of the two persons abducting him called for Ajay and Hanuman and told them that the matter was proceeding according to plan. Then the said persons had replied that it was all right and he should be taken to Bihar and if Awadhesh Misra did not pay the ransom amount of Rs. 2,50,000/- then they should murder the boy. Two witnesses, Sukhari and Nibu Lal, who had given section 161 Cr.P.C. statement of overhearing the conspiracy to commit the crime 4 months prior to the incident, which was hatched by Pappu @ Hanuman, Ajay, Sumant, Dilip and Upendra at the electricity shop of Pappu @ Hanuman, have not been examined.

Learned counsel for the complainant, however, contended that the abductee Abhishek was the best witness to depose about his abduction and there was no reason to disbelieve his testimony, simply because he appeared in court 8 years after the incident when he was 17 years in age, which was no reason for discarding his testimony even without test identification as the significant events of his kidnapping would have been etched in his memory. Furthermore, his testimony had not been shaken by the gruelling cross-examination by a number of counsel who appeared for the different accused. His version of the incident is that after he was kept in Dilip's house, he pretended that he wanted to go to toilet, and Dilip took him to a big drain for the purpose of enabling himself to ease himself, and at that time he saw 10 or 15 persons arriving to that side by a boat, whereupon he rushed to them and asked them to save him as he had been kidnapped. They then chased Dilip, who ran away. They made him write a letter. This was the letter Ext. Ka 2, which was produced before the police on 24.3.1994, whereupon he was recovered by the police who arrived at village Sadalpur in Bihar on the basis of the said letter. This completely corroborates the version given by this witness. He further contended that the non-production of some witnesses because they had been won over by the accused is also not fatal as there was reliable evidence of the abductee Abhishek. The mere fact that Ajay and Hanuman, who were the accused of conspiracy, had been acquitted because the witnesses of conspiracy had not come forward to support the prosecution case in court, is no ground for disbelieving the testimony of PW 2 Ram Pyare and PW 3 the victim Abhishek about the complicity of the present appellants. Also, merely because PW 2 Ram Pyare did not intervene when he saw the boy going along with Sumant and Upendra on the scooter at the UP-Bihar border and his conveying this information to the informant, that is father of the boy, only the next day, is also not very material as he might have gained the impression that the boy was going voluntarily with the two accused persons. Also, not getting the accused identified in test identification proceedings by this witness was not fatal for the prosecution as no reason whatsoever had been suggested that PW 2, Abhishek Misra, the victim boy or PW 3 Ram Pyare or the informant PW 1 Awadhesh Kumar Misra, should falsely implicate the appellants if they had no concern with this case.

After giving our thoughtful consideration to the contentions raised by the learned counsel for both the sides and without entering into the merits of the case, we find no case for releasing the appellants on bail during the pendency of this appeal and the prayer for bail to the appellants is accordingly rejected.

Dated: 9 .10.2007



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