Neutral Citation No. - 2025:AHC-LKO:9200 Court No. - 14 Case :- CRIMINAL APPEAL No. - 2270 of 2008 Appellant :- Sone Lal and others Respondent :- State of U.P. Counsel for Appellant :- Arun Saxena,Anil K Pandey,Firoz Ahmad Khan Counsel for Respondent :- G.A. Hon'ble Subhash Chandra Sharma,J. 1. Heard learned counsel for the appellants as well as learned A.G.A. for the State and perused the material on record. 2. The present criminal appeal has been filed with prayer to set aside the impugned order dated 16.09.2008 passed by the learned Additional Session Judge (Fast Track) Court No.28, Barabanki in S.T. No.535 of 2005 (State vs. Sonelal and others) arising out of Case Crime No.C-06/05 of 2005, under Sections 147, 363/149, 366/149, 506 I.P.C. & Section 3(2)(5) SC/ST Act, Police Station Fatehpur, District Barabanki, whereby convicting and sentencing the appellants under Section 147 I.P.C. one year year rigorous imprisonment each; under Section 363/149 five years rigorous imprisonment with fine of Rs.3000/- each and in default of payment of fine three months further simple imprisonment; under Section 366/149 seven years rigorous imprisonment with fine of Rs.5000/- each and in default of payment of fine six months further simple imprisonment and on the other hand acquitted the appellants Talukdar for the offence under Section 506 I.P.C. and Lakhpati Verma for the offence under Section 3(2)(5) SC/ST Act. 3. Facts in brief are that on 27.12.2004 at about 7:00 P.M. the daughter of informant aged about 15 years went to attend natural call with her bhabhi from where she was taken away by appellants Sonelal, Talukdar, Lakhpati Verma, Mansharam & Balakram regarding which an F.I.R. was lodged at the concerned police station u/s 363, 366 I.P.C. and 3(2)(5) SC/ST Act. 4. After investigation charge sheet was filed u/s 363, 366, 506 I.P.C. and 3(2)(5) SC/ST Act on the basis of cognizance was taken and after compliance of Section 207 Cr.P.C. case was committed for trial. 5. On the basis of material on record learned trial court framed the charge against the appellants u/s 147, 363/149, 366/149, 506 I.P.C. and 3(2)(5) SC/ST Act. 6. Accused Balakram absconded as a result trial proceeded against the present appellants only. 7. The prosecution produced PW-1 Bhagauti, PW-2 Smt. Gita, PW-3 Santram & PW-4, the investigating officer Circle Officer, Karuna Shankar Rao. 8. After conclusion of prosecution evidence statement of appellants u/s 313 Cr.P.C. were recorded. They did not adduce any evidence in defence. The appellants requested the court to summon Dinesh Chandra Srivastava, Advocate who prepared the marriage agreement but he could not be examined since he had died. 9. After hearing the arguments for the prosecution as well as defence the judgment in question was passed. 10. Learned counsel for the appellants argued that in this case appellants had committed no offence but being relative of Balakram, they have also been implicated in the present case for making pressure on them. It is further submitted that till the conclusion of trial the kidnapped girl Smt. Sushma could not be recovered even though the conviction was held against the appellants only on the basis of statement of PW-2 Smt. Gita who is bhabhi of the victim though she stated clearly in her examination before the learned court that present appellants did nothing. She stated about their presence only on the spot. Further she stated that the victim was taken away by Balakram. 11. It is also submitted that incident took place in the darkness of evening when clear identification of appellants was not possible. PW-1 & PW-3 have not seen the incident but they deposed their testimony on the basis of statement of PW-2 Smt. Gita which is nothing except hearsay. He further submits that after conclusion of trial in this case, the victim was recovered and and her statement u/s 164 Cr.P.C. was also recorded before the learned court in which she clearly stated that she went with Balakram (co-accused) voluntarily, entered into marriage with him and started living in Muzaffarnagar. She had three issues from the wedlock. Sh also stated that present appellants were implicated falsely in the case. In this way, the appellants being innocent have falsely implicated, convicted and sentenced without any evidence on record against them, therefore, the judgment and order passed by learned trial court dated 16.09.2008 is against the evidence on record. 12. Learned A.G.A. contended that in this case though the appellants are related to co-accused Balakram who took away the victim with him but could not dispute the fact that PW-2 is said to have gone with the victim to attend natural call in the field who stated about the appellants that they did nothing with the victim. He could also not dispute the fact that the victim and co-accused Balakram entered into marriage and were living as husband and wife and having three issues with the wedlock and also the fact that she stated before the learned Magistrate that present appellants had played no any role in the incident but were implicated falsely. 13. From the perusal of record, it appears that in this case the victim was said to be taken away by the present appellants and co-accused Balakram. The present appellants are relatives of co-accused Balakram with whom she (victim) entered into marriage as alleged. The victim could not be recovered but later on she was recovered though her statement u/s 164 Cr.P.C. could not be recorded before the learned court till conclusion of trial. PW-1 & PW-3 are witnesses who had not seen the incident. PW-2 Smt. Gita is said to be eye-witness. In this way, the statements of PW-1 & PW-3 are of no value as being hearsay. The statement of PW-2 Smt. Gita is material in this regard. During the course of cross-examination the witness has clearly stated when she had gone to attend natural call in field in evening, accused Balakram caught her nanad (the victim). Other co-accused persons did nothing. She was attending the natural call about 20 steps distant place when she heard noise of her nanad, she threw away her lota and ran towards the place of incident but all the accused persons had already run away. She also stated that she made such statement before the court first time. Prior to this, she did not tell about the incident to anyone. The aforesaid statement of PW-2 clearly shows that present appellants did nothing but it was Balakram who took away the victim, therefore, the present appellants cannot be said to have committed the offence of kidnapping of the victim. In this regard, the finding recorded by learned trial court cannot be said to be based on evidence on record but it being erroneous is not sustainable in the eyes of law. As a result, the appellants are entitled for acquittal and the appeal is liable to be allowed. 14. Accordingly, this appeal is allowed and the judgment and order dated 16.09.2008 convicting and sentencing the appellants is, hereby, set aside. 15. The appellants are on bail so they need not surrender, therefore, their bail bonds are cancelled and sureties stand discharged. 16. Copy of this judgment alongwith original record of trial court be transmitted to the court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record. Order Date :- 12.2.2025 Ashok Gupta Digitally signed by :- ASHOK KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench