Basdeo and another vs State of U. P.

Vinod Prasad, J.—Two appellants, real sibling brothers, Basdeo and Chhotey Lal have questioned the sustainability of their conviction recorded by Vth Additional Sessions Judge, Agra, in S.T. No. 87/80. State v.. Basdeo and another, by which both the appellants have been convicted u/s 363. I.P.C. with implanted sentence of five years rigorous imprisonment and additionally appellant Basdeo has been further convicted u/s 376, I.P.C. and sentenced to five years R.I., by the trial Judge. In short, prosecution allegations against the appellant as is contained in the written report Ext. Ka-1, coupled with chick F.I.R. Ext. Ka-10 were that two appellants alongwith third accused Bare Lal enticed away and kidnapped a young damsel Chandrawati P.W. 4 aged about 13 or 14 years d/o informant Raghunandan P.W. 1 in the night of 5.5.1979 at 12 a.m. Victim was searched but remained untraced. Neighbours and villagers were also Informed regarding aforesaid kidnapping. After a month on 6.6.1979, Veerpal. Ram Prakash, Rangveer Singh, all resident of village Nagla Karan Singh, were returning from a marriage ceremony in a jeep and when they were travelling in between village Ghiror and Sukhabad. at 4 p.m., they located abducted victim Chandrawati flanked by three accused Basdeo, Chhotey Lal and Bare Lal sitting under a tree. No sooner the three witnesses got their jeep stopped all the accused sprinted away to evade their arrest. Victim, after witnessing three witnesses Veerpal, Ram Prakash and Rangveer Singh started shrieking to rescue her. Aforesaid witnesses however, succeeded in apprehending two of the accused Chhotey Lal and Bare Lal after some grappling with them in a field. Third accused Basdeo however, made his escaped good. From the same jeep two apprehended accused alongwith victim were brought to the informant''s house where in the presence of co-villagers victim narrated that she was taken to various places and was also subjected to rape.

With the aforesaid allegations informant Raghunandan scribed Ext. Ka-1, carried apprehended accused and the victim to the Police Station, Firozabad North, district Firozabad and got his F.I.R. registered on 7.6.1979, at 10 a.m., vide Crime No. 212/79. under Sections 363. 366, 368 and 376, I.P.C. against three named accused persons.

Head constable Udai Singh prepared chick F.I.R. Ext. Ka-10 and relevant G.D. entry Ext. Kail. Cartel (petticot) of the victim was also seized by the head constable and its seizer memo was prepared. Cartel was sent for serologist examination on 21.6.1979 through constable Gulab Singh, which was received back on 29.9.1979 alongwith the chemical examination report Ext. Ka-12.

Investigation into the crime was commenced by Sub-Inspector R. S. Punia P.W. 4, who after registration of crime recorded investigatory statements of Head Constable Udai Singh, informant Raghunandan, victim Chandrawati and of accused Bare Lal and Chhotey Lal. P.W. 4 further recorded 161, Cr. P.C. statements of Veerpal. Om Prakash, Raghubir and other witnesses and subsequent thereto has dispatched the victim Chandrawati for her medical examination through constable Dharmveer Singh. On 8.6.1979, Investigating Officer apprehended accused Basdeo and copied recovery memo of the cartel Ext. Ka-3 prepared by Udai Singh. On 9.6.1979. P.W. 4 conducted spot inspection and prepared site plan Ext. Ka-4 of place of abduction. He also prepared site plans of places where victim was kept and raped as Ext. Ka-5, (of village Jaunpai), Ext. Ka-6 (of village Nagla), and Ext. Ka-7 (village Khadoi). On 24.6.1979 proceedings u/s 82, Cr. P.C. against the accused Basdeo were taken. Concluding investigation, on 27.6.1979, P.W. 4 R.S. Punia, Investigating Officer. charge-sheeted accused vide Ex. Ka-9.

On the basis of charge-sheet Ext. Ka-9 accused persons were summoned by the Magistrate, who found their case triable by Court of Sessions, committed it for trial. In the Sessions Court case was received on 20.2.1980 and was transferred to the court of Vth Additional Sessions Judge, Agra for trial.

On 13.9.1980, trial Judge charged two accused-appellants Basdeo and Chhotey Lal for offences under Sections 366 and 376, I.P.C. Since these charges were abjured by accused-appellants, to establish their guilt and bring home the charge, trial procedure commenced.

To substantiate the charges against the appellants, prosecution relied upon in all four witnesses, out of whom victim P,W. 1 Chandrawati, his father informant P.W. 2 Raghunandan were fact witnesses. Other two formal witnesses were Dr. Anju Goel P.W. 3 and Investigating Officer Sub-Inspector R. S. Punia P.W. 4.

In their statements u/s 313, Cr. P.C.. accused persons denied incriminating circumstances appearing against them in prosecution evidence and pleaded their false implication. The defence of the accused-appellant were that they were masons and had worked at the house of the informant regarding which they were not paid their labour charges. On demand being made by them, they were falsely implicated in the present case. Accused appellant Chhotey Lal took further defence that he was arrested at 8 a.m. from his house in village Nagla, district Firozabad and was falsely implicated in the case because of aforementioned defence. To lend credence to their defence story, accused persons examined two defence witnesses D.W. 1 Har Prasad and D.W. 2 Rajendra.

Vth Additional Sessions Judge, Agra, after critically appreciating prosecution and defence evidences and looking into the Exhibits, filed by both the sides, came to the conclusion that prosecution had successfully established the guilt of the appellant Basdeo on both the charges under Sections 363 and 376. I.P.C., and therefore, convicted him for those offences and imposed sentences as has already been recorded hereinabove.

Accused Chhotey Lal however, was not found guilty of the charge of rape and therefore, he was convicted only for the offence of kidnapping u/s 363, I.P.C. and was sentenced as mentioned above. Challenge In this appeal is to the aforesaid conviction and sentence by the two appellants.

Appeal was admitted by this Court on 25.11.1980 and both the appellants were allowed bail. During the pendency of their appeal one of the appellant Basdeo expired and his appeal was abated vide order dated 6.1.2006. Now only the appeal of appellant Chhotey Lal is left to be decided by this Court.

When this appeal was called out for hearing, no body appeared to argue the appeal on behalf of sole appellant Chhotey Lal and consequently Sri D. K. Singh advocate was appointed as amicus curiae to assist the Court in disposal of appeal after a gap of more than three decades.

I have heard Sri D. K. Singh, learned amicus curiae in support of the appeal of Chhotey Lal and Sri Sangam Lal Kesarwani learned A.G.A. for respondent State.

Sri D. K. Singh, amicus curiae contended before the court that it is difficult to castigate the conviction of the appellant recorded by the trial Judge on the basis of evidence tendered by the prosecution. It is submitted that victim Chandrawati was found to be a minor aged about 15 years, which allegation could not be shattered by the defence counsel, and, therefore, her enticing away by the accused stands proved. He further submitted that surviving appellant Chhotey Lal has not molested the chastity of the girl, and therefore, he was convicted only for the offence u/s 363. I.P.C. with the imposed sentence of five years. Learned counsel further submitted that at the time of the incident appellant Chhotey Lal was aged about 35 years and since more than three decades have passed by interregnum, his sentence of five years be reduced. Thus, learned amicus curiae argued only on the question of sentence and did not challenge the conviction recorded through the impugned judgment.

Learned A.G.A. on the question of sentence submitted that sentence is not excessive and do not require any interference by this Court.

I have considered the arguments by both the sides.

Looking to the evidence of P.W. 1 victim Chandrawati and informant Raghunandan P.W. 2 coupled with evidence of Dr. Anju Goel P.W. 3, there remain no doubt that victim Chandrawati was kidnapped by the appellant and his associates. Defence has failed to illicit any damaging evidence in cross-examination, and therefore, so far as conviction of the appellant for the charge u/s 363, I.P.C. is concerned, it stands proved and in this respect submission of learned amicus curiae is fair and Just and is acceptable.

Turning towards sentence part of it, it is to be noted that incident was alleged to have occurred in year 1979. Thirty two years have gone by. Surviving appellant Chhotey Lal after adding period passed interregnum, as of now, will be about 65 years of age. From his statement u/s 313, Cr. P.C., which is not in dispute, he was a poor manson earning his livelihood on daily basis. No criminal history or criminal proclivity of the appellant could have been brought forth by the prosecution to take a stringent view while sentencing him. Said appellant has got no conviction to his credit and over and above, he did not seems to have enticed away the victim because of his lustrous overtures. So far as charge u/s 376, I.P.C. is concerned, he stands acquitted. Crime seems to have been committed by him because of his friendship with co-associates Basdeo, whose appeal had been abated. In such a view, to send accused-appellant Chhotey Lal back to prison to serve out remaining part of his sentence will not be in the interest of justice.

In such a view. I am of the opinion that period of imprisonment, already undergone by appellant Chhotey Lal. which comes out to be for about one and half years of Jail term, with a fine of Rs. 25,000. out of which compensation of Rs. 20,000 to the victim Chandrawati, who is now a married wife will serve the ends of justice.

In the result, appeal is allowed in part. Conviction of appellant Chhotey Lal for the charge u/s 363. I.P.C. is hereby maintained but his sentence is altered from five years R.L, to the period of imprisonment already undergone by him with fine of Rs. 25,000, out of which a compensation of Rs. 20,000 is awarded to the victim Chandrawati P.W. 1. Appellant Chhotey Lal is permitted to deposit the fine of Rs. 25,000 within a period of two months from today, for which trial Judge will issue notice to the appellant. In the event of failure, the trial Judge is directed to get realized the amount of fine from the said appellant as an arrears of land revenue within a period of one month, after expiry of two months'' period already permitted to him to deposit the fine. After the fine is deposited and/or realized from the appellant, trial Judge will notice the victim Chandrawati and will hand over the compensation of Rs. 20,000 to her or her legal heirs entitled for the same. Appeal is allowed in part as above.

Let a copy of this judgment be certified to the trial court.