Chhoti Bittee and Another vs State of U.P.

M.K. Mittal, J.—This appeal has been preferred by Smt. Chhoti Bittee and Bachchi Lal against the judgment and order dated 18.8.1981, passed by Sri Ramji Lal, the then Additional Sessions Judge, Mainpuri in S.T. No. 417 of 1980 whereby he found the Appellants guilty and convicted them u/s 368, I.P.C. and sentenced them to undergo rigorous imprisonment for four years. The accused were tried under Sections 364, I.P.C. but were not found guilty therein and instead were convicted u/s 368, I.P.C.

Brief facts as disclosed in the first information report lodged by Atar Singh, brother of Brij Bihari Lal, are that that Brij Bihari Lal and his relations were present at the tube-well on 25.3.1979 at about 7 p.m., when 9 miscreants in police uniform, out of whom, six had weapons and three had lathis, came there and ordered for arresting them and to carry them to the Police Station. Some of them wanted to arrest one of his relative and they tackled them one by one. They arrested Brij Bihari Lal the brother of the complainant and took him with them. Miscreants were seen and recognised by the persons present there, in the lantern and torch light. However, they managed to take Brij Bihari Lal. During investigation, accused Bachchi Lal and co-accused Vidya Ram were identified by Brij Bihari Lal in jail. However, there was no evidence against Vidya Ram and he was acquitted by the impugned judgment. Evidence came to the effect that accused-Appellant had detained Brij Bihari Lal at their house and had demanded ransom from him and they did so, knowing that Brij Bihari Lal had been kidnapped. Later on, police rescued Brij Bihari Lal from the house of the accused persons on 5.4.1979.

After investigation charge-sheet was submitted against the accused persons and one Vidya Ram. They were committed to the Court of Sessions by order dated 8.9.1980 by Second Additional Munsif Magistrate, Mainpuri. Charges were framed against the Appellants and Vidya Ram who pleaded not guilty and claimed trial. In support of its case, prosecution led evidence and examined Atar Singh P.W. 1, Brij Bihari Lal P.W. 2, Mohan Lal P.W. 3 and Sub-Inspector Maharaj Singh P.W. 4. The accused were examined u/s 313, Cr. P.C. and they denied the prosecution case. However, they did not adduce any evidence in defence.

Learned trial court after considering the evidence as came on record, came to the conclusion that there was no evidence against Vidya Ram and he was accordingly acquitted. The Court also found that the kidnappee Brij Bihari Lal had identified the Appellant Bachchi Lal in jail and that he and his wife detained him in their house and also demanded ransom. Prosecution case was supported by the witnesses examined. However, learned trial court came to the conclusion that there was no evidence against the Appellants to convict them u/s 364, I.P.C. and instead he convicted them u/s 368, I.P.C. and sentenced them as aforesaid. Feeling aggrieved this appeal has been filed.

This appeal was earlier dismissed for default of the Appellants on 14.3.2005 and the Appellants moved an application for recall of the order which has been allowed on 30.8.2006 and the appeal was restored.

Heard learned Counsel for the Appellants, learned A.G.A. and perused the record.

Learned Counsel for the Appellants has pressed this appeal on the question of sentence only. According to him, the incident is of the year 1979 and the accused were convicted in the year 1981 and now they are more than 70 years of age and that they have remained in jail for more than 5 months. In this connection, the Appellants have filed an affidavit of their son Jaiveer who is aged about 45 years. In this affidavit, he has deposed that the Appellants are in jail since 11.5.2006 and during trial Smt. Chhoti Bittee was in jail from 7.4.1979 to 11.5.1979 and Bachchi Lal was in jail from 6.4.1979 to 26.7.1979. It shows that the Appellants have remained in jail for more than 5 months. As far as age of the Appellants is concerned, it is not disputed that they are more than 70 years old. The facts of the case show that the accused were tried for the offence u/s 364, I.P.C. but were acquitted of the offence under that section and have been convicted u/s 368, I.P.C. The main accused Vidya Ram has been acquitted by the impugned judgment. In a recent case of Budhan Singh and Others Vs. State of Bihar, accused-Appellants were convicted u/s 201, I.P.C. but were acquitted of the charge u/s 302, I.P.C. The accused were aged about 70 years and had remained in jail for the period ranging from three months 15 days to seven months. The Hon''ble Apex Court sentenced the Appellants with the period already undergone by them.

In the circumstances of the instant case, this analogy is applicable. Accused persons are more than 70 years old and have been in jail for more than five months and were not connected with the actual kidnapping. Therefore, in the circumstances the interest of justice will be served, if the sentence as imposed on them is reduced by the period already undergone. Therefore the appeal is to be partly allowed.

Appeal is partly allowed. The conviction of the accused u/s 368, I.P.C. is hereby confirmed. The accused are sentenced to the period already undergone by them. Accused shall be released forthwith unless they are wanted in any other case crime or matter.