Mohammad Yashin alias Jagdish and others vs State of U.P.

Vinod Prasad, J.

Four appellants Mohd. Yasin @ Jagdish, Km. Tajo, Smt. Chanda and Alim Ahmad all r/o Mohalla Jalal Nagar, P.S. Sadar Bazar, District Shahjahanpur have challenged their conviction u/s 363 IPC and imposed sentence of 3 years RI dated 3.3.1981, recorded by VIth Additional Sessions Judge, Shahjahanpur in S.T. No. 136 of 1980, State versus Mohd Yasin @ Jagdish and others, in this appeal.

Narrated briefly, prosecution allegations, as are evident from oral chik FIR, Ext. Ka1,were that the appellants had kidnapped Husn Ara(PW4), fourteen year old daughter of informant Smt. Bilqis (PW1) widow of Mohd. Hussain. InitiallyPW1, her relatives and well wishers searched for young damsel for seventeen days, failing which PW1 lodged FIR on 19.7.79 at 2.45p.m., as crime no. 482/79, on oral dictation, U/Ss 363/366 IPC at P.S. Sadar Bazar, District Shahjahanpur, mentioning date of the incident seventeen days prior at 10 a.m., against the four appellants

H.C. Rama Shankar Sharma, PW3, registered oral FIR Ext. Ka1 and prepared it''s GD entry Ext. Ka4. Investigation into the crime was undertaken by S.I. Satya Pal Singh, who recorded 161 statement of informant, arrested accused Alim and Jagdish on 24.7.79 and lodged them in police lock up at 12.50 p.m. Another accused Tajo was arrested from the house of Ismail in village Umar Sad on 26.7.79 and thereafter accused Ismail was arrested. Subsequently investigating officer recovered victim Husn Ara from the house of Shyam Lal in village Makrandpur on 26.7.79 and prepared her recovery memo Ext. Ka5.At the time of recovery PW4 was flanked by Ram Rati and Geeta and therefore both the ladies were arrested. Spot map of place of arrest vide Ext. ka6 was sketched and victim was sent for her medical examination. After that, victim''s custody was handed over to her mother vide Ext. ka 7. I.O., thereafter, interrogated other witnesses Babu Ram, Sharafat, and Husn Ara and concluding investigation charge sheeted accused on 18.8.79 vide Ext. ka 8.

Medical examination of victim P.W.4 Husan Ara was done by P.W.2 Dr. (Mrs) Manju Singh on 27.7.79 vide Ext. ka2, and following facts were noted by the doctor:

M.I.: Black mole on abdominal wall in epigastric region.

Height 54" weight 31 kg. Teeth 14/14"

space not present

Brest just started developing

Hairs Axillary and Pubic not present

P/A Hymen Intact

P/Vsmear taken for examination.

Adv. Xray of Rt. Wrist, Rt. Elbow.

Opinion regarding rape & age will be given after Xray & smear report.

Later on same doctor gave a supplementary report in her respect vide Ext. ka3, jotting down following facts:

M.I.: A black mole on abdominal wall in epigastric region.

Vaginal Smear Report No.7456/79 by pathologist SPN. dt.27.7.79 No spermatozoa seen.

XRay Report No. 703 by Radiologist Distt. SPN. dt. 28.7.79.

1 Xray Rt. Elbow All the epiphysis around elbow joint not fused with their respective shafts.

2 XRay Rt. WristEpiphyses around lower end of radius & ulna not fused with their respective shafts.

From the previous findings & above data

Opinion: No opinion regarding rape can be given because it depends on circumstantial evidence. Age of the girl is about fourteen (14) years.

EnclXRay plate & report vaginal smear report.

On the basis of charge sheet, Ext. ka8, CJM, Shajahanpur registered case No.1131 of 79, State versus Mohd. Yasin and others on 3.10.79 and finding offences triable by Session''s court committed it for trial to Session''s Court vide committal order dated 1.4.80, and on the same day it was registered before Session''s Court as S.T. 136 of 80, State versus Mohd. Yasin and others.

VITH, Additional Sessions Judge, Shahjahanpur charged accused Mohd. Yasin, Smt. Chanda, Km. Tajo, and Alim for offences U/Ss 363/366 IPC, Ram Rati and Gita U/S 368 IPC, and Yasin and Smt. Chanda U/S 372 IPC on 10.9.80, which charges were denied by all the accused who claimed to be tried.

In its endeavour to establish it''s case and bring home appellant''s guilt, prosecution, during trial, relied upon in all seven witnesses, out of whom, informant P.W.1 Smt. Bilqis, P.W.4 victim Husn Ara, P.W.5 Baboo Ram and P.W.6 Sharafat were fact witnesses. Formal witnesses included P.W.2 Dr. Manju Singh, Medical Officer, who had medically examined the victim, P.W.3 head constable Ram Shanker Sharma, who had recorded the chik FIR Ext. Ka1 and had prepared GD entry Ext. Ka4 and P.W.7 S.I. Satya Pal Singh, the Investigating Officer.

In their statements U/S 313 Cr.P.C. accused pleaded defence of false implication and examined three defence witnesses namely Shabbir, Sagir and Ismail Khan as D.Ws. 1 to 3.

Vide impugned judgment and order dated 3.3.1981, trial court after marshalling of evidences, came to the conclusion that prosecution has failed to establish charge u/s 368 IPC against two ladies Ram Rati and Geeta and consequently acquitted both of them. Trial Judge further found charges under Sections 366/372 and 368 I.P.C. disproved against rest of the accused and, therefore, acquitted them of those charges. It, however, came to a positive conclusion that guilt of four appellants U/S 363 IPC is proved beyond any reasonable doubt and prosecution has successfully anointed it and, resultantly, trial court convicted and sentenced them for the said charge and imposed sentence mentioned herein above in the opening paragraph of this judgment. Challenge in this appeal by the four appellants is to their aforesaid conviction and sentence.

Pending consideration of their appeals in this Court, one of the appellant Alim Ahmad expired and therefore his appeal was abated on 30.10.2006. This leaves this Court to consider appeal of rest of the three appellants Mohd. Yasin @ Jagdish( husband),Smt. Chanda(wife) and Km.Tajo (daughter).

In support of the appeal, I have heard Sri Mohd. Shabbir, advocate, and appointed Amicus Curiae Dr. Abida Sayeed and Sri Sangam Lal Kesharwani and Sri Raghuraj Kishore, learned AGAs for the state.

Following submissions were raised by the appellants counsel castigating the impugned judgment of conviction and sentence. Firstly it was contended that because of the village party bandi, appellants have been falsely implicated as prior to the incident, there were good relations between the families of the informant and that of the appellants.

Secondly, story of kidnapping and abduction is cooked up, manufactured and is after thought.

Thirdly, there was no reason for the appellants to indulge in offence of kidnapping as there was no enmity between both the families.

Fourthly, two of the accused Ram Rati and Geeta have been acquitted on the same evidence and, therefore, the entire prosecution story against the appellants is not convincing and sustainable and they also deserve acquittal.

Fifthly, that no independent witness was examined during trial and had the prosecution story been correct, at least it would have been supported and lend credence by some of the covillagers.

Sixthly, that Sayeed one of the witness was not examined and was intentionally withheld by the prosecution and hence prosecution has suppressed material witness and consequently it''s charge is doubtful.

Lastly, it was contended that except for the charge of kidnapping all other charges have remained unsubstantiated and therefore conviction of appellants for the charge of kidnapping suffers from illegality as prosecution version is not wholly reliable nor any implicit reliance can be placed on it to uphold conviction and sentence.

On the above submissions it was argued that appeals of appellants, who all constitute one family, be allowed and they be acquitted of the charge and be set at liberty.

Learned AGA to the contrary contended that prosecution has successfully brought home the charge of kidnapping. A young damsel was kidnapped by the appellants against whom there is credible evidences tendered by the prosecution, which have been rightly believed by the trial judge. Charge of kidnapping has been successfully proved to the hilt and consequently there is no reason for this court to interfere with the impugned judgment. Accused have failed to bring on record any enimous harbingered by prosecution witnesses to rope them falsely in the crime and resultantly question of false implication does not arise in the instant appeal. It was further submitted that on the own showing of the accused no reason for giving false evidence existed for the prosecution witnesses and hence cooking of fabricated case is ruled out. Acquittal of Ram Rati and Geeta does not discredit prosecution story as their case stands entirely on different facts and evidences. That acquittal should not be taken to be such a ground to throw away entire prosecution edifice. P.W.5 and P.W.6 both were independent witnesses without having any animus against the accused and, therefore, testimony of last seen of victim in the company of the appellants evidenced by them is well merited and cannot be doubted. Ld. AGAs further contended that because human trafficking charge could not be established successfully is no reason to acquit the appellants from kidnapping charge, which is proved beyond any shadow of doubt. It was on these submissions that state counsel urged that appellant''s appeal being bereft of merit be dismissed.

I have considered the submissions raised by both the sides. There are some striking features of the case and, therefore, it is difficult to conclude that the conviction of the appellants recorded by the trial court suffers from any error of law or that of fact. A priory, it is noted that the prosecution case right from the very beginning is that the victim Husn Ara was a minor, less than 16 years of age. From the FIR till evidence in the Court, the said prosecution version remains consistent. P.W.2 Dr. Manju Singh also supported and confirmed that prosecution version and lend credence to the said age. Her cross examination is perfunctory and does not shake prosecution allegation in that respect. It is alarming to note that accused did not suggested the doctor that age recorded by her in supplementary report, Ext. Ka3 is not correct. Said documents mentions victim''s age as 14 years. Thus fact that victim was a minor having no wish of her cannot be doubted. Further informant PW 1 was suggested that victim PW4 had kidnapped daughter of Anwar and both of them were recovered from Allahabad. Even victim PW4 was suggested that she was abducted by Nanhey and she had eloped time and again. It has also been suggested to her that after her return, after seventeen days, that FIR was cooked up. All these defence suggestions strengthen prosecution version and lend authenticity to it regarding date and time of missing and factum of elopement. It all, without any doubt, indicate that victim was kidnapped and was subsequently recovered. Thus once it is proved that victim was a minor and she was taken out of custody of lawful guardianship, there remains no doubt that offence of kidnapping becomes complete. It is recollected that kidnapping is of two kinds (1) kidnapping from India (2) kidnapping from lawful guardianship. Present case falls in the second category and is within it''s purview. As soon as victim P.W.4 Husn Ara was enticed away and was compelled to move by the accused offence of kidnapping was committed.

Turning towards acquittal of Ram Rati and Geeta, and conferring that benefit to the appellants, suffice it to say that it is trite law that dictum of Falsus in uno, falsus in omnibus, does not apply in our country. Merely because prosecution was unsuccessful to anoint guilt against them is no reason to acquit rest of the accused whose complicity in the crime for the charge of kidnapping is proved to the hilt. Attour, roles attributed to Ram Rati and Geeta were entirely different from that of the present appellants. They were not named in the FIR and according to the prosecution case, their names did not figure in the initial stage of the prosecution version. It was only at a very belated stage, at the time of recovery on 26.7.1979, that their complicity was brought in the crime. No overtact was assigned to them by the victim and, therefore, trial Judge was justified in giving them benefit of doubt which could not have been conferred on the present appellants.

Coming to the criticism of nonexamination of independent witnesses, it is noted that all the witnesses were independent as they had no axe to grind against the appellants. P.W.5 Baboo Ram and P.W.6 Sharafat were neither related nor interested witnesses. Nothing was brought in their cross examination to suggest that they had any reason to depose falsely and incorrectly. It is appellant''s argument itself that there was no enmity between both the sides and therefore castigation of prosecution witnesses for not being independent is very unjustified. In their testimonies, PW5 & 6, have supported prosecution case well. The criticism regarding absence of independent witnesses is therefore rejected.

Accused have failed to bring on record any enmity and reasons for making untrue statements and therefore argument regarding false implication because of village party bandi also fails and is hereby repelled. This view is followed by another opinion, as a natural corollary, that prosecution story is neither cooked up nor manufactured.

From the above discussion, I have no doubt in my mind that taking entire prosecution story and the evidences tendered before the Court, trial Judge rightly concluded that charge of kidnapping is proved beyond any shadow of doubt and, therefore, rightly convicted the appellants and resultantly appellants conviction is hereby affirmed.

Now turning towards sentence, it is noted that incident occurred in the year 1979, thirty two years ago. Three decades have passed by. Appellants constitute a family being father, mother and the daughter and two of them are ladies. Trial court has sentenced them to paltry three years RI. Appellant''s statement U/S 313 Cr.P.C. indicates that father Mohd. Yasin @ Jagdish was 50 years of age, Smt. Chanda was 40 years and Km. Tajo was 15 years. Parents as of now should be septuagenarians or octogenarians. Km Tajo was a minor being 15 years of age, which fact was not contested by the prosecution or the informant. Trial Judge should have been careful to take note of her age while sentencing her. This important aspect escaped it''s notice. At the time, when incident occurred, U.P. Children''s Act was invogue and, therefore, Km. Tajo could not have been dispatched to prison being less than 16 years of age on the date of the incident. She was a child on that date. Therefore, there was no option for the trial Judge but to set her at liberty after recording her conviction. Accused have no criminal history nor they were earlier convicted. They did not misused their liberty of bail granted to them during trial and during pendency of their appeal in this court. Thus on these facts to send the parents behind the bars to serve out remaining part of their sentence will not be in the interest of justice and they deserve a more humane and clemencyful consideration. In my opinion sentence of the two appellants Mohd. Yasin @ Jagdish and Smt. Chanda for the period of imprisonment already undergone by them which, comes out to be three months of imprisonment, with fine of Rs.15,000/ each, with compensation of Rs. 20000/= to the victim PW4 Husn Ara, will meet the ends of justice. Km. Tajo, being minor has to be set at liberty.

The appeal is allowed in part.

Conviction of three appellants under Section 363 I.P.C. is hereby maintained but the sentences of two of the appellants Mohd. Yasin @ Jagdish and Smt. Chanda are reduced to the period of imprisonment already undergone by them with fine of Rs. 15000/= on each of the appellants. These appellants are allowed two months'' time to deposit the fine awarded on them by this judgement, failing which it shall be realized from them as arrears of land revenue by the trial Judge within two months, thereafter. A compensation of Rs. 20,000/ is awarded to the victim P.W.4 Husn Ara, which shall be paid to her by the trial judge after noticing her, within one month of realization or deposit of fine by both the appellants. Km. Tajo, being minor, is set at liberty and her sentence is quashed. All the three appellants are on bail, they need not surrender, their personal and surety bonds are discharged.

A copy of this judgment be certified to the trial Judge for its intimation.