Saleem Akhtar vs State of U.P.

S.K. Agarwal, J.—The Appellant has preferred this appeal against the judgment and order dated 15.1.1981 passed by Sri S.C.M. Tripathi, v. Ist Additional Sessions Judge, Azamgarh, in S. T. No. 99 of 1978 convicting him under Sections 364 and 386, I.P.C. and sentencing him to undergo 5-1/2 years'' R.I. and 3-1/2 years'' R.I. However, both the sentences were ordered to run concurrently.

Brief facts of the case are that P.W. 4 Hira Lal was sleeping on the night intervening 8/9 June, 1977, outside his house on a cot with P.W. 2. Sometime during the night while they were fast asleep, Manju was lifted by some one. When P.W. 4 Hira Lal woke up in the morning at about 5 or 6 a.m. he noticed absence of Km. Manju on his cot. Enquiries from the family members did not yield any result. A report was prepared by P.W. 3 Satya Narain son of P.W. 4 Hira Lal about the kidnapping of his sister, P.W. 2 Manju. It was taken to the police station Madhuban, district Azamgarh, and was lodged there. The written report is Ext. Ka-1 on record. On the basis of this written report, an F.I.R. was registered at 7.05 a.m. on 9.8.1977. The prosecution has come up with yet another fact that a letter was also found lying on the cot in the morning which was in the handwriting of the Appellant, but these facts do not find any mention in the F.I.R. nor this letter was handed over to the police at the time of lodging of the F.I.R.

After submission of the charge-sheet, the accused was arrested along with the girl on 9.6.1977 at about 10 a.m. by P.W. 1 Shri Kant, P.W. 4 Hira Lal and some other persons, who were grazing their cattles near the canal. He was subjected to severe beating and thereafter was taken to police station by the village chaukidar and others.

The prosecution in support of its case has examined P.W. 1 Shri Kant, who had effected the arrest of the Appellant and recovery of the girl from him. P.W. 2 Manju, the victim, P.W. 3 Satya Narain, P.W. 4 Hira Lal her brother and father, P.W. 5 S. I. Narendra Bahadur Singh, the Investigating Officer, and P.W. 6 Dr. D. K. Singh, who had examined the victim medically as well as the Appellant on 9.6.1977 during the day after they were brought to him by the police.

The learned Additional Sessions Judge, on an appreciation of evidences, came to the conclusion that the offence under Sections 386 and 364, I.P.C. both are proved against the Appellant. Consequently, he convicted and sentenced him, as detailed above.

It is contended on behalf of the Appellant that no case u/s 386, I.P.C. is established against the Appellant. So far as Section 364, I.P.C. is concerned, the contention is that even it is not proved against him from the evidence on record. With regard to the offence u/s 386, I.P.C. it is submitted that the letter, which formed basis for the conviction under this section, is not proved to be in the handwriting of the Appellant. In this connection, the Court has the evidence of P.W. 2 Manju and P.W. 4 Hira Lal, Manju has alleged that this letter was prepared by the Appellant at the Idgaha where she was kept after her kidnapping in the light of a lighter that Appellant had possessed, but her statement further is that she had not disclosed this fact to the I. O. when her statement was recorded by him on 12.6.1977. She was not able to explain why this fact is not there in her 161, Cr. P.C. statement. In the light of non-mention of this fact that the letter referred to in the F.I.R. was in the handwriting of the Appellant, this submission assumes significance. It is also important why this letter was not given to the police at the time of lodging of the F.I.R. if it was really found by P.W. 4 Hira Lal on his cot when he had noticed the absence of his daughter. Why it is claimed to have been received by the I.O. during the day on his return from the search of the victim? The I.O. had returned to the spot on receiving the information of the recovery of the girl. Why no recovery memo regarding this letter was prepared if it at all it was handed over to him is yet another lacuna appearing in the prosecution case. P.W. 4 Hira Lal has admitted that he had identified the writing of the Appellant on this letter, but this fact is not present in his statement made to the I.O. u/s 161, Cr. P.C. This witness failed to offer any explanation for the above omission in that statement. He had further admitted that when he picked up this letter he did not read it by himself. It was read over to him by P.W. 3 Satya Narain, his son, and even Satya Narain did not disclose to him that it is in the handwriting of the Appellant. These facts lead to the lone conclusion beyond any doubt that until the so-called arrest of the Appellant and recovery of the girl, this letter either was not in the possession of P.W. 4 or it was not in the handwriting of the Appellant. Yet another circumstance that gives a severe blow to the veracity of the allegation with regard to this letter being in the handwriting of the Appellant is that the writing on the letter was not compared with the admitted handwriting of the Appellant. Why was it not sent for comparison to an expert is not traceable from the record of the case. All these facts and circumstances in their totality leave no room for any doubt that this letter was not in the handwriting of the Appellant. Had the writing was identified by the family members of the victim, P.W. 2, the search for her would not have commenced in a different manner. The house of the Appellant, admittedly, is separated by 2/3 houses from the house of the victim. If the writing was known to the family members, the immediate effect of it would have been their approaching the family members of the Appellant. This was not adhered to. It creates serious doubt in the authenticity of the allegation against the Appellant that the letter was in his handwriting.

I, therefore, do not find myself in agreement with the finding of the learned Additional Sessions Judge that the Appellant is the author of this letter. The evidence, as discussed above, does not support the finding at all. In the result, once this letter is discarded as the handiwork of the Appellant, the offence u/s 386, I.P.C. cannot at all be established against him and he is to be allowed the benefit of the failure of the prosecution to prove this letter to be in his own handwriting and the result will be acquittal of the Appellant under this charge. Therefore, once the Appellant is acquitted of the offence u/s 386, I.P.C., there remains nothing to convict him u/s 364, I.P.C. As a matter of fact, no offence u/s 364, I.P.C. can be made out against the Appellant. If at all the prosecution story regarding lifting of the girl by the Appellant is believed. Section 363, I.P.C. could possibly be made out against the Appellant, but there is no evidence with regard to lifting of the girl by the Appellant during the night, as alleged by the prosecution. The only evidence against the Appellant is his arrest on 9.6.1977 at 10 a.m. Large number of injuries on his person established that fact beyond any doubt, but the question still remains whether the Appellant was in possession of the girl at that time in order to establish even the offence u/s 363, I.P.C. In this connection, the evidence of P.W. 2 Manju, P.W. 3 Satya Narain, P.W. 4 Hira Lal and P.W. 5 I.O. Narendra Bahadur Singh assumes significance. P.W. 3 Satya Narain has very clearly stated that he had disclosed to the Investigating Officer about one Sita Ram that there is a complaint against him of kidnapping the girls and selling the young girls. The investigation clearly indicates that initially the police had searched the house of this Sita Ram Yadav at village Dharampur Sipah. This witness (P.W. 3) had accompanied, admittedly, the I.O. in the search of the girl. It is also admitted to him that in the year 1987, a dacoity was committed in his house. In that dacoity, some persons were also nominated by him and police had arrested some unknown persons also. They were identified by the witnesses of dacoity. Amongst those accused belonging to Dharampur Sipah including Sita Ram were also identified. The house of Sita Ram was searched. These facts and circumstances clearly indicate that the family members of the victim, P.W. 2 Km. Manju, had at the initial stage a suspicion on this Sita Ram Yadav. These witnesses have deliberately denied the fact of marriage of the brother of this Appellant going to take place on the next day of his arrest. This is unacceptable that living at a distance of only two-three houses from the house of the Appellant, these persons (P.Ws. 2, 3 and 4) will not be knowing this fact. It is not to be forgotten that they were all living in a village. It is admitted by P.W. 4 that initially he had searched the girl in the vicinity. He had left the house after sunrise to other places. He had stated that from village Kotwalpur, he was moving northwards by the side of the canal when he cited a person coming towards the village. He grew suspicious and moved towards him. He was holding the girl wrapped in a cotton sheet on his back. He had shouted. The Appellant started running away. He was chased and was apprehended with the help of P.W. 1 Shri Kant, Ambika and Chabina. His evidence does not show at all that the girl, who was held by the Appellant on his back, had in any manner either indicated or shouted for help. He had not indicated in his evidence that he had any suspicion from the cotton sheet on the back of the Appellant about the presence of a child in it. He did not state that Km. Manju was gagged. In the absence of all these, it is highly difficult to accept that there was anything for this witness to suspect. The defence suggestions about these witnesses is that the Appellant came across the girl on way near the canal and was making enquiries from her. The Appellant must have learnt about disappearance of this girl and if he had come across, by chance, this girl, it is certain that he will make enquiry from her and in the meantime, he might have been cited by the witnesses, who were grazing their cattles there and in suspicion that this Appellant is involved in the abduction of this girl, they had assaulted him severely. Finding the injuries upon the person of the Appellant serious the I.O. may have thought better to rope in this Appellant in the offence of abduction. This probability cannot be ruled out in the facts and circumstances appearing in the evidence of the witnesses. The arrest in the manner as alleged by the witnesses (P.Ws.1 and 4) is not worthy of credence. The Appellant had stated that he was going to extend invitation to his relation in the neighbouring villages when he was assaulted by the witnesses and arrested. No doubt, he had not said in his statement u/s 313, Cr. P.C. that the girl met him and while he was making enquiries from her, the witnesses assaulted and arrested him, but this fact is definitely there in the suggestions given to the witnesses. The arrest of this Appellant, therefore, in the manner alleged by the prosecution, cannot be accepted.

In the result, this appeal is allowed. Conviction and the sentences of the Appellant for the offences under Sections 364 and 386, I.P.C. are set aside. He is acquitted of these offences. He is on bail. He need not surrender. His bail bond is cancelled and sureties are discharged.