RADHA BALLABH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) These three appeals arise out of a common judgment of Allahabad High Court, there are altogether seven appellants. They alongwith two others were tried for offences punishable under Sections 364 and 365 read with 109, 368 and 386 read with 511 I.P.C. The trial Court acquitted all of them. On an appeal by the State the High Court reversed the order of acquittal so far as the present appellants are concerned and convicted them under Sections 363 and 365 I.P.C. and sentenced each of them to undergo five years R. I. and they were also convicted under Section 364. I.P.C. and sentenced to undergo ten years R. 1. Appellant Bissu was also convicted under Section 364. I.P.C. but he was sentenced to undergo imprisonment for life and he was further covicted under Section 386, I.P.C. and sentenced to undergo ten years R. I. The acquittal of the remaining two persons namely Smt. Barfi and Ganga Prasad was confirmed. All the seven convicted accused namely Devi Ram, Har Charan, Radha Ballabh, Raghubir, Lalta Prasad, Bissu and Smt. Basanti have filed these three appeals.

(2.) The complainant Shayni Sunder. P.W. 1 son of Mohan Lal is a resident of Mohalla Chuna Kankar in the city of Mathura. His son Lalit, aged about four years was during the relevant period a student of Gyandip School alongwith other children of the family. He used to go to the School by rikshaw and return by the same. On 26-9-1975 Lalit as usual had gone to the School with his sister and the cousins and returned home at about 12.30 P.M. At about 3.30 P.M. mother of P.W. 1 informed that Lalit was not traceable in the house and also he has not presented himself before the tutor who at that time was teaching other children in the ground floor hall of the house. On this P.W. 1 and other family members went in search of the boy. P.W. 1 gave information to the police control room which was recorded in the diary at about 5 P.M. The police searched at various places and also announcements were made on the loud speaker as well as on All India Radio and the newspapers. When all efforts tailed they apprehended that the child was kidnapped. Thereupon P.W. 1 gave a written report on the basis of which a case was registerd. P.W. 14 took up the investigation. He got the information on 6-11-1975 that P.Ws. 4, 5 and 10 had some knowledge of the facts relating to the kidnapping of the boy. P.W. 14 recorded their statements which revealed that the child was kidnapped as a result of well-knit conspiracy. Accused Smt. Basanti was on visiting terms with the family of the complaint. On that day she was seen alongwith accused Radha Ballabha in the company of the missing boy at about 2.30 P.M. at the shop of Shankar Halwai on the outskirts of the Holi Gate. P.W. 2 Daya Shanker and one Jagmohan were eating kachauris in front of the said shop and they saw a woman and a man later identified as Smt. Basanti and Radha Ballabha coming to the said shop alongwith the boy and purchased 100 gms. Of jalebi and gave the same to the boy. Thereafter they proceeded towards the lane leading to Antapara. The said two persons alongwith the boy reached the lane behind the temple. There P.W.s. 4 and 10 and one Gopal Jogi were present at the back side of the temple and were talking. They saw three persons subsequently identified as accused Lalta Prasad, Raghuvir and Bissu, coming on a motor cycle and stopping there. Shortly they also saw a woman and a man with the boy and all the five of them had a talk amongst themselves. The woman asked the boy as to whether he would sit on the motor cycle and on the child responding affirmatively gave the boy to the person driving the motor cycle namely Lalta Prasad and told him to bring the boy after giving a ride. Thereafter the said three persons on the motor-cycle with the child proceeded towards Krishnapuri and Radha Ballabha and Smt. Basanti went towards the temple. According to the prosecution on the way the said persons riding the motor cycle with the child stopped at the cycle shop of Gopal Prasad. P.W. 5 at Bhuteshwar Crossing at about 3-3-15 P.M. and got air filled in the front wheel of the motorcycle and one Dharmvir who at that time was getting his cycle repaired at the shop addressed the boy as Lalit. Therafter the boy is alleged to have been taken to Village Karhala to which place the accused Radha Ballabha, his wife Smt. Barfi, brother Bissu and nephew Ganga Prasad belong. There the boy was kept in the house of these accused persons for a few days during the course of which Badri Prasad. P.W. 6 while passing one day in front of that house saw the boy in the lap of Smt. Barfi and he also heard Ganga Prasad addressing the boy as Lalit. On this the boy went to Ganga Prasad who took him to the shop. Two or three days later Badri Prasad. P.W. 6 and Ram Ratan Pradhan, P.W. 7 saw the accused Bissu taking the same child on the motor cycle towards Barsana. Thereafter the child was not seen in that Village.

(3.) On 17-12-1975 the Investigating Officer received information that the boy was being kept since 20 to 25 days in their house in Village Kamai by accused Devi Ram and Har Charan. On this the Investigating Officer alongwith some members of the police force reached Village Kamai and made enquiries from P.Ws.8 and 9, the residents. They gave the information that for about 20 to 25 days a boy aged about four years of very fair complexion was seen with the accused Devi Ram and Har Charan in their house and on enquiry the boy also gave his name as Lalit son of Shyam Sunder resident of Mathura. They also gave the information that during the said period accused Radhya Ballabha and Bissu were also seen at the place of Devi Ram and Har Charan and they were talking amongst themselves. The Investigating Officer, however, could not find the child nor accused Devi Ram and Har Charan. Having come to know the complicity of the other accused, the Investigating Officer with the police party went in search of them to Village Karhala. He arrested Ganga Prasad but he could not find any other accused or the boy. After interrogating Ganga Prasad he went to Village Kamai. There he found Devi Ram and Har Charan and arrested them but could not trace the boy Lalit. On 20-12-1975 the Investigating Officer arrested Radha Ballabh and Raghubir at about 10.30 A. M. near a museum and interrogated them and they were taken to Village Karhala and on their pointing out search of the house of Radha Ballabh was made in the presence of his wife accused Smt. Barfi and a "Bushirt" was recovered of which the right side alone was intact. The same was duly sealed and recovery was effected under a panchnama. Smt. Barfit was also arrested and from there the Investigating Officer proceeded to Village Lohwan and arrested accused Smt. Basanti and all the accused persons were taken to the Police Station. Meanwhile about two weeks after the boy Lalit was kidnapped. P.W. 1. who had been making frantic efforts to search his missing son, received a letter by registered post in an envelope Ex. 1 with two pieces of cloth Ex. 2 and Ex.3, being parts of the "Bushirt" worn by Lalit at the time he was kidnapped alongwith two letters Ex.4 and Ex.5 purporting to have been written by one Thakur Hukam Singh Azad. The letters were addressed to Mohan Lal, father of P.W. 1 and in that a demand of ransom of Rs. 1,25,000/- was made for releasing the child failing which there was a threat to kill the child. There was also a warning not to inform the police. About 19 to 20 days thereafter another envelope Ex. 6 containing a letter E.7 was received by post demanding atleast Rs. 50,000/- as ransom. Two weeks later another letter Ex. 9 in an envelope Ex. 8 by post was received by P.W. 1 reiterating the demand and threatening to kill the child. During the course of investigation and lest identification parade conducted by the Executive Magistrate. accused Radha Bullabha was identified by P.Ws.2 and 4 and accused Raghuvir was identified by P.Ws.4. 5 and 10. Thereupon P.W. 14 filed the charge-sheet against all the accused. P.W. 15 who came in the place of P.W. 14 took over the investigation. Accused Lalta Prasad however, surrendered in the Court on 23-2-1976 and test identification proceedings in respect of accused Lalta Prasad and Smt. Basanti were conducted on 10-3-1976. Accused Smt. Basanti was identified by P. Ws. 2, 4 and 10 and accused Lalta Prasad was identified by P. Ws. 4. 5 and 10. Accused Bissu was not traceable and attachment and proclaimation under Sections 82 and 83 Cr. P.C. were issued and executed However, on 9-7-1976 an inland letter Ex. 10 purporting to have been written by accused Bissu was received by P.W. 1 containing the details of entire episode of kidnapping of the boy by the accused persons including Bissu and others. In that letter, he however, prayed P.W. 1 to forgive him and see that police pressure is withdrawn. P.W. 1 did not give these letters for some time being afraid of the danger to the boy. But after having lost all hopes. P.W. 1 on 15-8-1976 gave the letters and the pieces of "Bushirt" etc. to the police. The police succeeded in arresting Bissu on 8-I 1 -1976 in front of a hotel. He was interrogated and he was sent to the police station and a lest identification parade was held in respect of him on 15-12-1976 and he was identified by P. Ws.4 and 5. The prosecuting agency obtained specimen handwriting and signatures of accused Bissu and the same alongwith the above mentioned letters were sent for comparision to the handwriting expert and his opinion was that the letters were written by the same person who had written the specimen before the Magistrate. The boy Lalit, however, was not traced at all.