KHALID Vs. STATE

JUDGEMENT

(1.) By this appeal, the Appellant has laid a challenge to the judgment dated 15 th December 2007 convicting him for offence punishable under Sections 328/365/367/344/323 IPC and order on sentence dated 2 nd January, 2008 whereby he was directed to undergo Rigorous Imprisonment for a period of four years and fine of 10,000/- for offence punishable under Section 328 IPC. In default of payment of fine, he was directed to undergo Rigorous Imprisonment for six months. He was directed to further undergo Rigorous Imprisonment for two years and to pay a fine of 10,000/- for offence punishable under Section 365 IPC. In default he was directed to undergo Rigorous Imprisonment for six months. He was also directed to undergo Rigorous Imprisonment for four years and to pay a fine of 10,000/- for offence punishable under Section 367 IPC. In default of fine he was directed to further undergo Rigorous Imprisonment for six months. He was also sentenced to undergo Rigorous Imprisonment for one year and to pay a fine of 2,000/- for offence punishable under Section 344 IPC. In default of payment of fine, he was directed to further undergo Rigorous Imprisonment for three months. He was also sentenced to undergo Rigorous Imprisonment for six months for offence punishable under Section 323 IPC. Thus, the Appellant in total has been directed to undergo Rigorous Imprisonment for four years and a fine of 32,000/- and in default of payment of fine to undergo further Rigorous Imprisonment for one year and nine months.

(2.) In brief the prosecution case is that one Deepak went missing, for which a missing report was lodged by his father on the 30 th November, 2005. Since there was no clue of Deepak, the missing report was converted into an FIR for an offence punishable under Section 363 IPC. On 7 th August, 2006 Deepak went to fetch water at a public hydrant in village Bhamrua, District Rampur, U.P. where a mela was going on. From the hydrant he was taken by the village boys to the village Pradhan Atiq Ahmed to whom Deepak told about his tale of woes that he has been abducted by a Kala Jadu Wala. Atiq Ahmed passed on the address of Deepak's parents and the facts to Jagdish Saran, Manager, Vishal Samaz Vikas Sansthan, Civil Lines, Rampur who in turn informed the ACP Crime Branch Delhi. Pursuant thereto Deepak's father along with the Police party, Jagdish Saran and Atiq Ahmed recovered Deepak from the custody of the appellant Mohd. Khalid. Deepak was brought to Delhi and his MLC Ex. PW8/A was prepared by Dr. Zothuamluam at GTB Hospital, Shahdara. Deepak and other witnesses were examined and after the examination of the accused under Section 313 Cr.P.C., the Appellant was convicted and sentenced as above.

(3.) The present appeal was filed belatedly when he had undergone the substantive sentence and was undergoing sentence in default of payment of fine. The Appellant who was present on production on all dates of hearing at the outset stated that the Appellant had already undergone his substantive sentence and the sentence in default of payment of fine was also going to be complete shortly and, thus, he does not want to pursue the present appeal. However, a notice of enhancement of sentence under Section 365/367 IPC was issued to the Appellant by this Court vide order dated 4 th October, 2010. As regards notice of enhancement a reply has been filed stating that the ingredients of the offences alleged are not made out and there are material inconsistencies in the testimony of the witnesses. The alleged stupefying substance has not been recovered nor identified. The missing report was filed by the father belatedly as Deepak had allegedly gone missing on 3 rd November, 2005. However, the missing report was lodged only on 30 th November, 2005. There are inconsistencies in the evidence of recovery of PW1 Deepak. As per the MLC of PW1 the injuries were allegedly inflicted three days ago and were caused by blunt object. The prosecution has not been able to establish that the alleged injuries were caused by the Appellant. The recovery memo of Deepak Ex.PW3/A is dated 14 th August 2006 whereas MLC of Deepak is dated 13 th August, 2006. There are cuttings also in the MLC which have not been initialed. The entire version of the prosecution seems suspect. Relying on Bed Raj Vs. State of Uttar Pradesh, 1955 AIR(SC) 778 it is contended that the enhancement of sentence should be resorted to only if the sentence imposed is grossly inadequate.