JAGDISH Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS appeal, preferred by the Appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P. C), is directed against the judgment and order dated 25.7.1998 passed by the III Additional Sessions Judge, Nainital in Sessions Trial No. 31/1993, State v. Jagdish and Ors., whereby the learned III Additional Sessions Judge has convicted the Appellant/accused Jagdish under Sections 366 and 376 of Indian Penai Code, 1860 (for short, IPC) and sentenced him to undergo three years' R.I. under Section 366 IPC and seven years' R.I. under Section 376 IPC along with fine of Rs. 2,000/ -, in default to undergo simple imprisonment for one year. All the sentences have been directed to run concurrently. Co -accused Babu, Anjum, Nanhu, Smt. Somwati, Ramvilasand Subhash were acquitted of the charges levelled against them.

(2.) IN brief, the prosecution case is that PW1 Smt. Resham Devi lodged an FIR on 3.9.1992 at 2.30 pm with the averments that on 31.8.1992 at 9 am, when her daughter Km. Radha Rastogi @ Mamta, aged about 13 years, was working in her house, then Sudha daughter of Babu Ram came to her house and had taken her daughter along with herself. At that time, complainant had gone to meet the doctor for putting plaster on the hand of her husband. When she returned in the evening, she did not find her daughter in the house. When she enquired, she came to know that her daughter and the accused Appellant Jagdish and his niece Sudha were seen on the bus stand at Kiccha road. They were seen by her neighbourer Sanju. They were also seen by her mother Smt. Bhagwan Devi when they were going towards Kiccha road. It has further been averred in the FIR that Jagdish is the brother -in -law of Anjum and he was also living in the his house. It is also alleged that the accused Appellant had taken her daughter by enticing her with the help of Anjum and his wife Smt. Somwati, who also advised the complainant to solemnize the marriage of her daughter with the accused Appellant in order to avoid infamy. When the complainant refused to do so and threatened to lodge the report in the police station, then they assured to bring back her daughter. But even after the lapse of four days of the said incident, they did not bring back her daughter. Today (3.9.1992) co -accused Nanhu, Subhash, Ramvilash came to her house and threatened to break her legs and hands in case their marriage shall not be solemnized. It is also averred by the complainant that they are very mysterious type of people and she apprehended threat on her life from them. With these averments, FIR Ex. Ka -1 was lodged, on the basis of which chick FIR Ex. Ka -7 was prepared by Head Moharri Devendra Kumar Sharma. He also made the necessary entry in the GD. Copy of GD is Ex. Ka -8. Investigation of this case was entrusted to SI Rakesh (PW9). The I .O. during the course of investigation inspected the place of occurrence and prepared the site plan Ex. Ka -12. The victim was recovered along with accused appellant on 5.9.1992 at about 12.30 pm from the pulia near the Jindal Industries, Khatima Road and the accused Appellant was arrested when he tried to escape. Thereafter fard Ex. Ka -9 was prepared. The undergarment of the accused Appellant was also taken into possession and fard Ex. Ka -11 was prepared. Necessary entry was made in the GD, copy of GD is Ex. Ka -10. The I.O. also prepared the site pla i Ex. Ka -13 of the place from where the victim was recovered and the Recused Appellant was arrested. The victim Km. Radha Rastogi was examined on the same (Bate i.e. on 5.9.1992 at 4 pm by PW8 Dr. Shanti Devi, who also prepared the medical report (Ex. Ka -5. After the x -ray of the victim, she also prepared the supplementary report Ex. Ka -6. the statement of victim under Section 164 Code of Criminal Procedure was also recorded before the Magistrate. Copy of her statement is Ex. Ka -3. The investigation of this case was subsequently transferred to SI Gedan Lai (PW5), who during the course of investigation recorded the statements of the fitnesses and after completing the investigation, filed the chargesheet Ex. Ka -2 against the Recused Appellant and the co -accused (acquitted by the trial court).

(3.) ON 26.5.1993, learned IV Additional Sessions Judge, Nainital framed the charges against the accused Appellant and the co -accused (acquitted by the trial court). The charges tyere read over and explained to the accused Appellant and the co -accused, who pleaded not guilty and claimed to be tried.