RAJ KUMAR SHUKLA Vs. STATE OF U P

JUDGEMENT

(1.) APPELLANT Raj Kumar Shukla, in Criminal Appeal No. 5029 of 2005, has challenged his conviction u/s 363, 366,376 IPC and implanted sentences of three years RI with fine of Rs. 2000/- on first count, five years RI with fine of Rs. 3000/- on the second count and ten years RI with fine of Rs. 5000/- on the last count, recorded by Additional Session's Judge, Court No. 2, Basti, in Session's Trial No. 56 of 04, State Vs. Raj Kumar Shukla and another, relating to Police Station Kotwali, district Basti. Trial Judge had further ordered that in default of payment of fine appellant shall under go one year further RI on all the counts, and that all his sentences shall run concurrently. By the same impugned judgement, trial Judge had acquitted Mahant alias Hanuman, another accused and consequently informant Sarju Prasad Mishra has challenged acquittal of the said accused Mahant alias Hanuman in connected Criminal Revision No. 723 of 2006. Since both the aforesaid cases arose out of the same impugned judgement and order, they are clubbed together and are being decided by this common order.

(2.) CHARGE against the accused appellant, as was levelled by informant Sarju Prasad Mishra in his 156(3) Cr. P.C. application dated 16.10.2003, Ex. Ka 1, which was filed before Chief Judicial Magistrate, Basti, were that informant was the resident of village Lighara, P.S. Rudhauli, district Basti and was an assistant teacher in Ganesh Sanskrit Primary School, Dakshin Darwaja, Basti and was residing with his family in the house of late Indra Deo Mishra, situated at district hospital crossing, Basti. Appellant Raj Kumar Shukla was his neighbour in the same premises. On 12.10.2003, appellant with his other socio criminises, at 6.30 p.m. kidnapped informant's daughter Km. Suman aged about 15 years from the banks of a nearby bond, when she had gone there to attend nature's call. Vishnu Deo Mishra had seen accused and the abductee near the place of the incident. After return to his house informant located for his daughter but could not find her and then he started searching for her, when aforesaid Vishnu Deo Mishra informed him about the incident. Informant went to appellants house but could not find him and his relatives informed that appellant too was not traceable since evening. Same day informant gave an application at P.S. Kotwali but his FIR was not registered and consequently informant moved another application on 15.10.2003 through registered post to SSP Basti but even then his FIR was not taken down. Relatives of accused were constantly hurling threats to the family members of the informant, and therefore, left without no other option, informant approached Chief Judicial Magistrate, Basti u/s 156 (3) Cr. P.C., as mentioned above, by moving an application Ex.Ka1. Chief Judicial Magistrate, Basti on the said application directed the Station Officer, Kotwali to register and investigate the offence, but not to arrest the accused without his permission. Sub Inspector, Ram Achal Mishra, working as Head Moharrir at P.S. Kotwali, on the basis of Ex. Ka1, registered FIR of crime no. 43 of 03, u/s 363, 366 and 506 IPC by preparing chick FIR Ex. Ka 4 on 19.10.2003 at 8.05 p.m. and corresponding GD entry Ex. Ka 5. Investigation into crime was commenced by Sub Inspector Ram Vilas Yadav, who recorded statements of Head Moharrir Ram Achal Mishra P.W. 5 and Vishnu Deo Misra, sole eye witness, and thereafter conducted spot investigation and prepared side plan Ex.Ka2. On 22.10.2003 victim Km. Suman returned back to her parental house and receiving the said information, P.W.4 came to her at her parental house and recovered her and prepared recovery memo Ex. Ka 3. Thereafter victim was sent for medical examination through lady constable. P.W. 4 also recorded 161 Cr.P.C. statements of victim Km. Suman Mishra and witnesses of recovery memo Shyam Prakash and Hari Shanker Mishra. Further investigation into the crime was conducted by SI P.K. Maurya P.W. 6, who copied medical examination report of the victim and handed over victim to her parent's custody under the orders of the court. He copied 164 Cr.P.C. statement of the victim. On 8.11.2003, P.W. 6 interrogated appellant and penned down his statement. On 20.11.2003, he recorded 161 Cr.P.C. statement of witness Badri Vishal, Smt. Geeta Devi (mother of victim) and that of victim herself. Subsequently, I.O. recorded investigatory statement of Manish Upadhyay. After some days, under the orders of C.J.M., he recorded 161 Cr.P.C. statement of co-accused Mahant @ Hanuman.

(3.) ADDITIONAL Session's Judge, Court No. 2, Basti after examining facts and circumstances of the case, critically appreciating evidences, both oral and documentary, tendered before it, held that prosecution had failed to establish it's charge against Mahant @ Hanuman and, therefore, conferred benefit of doubt and acquitted him. It however concluded that charged offences were established to the hilt beyond any doubt against appellant Raj Kumar Shukla and, therefore, convicted him for all those offences under sections 363, 366, 376 I.P.C. and implanted sentences, which has already been mentioned in the opening paragraph of this judgment by passing impugned judgment of conviction and sentence, which is now been questioned by the convicted accused appellant in the instant appeal. Since, informant was aggrieved by acquittal of Mahant @ Hanuman and, therefore, he filed connected criminal revision against acquittal. On the above background facts, I have heard Sri Haridwar Singh, learned counsel representing both the accused Raj Kumar Shukla and Mahant @ Hanuman and Sri J.P. Mishra, learned counsel for the informant as well as Sri A.P. Singh, learned AGA for the State.