Radha Ballabh And Others v. State Of U.P .

K. Jayachandra Reddy, J.— These three appeals arise out of a common judgment of Allahabad High Court. There are altogether seven appellants. They along with two others were tried for offences punishable under Sections 363, 364 and 365 read with Sections 109, 368 and 386 read with Section 511 IPC. 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 IPC and sentenced each of them to undergo five years' RI and they were also convicted under Section 364 IPC and sentenced to undergo ten years' RI. Appellant Bissu was also convicted under Section 364 IPC but he was sentenced to undergo imprisonment for life and he was further convicted under Section 386 IPC and sentenced to undergo ten years' RI. 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 Shyam Sunder, PW 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 along with other children of the family. He used to go to the school by rickshaw and return by the same. On 26-9-1975 Lalit as usual had gone to the school with his sister and cousins and returned home at about 12.30 p.m At about 3.30 p.m mother of PW 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 PW 1 and other family members went in search of the boy. PW 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 loudspeaker as well as on All India Radio and the newspapers. When all efforts failed they apprehended that the child was kidnapped. Thereupon PW 1 gave a written report on the basis of which a case was registered. PW 14 took up the investigation. He got the information on 6-11-1975 that PWs 4, 5 and 10 had some knowledge of the facts relating to the kidnapping of the boy. PW 14 recorded their statements which revealed that the child was kidnapped as a result of a well-knit conspiracy. Accused Smt Basanti was on visiting terms with the family of the complainant. On that day she was seen along with accused Radha Ballabh 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. PW 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 Ballabh coming to the said shop along with 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 along with the boy reached the lane behind the temple. There PWs 4 and 10 and one Gopal Jogi were present at the backside of the temple and were talking. They saw three persons subsequently identified as accused Lalta Prasad, Raghubir 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 Ballabh 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, PW 5 at Bhuteshwar Crossing at about 3-3.15 p.m and got air filled in the front wheel of the motor-cycle and one Dharmvir who at that time was getting his cycle repaired at the shop addressed the boy as Lalit. Thereafter the boy is alleged to have been taken to Village Karhala to which place the accused Radha Ballabh, 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, PW 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, PW 6 and Ram Ratan Pradhan, PW 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 along with some members of the police force reached Village Kamai and made enquiries from PWs 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 Radha Ballabh 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 Barfi 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, PW 1, who had been making frantic efforts to search for 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 along with 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 PW 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 Ex. 7 was received by post demanding at least Rs 50,000 as ransom. Two weeks later another letter Ex. 9 in an envelope Ex. 8 by post was received by PW 1 reiterating the demand and threatening to kill the child. During the course of investigation and test identification parade conducted by the Executive Magistrate, accused Radha Ballabh was identified by PWs 2 and 4 and accused Raghubir was identified by PWs 4, 5 and 10. Thereupon PW 14 filed the charge-sheet against all the accused. PW 15 who came in the place of PW 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 PWs 2, 4 and 10 and accused Lalta Prasad was identified by PWs 4, 5 and 10. Accused Bissu was not traceable and attachment and proclamation under Sections 82 and 83 CrPC 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 PW 1 containing the details of the entire episode of kidnapping of the boy by the accused persons including Bissu and others. In that letter, he, however, prayed PW 1 to forgive him and see that police pressure is withdrawn. PW 1 did not give these letters for some time being afraid of the danger to the boy. But after having lost all hopes, PW 1 on 15-8-1976 gave the letters and the pieces of “Bushirt” etc. to the police. The police succeeded in arresting Bissu on 8-11-1976 in front of a hotel. He was interrogated and was sent to the police station and a test identification parade was held in respect of him on 15-12-1976 and he was identified by PWs 4 and 5. The prosecuting agency obtained specimen handwriting and signatures of accused Bissu and the same along with the above-mentioned letters were sent for comparison 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.

4. In the trial court all the nine accused pleaded not guilty and totally denied the prosecution case. Accused Bissu, however, stated that police forced him to write the letters. The other accused including Bissu and others pleaded that the witnesses who have identified them are all inimical towards them. On behalf of defence two witnesses were examined. DW 1, Dr R.C Sharma, Lecturer in the B.S.A College, Mathura stated that the accused Lalta Prasad and Raghubir were students in the College and that their photographs were also published in the College magazine. DW 2, Lala Ram, was a booking clerk in U.P Roadways. He saw the accused Raghubir being brought under arrest at 5 a.m

5. The prosecution in support of its case examined 17 witnesses. There are three stages in this kidnapping episode as per the prosecution case. PW 1 is the informant and father of the boy Lalit and he has given all the details about the missing boy and up to the stage of handing over the letters to the police. The next witness PW 2 spoke about having seen Lalit being brought to the Halwai shop and he identified Smt Basanti and Radha Ballabh accused as the persons who brought the boy. The third set of witnesses consists of PWs 4 and 10 who stated that they were present in the lane near the temple and they saw accused Lalta Prasad, Raghubir and Bissu on a motor-cycle and shortly thereafter accused Smt Basanti and Radha Ballabh came there and they talked amongst themselves and ultimately the boy was handed over to the persons on the motor-cycle. PW 4 also identified the two pieces of “Bushirt” which Lalit was wearing. The next stage is spoken to by PW 5, the cycle shop owner to whose shop these three accused along with the boy on motor-cycle came and got the front wheel filled up with air. PW 5 also identified Ex. 2 as a piece of cloth similar to the cloth of “Bushirt” worn by the boy. He also identified accused Raghubir, Lalta Prasad and Bissu in the test identification parade as well as in the court. PWs 6 and 7 spoke about the next stage. They are the residents of Village Karhala to which place accused Radha Ballabh, his wife Smt Barfi, brother Bissu and nephew Ganga Prasad also belong. PW 6 stated that his house is towards west of the house of Radha Ballabh and some months back he saw a boy in front of the house of Radha Ballabh in the company of his wife Smt Barfi and he also gave other details namely that the accused Ganga Prasad addressed the boy as Lalit and took him to the market and 2-3 days later he also saw the accused Bissu taking the same boy on the motor-cycle and thereafter the boy was not seen. PW 7's evidence is also more or less to the same effect. The next set of witnesses is PWs 8 and 9 who belong to Village Kamai. They spoke about having seen a boy aged about 4 or 5 years residing with the accused Devi Ram and Har Charan for about 20 to 25 days. PW 8 also had a talk with the boy who gave his name as Lalit, son of Shyam Sunder, resident of Mathura and that after 20 to 25 days the boy was not seen. PW 9 gave details more or less to the same effect. He further stated that the boy was of fair complexion and one day at about 12 noon the boy came to his house and asked for ‘roti’ and ‘dal’ and on being asked the boy gave his name as Lalit and his father's name as Shyam Sunder resident of Mathura. In the meanwhile Devi Ram came to his house, slapped the boy and took him to his house. PW 9 also stated that 4 or 5 days later he saw accused Radha Ballabh and Bissu at the place of Devi Ram and Har Charan and thereafter the boy was not seen in the village or at the house of Devi Ram and Har Charan. These are all the main witnesses whose evidence has been relied upon by the High Court for convicting the appellants. The other evidence is that of Investigating Officers and panch witnesses who rendered circumstantial evidence.

6. The trial court disbelieved the entire prosecution story holding that the witnesses are all chance witnesses and there was delay in holding the identification parades. The High Court, however, once again reassessed the entire evidence in great detail and accepted the same. The High Court, however, confirmed the acquittal of Smt Barfi and Ganga Prasad holding that they might not have known about the kidnapping part of the case and at any rate they are entitled to benefit of doubt. The High Court, however, set aside the acquittal of other accused and convicted them as mentioned above.

7. Learned counsel appearing for the appellants submitted before us that the circumstantial evidence relied upon by the High Court is incomplete and at the most the letters may incriminate only Bissu and the identification of the accused by the witnesses cannot be relied upon in view of the delay in holding the identification proceedings and since the boy is not traced it cannot definitely be said that he was kidnapped and done to death. Regarding the demand of ransom also, according to the learned counsel, the letters by themselves cannot be held to be conclusive proof. Lastly it was submitted that two of the accused were students and they would not have participated or conspired with the other accused to commit the abovesaid offences.

8. PW 1, the father of the boy Lalit, has been examined to show that his son Lalit had been missing from 26-9-1975 and never returned home. He informed the police on that very day and it was announced on the loudspeaker and All India Radio and also in newspaper. He also deposed about the letters Ex. 4, Ex. 5 and cloth pieces Ex. 2 and Ex. 3 and also some days later other letters Exs. 6, 7 and 8. He has given valid reasons for not handing over the letters immediately to the police because of the threats mentioned in the letters. He has also identified Ex. 2 and Ex. 3, the cloth pieces as those of the “Bushirt” which was worn by Lalit at the time of his missing. We have carefully gone through his evidence in the chief-examination as well as the cross-examination and the same establishes beyond all reasonable doubt that Lalit, his son, had been missing from that date and never returned home. The only inference that can be drawn under the circumstances particularly in view of the receipt of the letters is that the boy must have been kidnapped.

9. Now coming to the actual kidnapping, as already mentioned, the evidence of PWs 2 and 4 to 10 is very important. The general criticism against the evidence of these witnesses is that the identification of the accused by them in the parades cannot be relied upon as it is very likely that the accused must have been shown to the witnesses and at any rate there were long gaps between the arrests and holding the identification parades. We see no force in this submission. The Investigating Officers in their evidence have given various dates on which the accused were arrested and the dates on which the identification parades were held. For instance, accused Bissu was arrested on 8-11-1976 and the identification parade was held on 15-12-1976. Accused Radha Ballabh and Raghubir were arrested on 20-12-1975 and the identification parade was held on 24-1-1976. Accused Lalta Prasad surrendered in the court on 23-2-1976 and the identification parade was held on 10-3-1976. Accused Smt Basanti was arrested on 20-12-1975 and the identification parade was held on 10-3-1976. Accused Devi Ram and Har Charan were arrested on 17-12-1975 but in respect of them no identification parade was held as the witnesses concerned knew them even earlier. From the above dates it can be seen that there is not any inordinate delay in holding the identification parades. The evidence of these witnesses looks very natural and truthful. They have identified the accused in the identification parades as well as in the court. The reasoning given by the trial court for discarding these identification parades is that there was ample time and opportunity for showing the accused to the witnesses. It must be remembered that the identification is only a part of the investigation and unless there are good reasons to doubt the proceedings, the same cannot be rejected on mere suspicion that the accused might have been shown to the witnesses. We do not find any reason to discard the identification proceedings. Therefore the fact that these witnesses have identified the accused during the identification parades itself is a strong corroborative circumstance to the identification of the accused made by them in the court.

10. If the identification of the accused by these witnesses is accepted then their evidence regarding the movements of the accused as spoken to by them should necessarily be accepted. With this background we shall consider the movements of the accused along with the kidnapped boy, as spoken to by these witnesses. Though the first phase of kidnapping the boy by Smt Basanti and Radha Ballabh from the house was spoken to by PW 2, however, the courts have not placed any reliance. That does not, however, affect the prosecution case in respect of the later movements. The next phase of kidnapping is that Radha Ballabh and Smt Basanti handed over the boy to accused Lalta Prasad, Raghubir and Bissu to be carried on a motor-cycle. PWs 4 and 10 categorically stated that while they were present in the lane behind the temple, they saw the three accused persons Lalta Prasad, Raghubir and Bissu coming on a motor-cycle and stopping the vehicle in the lane and shortly afterwards the accused Smt Basanti and Radha Ballabh came there with the boy with “jalebi” in a paper cup in the hands of the boy and they gave the boy to the three accused persons and the three accused persons took Lalit on the motor-cycle and drove away and Smt Basanti and Radha Ballabh went towards the temple. Both these witnesses have correctly identified the accused and we have perused the cross-examinations and we do not come across any infirmities which render their evidence unacceptable. During the same phase, PW 5, the owner of the cycle shop, deposed that these three accused along with the boy came to his shop and got air filled in the front wheel of the motor-cycle. He also identified the three accused in the identification parade. PW 5 also identified Ex. 2 as a piece of cloth of the “Bushirt” which was worn by Lalit. All these three witnesses had ample time to watch the faces of the accused as well as the features of the boy and the dress worn by him. The next phase of the incident is that Lalit was first kept in confinement in Village Karhala in the house belonging to Radha Ballabh, Smt Barfi, Bissu and Ganga Prasad and thereafter in Village Kamai in the house of accused Devi Ram and Har Charan. PWs 6 and 7 spoke about the confinement in Village Karhala. They are the direct witnesses. PWs 6 and 7 had their houses in the vicinity of the house of Radha Ballabh and they testified that they saw a boy aged about 4-4 1/2 years of a fair complexion. They also stated that they saw the boy on some occasions in the company of Smt Barfi as well as Ganga Prasad who addressed the boy as Lalit. These witnesses saw the boy being taken away by Bissu on a cycle a few days thereafter. They are independent witnesses and nothing has been elicited in their cross-examinations. Their evidence has been attacked on the ground that their version is unnatural inasmuch as they did not inform the authorities. We do not find any force in this submission. Unless they had suspicion that the boy was kidnapped, the question of going to the police would not have arisen and they would not ordinarily incur the wrath of the neighbours while giving such baseless information. The High Court while confirming the acquittal of Smt Barfi and Ganga Prasad also observed that they might not have any suspicion that the boy was kidnapped. If that be so naturally PWs 6 and 7 also could not have entertained any suspicion. We, however, find their evidence to be natural and reliable. Now we come to the next phase of confinement of the boy in the house of accused Devi Ram and Har Charan in Village Kamai for about 20 to 25 days. PWs 8 and 9 are the neighbours. They deposed that they have seen the boy in the house of these two accused and that he had stayed there for about 20 to 25 days. Their evidence also shows that the boy got used to their company and used to play about and on being asked, the boy also told these witnesses that his name was Lalit and he gave his father's name as Shyam Sunder. Another important aspect in the evidence of PW 9 is that he saw one day accused Radha Ballabh and Bissu at the house of accused Devi Ram and Har Charan and after that the boy was not seen in the village. We do not find anything in their evidence to show that they had an axe to grind against these accused. Again the same argument namely that their evidence is unnatural inasmuch as they did not entertain any suspicion to report to the police. As stated above, their evidence for the same reason cannot be discarded. Therefore the evidence of these witnesses amply establishes that Lalit was kidnapped from his house by Smt Basanti and Radha Ballabh and they handed over the boy to accused Lalta Prasad, Raghubir and Bissu and they in turn kept the boy in those two villages and for longer time i.e nearly 20 to 25 days in the house of accused Devi Ram and Har Charan. Thereafter the boy was again taken away by accused Bissu and whereabouts of the boy were not known after that. It is in this background that the letters received by PW 1 Exs. 4 to 9 assume importance.

11. According to the prosecution, Ex. 1 to 10 are the communications sent by the kidnappers to the informant Shyam Sunder, PW 1 and his father Mohan Lal. Ex. 1 is the registered envelope containing address of Mohan Lal Sharma bearing postal seal dated 8-10-1975. That envelope contained two pieces of cloth marked as Exs. 2 and 3 and two letters Exs. 4 and 5. It has been proved that Exs. 2 and 3 are the pieces of the cloth of the “Bushirt” which was worn by Lalit at the time he was reported missing. Ex. 8 is another envelope containing the address of PW 1 and his father sent by ordinary post bearing the postal seal of Mathura Post Office dated 13-11-1975 and it contained Ex. 9, the letter. The handwriting expert examined the handwriting in the letters Exs. 4, 5 and 9 and gave the opinion that it tallies with the subsequent handwriting of accused Bissu taken before the court. The expert has given detailed reasons for his opinion in this regard. The High Court has noted that from the record it appears that the genuineness of this opinion has not been disputed. The High Court also compared and was satisfied that the handwriting in Exs. 4, 5 and 9 tallies with the admitted handwriting. Therefore it is established that accused Bissu was the author of these letters under the fictitious name of Thakur Hukam Singh Azad. The contents of the letters show that the ransom was demanded. They were sent by post and were received by the addressee in due course. Exs. 2 and 3, the cloth pieces, also lend assurance to the prosecution case that Lalit after being kidnapped was in the custody of the kidnappers. The only defence suggestion is that these exhibits were manipulated and postal seals were put later at the instance of the police by the postal officials, which is baseless. The contents of the letters further establish that Lalit was kidnapped from the lawful guardianship of his parents on 26-9-1975. The next letter Ex. 10 is of great importance. It was sent by ordinary post on an inland cover to informant Shyam Sunder, PW 1 and his father Mohan Lal under the signature of accused Bissu. This letter was bearing the postal seal dated 9-7-1976 namely before the arrest of accused Bissu. PW 1 also stated that he received the letter on 9-7-1976. The handwriting expert also gave the opinion that the handwriting in Ex. 10 tallies with the subsequent handwriting of accused Bissu. The defence suggestion is that the accused Bissu pleaded that after his arrest he was coerced to write the letter Ex. 10 which on the face of it is false. The letter which is on an inland cover bears the postal seal dated 9-7-1976 and it was also received on the same day by PW 1. According to the Investigating Officer, accused Bissu was arrested in the month of November 1976. Accused Bissu himself stated in his statement under Section 313 CrPC that he was arrested on 29-10-1976. Even assuming this date to be correct, the postal seal on Ex. 10 itself shows that the letter must have been written some months before his arrest. There is a presumption that official acts have been done in due course of business. Consequently the only inference is that these letters were duly affixed with postal seals and were delivered to the addresses by the postal authorities. The respective dates found on these letters have to be accepted to be correct. In Ex. 10 the accused Bissu has given all the details of the kidnapping and also admitted that Raghubir, the other accused, disclosed the place of killing of the child and throwing him into the water with stone placed over him. He, however, added that he has a feeling that the child has not died and ultimately pleaded that PW 1 should forgive him and see that the police does not take any action against him. The High Court has carefully examined the contents of this letter and has rightly come to the conclusion that there is a clear admission of the guilt by the accused Bissu. The High Court, however, added that this document is admissible against all the accused under Section 30 of the Evidence Act. The learned counsel submitted that the High Court has wrongly used the contents of this letter against other accused. For the purpose of this case we need not go into the scope of Section 30 of the Evidence Act. However, the contents of Ex. 10 which is admittedly in the handwriting of accused Bissu establish the role played by accused Bissu and also give clear indication that the child must have been done to death and the same lends necessary assurance to the prosecution story spoken to by other witnesses discussed above.

12. One of the submissions of the learned counsel is that there is no positive proof that the child was killed or the accused caused disappearance of the child. In this context it is contended that no photograph of the boy was shown to the witnesses and therefore the identity of the kidnapped boy also is not established. We see no force in this submission. The above evidence led by the prosecution establish that the boy who was seen by these witnesses at various places was of the same age and complexion as Lalit. The witnesses also deposed that on some occasions the accused persons addressed him as Lalit. The evidence of PW 9, to which we have already referred to, shows that Lalit, son of Shyam Sunder, was the child kidnapped inasmuch as the child himself disclosed his identity to PW 9 on being asked. All these circumstances and the contents of the letters and Exs. 2 and 3, the cloth pieces, establish beyond all reasonable doubt that Lalit was kidnapped and thereafter his whereabouts are not known till today.

13. Since these are regular appeals, we have considered all the materials on record in detail and we are satisfied that the High Court has rightly held that the guilt of the convicted accused at least is established beyond all reasonable doubt and they have been rightly convicted for the offences with which they were charged. Learned counsel, however, pointed out that the conviction of accused Bissu under Section 386 IPC is not correct inasmuch as no ransom as such was extorted. We think that the correct conviction would be under Section 387 IPC. Accordingly we alter the conviction of accused Bissu under Section 386 IPC to one under Section 387 IPC and award him sentence of seven years' RI. He was however convicted by the High Court under Section 364 IPC also and sentenced to undergo imprisonment for life. Under the circumstances no interference is called for in it.

14. In the result, subject to the above minor modification of the conviction of accused Bissu from under Section 386 IPC to Section 387 IPC, all the other convictions and sentences awarded to all the appellants are confirmed and all the appeals are dismissed accordingly.