IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 383 of 2001 (Old No. 2856/1999) Bhola Nath & Another .…. Appellants/Accused Versus State …………… Respondent February 11, 2010 Mr. I.S. Mehra, Amicus Curiae for the appellants. Mr. S.S. Adhikari, AGA for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC), is directed against the judgment and order dated 15.5.1998 passed by the 1st Additional Sessions Judge, Haridwar in Sessions Trial No. 404 of 1996, State of U.P. v. Bhola Nath & Anr., whereby learned Additional Sessions Judge has convicted the accused appellants Bhola Nath and Meera under Section 363, 368, 372/511 of Indian Penal Code, 1860 (for short, IPC) and sentenced each of them to undergo R.I. for two and half years along with a fine of Rs. 1000/- each under Section 372/511 IPC and in default, to undergo three months’ additional R.I. and in that situation, both the sentences shall run separately. Each of the appellants accused have been also sentenced to undergo R.I. for two years along with fine of Rs. 500/- each under Section 363 & 368 IPC and in default, to undergo two months’ additional R.I. and in that situation, both the sentences shall run separately. It was further directed that in case the fine is deposited, all the sentences under all the aforesaid sections shall run concurrently, otherwise only those sentences awarded except in default of payment of fine shall run concurrently. 2. In brief, the prosecution case is that on 29.6.1996, when SSI Rajpal Sharma along with SI Sayyed Munnavar Hussain, Constable Surajveer Singh, Constable Vishal Mani and Lady Constable Rajeshwari Devi were on law and order duty and when they reached near Chandrabhaga bridge, they received an information through mukhbir that in mohalla Mayakund one man and one lady were dealing in the trade of buy and sell of the minor children. On this information, the police party along with public witnesses Ramchandra Saini, Mahesh Saini, Rangeet Paswan reached at the place of occurrence where the crowd had assembled. The appellants accused along with two minor girls and one minor boy were present there. After seeing the police party, the minor children started weeping. Meanwhile, the appellants accused tried to run away from the place of occurrence. After using the necessary force, they were caught hold by the police party at 5.40 pm. They disclosed their names as Bhola Nath @ Rajendra and Meera i.e. the appellants accused. The two minor girls disclosed their names as Km. Sonia, aged about 14 years and Km. Aneeta, aged about 11 years. The minor boy disclosed his name as Vicky @ Vikram Singh, aged about 13 years. All the minor children told the police party that the appellants accused had taken them for the purpose of sale. The appellants accused and the minor children were brought to the police station. The recovery memo Ex. Ka-3 was prepared on the spot. On the basis of recovery memo, the chick FIR Ex. Ka-1 was prepared on the same day i.e. on 29.6.1996 at 7.15 pm by Constable Clerk Sripal Singh. Necessary entries were made by him in the GD. Copy of GD is Ex. Ka-2. 3. Investigation of this case was entrusted to SI Chaman Singh and thereafter it was transferred to SI Raghunath Singh Verma (PW8) on 2.7.1996 During the 2 course of investigation, the I.O. inspected the place of occurrence and prepared the site plan Ex. Ka-4. The I.O. also inspected the place from where the minor children were taken away by the appellants accused and prepared the site plan Ex. Ka-5 of the place from where Vicky @ Vikram Singh was taken away and Ex. Ka-6 from where the two minor girls Km. Sonia and Km. Aneeta were taken away. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation filed the chargesheet Ex. Ka-7 under Section 363, 368 IPC against the appellants accused. 4. Learned Chief Judicial Magistrate, Haridwar after giving the necessary copies of the documents to the accused appellants, as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 8.10.1996. Learned Sessions Judge transferred the case to Additional Sessions Judge for its disposal according to law. 5. Learned 1st Additional Sessions Judge, Haridwar framed the charges against the accused appellants under Sections 363 & 368 IPC on 22.11.1996 and under Section 372/511 on 21.2.1998.The charges were read over and explained to each of accused appellants, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW1 Km. Sonia, the victim; PW2 Constable Surajveer Singh; PW3 Constable Clerk Sripal Singh, who prepared the chick FIR and made the necessary entries in the GD; PW4 Km. Aneeta, the victim; PW5 Ramchandra Saini, an eyewitness of recovery; PW6 Ranjeet Paswan, also an eyewitness of recovery; PW7 SI Sayyed Munnavar Hussain and PW8 SI Raghunath Singh Verma, the I.O. of the case. 3 7. Thereafter, statements of each of the accused appellants were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them and stated that they were falsely implicated in the case. However, in defence, they did not produce any documentary or oral evidence. 8. After hearing learned counsel for the parties and after appreciating the evidence available on record, the learned 1st Additional Sessions Judge, Haridwar vide his judgment and order dated 15.5.1998 convicted and sentenced to the accused appellants as discussed above. Against the aforesaid judgment and order dated 15.5.1998, the convict appellants have preferred the present appeal. 9. I have heard learned Counsel for the parties and have carefully perused the materials available on the record. 10. To prove its case, the prosecution has examined PW1 Km. Sonia, who has stated that the appellants accused had taken her and her sister Km. Aneeta (PW4) from Har Ki Pauri, Haridwar with the assurance that they would be reunited with their parents. Thereafter they have taken them to Bengali Mohalla, Rishikesh and the appellants accused tried to sell them for Rs. 30,000/-. Her sister Km. Aneeta also heard the same conversation. The person who was purchasing them was black in colour and the appellants accused had taken them in the aforesaid place. Another boy was also with them named Tinku. They were threatened by the appellants accused. At the time of aforesaid incident, so many people collected at the place of 4 occurrence and after seeing the crowd the police party also reached there and caught the appellants accused. She has further stated that her mother and father were residing at Kanpur and they had come to Haridwar along with their parents and they were caught hold by the appellants accused near Hathipul, Haridwar and thereafter they were taken towards Rishikesh. Rs. 250/- which was in their possession, were also taken by the appellants accused. This witness was cross-examined at length but nothing has come out which may create any doubt about her testimony. 11. Statement of PW1 Km. Sonia gets corroborated from the statements of PW2 Constable Surajveer Singh, PW4 Km. Aneeta, PW5 Ramchandra Saini, an independent public witness; PW6 Ranjeet Paswan, also an independent public witness and PW7 SI Sayyed Munnavar Hussain. 12. PW2 Constable Surajveer Singh has also corroborated the prosecution story that on 29.6.1996 when SSI Rajpal Sharma along with SI Sayyed Munnavar Hussain, Constable Surajveer Singh (PW2), Constable Vishal Mani and Lady Constable Rajeshwari Devi were on law and order duty and when they reached near Chandrabhaga bridge, they received an information through mukhbir that in mohalla Mayakund one man and one lady were trying to sell some minor children. On this information, the police party along with public witnesses Ramchandra Saini (PW5), Mahesh Saini, Rangeet Paswan (PW6) reached at the place of occurrence where so many people had assembled. The appellants accused along with two minor girls and one minor boy were present there. After seeing the police party, the minor children started weeping. Meanwhile, the appellants accused tried to run away from the place of occurrence. After using the 5 necessary force, they were caught hold by the police party at 5.40 pm. They disclosed their names as Bhola Nath @ Rajendra and Meera i.e. the appellants accused. Two minor girls Km. Sonia (PW1), Km. Aneeta (PW4) and a minor boy Vicky @ Vikram Singh were recovered from the possession of the appellants accused. All the minor children disclosed to the police party that the appellants accused had them there for the purpose of sale. The appellants accused and the minor children were brought to the police station. The recovery memo Ex. Ka-3 was prepared on the spot, on the basis of which the report was lodged with the police station. 13. PW3 Sripal Singh has stated that on 29.6.1996, he was posted in Rishikesh as Constable Clerk. On the basis of recovery memo (Ex. Ka-3), he prepared the chick FIR Ex. Ka-1. Necessary entries were made by him in the GD. Copy of the GD is Ex. Ka-2. 14. PW8 SI Raghunath Singh Verma has stated that initially the investigation of this case was entrusted to SI Chaman Singh and subsequently the investigation of this case was transferred to him on 2.7.1996. During the course of investigation, he inspected the place of occurrence and prepared the site plan Ex. Ka-4. He also inspected the place from where the minor children were taken away by the appellants accused and prepared the site plan Ex. Ka-5 of the place from where Vicky @ Vikram Singh was taken away and Ex. Ka-6 from where the two minor girls Km. Sonia and Km. Aneeta were taken away. During the course of investigation, he recorded the statements of the witnesses and after completing the investigation filed the chargesheet Ex. Ka-7 against the accused appellants. This witness has also proved the copy of GD Ex. Ka-8. 6 15. Thereafter, statements of the accused appellants were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them and stated that they were falsely implicated in the case. However, in defence, they did not file any documentary or oral evidence. 16. Sri I.S. Mehra, learned Amicus Curiae for the appellants submitted that the accused appellants have been released from jail after completing the sentence. Sri S.S. Adhikari, learned AGA for the State also filed a report received from the Jailor, District Jail, Meerut wherein it has been stated that the appellant accused Bhola Nath has been released from jail after completing his sentence on 7.11.1998 from the District Jail, Meerut. Learned Counsel for the appellant also submitted that co-accused Meera has also completed her sentence. 17. Learned Amicus Curiae for the accused appellants argued that the on the basis of the evidence adduced by the prosecution, the case against the accused appellants is not proved beyond reasonable doubt and the trial court has erred in convicting the accused appellants for the said offence. I do not find any substance in argument of learned Amicus Curiae for the accused appellants for the following reasons: (i) That the prosecution, to prove its case, has examined eight witnesses including the victim Km. Sonia (PW1), Km. Aneeta (PW4) and the public witnesses Ramchandra Saini (PW5), Ranjeet Paswan (PW6) and the witness of recovery, Constable Surajveer Singh (PW2) and 7 SI Sayyed Munnavar Hussain (PW7). All these witness have supported the prosecution story. (ii) That PW1 Km. Sonia has stated that the appellants accused had taken her and her sister Km. Aneeta (PW4) from Har Ki Pauri, Haridwar with the assurance that they would be reunited with their parents. Thereafter they were brought to Bengali Mohalla, Rishikesh, where the appellants accused tried to sell them for Rs. 30,000/-. Her sister Km. Aneeta also heard the same conversation. Another boy was also with them. They were threatened by the appellants accused. At the time of aforesaid incident, so many people collected at the place of occurrence and after seeing the crowd the police party also reached there and caught the appellants accused. She has further stated that her mother and father were residing at Kanpur and they had come to Haridwar along with their parents and they were taken away by the appellants accused near Hathipul, Haridwar and thereafter they were taken towards Rishikesh. Rs. 250/- which was in their possession, were also taken by the appellants accused. This witness was cross-examined at length but nothing has come out which may create any doubt about her testimony. (iii) That PW2 Constable Surajveer Singh has also corroborated the prosecution story that on 29.6.1996 when SSI Rajpal Sharma along with SI Sayyed Munnavar Hussain (PW7), Constable Surajveer Singh (PW2), Constable Vishal Mani and Lady Constable Rajeshwari Devi were on law and order duty and when they reached near Chandrabhaga bridge, they received an 8 information through mukhbir that in mohalla Mayakund one man and one lady were trying to sell some minor children. On this information, the police party along with public witnesses Ramchandra Saini (PW5), Mahesh Saini, Rangeet Paswan (PW6) reached at the place of occurrence where so many people had assembled. The appellants accused along with two minor girls and one minor boy were present there. After seeing the police party, the minor children started weeping. Meanwhile, the appellants accused tried to run away from the place of occurrence. After using the necessary force, they were caught hold by the police party at 5.40 pm. They disclosed their names as Bhola Nath @ Rajendra and Meera i.e. the appellants accused. Two minor girls Km. Sonia (PW1), Km. Aneeta (PW4) and a minor boy Vicky @ Vikram Singh were recovered from the possession of the appellants accused. All the minor children disclosed to the police party that the appellants accused had them there for the purpose of sale. The appellants accused and the minor children were brought to the police station. The recovery memo Ex. Ka-3 was prepared on the spot, on the basis of which the report was lodged with the police station. (iv) That the prosecution story is further corroborated by independent public witnesses, viz., PW5 Ramchandra Saini, PW6 Ranjeet Paswan and PW7 SI Sayyed Munnavar Hussain. 18. Thus, in view of the evidence discussed above and for the reasons recorded above and in view of the facts and circumstances of the case, the prosecution has successfully proved its case against the appellants 9 accused beyond reasonable doubt and I do not find any infirmity or irregularity in the impugned judgment and order and the conviction and the sentence awarded to the appellants accused are liable to be upheld. 19. In the result, the appeal being devoid of merit is hereby dismissed. The conviction and sentence awarded to each of appellants accused vide the judgment and order dated 15.5.1998 passed by the 1st Additional Sessions Judge, Haridwar in Sessions Trial No. 404 of 1996, State of U.P. v. Bhola Nath & Anr. is hereby upheld. 20. Let a copy of this judgment be sent back to lower court for its compliance. The lower court shall verify the fact from the concerned jail records and the lower court record as to whether each of the appellants accused has served out the sentence awarded to them and then shall comply with this judgment and order accordingly. Let the lower court record be also sent back. (Dharam Veer, J.) 11.2.2010 PRABODH 10