Case: Radha Ballabh &amp; Others Vs. State of Uttar Pradesh

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 addresses 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 offence 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 in that the identification of 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 ion which the accused were arrested and the dates on which the identification parades were held. For instance, accused Bissu was arrested on6 and the identification parade was held on1976. Accused Radha Ballabh and Raghubir were arrested on5 and the identification parade was held on. Accused Lalta Prasad surrendered in the court on6 and the identification parade was held on. Accused Smt. Basanti was arrested on5 and the identification parade was held on. Accused Devi Ram and Har Charan were arrested on5 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 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 court10. If the identification of the accused by these witnesses is accepted them their evidence regarding the movements of the accused as spoken to by them should necessarily be accepted. With the background we shall consider the 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, after 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. 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 ae 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 Smt Basanti and Radha Ballabh went towards the temple. Bother these witnesses have correctly identified the accused and we have perused the crossexaminations and we do not come across any infirmities which render their shop, deposed that these three accused along with the boy came to his shop and got air filled in the front wheel of the. He also identified the three accused in the identification parade. PW 5 also identified Ex. 2 as a piece of cloth of the identification parade. PW 5 also identified ex. 2 as a piece of cloth of Bushirt which was worn by Lalit. All these three witnesses had ample time to watch the facts 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 had their houses in the vicinity of the house of Radha Ballabh and they testified that they saw a boy about4 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 being taken away by Bissu on a cycle a few days thereafter. They are independent witnesses and nothing has been elicited in their. 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 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 who accused and that he had stayed there for about 20 to 25 days. Their evident 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 fathers 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. There fore the evidence of these witnesses amply establishes that 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 importance11. 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. 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 dated5 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 addresses 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. 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 dated6 namely before the arrest. of accused Bissu. PW 1 also stated that he received the letter on. 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 dated6 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. 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 above12. 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 today13. 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 offence 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.