- (1.) S. K. Agarwal, J. The appellant has preferred this appeal against the j udgment and order dated 15-1-1981 passed by Sri S. C. M Tripathi, VI Additional Sessions Judge, Azamgarh, in S. T No. 99 of 1978 convicting him under Sections 364 and 386,1. P. C. and sentencing him to undergo 5-1/2 years' R. I. and 3-1/2 years' R. I. How ever, both the sentences were ordered to run concurrently.
(2.) BRIEF facts of the case are that P. W. 4 Hira Lai was sleeping on the night inter vening 8/9th June, 1977, outside his house on a cot with P. W. 2. Sometime during the night while they were fast asleep Manju was lifted by some one. When P. W. 4 Hira Lai woke up in the morning at about 5. 00 or 6. 00 a. m. he noticed absence of Km. Manju on his cot. Enquiries from the fami ly members did not yield any result. A report was prepared by P. W. 3 Satya Narain son of P. W. 4 Hira Lai about the kidnapping of his sister, P. W. 2 Manju. It was taken to the police station Madhuban, district Azamgarh, and was lodged there. The writ ten report is Ext. Ka-1 on record. On the basis of this written report an F. I. R. was registered at 7. 05 a. m. on 9-8-1977. The prosecution has come up with yet another fact that a letter was also found lying on the cot in the morning which was in the hand writing of the appellant, but these facts do not find any mention in the F. I. R. nor this letter was handed over to the police at the time of lodging of the F. I. R. After submission of the charge-sheet the accused was arrested along with the girl on 9-6-1977 at about 10. 00 a. m. by P. W. 1 Shri Kant, P. W 4 Hira Lai and some other persons, who were grazing their catties near the canal. He was subjected to secure beating and thereafter was taken to police station by the village Chaukidar and others. The prosecution in support of its case has examined P. W. 1 Shri Kant, who had effected the arrest of the appellant and recovery of the girl from him. P. W. 2 Manju, the victim. P. W. 3 Satya Narain, P. W 4 Hira Lai her brother and father, P. W. 5 S. I. Narendra Bahadur Singh, the Investigating Officer and P. W. 6 Dr. O. K. Singh, who had examined the victim medically as well as the appellant on 9-6-1977 during the day after they were brought to him by the police.
(3.) THE learned Additional Sessions Judge, on an appreciation of evidences, came to the conclusion that the offence under Sections 386 and 364,1. PC. both are proved against the appellant. Consequent ly he convicted and sentenced him, as detailed above. It is contended on behalf of the appellant that no case under Section 386, I. P. C. is established against the appellant. So far as Section 364, I. P. C. is concerned, the contention is that even it is not proved against him from the evidence on record. With regard to the offence under Section 386, I. P. C. it is submitted that the letter, which formed basis for the conviction under this Section, is not proved to be in the handwriting of the appellant. In this connection the Court has the evidence of P. W. 2 Manju and P. W. 4 Hira Lal. Manju has alleged that this letter was prepared by the appellant at the Idgaha where she was kept after her kidnapping in the light of a lighter that appellant had possessed, but her statement further is that she had not disclosed this fact to the I. O. when her statement was recorded by him on 12- 6-1977. She was not able to explain why this fact is not there in her 161, Cr. P. C. state ment. In the light of non- mention of this fact that the letter referred to in the F. I. R. was in the handwriting of the appellant, thus submission assumes significance. It is also important why this letter was not given to the police at the time of lodging of the F. I. R. if it was really found by P. W. 4 Hira Lal on his cot when he had noticed the absence of his daughter. Why it is claimed to have been received by the I. O. during the day on his return from the search of the victim? The I. O. had returned to the spot on receiving the information of the recovery of the girl. Why no recovery memo regarding this letter was prepared if it at all it was handed over to him is yet another lacuna appearing in the prosecu tion case. P. W. 4 Hira Lal has admitted that he had identified the writing of the appel lant on this letter, but this fact is not present in his statement made to the I. O. under Section 161, Cr. P. C. This witness failed to offer any explanation for the above omission in that statement. He had further admitted that when he picked up this letter he did not read it by himself. It was read over to him by P. W. 3 Satya Narain, his son, and even Satya Narain did not disclose to him that it is in the hand writing of the appellant. These facts lead to the lone conclusion beyond any doubt that until the so-called arrest of the appellant and recovery of the girl this letter either was not in the possession of P. W. 4 or it was not in the handwriting of the appellant. Yet another circumstance that give a severe blow to the veracity of the allega tion with regard to this letter being in the handwriting of the appellant is that the writing on the letter was not compared with the admitted handwriting of the ap pellant. Why was it not sent for com parison to an expert is not traceable from the record of the case. All these facts and circumstances in their totality leave no room for any doubt that this letter was not in the handwriting of the appellant. Had the writing was identified by the family members of the victim, P. W 2, the search for her would not have commenced in a different manner. The house of the appel lant, admittedly, is separated by 2/3 houses from the house of the victim. If the writing was known to the family members, the immediate affect of it would have been their approaching the family members of the appellant. This was not adhered to. It creates serious doubt in the authenticity of the allegation against the appellant that the letter was in his handwriting.;