A. B. Srivastava, J. - (1.) AGAINST a judgment and order dated 1-3-1978 of Shri K. S. Misra then Assistant Sessions Judge, Mathura, acquitting accused- respondents Smt. Barfi, Ganga Prasad, Devi Ram and Har Charan of offences under sections 363, 364, 365, all read with sections 109 and 368 of the IPC and Radha Ballabh alias Bitta, Raghubir, Lalta Prasad, Smt. Basanti and Bissu under sections 363, 364, 355/109 368 and 386 IPC. The State has preferred appeal. AGAINST the same judgment, the criminal revision has been preferred by the complainant Shyam Sunder.
(2.) BRIEFLY stated the facts relevant are that the complainant Shyam Sunder (PW 1), son of Mohan Lal is a resident of House No. 337, Mohalla Chuna Kankar, situated in Holi wali lane in the City of Mathura. His Son Lalit, aged about 4 years was during the relevant period a student of a school known as Gyandip School along with the other children of the family. They used to go to the school by a rickshaw and return by the same. On 26-9-1975 the date of occurrence Lalit as usual had gone to the school with his sister and the cousins and returned home around 12.30 P.M. with them and was seen going upstairs in the house by his father Shyam Sunder who later went to sleep at about I 30 P.M., Near about: 3.30 P.M. the mother of Shyam Sunder informed that Lalit was not traceable in the bouse. He had also not presented himself before the tutor who at that time was teaching other children in the ground floor hall of the' house. on this Shyam Sunder and other family members set out in search of the boy who was not to be found and an information regarding the same was given by Shyam Sunder to the Police Control Room. Is was recorded in. the diary of the flying squad at 5 P.M. on 26-9 -1975 vide Exhibit Ka 2. Apart from searching the boy at various places including bus stand etc announcement was also made on the loud speaker and through All India Radio and Hindi newspaper Amar Ujala dated 29-9-1975. When all efforts failed, apprehending that the chiid had been kidnapped a written report Exhibit Ka 1 was delivered at Police Station Kotwal Mathura by the complainant on 29-9-1975 disclosing his apprehension about the kidnapping having been done to harm and even to kill the child. After some preliminary enquiry by A S.I. Uma Shankar Misra (PW 11) FIR was registered at the Police Station on 3-10-1975 vide GD Entry No. 4. Investigation of the case was then entrusted to R K. Punetha PW 14) then Second Officer at Police Kotwali, Mathur- who besides making efforts to search the chiid Lalit also deputed informers for the purpose. On 6-11 -1975 he learnt from one of the informers that Goklesh Chaturvedi (PW 4), Gopal Prasad (PvV Si), Chandi Prasad (PW 10), Gopal Nath, Jagmohan and Dharmvir had knowledge of some facts relating to the kidnapping of Lalit. On this he recorded the statements of these witnesses the same day. The facts revealed in the statements of these persons under section 161 CrPC indicated that the child Lalit was kidnapped as a result of a well-knit conspiracy. Accused-respondent Smt. Basanti, who was on visiting terms with the family of the complainant, along with the accused Radha Ballabh were seen in the company of the boy Lalit at about 2.30 P.M. on the shop of Shanker Halwai on the outskirts of the Holi Gate. Daya Shanker (PW 2) and Jagmohan who were eating kachauris' in front of the said shop saw a woman and a nun, later identified as Basanti and Radha Ballabh, coming to the said shop taking Lalit with them. They purchased 100 gms of 'jalebi' and giving the same in the hands of Lalit they proceeded towards the lane leading to Antapara. Thereafter the said persons Basanti and Radha Ballabh with Lalit reached in the lane behind the temple of Rangeshwar Mahadev in Mohalla Antapara. Goklesh (PW 4) Chandi Prasad (PW 10) and Gopal Jogi who were present at the back side of the temple and talking, saw three persons, subsequently identified as accused Lalta Prasad, Raghuvir and Bissu, coming on a motorcycle and stopping there. Shortly afterwards the aforesaid to persons with Lalit came there and the five had a talk amongst them. The woman asked Lalit whether he would sit on motorcycle. On the child responding in affirmative, gave him to the person driving the motorcycle (Lalta Prasad) and told him to bring the child soon after giving him a ride on the motorcycle. Thereafter the said three persons with the child proceeded on the motorcycle, towards Krishnapuri and the man and the woman bringing the child went towards the Rangeshwar temple. On way, the said persons riding the motorcycle 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 motorcycle by Gopal Prasad Dharmvir who at that time was getting his cycle repaired at the shop addressed the boy as Lalit. The boy Lalit, it is alleged, was then taken to village Karhala to which place the accused respondent Radha Ballabh, his wife Smt. Barfi, brother Bissu and nephew accused Ganga Prasad belong. There he 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 from in front of the house of Radha Ballabh saw the boy aged about 4-4 1/2 years in the lap of Barfi Devi. Accused Ganga Prasad enquired addressing the boy as Lalit whether he would go to market. On this the boy went in his lap and Ganga Prasad took him towards the shops situated in the village. Again after 2-3 days Badri Prasad, Ram Ratan Pradhan (PW 7) andJ Bal Mukund saw accused Bissu taking the same child named Lalit on a cycle towards Barsana. Thereafter the child was not seen in the said village.
(3.) ON 17-12-1975 the Investigating Officer Shri Punetha received information from another informer deputed by him that the boy Lalit was being kept since about 20.25 days in their house in village Kamai, by accused Devi Ram and Har Charan and if a raid was conducted he might be recovered ON this, the Investigating Officer along ' with some members of the police force reached village Kamai and made enquiries from Nannoo Ram (PW 8), Durga Prasad (PW 9) and Ram Bharose. leading to the information that for about 20-25 days a boy aged 4 5 years of very fair complexion was seen with accused Har Charan and Devi Ram in their house. ON being enquired the boy gave out his name as Lalit son of Shyam Sunder resident of Mathura, and referred to Devi Ram and Har Charan as Mama. During the said period accused Radha Ballabh alias Ballo and Bissu were also once seen at the place of Devi Ram and Har Charan and all the four were talking amongst themselves. The Investigating Officer S.I. Punetha on 17-12-75 searched for the child and the accused Devi Charan and Har Charan but they were not found. Having come to know about the complicity of Radha Ballabh, Bissu and Ganga Prasad, the Investigating Officer with the police party went in search of them to village Karhala. On search of their house accused Ganga Prasad was arrested. No other accused nor the boy Lalit was found. After interrogating Ganga Prasad he made him baparda on the spot of arrest. Thereafter he again proceeded to village Kamai and finding Devi Charan and Har Charan, effected their arrest but failed to trace Lalit.;