- (1.) THIS appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (for brevity herein after referred as Cr. P. C.) is directed against the judgment and order dated 29-03-1985, passed by learned Additional Sessions Judge, Dehradun in Sessions Trial No. 44 of 1982, whereby accused/appellants Om Prakash and Ram Kishan have been con victed under Section 364 read with Sec tion 34 of Indian Penal Code, 1860 (for brevity herein after referred as I. FC.) and each one of them has been sentenced to undergo rigorous imprisonment for a pe riod of ten years.
(2.) HEARD learned counsel for the par ties. Prosecution story in brief is that P. W. 1 Rakesh, a minor boy, aged 13 years, resident of Ghaziabad (who ran from his house), reached Rishikesh on 28-08-1981. , He was in possession of currency notes valued Rs. 1070/ -. At about 11:45 RM. P. W. 1 Rakesh engaged a three wheeler bearing registration No. U. T. L. 1450, to take him to Lakshaman Jhoola and also for the return journey there from. When the boy was travelling on the said three wheeler, accused/appellants Om Prakash and Ram Kishan, who had seen him near bus stand, that he was in possession of Rs. 1070/-, came in a taxi and stopped the three wheeler. It was 1:30 RM. The taxi No. was UTL 7923. Both the accused alighted from the taxi and asked Rakesh (P. W. I) to get down from the three wheeler. They asked him to sit in the taxi. P. W. 2 Atibal Prasad (taxi driver), when protested against the accused, he was threatened by them on the point of knife and asked him to drive the taxi. Thereaf ter accused Om Prakash and Ram Kishan, took Rakesh to Nehru Gram and confined him in a room. They snatched Rs. 800/-from his pocket. According to prosecution, accused/appellants wanted to kill Rakesh. P. W. 2 Atibal Prasad, taxi driver, mean while lodged the First Information Report (Ext. A-1) with police station Rishikesh. Later, P. W. 3 Rakesh Kumar, a three wheeler wala also signed the said report after reaching at the police station. Crime No. 328 of 1981 was registered with po lice station against the accused/appellants Om Prakash and Ram Kishan relating to offence punishable under Section 364 I. P. C. committed by them. On the very day, after taking up the investigation, the police recovered the boy from the custody of the accused/appellants from Nehru Gram from the house of one Hira Ram. The recovery memo (Ext. A-2) was pre pared by the police. A separate memo (Ext. A-3) of eight currency notes, recov ered from the possession of accused/ap pellant Ram Kishan was also prepared by the police at about 4:15 RM. on the very day i. e. 28-08-1981. After completion of the investigation, a charge sheet (Ext. A-10) was submitted by the police against both the accused/appellants before the Magistrate. The Magistrate, it appears on re ceipt of charg sheet, after giving neces sary copies to the accused persons, as re quired under Section 207 Cr. P. C. , commit ted the case to the Court of Sessions for trial. Learned trial court after hearing the prosecution and the defence, framed charge of offence punishable under Sec tion 364 read with Section 34 I. P. C. and that of one punishable under Section 368 read with Section 34 I. P. C. against both the accused/ appellants Om Prakash and Ram Kishan, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P. W. I Rakesh (the kid napped boy), P. W. 2 Atibal Prasad (taxi driver), P. W. 3 Rakesh Kumar (three wheeler driver), P. W. 4 Shri B. S. Negi (Sub- Inspector), who recovered the boy after raiding the house from where the victim was concealed, and P. W. 5 H. S. Rathi (Sub-Inspector), who investigated the crime. The oral and documentary evi dence was put to the accused/appellants under Section 313 Cr. P. C. in reply to which they alleged that the evidence ad duced is false and they have been falsely implicated. The trial court after hearing the parties, found both the accused guilty of offence punishable under Section 364/ 34 I. P. C. only and after hearing on sen tence, sentenced to each one of them to rigorous imprisonment for a period of ten years. Aggrieved by said judgment and order dated 29-03-1985, this appeal ap pears to have been filed in the year 1985 in the Allahabad High Court and received by transfer to this Court under Section 35 of Reorganisation Act, 2000, for its dis posal.
(3.) P. W. 1 Rakesh, a young boy aged 13 years, has stated that after touring Aligarh tuia Meerut, he came to tour Rishikesh. On the day of incident, he was in possession of Rs. 1070/ -. When he reached bus station of Rishikesh, he made inquiry from a three wheeler wala that what would he charge for going to and coming back from Laxman Jhoola. Three wheeler wala asked for Rs. 30/ -. On this, the witness states that he paid Rs. 30/- to said man. P. W. 1 Rakesh further states that while he was making payment to three wheeler wala, he was witnessed by the accused/appellants. According to the witness, it was 11:45 A. M. at that time. P. W. I Rakesh further narrates that when he was coming back from Laxman Jhoola in the same three wheeler, at about 1:30 RM. , the three wheeler was intercepted by a taxi in which accused/appellants on the point of knife made him to get down from three wheeler and took him in the taxi. The witness further states that accused/ appellants snatched Rs. 800/-from him. The witness further states that after the accused/appellants, took him in a house and confined there, at about 4:00 RM. , police came and they were arrested. In para-4 of the statement of P. W. 1 Rakesh (the victim) discloses that he is resident of Ghaziabad and he had ran away from his house after taking Rs. 1,600/ -. He further clarifies that when he got down at Rishikesh bus stand. On reaching there, he saw accused Ram Kishan sitting in his betel shop who had seen him talking to three wheeler wala and making payment to him. This witness has also disclosed that the registration number of three wheeler was 1450. P. W. 2 Atibal Prasad, taxi driver, has corroborated the prosecution story to the extent that the accused/appellants, hired his taxi for going towards Laxman Jhoola and on the way they stopped the above mentioned three wheeler. This wit ness further states that in his presence Rakesh (P. W. 1) was made to get down from three wheeler by accused/appellants and he was made to-sit in the taxi. P. W. 2. Atibal Prasad, further states that he pro tested to the accused/appellants but on the point of knife, he was threatened. This witness has stated that he lodged First Information Report (Ext. A-1) of the inci dent with the RS. Rishikesh after the boy and the accused persons got down in Nehru Gram;