Allahabad High Court
Rajesh Pasi vs State Of U.P. on 23 February, 2018
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 28 Case :- CRIMINAL REVISION No. - 181 of 1999 Revisionist :- Rajesh Pasi Opposite Party :- State Of U.P. Counsel for Revisionist :- R.Murtaza,Ashok Kumar Singh -I,Jyoti Prakash Counsel for Opposite Party :- Govt Advocate Hon'ble Abdul Moin,J.
1. None appears for the revisionists despite the list having being revised. There is already an order passed by this Court dated 8.2.2018 noticing the repeated adjournment of the learned Counsel for the revisionist and providing that on the next date, the case shall be heard and decided on merits. As such the Court is proceeding to heard the matter with the assistance of learned A.G.A. for the State-respondent, keeping in view the judgment of the Hon'ble Supreme Court in the case of Madan Lal Kapoor Versus Rajeev Thapar and Others reported in 2007 (7) SCC 623, in which the Hon'ble Supreme Court has held that criminal revision has to be decided on merits.
2. The Court has perused the judgment passed by the learned Trial Court the original record of lower court, the material on record and have heard the arguments of Sri Dharmendra Singh learned A.G.A. for the State-respondents.
3. The instant revision has been preferred aggrieved against the order dated 11.6.1999 passed by the learned Sessions Judge, Unnao in Criminal Appeal No.-34 of 1999 in Re: State Versus Rajesh Pasi, by which the appeal preferred by the revisionist was dismissed and the judgment and order dated 27.5.1999 passed by the Chief Judicial Magistrate, Unnao in Criminal Case No.-621 of 1999 by which the revisionist was convicted for the offence under Section 365 of the IPC and punished with 5 years rigorous imprisonment and Rs. 5,000/- as fine.
4. The facts as are culled out from the judgments of the Courts below as well as perusal of the lower Court record indicate that a written complaint was submitted by one Sri Rajendra Pratap Singh at Police Station Kotwali on the basis of which an F.I.R. was registered. The allegations as come out from the said F.I.R. are that Rohit the grand son of the informant who was studying in school had gone to school on 28.7.1998 on the school bus, but did not return back on the bus. Upon enquiry being made from the maid servant of the bus, it was informed to the complainant that one Usha had taken the child at 12:00 noon on the pretext that child's grand mother was ill. Usha turned out to be the daughter of one Mewa Lal, a neighbour who was posted at the 132 K.V. sub station at Sonik. At about 4:00 p.m. some unknown persons called at the substation and asked Mewa Lal and R.P. Singh to hand over Rs. 30,00,000/- each as ransom, failing which the girl and the boy would be killed. It also transpired that even Usha had not returned back. Thus, Rajendra Pratap Singh requested for appropriate action.
5. On the basis of said F.I.R. the police started its investigation and on 29.7.1998 the police raided a house and recovered the abducted child Rohit alongwith the girl Usha and the accused Rajesh Pasi. The school bag of the abducted child was also recovered at the spot. Thereafter the police submitted its charge-sheet and the trial of the accused Rajesh Pasi was started. The learned Trial Court examined the complainant Rajendra Pratap Singh, Mewa Lal, Rohit, Sanjay Singh, Poonam Dwivedi and Sushma Singh as prosecution witnesses nos.-1, 2 and 4 to 7. Ms. Beena Dixit the lady Constable was examined as prosecution witness no.-3, while the other prosecution witnesses were two Sub Inspectors and a Head Constable.
6. The abducted child Rohit was also produced as witness namely prosecution witness no.-4. The learned Trial Court considered his statement wherein he contended that he had been called from the school under the pretext that his grand mother was ill and had been taken by Usha from school. Usha had taken Rohit on a Rikshaw and Rajesh was also sitting on the said Rikshaw. All three of them sat in a bus and went to Lucknow and upon the child's insistence for taking him to his grand mother and grand father, the accused assaulted him. Rajesh used to give him drugs which made Rohit unconscious and the boy remained with the accused for three days. The learned Trial Court after taking into consideration the entire evidence found the accused guilty under the provisions of Section 365 of the IPC and sentenced him to 5 years rigorous imprisonment and Rs. 5,000/- as fine but acquitted him of the crime under Section 386 of the IPC vide judgment dated 27.5.1999.
7. Being aggrieved with the said judgment the accused preferred a Criminal Appeal No.-34 of 1999 in Re: Rajesh Pasi Versus State before the learned Appellate Court. The learned Appellate Court after examining the entire material on record including the statements of witnesses and the evidence led by them and after taking into consideration the specific grounds raised on behalf of the accused that the statement of Rohit, a child aged about 8 years could not be relied upon for his conviction and after rejecting the said ground affirmed the judgment of the learned Trial Court vide judgment dated 11.6.1999.
8. Being aggrieved with the said judgments, the present revision has been filed.
9. As the learned Counsel for the revisionist is not present despite various opportunities having been given by this Court and a last opportunity having already been given by this Court on 8.2.2018, as such this Court has to be more circumspect while deciding the case on merits. This Court thus first proceeds to consider Section 365 of the IPC for which the revisionist has been found guilty. Section 365 of the IPC reads as under:-
"Kidnapping or abducting with intent secretly and wrongfully to confine person.- "Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
10. It is thus apparent from Section 365 of the IPC that this Section provides for punishment for a person who kidnaps or abducts with intent to secretly and wrongfully confine any person, with imprisonment for a term described in the said Section. Kidnapping or abduction of a person with the intention to cause that person to be secretly and wrongfully confined would thus attract the provisions of Section 365 of the IPC. In the case in hand, this Court has itself gone through the statement of the child Rohit wherein he has clearly described the incident. He has stated that Usha had come to his school and had taken him from school. He had sat in the Rikshaw with Usha and another person and upon the child asking as to who that person was, Usha informed that he was Rajesh Uncle. All the three had caught the Bus and had reached Lucknow where the child was kept in a hotel. Usha and Rajesh also stayed in the hotel. Upon the child asking Usha to take him to his relative (Aaji), they did not take him to the said relative. During his confinement in a hotel, Rajesh had hit the child on his head with a stick. Rajesh used to give the child some intoxicant drink. Upon the police arriving, Rajesh has fled away from the spot. In the cross examination, the child strongly stuck to his statement and upon Rajesh being produced in Court, the child identified Rajesh and specifically stated during the cross examination that since the incident, he was seeing Rajesh only in Court. Thus, all the ingredients as indicated in Section 365 of the IPC clearly come out from a perusal of the statement of the child. The statement of the child victim clearly proves that he was confined to a room in a hotel and his recovery by the police also clearly comes out. The perpetrator of the crime i.e. Rajesh was also identified by the child victim and accordingly this Court finds no reason to disbelieve the statement of the child victim more particularly when he withstood the cross examination during trial.
11. A very relevant aspect of the matter is that this Court, while sitting in the revisional jurisdiction and exercising the power of revision, should not interfere with the concurrent findings of fact recorded by the Court below unless there is a case of misreading of evidence or of non consideration of material and admissible evidence or of considering of such evidence which is not admissible at all. The Hon'ble Supreme Court in the case of State of Kerala Versus Puttumanaillath Jathavedan reported in (1999) 2 SCC 452, has held as under:-
"In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tentamount to gross miscarriage of justice."
12. Similarly, the Hon'ble Supreme Court in the case of Duli Chand Versus Delhi Admn. reported in (1975) 4 SCC 649, has held as under:-
"The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to re-appreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned additional Sessions Judge was correct. But even so the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse. "
13. The judgment of the Hon'ble Supreme Court in the case of Duli Chand(Supra) was approved and referred to in a subsequent judgment of the Hon'ble Supreme Court in the case of State of Maharashtra Versus Jagmohan Singh Kuldip Singh Anand and Others reported in (2004)7 SCC 659, in which the Hon'ble Supreme Court has held as under:-
"The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 410 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court.Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, "for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior court." It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power."
14. Keeping in view the aforesaid legal position and after having gone through the facts of the case as set out above and as have been culled out from the records and the judgments of the learned Trial Court and having considered the grounds set out in the memo of revision, what this Court finds is that none of the grounds are legal or tenable in the eyes of law. The grounds taken in the revision are more of a general nature rather than pointing out any specific illegality or perversity in the judgment of learned Court below or any material evidence which the court below failed to consider. This Court has itself gone into the judgment of the learned court below in detail as already indicated above and have also considered the findings recorded including the relevant statements of the prosecution witnesses, but this Court is unable to appreciate the grounds of challenge to the judgment of the learned Trial Court.
15. Keeping in view the detailed facts and discussions made above, this Court finds that there is no illegality or infirmity in the judgment of the learned court below.
16. Accordingly the revision is dismissed.
17. The trial court's records be remitted back within one month alongwith a copy of this judgment for consequential action.
Order Date :- 23.2.2018 Jyoti/-