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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 156 of 1960.

Appeal by special leave from the judgment and order dated August 1, 1958, of the Rajasthan High Court, at Jodhpur in Criminal Appeal Nos. 98 and 155 of 1957 and Criminal Revision No. 116 of 1957.

Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the appellant.

H. J. Umrigar, H. R. Khanna, Bipin Behari Lal, R. H. Dhebar and D. Gupta, for the respondent.

663

1961. March 30. The Judgment of the Court was delivered by SUBBA RAO, J.-This is an appeal by special leave against the judgment of the High Court of Judicature for Rajasthan dated August 1, 1958, confirming the Judgment of the Additional Sessions Judge, Churu, dated May 3, 1957, in so far as he convicted the appellant under ss. 347, 365 and 386, Indian Penal Code, and setting aside his order acquitting the appellant under s. 458, Indian Penal Code, and convicting the appellant under s. 452, Indian Penal Code. The learned Additional Sessions Judge sentenced the appellant for the offences under ss. 347, 365 and 386, Indian Penal Code, to undergo rigorous imprisonment for I year, 2 years and 3 1/2 years respectively. Tile High Court enhanced the sentences in respect of the offences under so. 347 and 386, Indian Penal Code, to 3 years and 8 years respectively, and also imposed a fine of Rs. 20,000 on the appellant; the sentence in regard to the offence under s. 365, Indian Penal Code, was confirmed. The High Court further found that the appellant was guilty under s. 352, Indian Penal Code, also and for that offence it sentenced him to undergo rigorous imprisonment for 7 years.

Five persons, namely, Deep Chand, Sisram, Jiwan Ram, Dhannaram and Ramji Lal, were prosecuted in the Sessions Court for the aforesaid offences. The learned Sessions Judge acquitted Ramji Lal, Dhannaram and Jiwan Ram, and convicted Sisram under ss. 347 and 365, Indian Penal Code, and Deep Chand as aforesaid. Nothing more need be said about the conviction of Sisram, as on appeal he was acquitted by the High Court and no appeal was preferred by the State against his acquittal. The learned Sessions Judge, on a consideration of the entire evidence placed before him, held that there was overwhelming evidence to show that Deep Chand detained Suraj Bhan in his house for sometime and thereafter in Lachhman's house and released him on payment of a ransom. But he held that there was not sufficient evidence to find definitely that Deep Chand participated in the abduction of Suraj Bhan on November 12, 1954, from the latter's house. On these findings, he convicted Deep Chand under ss. 347, 365 and 386, Indian Penal Code. Deep Chand preferred an appeal against his conviction, and the State filed an appeal against the judgment of the learned Sessions Judge in so far as he acquitted Deep Chand of the offence under s. 458, Indian Penal Code. The State also preferred a revision for enhancing the sentences passed on Deep Chand. All the matters were heard together by the High Court and, on a resurvey of the entire evidence, it agreed with the Sessions Judge that Suraj Bhan was confined in the house of Deep Chand and later on in the house of Lachhman and that he extorted money from Kashi Ram by putting him under fear of death of his son, Suraj Bhan. Disagreeing with the Sessions Judge, the High Court further held that it had been established on the evidence that Deep Chand was one of the persons who abducted Suraj Bhan from his house on November 12, 1954. In the result, the High Court convicted the appellant not only under ss. 347, 365 and 386, Indian Penal Code, but also under s. 452 thereof. In the matter of enhancement of the sentences, it was of the view that the case deserved an exemplary punishment and, therefore it enhanced the sentences as aforesaid. Deep Chand preferred the present appeal by special leave.

The second contention turns upon the claim of privilege raised by witness Gajender Singh and allowed by the learned Sessions Judge. Some of the relevant facts may now be stated. Suraj Bhan was released on December 20, 1954. On February 14, 1955, one Shiv Dutt made a statement before the District Magistrate, S. Gajendar Singh, and the said Magistrate recorded the same under s. 164 of the Code of Criminal Procedure. In that statement Shiv Dutt stated that Suraj Bhan told him the present version of the prosecution. On March 12, 1955, Suraj Bhan was examined by the police and he made a statement (Ex. D-8). Therein he gave an altogether different version contradicting the statement of Shiv Dutt, On April 29, 1955, Suraj Bhan filed an affidavit, Ex. P-5, in the: Court of the Additional District Magistrate, Ganganagar, stating that Deep Chand had nothing to do with the offence' On May 5, 1955, the prosecution got five copies of the said affidavit made and attested. On May 23, 1956, for the first time, Suraj Bhan implicated Deep Chand in the crime. Regarding the question whether Shiv Dutt made such a statement on February 14,1955, Gajender Singh and Shiv Dutt were examined and both of them spoke to that fact. The argument is that important questions put to Gajender Singh were illegally disallowed and if they had not been disallowed the accused would have been in a position to establish that Gajender Singh was not speaking the truth and that if that evidence was eliminated, the High Court might not have accepted the reasons advanced by the prosecution explaining away the inconsistent versions given by Suraj Bhan. At the outset it may be stated that it is not quite correct to state that the High Court explained away the earlier versions given by Suraj Bhan on the basis of the evidence given by Gajender Singh. On the other hand, both the courts have given convincing reason why Suraj Bhan and the members of his family did not come forward immediately with the true version of the incident; for, at one stage, they were anxious to save the life of Suraj Bhan and at a later stage they were equally anxious to get back the money paid as ransom by Suraj Bhan's father. The courts have also accepted the evidence of Shiv Dutt. That apart, the question of privilege was not raised before the High Court. In the circumstances, we would not be justified in allowing the appellant to raise before us the question of privilege based upon' the disallowance of a few questions put to one of the witnesses. This objection is, therefore, rejected. The third argument has no merits either. The High Court considered, and in our view rightly that there was no reason to disbelieve the evidence of Suraj Bhan when he identified Deep Chand at the time of abduction. Suraj Bhan knew the accused before and he also knew his stature and voice. Suraj Bhan was in the company of Deep Chand from the time of his abduction till he was finally released. When Suraj Bhan, in the circumstances, stated that he identified Deep Chand, there is no valid reason to reject his evidence. In the circumstances, the High Court was quite justified in setting aside the order of acquittal under s. 458, Indian Penal Code, and convicting him for the offence under s. 452 there of Finally learned counsel for the appellant made an impassioned appeal on the question of sentence. He said that the learned Sessions Judge had awarded a reasonable sentence to the accused and the High Court was not justified in enhancing the said sentence. The Sessions Judge held that the accused was guilty of a grave and heinous crime and we are surprised that he should have sentenced the accused to undergo rigorous imprisonment for one year under s. 347, 2 years under s. 365 and 3 1/2 years under s. 386, Indian Penal Code, and direct the sentences to run concurrently. When the Sessions Judge gave such a disproportionately lenient sentences, it was the duty of the High Court to rectify such an obvious error. In our view, the learned Judges of the High Court rightly enhanced the sentence imposed on the appellant.