Allahabad High Court Grants Benefit Of 'Probation Of Offenders Act' To Kidnapping Convicts 30 Years After Incident

A bench of Justice Pramod Kumar Srivastava took note of their advanced age, clean antecedents and the fact that the matter has lingered for nearly 30 years.

The order was passed on a criminal appeal challenging the 2004 conviction awarded by the Special/Additional Sessions Judge, Raebareli.

Case 

The FIR lodged on 12 February 1995 by the victim's mother alleged that the appellants had instigated co-accused to entice her 15-year-old daughter away with the intention of marriage.

During the investigation, the girl's medical examination was conducted, the site plan prepared and statements of witnesses recorded. Thereafter, a chargesheet was filed against the present appellants under Sections 363, 366 and 376 IPC.

After trial, the Sessions Court acquitted them under Section 376 IPC but convicted them for the offences under Sections 363 and 366 IPC.

Challenging their conviction, the appellants moved the HC arguing that the trial court had failed to appreciate evidence and had ignored the family register showing the girl's age. They clamed that there was no motive and that they had been implicated falsely due to neighborhood rivalry.

The State opposed the appeal as it argued that the evidence, including eyewitness accounts and testimony of the victim, fully established the offences.

High Court's observations

Hearing the appeal, Justice Srivastava referred to the ingredients of Sections 363 and 366 IPC and noted that the prosecution is required to establish inducement or deceitful means and intent connected to marriage or illicit intercourse.

The Court found that both the examining doctor (PW-4) and the radiologist (PW-6) had placed the victim's age at around 16-17 years at the time of the incident and there was no perversity in the trial court's conclusion that the victim was below 18.

Furthermore, the Court relied heavily on the statements of the victim (PW-2), who testified that both appellants used to convince her that marrying Budhai would bring her happiness and material comforts. She further stated that on the day of the incident, the appellants had forcefully sent her with Budhai.

Her mother (PW-1) also supported this account. Eyewitness Babadeen (PW-3) stated he saw Budhai taking the victim away on a bicycle through his naked eye.

The Court concluded that nothing emerged in cross-examination to falsify the prosecution story and thus, it agreed with the trial court that while the charge under Section 376 IPC was not proved, the offences under Sections 363 and 366 IPC stood fully established.

During the hearing, the appellants sought leniency as it was highlighted that Ram Sajeewan is now 70 years old and Kevala is 65 and they have no criminal antecedents and no offence committed after the conviction.

It was also submitted that the incident dates back to 1995, and they have suffered in the matter for past 30 years.

The State, though opposed the appeal, but conceded that Section 4 of the Probation of Offenders Act could be applied to this case.

The HC noted that Section 4 creates no distinction between categories of offenders, except those facing death or life imprisonment and can be applied where circumstances justify.

The Court added that the object of justice would be fulfilled by granting probation considering age, delay and absence of criminal history.

Thus, while maintaining the conviction, the Court modified the sentence and directed that the appellants be released on probation of good conduct for two years.

They have been directed to furnish two sureties each of ₹50,000, along with personal bonds, before the District Probation Officer within one month and to submit an undertaking to maintain peace and good behaviour.

Any breach of conditions will require them to appear before the trial court to undergo the original sentence. The criminal appeal was thus partly allowed.