Batoley @ Mata Prasad Vs State of U.P.

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Neutral Citation No. - 2025:AHC-LKO:40788

Court No. - 13

Case :- CRIMINAL APPEAL No. - 2634 of 2008 Appellant :- Batoley @ Mata Prasad Respondent :- State of U.P. Counsel for Appellant :- Arun Kumar Shukla,Rahul Agnihotri,Surendra Kumar Mishra Counsel for Respondent :- G.A.

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Hon'ble Saurabh Lavania,J.

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Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.

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The instant criminal appeal under Section 374 (2) Cr.P.C. has been filed by the appellant impeaching the judgment and order dated 04.11.2008, passed by the Additional Session Judge/F.T.C.-5, Lakhimpur Kheri in Sessions Trial No.89 of 2004 (State Vs.Bateley alias Mata Prasad), arising out of Case Crime No.105/1994, lodged at Police Station - Isha Nagar, District - Lakhimpur Kheri, thereby convicting the accusedappellant for the offence under Sections 363 I.P.C. and sentencing to undergo three years' rigorous imprisonment with fine of Rs.1000/- and in default of payment of fine, he has further to undergo one month's additional imprisonment.

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The case of the prosecution, in nutshell, is to the effect that on 10.05.1994 at about 13.00 hours an F.I.R. under Case Crime No.105/1994, under Section 363, 366 I.P.C. at Police Station-Isha Nagar, DistrictLakhimpur Kheri was lodged against the accused appellant Batuley alias Mata Prasad S/o Govindey alleging that in the night of 02.05.1994 at about 10.00 P.M. the accused-appellant enticed away the victim aged about 14 years (minor daughter of the informant).

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Before proceeding further in the matter, it would be apt to indicate that according to the conclusion drawn by the trial court, the victim at the relevant point of time when the F.I.R. was lodged was above 17 years and below 18 years.

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In view of above, the victim would be about 48 years old as on date. The finding related to the age of the victim is to be considered in the light of various pronouncements/judgments related to determination of age including the case(s) passed by the Hon'ble Apex Court Birad Mal Singhvi Vs. Anand Purohit, reported in (1988) Supp SCC 604, State of Punjab Vs. Gurmit Singh, reported in (1996) 2 SCC 384, Suhani Vs. State of U.P. delivered on 26.04.2018 in Civil Appeal No.4532 of 2018 arising out of SLP(C) No.8001 of 2018 and in the case of Manak Chand alias Mani Vs. State of Haryana reported in 2023 SCC OnLine SC 1397.

¶12

It would also be relevant to indicate at this stage that the appellant, sentenced for a period of 03 years for the offence under Section 363 I.P.C., on the date of lodging of F.I.R. (Ext.Ka-1) would be about 26 years old as in the statement recorded in terms of Section 313 Cr.P.C. dated 12.08.2008, his age has been indicated as 40 years.

¶13

The Investigating Officer thereafter inspected the place of occurrence and prepared the site plan (Ext.Ka-9). He also recovered the victim on 07.10.1994 and on an information received from the police informer he also arrested the accused on 07.10.1994 at about 1.00 P.M. The recovery memo was prepared and thereafter the custody of the victim was given to the informant and custody memo (Ext.Ka-3) was also prepared. The victim was medically examined and in relation to the same medico legal opinion (Ext.Ka-4) and supplementary medico legal report (Ext.Ka-5), X-Ray (Ext.Ka-6) were placed on record. In addition to this the site plan related to recovery of the victim (Ext.Ka-7) was prepared and placed on record.

¶14

Upon completion of investigation in the matter, the Investigation Officer (in short "I.O.") submitted the charge-sheet (Ex.Ka-8) against the accused-appellant Batuley @ Mata Prasad and charge-sheet (Ext.Ka-12) against accused Gopal.

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Upon due consideration of the facts and also the evidence collected by the Investigating Officer, the Magistrate took cognizance and

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committed the case to the court of Session where the same was registered as S.T. No.89 of 2004 (State Vs. Batuley @ Mata Prasad) and another Session Trial was registered as S.T. No.905 of 2004 (State Vs. Gopal) and charges were framed against the accused persons. The accused persons denied the charges framed against them and claimed trial.

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Thereafter, to establish its case before the trial court, the prosecution produced and examined Gopi Chand (PW-1), victim (PW-2), Dr. Manju Gupta (PW-3), S.I. Dharmvir Singh (PW-4). The prosecution witnesses proved the documentary evidence which is not in dispute.

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Upon completion of the evidence of the prosecution, the questions were put to the accused in terms of Section 313 Cr.P.C., accused denied the charges and claimed trial.

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The informant Gopi Chand (PW-1) narrated the story as indicated in the F.I.R. before the trial court. It would be apt to indicate that according to cross-examination of PW-1 before the trial court, the victim and the appellant were in affair and therefore, the victim on her own left the house and accompanied the accused-appellant and when she was recovered she pressed to live with the accused-appellant. The relevant portion of the cross examination of the informant Gopi Chand (PW-1) is extracted herein under :-

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"गोपीचन्द s/o ति�लक राम ने जि�रह का उत्�र दे�े हुए यह कथन बयान किकया है किक मा�ाप्रसाद मेरे घर के पास में ही रह�ा है। मेरी बेटी मा�ाप्रसाद के यहाँ आ�ी �ा�ी नहीं थी। मा�ाप्रसाद मेरे घर आ�ा �ा�ा था। रिरपोट) में मैंने यह बा� सही लिलखवाई थी किक बहला-फुसला कर मेरी बेटी लिमथलेश वमा) को भगा ले गया। म यह �ान नहीैं ं पाया था किक लिमथिथलेश वमा) का प्रेम मा�ाप्रसाद से हो गया था। मेरी बेटी �वान हो गई थी। मा�ाप्रसाद भी �वान हो गया था मैं सुबह उठ कर ख� मे ें काम करने चला �ा�ा था। वह मेर पीछे क्या हो�ा था मैं नहीं �ान�ा था। (not ligible) लिमथिथलश मा�ापे ्रसाद क साथ चली गई थी। वह रा� के समय ही गई थी। सुबह मझु े प�ा चला किक लिमथलेश गायब हो गई है। रिरपोट) (not ligible) पहली बार थाने गया नही लिलखी गई थी। (not ligible) आठ दिदन �क मैं अपनी बेटी �लाश�ा रहा किफर मेरी रिरपोट) लिलखी गई थी। मेरी उम्र लगभग 75 वर्ष) है। मेरी 14 वर्ष) की उम्र में शादी हो गई थी। मेरी शादी के 20 वर्ष) बाद मेरी पुत्री लिमथलेश पैदा हुई

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थी। ऐसा नहीं है किक यह बा� मैं झूठ बोल रहा हूँ। भागने के �ुरन्� बाद मैंने मेरा अपनी बेटी को शादी कर दी थी। इस समय लिमथलेश के �ीन बच्चे हैं। मा�ाप्रसाद से मेरी लड़की के भागने से पहले झगड़ा भी हुआ था। उस झगड़े की रिरपोट) मैने थाने में नहीं की थी , लेकिकन मेरी मा�ाप्रसाद से दुश्मनी हो गयी थी।�ब लिमथलेश व मा�ाप्रसाद लिमले थे �ब रिरपोट) लिलखी गई थी। उस , समय मेरी बटी कह�ी थी के िक मैं मा�ाप्रसाद के साथ ही �ाऊँगी किफर पुलिलस न मे ेरी बेटी को धमकाया व मेर साथ मे री बे ेटी भ�ी दी।े

¶24

यह कहना गल� है किक मैं लिसखाने पढ़ाने से झूठी गवाही दे रहा हूँ।"

¶25

According to the statement of the victim (PW-2) i.e. the examination-in-chief, she was abducted by the accused-appellant and coaccused Govind at about 10.00 P.M. and the accused-appellant forcefully established physical relation with the victim and the accused were also intending to sell the victim.

¶26

However, according to the cross-examination, the Victim (PW-2) was living with the accused-appellant in District Bahraich for several months as husband and wife in a thatch (open from all the sides) and the victim was in public touch and victim asked the accused-appellant to return back to the native place and while returning to the native place, both were apprehended. The relevant portion of the cross-examination of the victim (PW-2) is extracted herein under :-

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" बहराइच मं कमरे मे ं रहने लगी थी वहाे पर चारपायी थी। खाना बटूलँ बना�े े , वही थ। मे ं नहीै बना�ी थी। जि�स घर मं ं मे ं रह�ी थी उसमै ं महरी लगी थीे ब�न धो�ी थी। बटूल) मे रे और अपने कपड़े बाहर से धोकर ला�े थे �ो महरिरने , ब�न धो�ी थी वह डर�ी थी किक रहन) वालों और लोगों के ब�े न भी धो�ी थी) उसक बीबी बे च्च भी थे । मे ं महरिरन को चाची कह�ी थी। मै रे घर मे ं रहने वाले े और लोग भी थ कुछ कहकर नहीे ं पुकार�े थे । महरिरन के हालचाल आपसे ब�ा�ी थी। वह बहु� स घरों मे ं ब�े न धो�ी थी। महरिरन म) ं मुझसे पूछा किक मे ंै कहा कँ सै रह�ी हूे , ँ कसै आ�ी हूे । मुझँ बहराइच का कह रही थी। मुझे े ( n ot ot legible) टूल मुझे बहराइच अदाल� मे ं नहीे लं गया था न शादी की लिलखा पढ़ीे नही की थी। उसका अदाल� मं ं मे ं आयी हूै । बहराइच मँ ं एक माह �क रहीे 100-200 और उसक बाद मुझे अे न्य गाव मं ं रखा था। वह गाे व बहराइच सं े किकलोमीटर दूरी पर ह। उस गाै व को मुझं पे दल लै गये थे । �ब मे ं पै दल �ाै रही थी �ब रास्� मे ं और� आदमी लिमले थे । आगे आगे बटूले चल�े व पीछे े

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पीछ मे ं चल�ी थी। अब गाै व मं ं बटूले मे रे साथ छे प्पर डालकर रहन लगे ।े छप्पर चारों �रफ स खुला था। �मीन पर मे ं उस छै प्पर क नीचे मे ं व बटूलै े लट�े थे ।े

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उस छप्पर मं मे ं एक दो माह �क रही थी। बटूलै लकड़ी े ( n ot ot legible) �ा� थे । गृहस्थी का सामान बटूले ला�े थे । बा�ार से बटूले आटा दाल आदिदे खरीदन �ा�े थे वहाे भी बटूलँ खाना बना�ा था वहाे कँ गाे व वालों सं मे ंै हालचाल पूछ�ी व ब�ा�ी थी यह बा� मंनै बटूले से कहा था किक इस गाे व मं ंे मन नही लग�ा। घर चलो। मुझं नहीे मालूम मुझं लखनऊ रहने ले गये । मे ंै उस गाव मं ं े ( n ot ot legible) आ रही थी रास्� मे ं पुलिलस पकड़कर ले गयी।े मैंने दरोगा �ी को यह नहीं ब�ाया था किक मेरे पेट में पांच माह का बच्चा है उन्होंने मेरे बयान में कैसे लिलख लिलया व�ह नहीं �ान�ी। मैं पैदल उस गांव में आ रही थी और �ब ही पुलिलस ने पकड़ा था। बाप मेरे बाहर खड़े थे। उन्होंने ब�ाया था किक यही मेरी बिबदिटया है। पुलिलस वालों ने मुझे �ीप में बैठा लिलया किफर मेरे पिप�ा के घर लाये। वहाँ पर मुझे पिप�ा के घर छोड़ दिदया और किफर 15 दिदन बाद मुझे डॉक्टर के पास लाये थे। पुलिलस वालों ने यह ब�ाया था किक यह यह बा�ें ब�ाना। यह कहना गल� है किक मैं घटना के वक्� 18 वर्ष) से अथिधक थी। यह कहना गल� है किक मैं पढ़ाने पर झूठी घटना दिदखाकर झूठा बयान दे रही हूँ। यह कहना गल� है किक मैं माँ - बाप के कहने पर झूठी गवाही दे रही हूँ।

¶31

To the view of the court in addition to the aforesaid, the statement of Dr. Manju Gupta (PW-3) is also required to be taken note of. Upon due examination of the body of the victim, following conclusion was drawn by Dr. Manju Gupta (PW-3) :-

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(i) No injury over the body of the victim;

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(ii) Hymen old torn and healed;

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(iii) Pregnancy of about 16 -18 weeks.

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(iv) The victim was between 16-18 years old.

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The relevant portion of statement of the Dr. Manju Gupta (PW-3), cross-examination, is extracted herein under :-

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"एक्सरे रिरपोट) दिदनांक 11.10.94 व प्लेट संख्या 1147 प्राप्� होने पर मैंने दिदनांक 14.10.94 को कु० लिमथिथलेश की सप्लीमेंट्री रिरपोट) �ैयार किकया था �ो संलग्न पत्रावली है �ो मेरे लेख व हस्�ाक्षर में है। जि�स पर प्रदश) क -5 डाला गया।

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पिव�ायनल जिस्मयर की रिरपोट) दिदनांक 10.10.94 के अनुसार कोई �ीपिव� या मृ� शुक्राणु नहीं पाये गये। X-Ray रिरपोट) के अनुसार कोने पर सभी हड्डिडयां �ुड़ी हुई थी। कलाई की हड्डिडयां नहीं �ुड़ी हुई थी। दोनों �रफ Pisif हड्डी दोनों �रफ अपिपयर हो चुकी थी। मेरी राय में कु० लिमथिथलेश सहवास के लिलए प्रयोग की �ा चकी थी व आदी थी �था वह ु 18 वर्ष) से कम व 16 वर्ष) से ऊपर की थी।

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दिदनांक 11.10.94 को डॉक्टर अशोक कुमार- रेडिडयोलॉजि�स्ट के पद पर जि�ला थिचकिकत्सालय लखीमपुर में �ैना� थे मैंने उन्हें लिलख�े पढ़�े व हस्�ाक्षर कर�े देखा था �था मैं उनके लेख व हस्�ाक्षर को बखूबी पहचान�ी हूँ। जि�नकी मृत्यु हो चुकी है पत्रावली में संलग्न एक्स-रे रिरपोट) दिदनांक 11.10.94 डॉक्टर अशोक कुमार के लेख व हस्�ाक्षर में है �था पत्रावली में सलग्न एक्स-रे प्लेट संख्या 1147 दो अदद एक्स-रे रिरपोट) के साथ मुझे प्राप्� हुई थी। इस एक्स-रे रिरपोट) में प्रदश) 6 डाला गया। इस एक्स-रे रिरपोट) पर प्रदश) 6 डाला गया। एक्सरे प्लेट पर वस्�ु प्रदश) 1 व 2 डाला गया ।

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x x x x x x x x

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12, 13 बालो का आना ं साल पर आना शुर हो �ा�ा हू ै। कलाई की 18 18 हड्डिडयां वर्ष) की आयु में �डु ़ना शुर हो �ा�ा हू । इसकी उमै ्र वर्ष) नही हों 17 सक�ी है। इसकी उम्र से अथिधक हो सक�ी है। इसके गुप्�ागों पर चोटों कं तिनशाना� नहीं थ।े ई�ैक्ट ए� नहीं ब�ायी �ा सक�ी है। सुनकर �स्दीक किकया।"

¶43

The trial court after considering the entire material placed on record, including the statement of the victim, statement of the informant and statement of Dr. Manju Gupta convicted and sentenced the appellant as above.

¶44

In the aforesaid background of the case, the present appeal has been filed by the appellant.

¶45

Learned counsel for the appellant stated that the total period of incarceration of the appellant, who is in jail since 05.02.2025 in compliance of the order of this Court dated 17.02.2025, was arrested on 07.10.1994 and was released on bail on 10.02.1995 and thus, the total period of incarceration of the appellant comes to more than 09 months and considering the same as also taking note of entire facts of the case which includes the version of victim (PW-2), who according to her deposition before the trial court was living with the appellant as husband and wife, the benefit of the judgment of Hon'ble Apex Court in the case of

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Anversinh Alias Kiransinh Fatesinh Zala Vs. State of Gujarat, AIRONLINE 2021 SC 13, be provided to the appellant. The relevant paragraphs of the same are reproduced as under :-

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"I. Whether a consensual affair can be a defence against the charge of kidnapping a minor ?

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11. Having given our thoughtful consideration to the rival submissions, it appears to us that although worded succinctly, the impugned judgment does not err in appreciating the law on kidnapping. It would be beneficial to extract the relevant parts of Sections 361 and 366 IPC which define “kidnapping from lawful guardianship” and consequential punishment. These provisions read as follows :

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“ 361. Kidnapping from lawful guardianship .—Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

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Explanation.—The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.

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***

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366. Kidnapping, abducting or inducing woman to compel her marriage, etc .—Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.”

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12. A perusal of Section 361 IPC shows that it is necessary that there be an act of enticing or taking, in addition to establishing the child's minority (notbeing sixteen for boys and eighteen for girls) and care/keep of a lawful guardian. Such “enticement” need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl. However, mere recovery of a missing minor from the custody of a stranger would not ipso facto establish the offence of kidnapping. Thus, where the prosecution fails

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to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home as happened in King Emperor v. Gokaran.

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13. Adverting to the facts of the present case, the appellant has unintentionally admitted his culpability. Besides the victim being recovered from his custody, the appellant admits to having established sexual intercourse and of having an intention to marry her. Although the victim's deposition that she was forcefully removed from the custody of her parents might possibly be a belated improvement but the testimonies of numerous witnesses make out a clear case of enticement. The evidence on record further unequivocally suggests that the appellant induced the prosecutrix to reach at a designated place to accompany him.

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15. Behind all the chaff of legalese, the appellant has failed to propound how the elements of kidnapping have not been made out. His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age.

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16. A bare perusal of the relevant legal provisions, as extracted above, show that consent of the minor is immaterial for purposes of Section 361 of IPC. Indeed, as borne out through various other provisions in the IPC and other laws like the Indian Contract Act 1872, minors are deemed incapable of giving lawful consent. 5 Section 361 IPC, particularly, goes beyond this simple presumption. It bestows the ability to make crucial decisions regarding a minor's physical safety upon his/her guardians. Therefore, a minor girl's infatuation 5 Satish Kumar Jayanti Lal Dabgar v. State of Gujarat, with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping.

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17. Similarly, Section 366 IPC postulates that once the prosecution leads evidence to show that the kidnapping was with the intention/knowledge to compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand attracted.

¶61

18. The ratio of S. Varadarajan (supra) although attractive at firstnot glance, does little to aid the appellant's case. On facts, the case is distinguishable as it was restricted to an instance of “taking” and not “enticement”. Further, this Court in S. Varadarajan (notsupra) explicitly held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full

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import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on the part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing : first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused.

¶64

19. Unfortunately, it has not been the appellant's case that he had no active role to play in the occurrence. Rather the eyewitnesses have testified to the contrary which illustrates how the appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to suggest that she was aware of the full purport of her actions or that she possessed the mental acuities and maturity to take care of herself. In addition to being young, the prosecutrix was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part, even if presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not thought her actions through fully.

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20. It is apparent that instead of being a valid defence, the appellant's vociferous arguments are merely a justification which although evokes our sympathy, but cannot change the law. Since the relevant provisions of IPC cannot be construed in any other manner and a plain and literal meaning thereof leaves no escape route for the appellant, the courts below were seemingly right in observing that the consent of the minor would be no defence to a charge of kidnapping. No fault can thus be found with the conviction of the appellant under Section 366 IPC.

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II. Whether the punishment awarded is just, and ought there be leniency given the unique circumstances?

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21. Having held so, we feel that there are many factors which may not be relevant to determine the guilt but must be seen with a humane approach at the stage of sentencing. The opinion of this Court in State of M.P. v. Surendra Singh on the need for proportionality during sentencing must be re-emphasised. This Court viewed that :

¶68

“13. We again reiterate in this case that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of

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appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the society.”

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(notemphasis supplied)

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22. True it is that there cannot be any mechanical reduction of sentence unless all relevant factors have been weighed and whereupon the Court finds it to be a case of gross injustice, hardship, or palpably capricious award of an unreasonable sentence. It would thus depend upon the facts and circumstances of each case whether a superior court should interfere with, and resultantly enhance or reduce the sentence. Applying such considerations to the peculiar facts and findings returned in the case in hand, we are of the considered opinion that the quantum of sentence awarded to the appellant deserves to be revisited.

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23. We say so for the following reasons : first, it is apparent that no force had been used in the act of kidnapping. There was no preplanning, use of any weapon or any vulgar motive. Although the offence as defined under Sections 359 and 361 IPC has no ingredient necessitating any use of force or establishing any oblique intentions, nevertheless the mildness of the crime ought to be taken into account at the stage of sentencing.

¶74

24. Second, although not a determinative factor, the young age of the accused at the time of the incident cannot be overlooked. As mentioned earlier, the appellant was at the precipice of majority himself. He was no older than about eighteen or nineteen years at the time of the offence and admittedly it was a case of a love affair. His actions at such a young and impressionable age, therefore, ought to be treated with hope for reform, and not punitively.

¶75

25. Third, owing to a protracted trial and delays at different levels, more than twenty-two years have passed since the incident. Both the victim and the appellant are now in their forties; are productive members of society and have settled down in life with their respective spouses and families. It, therefore, might not further the ends of justice to relegate the appellant back to jail at this stage.

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26. Fourth, the present crime was one of passion. No other charges, antecedents, or crimes either before 1998 or since then, have been brought to our notice. The appellant has been rehabilitated and is now leading a normal life. The possibility of recidivism is therefore extremely low.

¶77

27. Fifth, unlike in State of Haryana v. Raja Ram and Thakorlal D. Vadgama v. State of Gujarat [Thakorlal D. Vadgama v. State of Gujarat, (not1973) 2 SCC 413 : 1973 SCC (notCri) 835] , there is no

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grotesque misuse of power, wealth, status or age which needs to be guarded against. Both the prosecutrix and the appellant belonged to a similar social class and lived in geographical and cultural vicinity to each other. Far from there being an imbalance of power; if not for the age of the prosecutrix, the two could have been happily married and cohabiting today. Indeed, the present instance is an offence : mala prohibita, and not mala in se. Accordingly, a more equitable sentence ought to be awarded.

¶80

27. Given these multiple unique circumstances, we are of the opinion that the sentence of five years' rigorous imprisonment awarded by the courts below is disproportionate to the facts of the this case. The concerns of both the society and the victim can be respected, and the twin principles of deterrence and correction would be served by reducing the appellant's sentence to the period of incarceration already undergone by him.

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Conclusion

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29. In light of the above discussion, we are of the view that the prosecution has established the appellant's guilt beyond reasonable doubt and that no case of acquittal under Sections 363 and 366 IPC is made out. However, the quantum of sentence is reduced to the period of imprisonment already undergone. The appeal is, therefore, partly allowed in the above terms and the appellant is consequently set free. The bail bonds are discharged."

¶83

Shri Ajay Kumar Srivastava, learned A.G.A. for the Staterespondent supported the judgment of conviction under appeal and stated that the statement of victim of crime is sufficient to convict an accused. In this case, the victim (P.W.-2) has deposed in unimpeachable terms. As such, no interference is required in the matter and the appeal is liable to be dismissed.

¶84

Considered the submissions advanced by learned counsel for the contesting parties and perused the records.

¶85

To ascertain as to conviction of the accused-appellant is just and proper, this Court considered the statement (s) of victim including the statement made before the trial court. This Court also took note of the statement of Dr. Manju Gupta (P.W.-3), who proved the medical report and supplementary medical report.

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Upon due consideration of aforesaid, as also the judgment under appeal, this Court is of the firm view that the conviction of the accusedappellant is justified. It is for the reason that it has not been the case of the accused-appellant that he had no active role in the occurrence. Hence, conviction of accused-appellant is upheld.

¶88

On sentence, taking note of the aforesaid facts of the case and the evidence on record, as already noticed hereinabove, and also the period elapsed from 1994, i.e. about 31 years and that the accused-appellants have no past history of criminal record and there is no any criminal antecedents of him during these years, as stated, and the victim and accused-appellant, belongs to similar class, have settled down in life with their respective spouses and families and are productive members of society and also that accused-appellant is now leading normal life as also the present age of the victim and accused-appellant and the punishment/sentence awarded for the offence under Section 363 i.e. 03 years and also that the accused-appellant have already spent more than 09 months in prison and is in jail in compliance of this Court's order, this Court is of the view that a lenient view has to be taken while imposing the sentence at this stage.

¶89

For the reasons afore-stated, the appeal is allowed in part . The judgment and order of conviction dated 04.11.2008 passed by the Additional Sessions Judge/F.T.C.-5, Lakhimpur Kheri is hereby modified. The accused-appellant is sentenced to imprisonment for the period already undergone.

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The appellant is stated to be in jail. He shall be released from jail immediately.

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Let a copy of this judgment and record be sent forthwith to the trial court concerned for compliance.

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Order Date :- 17.7.2025

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ML/-

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Digitally signed by :- MUNNA LAL High Court of Judicature at Allahabad, Lucknow Bench

Batoley @ Mata Prasad v. State of U.P.

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