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2001 DIGILAW 611 (PAT)

Radha Raman Singh v. State Of Bihar

2001-07-20

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. This appeal is directed against the order of conviction and sentence passed by 3rd Addl. Sessions Judge, Muzaffarpur, in session trial No. 174/89. The sole appellant was convicted under Sections 363 and 323, IPC and sentenced to undergo RI for 3 years and one year respectively. The sentences were directed to run concurrently. 2. The prosecution case, according to the FIR, was that the appellant had some family fued with the informant and on account of that, he picked up his son from the school and dragged him after tying gamcha around his neck and be brought him to the road and attempted to throw him under some speeding vehicle, but the witnesses gathered and saved the boy. Subsequently, the informant was intimated, he came there and filed the case. 3. The appellant took the defence of false implication on account of enmity. 4. The prosecution examined in all ten witnesses. PW 10 was the doctor who examined the victim on 19.2.1988 and the alleged occurrence took place on the same day at 1.30 p.m. Doctor found bleeding from the nose) He also found multiple contusions and abrasions on various parts of the body. Injuries were caused by hard and blunt substance and all were simple in nature. PW 9 was the IO who visited the place of occurrence and examined the witnesses and submitted charge-sheet. PW 8 was a formal witness who brought on record fardbeyan (exhibit 2). PW 7 was the informant himself. He went to the place of occurrence and found his son lying in injured bleeding from his mouth and nose and he carried his son to the hospital. PWs 1 to 6 are other witnesses who had seen the appellant dragging the victim from the school gate and he had attempted to throw the boy under speeding vehicle. 5. The learned Sessions Judge, on-the basis of the evidence of the witnesses, held that the accused-appellant was guilty under Sections 363 and 323, IPC although charges were framed under Sections 307, 323 and 364, IPC. It has been submitted before me by the appellants lawyer that this was not a case under Section 363, IPC. Moreover, the appellant has remained in custody for more than one year after his arrest. 6. It has been submitted before me by the appellants lawyer that this was not a case under Section 363, IPC. Moreover, the appellant has remained in custody for more than one year after his arrest. 6. Now the question is whether the alleged act committed by the appellant will come under Section 361, Cr PC, which defines kidnapping from lawful guardianship. This section lays down that whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, that act shall constitute an offence of kidnapping from lawful guardianship. 7. In the instant case, victim at the time of kidnapping was not in the house, he was in his school and at the time of occurrence also he was not out of school. He was at the school gate. 8. However, from the evidence of PW 5, victim, it transpired that he was at the school gate at 1.30 p.m. on 19.2.1988 and he was taking "Kulfi", appellant appeared picked him up and tied the gamcha around his neck and dragged him towards Bazar and then he wanted to throw him under some speeding vehicle. Some witnesses gathered and intervened and he was saved. 9. The point is whether the action of the appellant by picking him up at the school gate and dragging him away will constitute an offence under Section 363, IPC or not. Section 361 has defined kidnapping from the lawful guardianship. Lawful guardianship will include the parents of the boy or any body else who, at the relevant time was having the custody of the victim by virtue of any legal principle. When a boy goes to the school, he is deemed to be under the guardianship of school master. According to the evidence of PW 5, the boy was at the school gate during tiffin recess, the school was not closed till then. So the victim shall be deemed to be under the lawful guardianship of the head of the school. So I am of the opinion that the offence under Section 363, IPC is very much attracted. The conviction under that section is quite valid and legal. 10. The appellant was sentenced to undergo RI for 3 years and 1 year respectively under Section 363 and 323, IPC. 11. So I am of the opinion that the offence under Section 363, IPC is very much attracted. The conviction under that section is quite valid and legal. 10. The appellant was sentenced to undergo RI for 3 years and 1 year respectively under Section 363 and 323, IPC. 11. The appellant being the relation of the victim and being annoyed with his family had very good motive to commit the offence. Hence his culpable act was not pardonable. 12. In the result, this appeal is dismissed. However, so far sentence is concerned, I think the period of two years shall be sufficient to meet the ends of justice. So sentence under Section 363, IPC is modified to two years from three years. Sentence under Section 323, IPC shall be kept intact. With this modification in the sentence, this appeal is dismissed.