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2011 DIGILAW 12 (JHR)

Vinod Hembrum v. State of Jharkhand

2011-01-05

D.K.SINHA

body2011
JUDGMENT (1) THE instant appeal is directed against the judgment of conviction dated 18-9-2002 and order of sentence dated 19-9-2002 passed in S.C. Case No. 41 of 2002/02 of 2002 arising out of Nala (Binda Pathar) P.S.Case No. 87 of 2001 corresponding to G.R. No. 466 of 2001 by the 2nd Additional Sessions Judge, FTC Jamtara. THE appellant thereby was convicted under Section 363 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a term of four years. (2) THE prosecution story in short was that the informant Dhaneshwar Mirdha(P.W. 5) along with his wife, daughter and elder son had gone out to work for wages on 30-10- 2001 at 8 a.m. leaving behind his minor son Sanjay Mirdha aged about 11 years and the youngest daughter aged about 8 years in his house. When the informant returned back at about 2.p.m., he did not find his son Sanjay Mirdha, as such, he came out immediately in search of him. During course of search he was apprised by the villagers that his son was taken away by a stranger towards Kharu Bazar. THE informant upon such information proceeded to Kharu Bazar on 30-10-2001 itself but his missing son could not be located. On the subsequent day on 31-10-2001 he learnt that a thief along with a boy was detained at village Haripur. He immediately rushed to Haripur village where he found his son with the stranger restrained by the villagers. THE villagers of Haripur transferred the custody of his son to him whereas the appellant Vinod Hembrum was brought before the Binda Pathar Police station. On 1- 11-2002. On the written report presented by the informant father of the boy, Nala (Binda Pathar) P.S.case No. 87 of 2001 was registered for the alleged offence under Section 364 of the Indian Penal Code against the appellant Vinod Hembrum who was brought before the police. THE Investigating Officer submitted charge-sheet against the sole accused-appellant under Section 364 of the Indian Penal Code. THE accused appellant was put on trial by the 2nd Additional Sessions Judge though his defence was denial of the alleged offence after charge was framed against him under the said section. The prosecution examined altogether 13 witnesses. THE Investigating Officer submitted charge-sheet against the sole accused-appellant under Section 364 of the Indian Penal Code. THE accused appellant was put on trial by the 2nd Additional Sessions Judge though his defence was denial of the alleged offence after charge was framed against him under the said section. The prosecution examined altogether 13 witnesses. Out of them P.W.1 Sapi Narayan Soren, a formal witness, P.W.2 Rani Mirdha, the mother of the victim,P.W.3 Manohar Mirdha the brother of the victim,P.W.4 Abhimanur Mirdha the co-villager of the informant, P.W5 the informant P.W.6 Sanjay Mirdha the victim boy,P.W.7 Raju Mirdha the elder brother of the informant,P.W.8 Upendra Singh the Investigating officer, all were examined on behalf of the prosecution. Besides, P.W.9 Supal Tudu, P.W.10 Rupen Murmu P.W.11 Babusar Murmu and P.W.12 Baneshwar Hembrum were the witnesses of Haripur from where the boy was recovered from the custody of the appellant. P.W.13 Krishnapad Bauri was the neighbour of the informant. (3) THE learned counsel appearing for the appellant submitted that it would be evident from perusal of the depositions of the prosecution witnesses that the appellant never tried to conceal either his identity or that of the identity of the boy at any. point of time from the eyes of the villagers. THE informant had admitted in his written report that his son had accompanied a stranger to Kharu Bazar at his own will by covering several fields where people were engaged in harvesting crops. THE learned counsel while pointing out to the testimonies of the prosecution witnesses submitted that the appellant through out his journey did not try to escape even at village Haripur and had put the boy under the care of one Kameshwar when he proceeded to have liquor. As a matter of fact materials brought on the record did not make out a case of kidnapping the learned counsel added, rather the boy had voluntarily accompanied the appellant on his way to his maternal uncle's home village. THEre was no criminal intention of the appellant either to cause harm to the boy or of taking him away from the custody of his father, so as to attract the offence under Section 363 of the Indian Penal Code in which he has been convicted. THEre was no criminal intention of the appellant either to cause harm to the boy or of taking him away from the custody of his father, so as to attract the offence under Section 363 of the Indian Penal Code in which he has been convicted. Mr.Khan the learned counsel submitted that the trial Court did not find while evaluating the evidence that the charge under Section 364 of the Indian Penal Code could be proved. Yet he held the appellant guilty for the offence under Section 363 of the Indian Penal Code on erroneous consideration without appreciating the factum of kidnapping of a minor girl. (4) SECTION -361 of the Indian Penal Code defined kidnapping from lawful guardianship which speaks :- "Whoever takes or entices any minor under 2[sixteen] years of age if a male, or under 3 [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". Explanation.- The words "Lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception.- This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose. None of the witnesses produced and examined on behalf of the prosecution has claimed kidnapping of the boy from the house of the informant rather the witnesses claimed having seen the son of the informant going in the company of a stranger. In this case the statement of the victim boy P.W. 6 Sanjay Mirdha whose age was assessed only 12 years is of much significant. (5) P.W. 6 Sanjay Mirdha testified that a man came to his house and asked him to accompany him to Kharu Bazar extending promise that he would deliver some sweets to him. That man caught hold his hands and proceeded. The child witness admitted having been assaulted at the hands of the accused-appellant when he resisted and was threatened to be sold at Delhi. That man caught hold his hands and proceeded. The child witness admitted having been assaulted at the hands of the accused-appellant when he resisted and was threatened to be sold at Delhi. On the alarm there being raised by him the surrounding people assembled there and apprehended the accused. The villagers after interrogation of the accused informed his father. He was then brought to his village. The boy identified the accused appellant in the Court during his evidence by asserting that it was the man who had forcibly taken him away from his house on the allurement of giving sweets to him. He had been to the police station with his father and brother where he was interrogated. In the cross-examination the child witness admitted that he dropped out as a student of class-I from the school. He further admitted that he was not weeping on the way passing through the fields around which the fanners were engaged in harvesting, however, explained that he was terrorized to accompany the accused lest he would be killed and that he was not allowed to raise alarm through but their journey on foot. He further deposed that since Vinod(accused) had slapped him, he was not able properly to take his food as his mouth had swellen for which he was examined by a doctor. (6) THE other material witnesses such as P.W.2 Rani Mirdha, P.W.3 Manohar Mirdha, P.W.4 Abhimanur Mirdha, P.W.5 (informant) Dhaneshwar Mirdha and P.W.7 Raju Mirdha, all have supported in their depositions that the appellant Vinood Hembrum had forcibly taken away the minor boy while he was alone in his house with his younger sister where he was lawfully under the care and custody of his parents. I find that charge against the appellant was framed under Section 364 of the Indian Penal Code but it could not be proved beyond doubt that such kidnapping was with the intention to commit his murder but of course I find that witnesses of Haripur village were consistent that the appellant had not concealed either his identity throughout his journey or the identity of the boy. I find that the prosecution failed to prove the intention of the appellant as to why he had kidnapped the boy and what was his future planning for disposal of the boy. I find that the prosecution failed to prove the intention of the appellant as to why he had kidnapped the boy and what was his future planning for disposal of the boy. Having regard to the facts and circumstances of the case, arguments advanced on behalf of the parties, materials available on the record I find that the learned trial Court was justified in holding the appellant guilty under Section 363 of the Indian Penal Code though charge against the appellant was framed under Section 364 of the Indian Penal Code, as such I do not find any illegality or irregularity in such conviction of the appellant. The sentence awarded to the appellant by the trial Court for his conviction under Section 363 of the Indian Penal Code is adequate. The learned counsel appearing on behalf of the appellant failed to show any reasonable ground so as to call for interference in the judgment of conviction of the appellant and order of sentence recorded by the 2nd Additional Sessions Judge. Accordingly, the conviction of the appellant and order of sentence passed against the appellant is upheld. There is no merit in the appeal and hence it is dismissed. Appeal dismissed.