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2015 DIGILAW 1879 (ALL)

DHANNO @ MAKHMALI v. STATE OF U. P.

2015-07-13

RAMESH SINHA

body2015
JUDGMENT : Hon'ble Ramesh Sinha,J. 1. This jail appeal has been preferred by the appellant against the judgement and order dated 06.08.2014 passed by the Additional Sessions Judge, Court No. 8, Saharanpur in Sesssion Trial No. 254 of 2013 (State v Dhanno alias Makhmali) by which the appellant has been convicted and sentenced to three years rigorous imprisonment and a fine of Rs. 1000/- under section 363 IPC. In default of payment of fine, the appellant to undergo additional three months simple imprisonment. 2. The prosecution story in brief is that the appellant along with her accomplice enticed and abducted a boy named, Mohd. Saqib on 10.01.2013 at about 5.30 P.M. from G.T. Road, Jamia Tibbia, Deoband with an intention to sacrifice. Later on the abducted boy was got released from the clutches of the accused appellant with the assistance of Gram Pradhan and his companions namely; Khalil Ahmad, Rao Iftekhar, Zulfeqar and Moharram Ali. The FIR was lodged by the informant, Mohd. Farman, who happens to be the maternal uncle of the abductee on 12.01.2013, which was registered as Case Crime No. 24 of 2013, under section 364 IPC at P.S. Deoband, District Saharanpur. The written report was marked as Exhibit Ka-1 on the basis of which the chik FIR was registered, which is Exhibit Ka-5. On investigation, the Investigating Officer, Sub Inspector Indra Pal Singh recorded the statement of the informant and other witnesses. The site plan of the place of occurrence (Exhibit Ka-2) was prepared and thereafter a charge sheet, under section 364 IPC (Exhibit K-4) was submitted. Upon committal of the case to the Court of Sessions, the trial court framed charge against the applicant under section 364 IPC, who pleaded not guilty and prayed for her trial. 3. The prosecution in support of its case, examined the informant Mohd Farman P.W.-1, the abductee Mohd Saqib P.W.-2, Rao Iftekhar P.W. -3 and Sub Inspector Indra Pal Singh P.W. 4. 4. The statement of the accused appellant under section 313 Cr.P.C. was recorded in which she denied the prosecution case and stated that the witnesses are deposing falsely against her and the recovery of the child from her possession is a false one. The FIR of the incident has been falsely lodged against her on account of village rivalry. 4. The statement of the accused appellant under section 313 Cr.P.C. was recorded in which she denied the prosecution case and stated that the witnesses are deposing falsely against her and the recovery of the child from her possession is a false one. The FIR of the incident has been falsely lodged against her on account of village rivalry. She further stated that she belong to a Hindu community and the informant is of Muslim community, hence, she has been falsely implicated in the instant case due to communal disharmony. She claimed herself innocent of the charge. 5. The informant, Mohd Farman P.W. -1 supporting the prosecution case deposed before the trial court that his nephew (Bhanja) Mohd Saqib was abducted on 10.01.2013 at about 5.30 P.M. from G.T. Road, Tibbiya College, Deoband, who was playing with other children with an intention to sacrifice him, was enticed and taken away to her house by the accused appellant and her accomplice and on received information of the same, the Pradhan of the village along with other persons got the abductee child recovered and rescued. He further stated that the accused appellant is a member of a gang, which is indulged in kidnapping minor children and selling them. He also proved the written report, on the basis of which the FIR was lodged i.e. Exhibit Ka-1. 6. The abductee child, Mohd Saqib P.W.- 2 also reiterated the prosecution case, as has been stated by P.W.- 1, Mohd. Farman, his maternal uncle and deposed that on 10.01.2013 at about 5.30 P.M. when he was playing with other children, the accused appellant enticed and took him away, with the allurement of giving biscuits and Samosas, to her house and locked him there. During his unlawful confinement, he over heard conversation of the accused appellant with her associates that he would be sacrified, left her house. Thereafter, the Pradhan of the village along with his companions had recovered him from the house of the accused appellant. The abductee had also identified the accused appellant before the trial court. 7. Rao Iftekhar, P.W. -3 deposed before the trial court that he had received an information about a child, being abducted and wrongly confined, he along with Zulfeqar, Moharram Ali, Khalil and others reached the house of the accused appellant and found the abductee there. The abductee had also identified the accused appellant before the trial court. 7. Rao Iftekhar, P.W. -3 deposed before the trial court that he had received an information about a child, being abducted and wrongly confined, he along with Zulfeqar, Moharram Ali, Khalil and others reached the house of the accused appellant and found the abductee there. He further deposed that the abductee child informed that he studies in a Eidgaah Road Mardasa, where his maternal uncle is a teacher. His maternal uncle was called and was given the custody of the child, who had lodged the FIR of the present case. P.W. 3, further deposed that the accused appellant, prior to the present incident, had brought one girl child also with an intention to sacrifice her, hence, he abducted the present child also, for the purpose of sacrifice. 8. Sub Inspector, Indra Pal Singh was examined as P.W. -4, who is the Investigating Officer in the instant case, has stated that he was posted as Sub Inspector at P.S. Deoband on 12.01.2013 and on the said date, the FIR of Case Crime No. 24 of 2013, under section 364 IPC was registered and the investigation of the same was entrusted to him. He recorded the statements of the informant, the abductee child Mohd. Saqib and other witnesses. He prepared the site plan also of the place from where the abductee child was recovered i.e. exhibit Ka- 2 and submitted that the charge sheet against the accused appellant, exhibit Ka- 4. He proved the prosecution documents (Ka- 2 to Ka- 6). 9. Heard Sri P.S. Pundir, learned Amicus Curiae for the appellant and Sri Nikhil Chaturvedi, learned AGA for the State. 10. It has been submitted by the learned Amicus Curiae appearing for the appellant that in the entire prosecution evidence the trial court did not find even an iota of evidence that the accused appellant was a member of any gang, which was indulged in killing and selling minor children and also the abductee child was enticed away for any sacrifice. The police during the course of investigation also did not recovered any material including any such weapon from the house of the appellant, to establish that the appellant was indulged in the activity of abduction of minor children for the purpose of any nefarious sacrifice. The police during the course of investigation also did not recovered any material including any such weapon from the house of the appellant, to establish that the appellant was indulged in the activity of abduction of minor children for the purpose of any nefarious sacrifice. It was next submitted that Mohd Farman, P.W. -1, the informant is not a witness of abduction nor he has seen the appellant abducting the child Mohd. Saqib, with an intention to sacrifice him. He lodged the FIR against the appellant only on the basis of an information, received from the witnesses that the accused appellant abducts children for the purpose of sacrifice. In advancement of his argument, it was further submitted that prior to to the present incident, the accused appellant had abducted a girl child with an intention to sacrifice her but the said allegation fell flat as the said girl child was married by the appellant, when she became major and after the marriage, she along with her husband used to live in the house of the appellant quite comfortably. Therefore, the allegation levelled against the appellant was a false one. P.W. 3 himself has cross examined the appellant he admitted the aforesaid facts that the girl child was brought up by the appellant and married her and after the marriage, her son-in-law was living with her wife (the alleged girl child) in the same house. He fairly conceded that Mohd Saqib (P.W. -2), the abductee child, has deposed before the trial court that he was abducted by the accused appellant from the place where he was playing with other children by the accused appellant and was brought to her house, who was later on recovered by the Pradhan of the Village and his companions on 12.01.2013. Even if for the argument sake, the statement of P.W. -2 is relied upon to the effect that the accused appellant was having conversation with one of her accomplice that the abductee boy would be sacrificed, but for two days he was not sacrificed and further no criminal antecedent could be unfolded with regard to the motive of any nefarious sacrifice. He next argued that the trial court only on the basis of the statement of Mohd. He next argued that the trial court only on the basis of the statement of Mohd. Saqib, the abductee child, P.W. -2 had convicted and sentenced the appellant whereas the fact remains that P.W.- 3 is also not an eye witness of the incident, he is only a witness of the recovery of the abductee child from the house of the appellant. Learned Amicus Curiae further drawn valuable attention of this Court towards the cross examination of P.W. 2, Mohd Saqib and argued that the evidence of the abductee child is a tutored one. It is also submitted that the trial court did not find any evidence against the appellant for the offence under section 364 IPC and has convicted the accused appellant for an offence under section 363 IPC for three years rigorous imprisonment out of which she has already undergone two years and six months of sentence in jail and further it is submitted that at present the appellant is aged about 72 years as her age was recorded to be of 70 years, when her statement was being recorded under section 313 Cr.P.C. on 10.07.2014. 11. Learned AGA on the other hand has argued that as per the statement of Mohd. Saqib, the abductee child, P.W. 2, who is aged about 10 years it is quite clear that he was abducted by the accused appellant while he was playing with other children at the Madarsa in the evening and was enticed away by the accused appellant luring him of giving biscuits and Samosas and was brought to her house, where he was locked up. The abdcutee boy also indentified the accused appellant before the trial court and there appears to be no reason for implicating her in the present case. Hence, the conviction of the accused appellant under section 364 I.P.C. by the trial court is correct and her conviction be upheld by this Court. 12. It appears from the evidence of the prosecution witnesses that even if the evidence of the abductee boy, Mohd Saqib, P.W. 2, who has also supported the prosecution story regarding his abduction by the accused appellant, is accepted true on its face value, there appears to be on other evidence available against her for abduction of P.W. 2, Mohd Saqib. It appears from the evidence of the prosecution witnesses that even if the evidence of the abductee boy, Mohd Saqib, P.W. 2, who has also supported the prosecution story regarding his abduction by the accused appellant, is accepted true on its face value, there appears to be on other evidence available against her for abduction of P.W. 2, Mohd Saqib. The prosecution case that the accused appellant belonged to a gang, which was indulged in killing and selling minor children and further she used to abduct children for the purpose of sacrifice has no teeth and was also found to be false by the trial court as it did not find any material against her to establish the aforesaid allegations. Moreover, no material was recovered during the course of investigation by the Investigating Officer from the appellant that there was any weapon or any other material which may show that the accused appellant was indulged in sacrificing the minor children. Thus, the statement of P.W. -2 Mohd Saqib regarding his abduction by the accused appellant and his recovery from the house of the appellant goes to show that she has abducted a minor child, aged about 10 years, and brought to her house and kept in wrongful confinement for about two days from where he was recovered by the Pradhan of the village and his other companions and Rao Iftekhar, P.W. -3 is also a witness of the said recovery, hence, the finding recorded by the trial court acquitting the accused appellant for the offence under section 364 IPC and convicting her for the offence under section 363 IPC, appears to be justified. Hence, the conviction and sentence of the appellant by the trial court is, hereby, upheld. 13. However, taking into account the old age of the accused appellant, which is stated to be 70 years, when her statement under section 313 Cr.P.C. was recorded i.e. on 07.10.2014 and as on date she appears to be aged about 72 years and to the fact that she has, out of the awarded sentence of three years of rigorous imprisonment already undergone two and a half year in jail. Her sentence of three years is reduced to already undergone. The fine of Rs. 1000/- imposed on her is, hereby, set aside. Her sentence of three years is reduced to already undergone. The fine of Rs. 1000/- imposed on her is, hereby, set aside. Hence, the accused appellant Dhanno alias Makhmali shall be released from jail forthwith, if not wanted in any other criminal case. 14. In view of the above, the appeal is partly allowed. 15. The Court appreciates the efforts of Sri P.S. Pundir, learned Amicus Curiae for his able assistance. 16. Copy of this order shall be sent by the Registrar General of this Court to the District Judge, Saharanpur, Senior Superintendent of District Jail, Saharanpur and Inspector General of Police (Prison, Administration and Rehabilitation), Uttar Pradesh, Lucknow for its compliance forthwith. ———————