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2016 DIGILAW 94 (GAU)

BIJU HARIJAN v. STATE OF ASSAM

2016-02-10

PARAN KUMAR PHUKAN

body2016
JUDGMENT : Pran Kumar Phukan, J. The judgment and order of conviction dated 21.7.2007 passed by the Ld. Sessions Judge, Barpeta in Sessions Case No. 106/2007 convicting the appellants under section 363/34 IPC and sentencing them to undergo R.I for 5 years and to pay a fine of Rs. 10,000/- (ten thousand) each in default to R.I for 2 months is the subject matter of challenge in this appeal. 2. The prosecution case a the nutshell is that on 26.7.2001 one Mangal Khan lodged an ejahar with Sarthebari P.S alleging that at about 2 p.m on that day his youngest son Badal Khan aged about 4 years was taken away by two unknown persons from Bhogdia Uttar Chupa. Having came to know about it from some other persons he immediately with the help of a scooterist chased the accused persons and found them near PDB High School of North Barmari and recovered his son from their possession. On the strength of that FIR a case was registered and on completion of investigation charge-sheet was submitted against both the accused appellants under section 363(A) IPC. Ld. Addl. CJM, Barpeta before whom the case came up for trial committed the case to the Court of Sessions vide order dated 3.5.2007 holding that the case was exclusively triable by the Court of Sessions. 3. On receipt of the records from the committing Magistrate the Ld. Session Judge framed charge against both the accused appellants under section 364/34 IPC. The accused appellants pleaded not guilty to the charge. 4. During trial prosecution examined 4 witnesses including the I/O. Defence took the plea of denial but no witness has been examined on behalf of the defence. On conclusion of the trial the learned Sessions Judge found both the accused appellants guilty under section 363/34 IPC and convicted and sentenced them as stated above. 5. Being highly aggrieved and dissatisfied with the judgment of the learned Sessions Judge the accused appellants have preferred this appeal on the ground that the learned Sessions Judge has committed error apparent on the face of the records, that the learned Addl. 5. Being highly aggrieved and dissatisfied with the judgment of the learned Sessions Judge the accused appellants have preferred this appeal on the ground that the learned Sessions Judge has committed error apparent on the face of the records, that the learned Addl. CJM should not have committed the case to the Court of Sessions since charge-sheet was submitted under section 363(A) IPC which is triable by the learned Magistrate First Class, that the learned Session Judge should not have convicted the accused appellant under section 363(A) IPC when no charge under the said section has been framed against them that the contradictions and omissions have not been considered etc. 6. The learned counsel appearing on behalf of the accused appellants strenuously urged that the learned Addl. CJM should not have committed the case to the Court of Sessions. It is contented that charge-sheet has been filed against the accused appellants under section 363(A) IPC which is triable by the Magistrate First Class. By holding that the case is exclusively triable by the Court of Sessions in the committal order, the learned Magistrate committed grave illegality for which the trial got vitiated. The learned Addl P.P., Assam submits that there was some irregularity in the committal proceeding but for that reason alone, the entire prosecution case cannot be thrown out of consideration. 7. In the back drop of the aforesaid submissions I have carefully perused the entire records. The charge-sheet reveals that it was filed under section 363(A) IPC which is triable by learned Magistrate First Class. The learned Addl. CJM instead of trying the case committed the same to the Court of Sessions holding that the case is exclusively triable by the Court of Sessions. There is nothing in the committal order dated 3.5.2007 passed by the learned Addl. CJM, Barpeta to show that the accused appellants appeared to have been committed offence under section 364 IPC or any sessions triable offence. It is also not known as to why the case was committed to the Court of Sessions. However, the learned Sessions Judge before whom the case was committed framed charge under section 364/34 IPC against the accused appellants which is triable exclusively by the Court of Sessions. The learned Addl. CJM, Barpeta in the committal order should have cited reasons for committing the case to the Court of Sessions. However, the learned Sessions Judge before whom the case was committed framed charge under section 364/34 IPC against the accused appellants which is triable exclusively by the Court of Sessions. The learned Addl. CJM, Barpeta in the committal order should have cited reasons for committing the case to the Court of Sessions. Some irregularities appears to have been committed by the committing Court but because of these irregularities the entire prosecution case cannot be thrown out more particularly when the learned Sessions Judge on scrutiny of the entire materials placed before him framed charge under section 364 IPC against the accused appellants which is triable exclusively by the Court of Sessions. Consequently, the trial of the accused appellants under section 364 IPC and their conviction under section 363 IPC cannot be held to be vitiated. 8. In the impugned judgment passed by the learned Sessions Judge he has discussed at length the evidences of all the four witnesses including the I/O. P.W 1, who is the father of the kidnapped boy deposed that on the day of the occurrence while he was in the Madrassa working as chowkidar he got information that his minor son Badal Khan was taken away by some unknown persons in their bycycles. He immediately requested P.W. 2, Abdul Mannan who was the teacher of the High Secondary School to take him in his scooter and both of them proceeded towards Northern side as pointed out by some persons who claims to have seen the boy taken away in a bicycle. At a distance of about 1 and 1/2 K.M near BDP School he found his son crying on the bycycle, a man from Chenga restrained both the accused appellants while he saw the boy being taken away in the bycycle. At that point of time P.W.1 and P.W 2 arrived at the spot and recovered the boy and the accused appellants were taken into custody and later on handed over to police. They could not give any explanation for taking the boy in their bycycles. Police arrested both of them. A written FIR was filed by P.W. 1 and in the FIR Ext. 1 date, time and manner of commission of the crime has been clearly spelt out and there is nothing to suspect embellishment or after thought. 9. The evidence of P.W 1 is corroborated by P.W 2, Abdul Manan in all materials particulars. Police arrested both of them. A written FIR was filed by P.W. 1 and in the FIR Ext. 1 date, time and manner of commission of the crime has been clearly spelt out and there is nothing to suspect embellishment or after thought. 9. The evidence of P.W 1 is corroborated by P.W 2, Abdul Manan in all materials particulars. P.W. 3, Rahim Khan also claims to have seen the accused appellants taking away the boy in bycycles while he was taking tea in hotel situated near the Madrassa, Barmara Center. While he was taking tea he saw some women shouting that the son of P.W 1 was being kidnapped. 10. The accused appellants were caught red-handed soon after the occurrence and the boy was recovered from their possession who was crying at that time. The boy was aged about 3-4 years at that time and he has been examined as C.W 1. He also stated that the accused appellants took him in the bicycle with assurance of giving chocolate and other eatables. The defence could not elicit any contradiction in the evidence of the prosecution witnesses and they have given consistent and uniform version regarding the occurrence. The evidence stands corroborated by the FIR Ext. 1 which has been duly proved. It was promptly lodged by P.W 1, father of the boy after the boy was recovered. The accused appellants made a feeble attempt to establish that the mother of the boy herself asked them to take the boy to the Madrassa but they have miserably failed to substantiate the plea taken by them. They could not explain when questioned under section 313 Cr.P.C the reason for taking the child in their bycycles. The evidences clearly proves that the child was picked up from near his house with the promise of giving him chocolate. Although the prosecution could not establish that he was kidnapped for murdering but it has been established beyond doubt that the child was taken away from the lawful guardianship which is a graveman of offence under section 363 IPC which has been established against the accused appellants. Although the prosecution could not establish that he was kidnapped for murdering but it has been established beyond doubt that the child was taken away from the lawful guardianship which is a graveman of offence under section 363 IPC which has been established against the accused appellants. Taking or enticing any minor out of the keeping of the lawful guardian of the minor without his consent is the main ingredient of the offence and prosecution has been able to prove beyond doubt that no consent was taken from the guardian of the minor by the accused appellants before taking him away from their custody. Even if consent was given by the minor it is immaterial, it is only the guardians consent which is material which takes the case out of its purview. 11. Having heard the learned counsels appearing for both the parties and having gone through the impugned judgment and entire evidences on record and for all the reasons stated above I do not find any infirmity in the judgment of the learned Sessions Judge, Barpeta in convicting the accused appellants under section 363/34 IPC and consequently the judgment stands affirmed. The appeal fails. 12. Send down the LCR along with the copy of the judgment for information and necessary action. The accused appellants are directed to surrender before the Trial Court within 30 days to serve out the sentence. The period already undergone by them in jail shall be set off.