Delhi District Court
State vs . : Munna Lal on 18 February, 2008
1
IN THE COURT OF SH. PRASHANT KUMAR: MM
ROHINI:COURTS: DELHI.
State Vs. : Munna Lal
FIR NO : 47/89
U/s : 363/365/34 IPC
PS : Adarsh Nagar
JUDGMENT.
1. Sl. No. of the case 424/2
2. Offence complained of
or proved U/s 363/365/34 IPC
3. Date of Offence 13.03.89
4. Name of the complainant Ram Babu
5. Name of the accused 1. Munna Lal
S/o : Bahori Lal
R/o : Vill Nangla Inderjeet
PS Amanpur, Ditt. Etah
U.P
2. Ram Bharose
S/o Nathu Ram
R/o Vill Bagipur,
PS Kotwali, Etaj (UP)
6. Plea of the accused Pleaded not guilty.
7. Final order Convicted
8. Date of Order 09.01.08
Brief reasons for decision:
1. The story of the prosecution in brief is as under: 2 that on 13.3.89 both the accused persons namely Munna Lal and Ram Bharose took away Attar Singh a minor child of Ram Babu from his lawful guardianship without his consent. They also wrongfully confined the said child. Thus, FIR u/sec. 363/365/34 IPC was registered against both the accused persons.
2. IO conducted detailed investigation and filed his final report under section 173 Cr.P.C against the accused persons. After conducting the initial proceedings, documents were supplied to the accused persons. Thereafter, arguments on charge heard. It was found that prima facie material was available against the accused for offence u/s 365/34 IPC. Hence, charge under section 365/34 IPC was framed against both the accused persons to which they pleaded not guilty and claimed trial.
3. It is important to mention here that prosecution has examined 8 witnesses in support of its case and there is no evidence from the side of the accused persons in their defence.
4. PW1 Shri Ram Babu, the complainant has stated to the effect that Attar Singh is his son. In the year 1989, both the accused persons kidnapped his son from his house. A report 3 was lodged in PS for kidnapping his son. Said report is Ex. PW 1/A. Both the accused were arrested by the police after three/four days. Both the accused persons also made their disclosure statement which is Ex. PW1/B and PW1/C. Attar Singh however could not be located. After one month and 8 days, the son of the complainant was produced in Police station by some unknown person. It is further stated by the complainant that the accused persons kidnapped his son because they had to pay Rs. 5000/- and "they wanted to equalise this amount by demanding ransom from him for his son". During his cross examination, the complainant has stated that he knew accused Munna who was earlier residing in his house. The marriage of accused Munna was arranged by the complainant. After his marriage, accused Munna left his place. Rs. 5000/- was given by the complainant to the accused. Munna had kept his utensils as pledge with the complainant. After the marriage of Munna he demanded back his utensils but those were not returned. Accused Ram Bharose was not known to the complainant. It is further stated by the complainant that when his son had gone one Rambir came to him at Sangam Vihar and has told him that his son had been taken by accused 4 Munna. This was informed to the police on that day itself. Thereafter, complainant went to Eta in village Baggipur. Thereafter, he went to the house of Ram Bharose. The child was not found there. After searching at several places, no clue was found about the child. The accused persons were however in jail when the child returned. The child did not disclosed the name of any person in whose custody he remained during that period.
5. PW2 Attar Singh, son of the complainant, has stated that it was accused Munna Lal along with other accused who entices him to gave marbles and made him to sit in his scooter and took him away to ISBT. From there they took him to Aligarh. Accused Munna thereafter handed over to two/three other persons who took PW2 to many villages in U.P. It is further stated by the said PW2 that he had overheard talking the person who had taken him away that they were demanding ransom amount from is father. After some time he was taken by a man to Delhi and was handed over to the police. During his cross-examination PW2 has stated that it was the accused persons who had taken him away and they handed over to some other persons. During cross examination PW2 has stated 5 that he never gave the name of the person who had kidnapped him.
6. PW3 const. Amar has stated to the effect that on 15.03.99 he was posted at PS Adarsh Nagar. On that day he along with SI Giriraj Singh went to District Eta for investigation in case FIR No. 47/89. HC Mahender Singh and const. Rajbir Singh were also with them. Investigation was regarding search of a kidnapped child. Upon reaching Eta, Ram Bharose was not found there. Thereafter, he searched the child at other places. From there it was revealed that accused Ram Bharose used to do the job of asking ransom money from various persons. Accused Ram Bharose was not found there;. Accused Munna was however found at his in laws house at Delhi. Another accused was also arrested at the instance of accused Munna. Nothing contrary has emerged from the cross examination of this witness and he has corroborated the same what he has stated in his examination in chief.
7. PW4 HC Mahinder Singh has stated to the effect that on dated 18.03.99 he was posted at PS Adarsh Nagar and on that day he along with SI Giri Raj, Const. Rajbir and Const. Amar Singh went to B Block, Jahangirpuri from where accused 6 Munna was arrested. Accused Ram Bharose was also arrested.
8. PW5 Const. Rajbir Singh has stated on the same line as PW4 Mahender Singh has stated he he was along with the IO and PW4.
9. PW6 Ravinder Pal Singh has stated to the effect that on 13.03.89, he was residing at Surinder Nagar, Aligarh. On that day, accused Munna Lal and Ram Bharose along with Dina and Chottey came at his residence at Surinder Nagar, Aligarh along with one male child aged about 8/9 years. They stayed for a night and on the next morning all the accused along with the child went away. P'W6 correctly identified both the accused persons Munna Lal and Ram Bharose. He had also seen them in Delhi. PW6 did not raise any suspicion against the accused persons because child was playing happily with them. This witness was not cross examined by the accused persons despite giving opportunity.
10. PW8 HC DO Laxman Singh has stated that on 14.03.89 he received one tehreer brought by const. Naresh and registered FIR which is Ex. PW1/A.
11. PW7 Inspector Giri Raj the IO was partly examined as 7 his examination in chief could not be completed and this witness was not brought in the witness box subsequently. Thus the statement of PW7 IO cannot be considered and is not relevant.
12. After all the prosecution witnesses examined, PE was closed and one opportunity was given to the accused persons u/s 313 Cr.P.C wherein all the incriminating evidence was explained to them in which they pleaded their innocence and stated that do not want to lead their evidence in defence.
13. I have heard the final arguments so advanced by the counsel for accused and Ld APP for the state. I have perused the material placed before me along with the testimony of PW's.
14. It is important to mention here that in this case charge u/s 365 IPC have been framed against both accused persons Munna Lal and Ram Bharose. Before proceeding further, it is further important to mention here that section 365 IPC embodies an aggravated form of offence of kidnapping as defined under Section 360 and 361 IPC and of abduction as defined under section 362 IPC.
Section 365 reads as under: -
Kidnapping or abducting with intent secretly and wrongfully to confine person - 8 Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
15. Section 365 IPC is attracted when the kidnapping or abduction is committed with intent to secretly and wrongfully confined the victim. This section, thus makes punishable offence of kidnapping or abduction with intent to cause the person abducted to be secretly and wrongfully confined. This was held in "Akbar Ali Vs. Emperor AIR 1925 Lah. 614.
16. The intention of the abductors of kidnapper has to be judged from the facts and circumstances of the case including what the abductor did at the time of abduction and immediately thereafter. This was held in "State of U. P Vs. Laiq Singh 1968 Cr. L J 584 (598)
16. It is further important to mention here that the victim in this case is a minor, therefore offence of kidnapping is attracted here instead of abduction.
17. The essential ingredients of offence u/s 365 IPC, 9 therefore are:-
I The accused kidnapped any person.
II. That he did so with intend to cause that person to be confined secretly and wrongfully.
18. It is further important to mention here that to bring home an offence u/s 365 IPC, the prosecution is to prove certain points. In order to establish the first essential requirement which are :
I. That the accused conveyed the victim without his consent II. Took or enticed away the minor, if male under 16 years, if female under 18 years or any person of unsound mind out of keeping of his or her lawful guardian without his consent.
19. Thus, before proceeding further it is important to define the word "kidnapping" as to what constitute the offence of kidnapping. Kidnapping is defined u/s 359 IPC which says that kidnapping is of two kinds, kidnapping from India and kidnapping from lawful guardianship.
20. Thus in this present case, the kidnapping from lawful guardianship is relevant which is defined u/s 361 IPC. Section 361 IPC reads as under:
Kidnapping from lawful guardianship - Whoever 10 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.
Explanation - The word "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 believe himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
21. This Section 361 IPC has four essential ingredients:
I. Taking or enticing away a minor or person of unsound mind. II. Such minor must be under 16 years of age, if a male and 11 under 18 years of age, if a female.
III. Taking or enticing must be out of the keeping of lawful guardianship of such minor or person of unsound mind. IV. Such taking or enticing must with without the consent of such guardians.
22. Thus the whole section centers around the word "takes" or enticed any minor". In Supreme Court Case Thakorlal D. Vadgama Vs. State of Gujarat, AIR 1973 SC 2313, the court appreciated the word "whoever takes or enticed any minor" under section 361 IPC and observed as to what it actually means. According to Supreme Court, the word "takes" does not necessarily cannotes taking by forces and does not confined to use of force, actual or constructed. These words merely means" to cause to go", to escort" or " to keep into possession"
23. In this judgment the Hon'ble Supreme Court so far as the word "takes" is concerned, observed that the graveman of this offence lies in the taking or enticing of a minor under the ages specified in this section. Second, out of keeping of the lawful guardianship without the consent of said guardian. The word keeping in the context cannots the idea of charge, 12 protection, maintenance and control. However the guardian's charge and control appears to be compatible with independence of action and movement of the minor, the guardian protection and control of the minor being available whenever necessity arises.
24. It is important to mention here that the lawful keeping under the lawful guardian's remains for all the time in all the condition whether the minor is physically with the parents or has gone away for some time from his parents or lawful guardian's.
25. In another case "State of Haryana Vs. Raja Ram AIR 1973 SC 879, Supreme Court held the object of Section 361 IPC that it seems as much to protect the minor children from being seduced for improper parties as to protect the rights and privileges of the guardian's having the lawful charge or custody of their minor wards. The graveman of this offence lies in the taking or enticing of a minor under the ages specified in this Section out of keeping of the lawful guardian's without the consent of such guardian. Thus the word "takes" or "enticed any minor...........out of keeping" are significant.
26. On a plain reading of Section, the consent of the minor who is taken or enticed is whole immaterial. It is only the 13 guardian's consent which takes the case out of its preview nor is it necessarily that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of keeping of the lawful guardian would be sufficient to attract the section.
27. The taking need not be by force, actual or constructed and it is immaterial whether the minor consents or not.
28. In another case of Anandhan Vs. State 1966 Cr.L.J 210 it has been observed that there must be some proof of the accused having done something which led to the minor going out of keeping of his or her guardian's.
29. Enticing is an Act of the accused by which the person kidnapped is induced of his own accord to go to kidnappers.
30. In the present case, age of the minor boy is not disputed and he is under the age of 16 years. One of the essential ingredients with regard to male boy being under 16 years is complied with.
31. With regard to taking or enticing away the minor from the lawful guardian's, the prosecution has examined three witnesses. One of the PW Ram Babu is the father of the minor 14 child who has stated that accused Munna and Ram Bharose was residing with him. Ram Babu PW1 also arranged the marriage of the accused Munna. Munna had taken a sum of Rs. 5000/- from Ram Babu which was not returned by him due to which accused Munna Lal made to live at some other place and Ram Babu father of the minor child Attar Singh kept the utensils of accused Munna as pledge. This fact is also not disputed by the accused persons. PW1 Ram Babu was having a grave suspicion that it was both the accused persons who had taken away his minor child Attar Singh. PW2 Attar Singh, the minor child further stated that it was the accused Munna who enticed him when he was playing with marbles. In his statement, so recorded u/s 164 Cr.P.C he has stated in clear words that it was accused Munna who offered him to give marbles due to which he allured him and took him away to the bus stop where he also met with another accused Ram Bharose.
32. Thus PW1 and PW2 have stated in clear words that it was both the accused persons who were having an object in their minds to settle their score against Ram Babu PW1, father of the kidnapped child Attar Singh and accused Munna Lal 15 enticed Attrar Singh, the minor child of Ram Babu by offering him marbles due to which Attar Singh the minor child was allured and he accompanied him and was taken to different places thereafter, where he also met with another co-accused Ram Bharose, along with other different persons.
33. The consent of the minor as stated above is not material here and as, as per law the consent of minor is no consent at all, so far as this offence of kidnapping is concerned. The prosecution, therefore, has shown that Attar Singh son of Ram Babu was in the lawful guardianship of Ram Babu who was also his father and accused Munna Lal along with his associate Ram Bharose was having an ulterior motive in his mind to take revange from Ram Babu as he has not returned his utensils and Munna Lal the accused was forced to leave for some other place. During final arguments, accused Munna Lal has further stated that till today Ram Babu has not returned the utensils and they are still in his custody.
34. Thus the prosecution has shown from the evidence of PW1 and PW2 that accused Munna Lal was having an object in his mind in furtherance thereof he enticed and took away the minor child Attar Singh from his lawful custody of his father 16 Ram Babu and without his consent.
35. This fact of taking away of minor child from lawful guardianship is further established from the testimony of PW6 Ravinder Pal Singh. PW6 has stated in clear words that both the accused persons came at his house at Aligarh along with the child Attar Singh aged about 8/9 years and they stayed for a night of 13.03.89 and on the very next morning both the accused persons along with the said child went from his residence. PW6 Ravinder Pal further stated that he identified the accused persons because once he had stayed at Delhi for a period of about 4 months in connection of illness of his child and the accused persons used to met him at Dr. Ram Manohar Lohia Hospital a that time. It is further stated by PW6 that as the accused persons were having acquaintance with him, he did not have any suspicion over the accused. It is further stated by the PW6 that the child was also happy with him and was playing with them.
36. From the testimony of this PW6 Ravinder Pal it is also shown by the prosecution that not only the accused Munna Lal along with his associate Ram Bharose kidnapped Attar Singh, he also took him to different places in order to confine him 17 secretly. It is not disputed from the record that the child was subsequently recovered and was handed over to his lawful guardian's.
37. The accused persons on the other hand, have not shown from the record nor have brought any evidence in their defence to rebut or contradict the testimony of PW's that they did not entice or take away the minor child from the lawful guardianship of Ram Babu, father of the minor child Attar Singh. The accused persons also not been able to contradict the fact that they did not take away the child to different places and they did not secretly confined the child Attar Singh at different places.
38. In the light of these facts and circumstances I am of the considered opinion that the following points have been established by the prosecution;
I.The accused persons take away and enticed the minor child Attar Singh from the lawful guardianship of his father Ram Babu.
II. they were having an intention.
III. Such taking from the lawful guardianship was without the consent of such guardian i.e., his father Ram Babu. 18 IV. The additional requirement with regard to section 365 IPC that accused persons secretly confined the kidnapped child at different places.
39. From the above stated findings, I am of the considered opinion that the prosecution has established its case against both the accused persons beyond reasonable doubt and nothing to the contrary has been shown by the accused persons to rebut the presumption against them that they were innocent. Thus both essential requirements of the criminal law i.e., 'mense-rea' i.e, the intention, and the 'actus-reas' i.e., the action that the child was taken actually and confined to different places has been shown and established by the prosecution against the accused. Thus from the above stated findings, I am of the considered opinion that the offence u/s 365/34 IPC against both the accused persons is fully established by the prosecution. Hence both accused persons namely Munna Lal and Ram Bharose are convicted for offence u/s 365/34 IPC. Arguments on sentence shall be heard separately. Announced in open Court (PRASHANT KUMAR) Dated 09.01.08 Metropolitan Magistrate Delhi 19 FIR NO. 47/89 PS A N 09.01.08 Present : APP for the state.
Accused present on bail.
Final arguments heard at length. Final judgment pronounced vide separate order sheet. Accused is convicted u/s 365/34 IPC. Put up for hearing arguments on sentence on 22.01.08.
(PRASHANT KUMAR) Metropolitan Magistrate Delhi 22.01.08 Present: Ld APP for the State.
Accused present on bail with counsel.
At request, put up for arguments on sentence on 12.02.08.
MM/Delhi/22.01.08 20 IN THE COURT OF SH. PRASHANT KUMAR: MM ROHINI:
COURTS: DELHI.
State Vs. : Munna Lal & Anr.
FIR NO : 47/89
U/s : 363/365/34 IPC
PS : Adarsh Nagar
ORDER ON SENTENCE
18.02.08
Present : Ld. APP for the State.
Both accused Munna Lal and Ram Bharose with counsel. Counsel for both the accused has prayed for taking a lenient view against both the accused persons. Accused Munna Lal is stated to have 3 daughters and one son, all are minor and one wife who is handicapped. Accused Munna Lal is aged about 50 years. Another accused Ram Bharose has one son and two daughters and his wife has expired. He is aged about 52 years. It is further prayed by the counsel for accused that they have been appearing in this case since 1989 barring a few exceptions.
Arguments on sentence heard at length. Ld APP for the state has prayed for imposing of maximum sentence upon both the accused persons as the allegations against the accused are serious in nature.
In the light of these facts and circumstances, and the reasons 21 so given in the judgment, I am of the considered opinion that provisions of Probation of Offenders Act are not applicable here and they are not to be considered against both these accused persons. However, prosecution has failed to show any previous conviction of both accused persons, their previous involvement in any of the case is also not shown by the prosecution. Such an Act on the part of the accused persons should be curbed with iron hands, thus, in these circumstances both the accused persons Munna Lal s/o Bahori Lal and Ram Bharose s/o Nathu Ram are sentenced to undergo imprisonment for 3 years each out of which 6 months imprisonment shall be rigorous. Benefit of section 428 Cr.PC be given to accused persons.
Announced in open court (PRASHANT KUMAR) Dated 18.02.08 Metropolitan Magistrate Delhi 22 State Vs. : Munna Lal & anr FIR NO : 47/89 U/s : 363/365/34 IPC PS : Adarsh Nagar 18.02.08 Present : APP for the state.
Both accused with counsel.
Arguments on sentence heard vide separate order sheet. Both accused persons Munna Lal s/o Bahori Lal and Ram Bharose s/o Nathu Ram are sentenced to undergo imprisonment for 3 years each out of which 6 months imprisonment shall be rigorous. Benefit of section 428 Cr.PC be given to accused persons.
At this stage one application for bail and suspension of execution of sentence is filed on behalf of both the accused persons. In the interest of justice application is allowed and accused Munna Lal and Ram Bharose are admitted to bail on their furnishing personal bond in the sum of Rs. 20,000/- with one surety in the like amount each. Bail bonds are furnished and accepted till 17.03.08.
File be consigned to record room.
(PRASHANT KUMAR) Metropolitan Magistrate Delhi 23 24