Uttarakhand High Court
Shabban vs State on 4 October, 2017
Author: Lok Pal Singh
Bench: Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Criminal Appeal No. 13 of 2004
Shabban .....Appellant
Versus
State of Uttarakhand ....Respondent
Mr. S.K. Mandal, Advocate for the appellant.
Mr. P. S. Bohara, A.G.A. alongwith Balvindra Singh, Brief Holder for the
State.
Hon'ble Lok Pal Singh, J. (Oral)
This appeal arises out of judgment and order dated 08.12.2003 passed by the Additional Session Judge/3rd F.T.C, Udham Singh Nagar in Session Trial No. 387 of 2002 'State vs. Nanha @ Saleem and another' convicting the appellant and another accused Nanha @ Saleem under the provisions of Section 363, r/w 511 of IPC 1860 requiring each of the them to undergo rigorous imprisonment of two years along with fine of Rs. 500/- each and under Section 366 r/w 511 to undergo rigorous imprisonment of three years with fine of Rs. 500/- each and in case of non-payment of fine, they have to undergo for three month rigorous imprisonment. Apart from the conviction and sentenced awarded above the appellant and Nanha co-accused were also convicted to undergo rigorous imprisonment of three months under Section 323 of IPC.
22. Both the convict appellant Sabban and Nanha they preferred respectively criminal appeal No. 13 of 2004 and 371 of 2004, during the pendency the appeals both the appellants were granted bail by this Court. The appellant was released on bail on furnishing personal bond and sureties. But another convict Nanha he could not submit the sureties bond thus was not released from jail, he completed the sentence awarded to him and his appeal No. 371 of 2004 was dismissed infructuous.
3. Brief facts of the case are that a FIR was lodged by Rafeeq Ahmed against the appellant and Nanha on 01.07.2002, stating therein that at about 10:30 PM, he alongwith his wife went to the house of village pradhan to made a complaint against the accused persons. When the informant and his wife were coming back from the house of village pradhan they saw that in front of his house some peoples were quarrelling and Nanha @ Saleem and Shabban present appellant were forcibly taking his daughter Kumari Sitara aged about 16 years, when his son Sharif Ahmed tried to save the girl, accused started to quarrel with sharif ahmad, then Sharif Ahmed and complainant they started to beat the accused persons, the son of the Sharif Ahmed and his daughter received injuries in scuffle. The accused persons tried to save themselves, the accused Nanha also sustained injuries in the quarrel.
4. Sharif Ahmed was medically examined at Community Health Centre, Kichha, Udham Singh Nagar, on his body following injuries were found:
31. Contusion Abrasion on Lt. chest about 2 cm. X 1½ cm. just below Lt. lower eye lid. Done red in colour.
2. Abrasion on lower lip about 2 cm. X 1 cm. irregular shape dark red in colour.
3. Abrasion on Rt. Side of neck about 4½ cm. X 2½ cm. irregular shape dark red in colour.
5. Kumari Sitara aged about 16 years who was also medically examined on her body the following injuries were found:
1. Lacerated wound on Lt. parital area of scalp about 4 cm. X 1 cm. direction 10 cm. above Lt.
ear irregular margin bleeding present.
6. Accused/ convict Nanha was medically examined on 01.07.2002 and following injuries were found on his body:
1. Lacerated wound on occipital area of scalp about 2½ X ½ cm. irregular margin bleeding present, directed below.......
2. Lacerated wound on middle on the both parietal bone about 4 cm. X 1 cm. directed approximately margin irregular, bleeding present, 12 cm. above Rt. Bladder.
3. Lacerated wound on Lt. parietal area of scalp about 3 cm. X 1 cm. directed approximately margin are irregular, bleeding present.
4. Lacerated wound on Rt. Mouth area of face about 2½ X ½ cm. margin irregular, bleeding present, 1 cm. low of angle of Rt. age Rt. sice.
5. Lacerated wound on left eye brow about 2 cm.
X ½ cm. irregular margin bleeding present about 5 cm. left eye brow.
46. Lacerated wound on Lt. feral about 3 X 1 cm. 3 cm. above Lt. eyebrow margin are irregular, bleeding present.
7. Extract of Lt. upper fresher teeth.
8. Rapture of Lt. little finger fresh terminal thohorex.
7. The Investigating Officer during the investigation recorded the statement of Rafeeq Ahmed, Smt. Rahisha, Sharif Ahmed, Kumari Sitara, Gulsher, Tufail Ahmed, Nasher Hussain alleged eyewitnesses Dr. U.S. Adhikari, Medical Officer posted at Community Health Centre, Kichha, constable L. Kumar, Devnath and submitted the charge-sheet against the accused persons under Sections 363, 366 & 308 of IPC.
8. The learned Sessions Judge considering the charge-sheet and evidence available on record framed the charges punishable under Sections 363, 366 and 308 of IPC against the accused persons.
9. Statements of Rafeeq Ahmed PW-1, Kumari Sitara PW-2, Sharif Ahmed PW-3, Dr. U.S. Adhikari PW-4 and Investigating Officer Somveer Singh PW-5 were recorded.
10. Rafeeq Ahmed PW-1 narrated his story in his examination in chief as mentioned in the FIR, but tried to improve his statement during trial that accused Nanha was willing to marry with his daughter Kumari Sitara, who was not ready to marry with the Nanha. He also stated that the present appellant Shabban, who is the nephew of Rafeeq Ahmed was helping the Nanha.
511. PW-2 Kumari Sitara, she deposed in her examination-in-chief that accused Nanha was willing to marry with her, but she was not ready for the marriage with Nanha, due to this reason the Nanha was harassing to the family of the Rafeeq Ahmed. She further stated in her examination-in-chief that about 9 months ago at about 10:00 PM she was at her house and some boy informed her that some people are beating to her brother Sareef Ahmed near culvert, when she herself reached there on hearing about the quarrel with her brother Sharif Ahmed then she was also beaten by Shabban, she received injuries in scuffle.
12. Sections 361, 363 and 366 are important to deal the controversy involved in the case are reproduced herein under:
"361. Kidnapping from lawful guardianship.--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
363. Punishment for kidnapping.--Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 1[and whoever, by 6 means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid]".
13. From the evidence available on record it is proved that at the time of incident Kumari Sitara was minor aged about 16 years.
14. The burden lies upon the prosecution to prove the case under Sections 363 & 366 of IPC that the accused persons tried to kidnap the minor girl from the lawful custody of her guardian.
15. I have carefully examined the statement of complainant Rafeeq Ahmed, Kumari Sitara & Sharif Ahmed, who are the eyewitnesses to the alleged incident. From the statement of PW-1 Rafeeq Ahmed, PW-2 Kumari Sitara and other witnesses.
16. From the perusal of FIR and statement of the prosecution witnesses it does not reveal that any of the accused tried to take the girl (victim) from the lawful custody of her guardian.
17. The ingredients of Section 363 of IPC involved an act of kidnapping of any person from the lawful guardianship is defined of under Section 361, of IPC, where it is stated that whoever takes or entices any minor under 16 years of age if a male, or under 18 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, a case of kidnapping is made out.
718. The burden lies upon the prosecution to prove its case against the accused persons without reasonable doubt. But the prosecution from the very inception failed to prove its case of sections 363 & 366 of IPC against the accused appellant. The learned trial court without appreciating the evidence available on record has illegally convicted the appellant and another accused for the offences punishable under Sections 363 & 366 r/w Section 511 of IPC.
19. Since the essential ingredients of Section 361 were not proved, therefore, the learned trial court has committed illegality in convicting the appellant under Sections 363 r/w 511 IPC to rigorous imprisonment of two years and fine of Rs. 500/- in case of nonpayment of fine they shall undergo for three months rigorous imprisonment.
20. For the offences punishable under Section 366 r/w 511 of IPC to undergo for a rigorous imprisonment three years along with fine of Rs. 500/- each and in case of nonpayment of fine they shall undergo for three months rigorous imprisonment.
21. For the offences punishable under Section 323 of IPC the appellant has convicted for a rigorous imprisonment of 6 months and directed that the imprisonment awarded to the appellant shall run together.
22. After giving thoughtful consideration to the evidence available on record, I am of the considered opinion that the prosecution failed to prove its case for the offenses punishable under Sections 363, 366 8 r/w 511 of IPC. Thus the conviction of the appellant under Sections 363 and 366 r/w 511 is set aside.
23. The appellant is acquitted for the offences punishable under Section 363, 366 r/w 511 of IPC.
24. An another charge under Section 308 of IPC was framed against the appellant but the learned trial judge did not find any material to convict the appellant under Section 308 of IPC and at the time of delivery of judgment the learned trial judge convicted the appellant and another accused under Section 323 of IPC and ordered to undergo the appellant for 6 months of rigorous imprisonment.
25. Under the provisions of Section 222 of Code of Criminal Procedure, a provision is made that in a case where the accused is charged with a major offence and the same charged is not proved, the accused could be convicted for a minor offence, if such a case is made out he was not charged with the same.
26. The prosecution could not prove the charge of the offence punishable under Section 308 of IPC, rather from the evidence available on record it is proved that the accused persons have committed the offence punishable under Section 323 of IPC. Therefore, the learned trial court has rightly convicted the appellant under Section 323 of IPC on a charged framed under Section 308 of IPC being the minor offence is proved on a charged framed under the major offence.
27. Since the prosecution has proved its case under Section 323 of IPC against the appellant beyond reasonable doubt thus the conviction and 9 punishment awarded to undergo the appellant for six months of rigorous imprisonment is maintained. Appeal is party allowed.
28. The appellant is on bail, his bail bonds are cancelled, he shall immediately surrender, so as to undergo the remaining punishment it is made clear that the period of detention of the appellant during trial shall be set off from the period of punishment in accordance with law.
29. LCR be returned to the trial court for compliance of the judgment passed by this Court.
(Lok Pal Singh, J.) 04.10.2017 Balwant