Punjab-Haryana High Court
Jagdish vs State Of Haryana on 19 March, 2010
Author: A.N.Jindal
Bench: A.N.Jindal
Criminal Appeal No.72-SB of 2000 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.72-SB of 2000
Date of Decision 19.03.2010
Jagdish
...... Appellant(s)
VERSUS
State of Haryana
...... Respondent(s)
CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL
Present: Mr.Rahul Rathore, Advocate,
for Mr.V.S.Rathore, Advocate,
for the appellant.
Mr.Rajiv Malhotra, Addl. Advocate General, Haryana.
*****
A.N.JINDAL, J(ORAL):
The accused-appellant (herein referred as 'the accused') was prosecuted for kidnapping Nitin Bansal, a 7 years old child, from the street while he was playing with other children and he was recovered on the same day within 4-5 hours. Consequently, he was tried, convicted and sentenced to undergo rigorous imprisonment for a period of 4 years and to pay a fine of Rs.1,000/- under Section 363 of the Indian Penal Code vide judgment dated 18.01.2000, passed by Addl. Sessions Judge, Karnal.
Anil Kumar complainant (herein referred as 'the complainant) disclosed that on 10.10.1995 at about 7:00 p.m., when he was present in the grain market, Nitin Bansal, his son aged about 7 years, was playing in the street alongwith other children from where accused Jagdish (herein referred as 'the accused') took him away. On receiving the message, he came and set for searching the child, who was recovered from the fields at about 12:00 Criminal Appeal No.72-SB of 2000 2 midnight on the same day. Accused was also accompanying the complainant at the time of recovery of the child. On the aforesaid statement of complainant (PW6), FIR was registered on 12.10.1995. Nitin Bansal was also medically examined on that very day. Statements of witnesses were recorded and case was investigated.
On completion of investigation, challan against the accused was presented in the Court.
The accused was charged for the offences under Section 367 IPC to which he pleaded not guilty and opted to contest.
In order to substantiate the charges, the prosecution examined Dr.Rajinder Kumar (PW1), ASI Phool Chand (PW2), Bal Kishan (PW3), Anil Kumar (PW4), Nitin Bansal (PW5), SI Naresh Kumar (PW6), Om Parkash (PW7) and ASI Ram Kumar (PW8). The prosecution also tendered into evidence carbon copy of MLR Ex.PB, copy of skiagram Ex.PB/1, ruqa Ex.PC, formal FIR Ex.PC/1, endorsement on ruqa Ex.PC/2, birth certificate Ex.PD, statement of Om Parkash Ex.PE & site plan Ex.PF and closed its evidence.
When examined under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him and pleaded his false implication.
On appreciation of evidence, the trial Court convicted the sentenced the accused accordingly.
I have heard the rival contentions and perused the record of the case. Learned counsel for the accused has urged that the only independent witness Om Parkash, who is stated to have seen the Nitin Bansal in the company of the accused did not support the prosecution case. None of the Criminal Appeal No.72-SB of 2000 3 children were examined that it was the accused, who had taken away the child. The accused was not present with the child when he was recovered. There is a serious delay in lodging the FIR which stands unexplained. Nitin Bansal, a child of 7 years, could be tutored in any manner to make the statement suiting to the prosecution and no reliance could be placed on the testimony of the said witness.
To the contrary, the prosecution has tried to support the judgment while taking me through the statements and urging that no sane person would implicate a person falsely in case of kidnapping of his minor son.
Before I lay my hands to determine whether the accused has committed an offence under Section 363 IPC, I need to reproduce Section 363 of the Code. Section 363 IPC is reproduced as under:-
"Whoever kidnaps any person from 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."
The word in Section 363 used is "kidnaps any person from lawful guardianship", thus, this Section must be read conjunctively with Section 361 IPC which defines kidnapping. Section 361 of the Code is reproduced as under:-
"Whoever 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 Criminal Appeal No.72-SB of 2000 4 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 the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."
On combined reading of the aforesaid Section, it reveals that the quintessence of offence under Section 363 is criminal intention. In other words, if some person takes away the minor without any criminal intention, it cannot be said to have committed an offence.
In order to compete the offence under Section 363 is "taking away or enticing away the minor out of the keeping of lawful guardian" of such minor and such taking or enticing must be without the consent of such guardian.
In the instant case, none of the aforesaid ingredients are complete so as to take the offence within the purview of Section 363 IPC. Nitin Bansal, allegedly was playing in the street but none of his playmates were examined in order to establish if it was the accused, who had enticed or took away the child. Even none of the persons, from the street or the passersby, was examined, who had seen the accused taking away the child. The only witness Om Parkash, who allegedly had seen the kidnapee in the company of the accused, did not support the prosecution case. Admittedly, the child was not recovered from the custody of the accused, as such, the Criminal Appeal No.72-SB of 2000 5 evidence of the playmates and the passersby had become more essential.
In the absence of any such evidence, I am left with no other option but to bank upon the testimony of Nitin Bansal, the alleged kidnapee. He has stated that the accused had taken him to the shop of Om Parkash but Om Parkash (PW7) had not supported this fact. Nitin Bansal has also not stated as to for what purpose he had taken him away. Since the children are the very dangerous witnesses as they remain in the realm of dreams and they could be tutored, abetted or instigated to make any statement, as such, their evidence without any sort of corroboration cannot be placed reliance. The Courts in case of child witnesses must be over conscious to see the truthfulness before placing reliance upon them. Nitin Bansal (PW5) admits that he had visited his lawyer with his father many times. He also admits that he was told by his lawyer, the manner in which he was to depose in the Court. Though, he has tried to twist this plea while denying the suggestion that he was tutored by his father but he does not deny if the lawyer had not tutored him. He was examined after 2 years and he, having remained in the custody of his father, during all such long time, certainly must have been told as to what he was to state.
The unexplained delay in lodging the FIR also supports the fact that there was no truth in the allegations. According to PW4 Anil Kumar complainant, the occurrence had taken place on 10.10.1995 at 7:00 p.m. and he had recovered his son from the fields in an injured condition at about 12:00 midnight, in such situation, his first anxiety should have been to shift him to any hospital for treatment and also to proceed to police station for lodging the FIR but the kidnapee was not got medically examined and FIR is delayed one.
Criminal Appeal No.72-SB of 2000 6
It is an admitted case of the complainant that Bhag Singh, brother-in-law of the accused, was his tenant, therefore, the complainant in order to press Bhag Singh to vacate the house, certainly could lodge the FIR. Nonetheless, there could be some delay due to some reasons but there could not be any delay in sending the injured to the hospital. Non-sending of Nitin Bansal to the hospital forthwith goes a long way to establish that the occurrence did not take place in the manner as stated by the complainant.
Furthermore, the version set up by the complainant that the accused kidnapped and caused injuries to Nitin Bansal stands belied by Dr.Rajinder Kumar (PW1), who medico legally examined him. The MLR Ex.PB reveals that the colour of the injuries on the person of Nitin Bansal was red. It is a matter of common sense so as medical science indicates that colour of the injuries remains red upto 6 hours and, therefore, it turns brown and then it goes dark brown with the passage of time due to callous formation over the injuries. Doctor has not pointed out if there was any callous formation over the injuries, therefore, the injuries found on the person of Nitin Bansal cannot be said to have been suffered during occurrence which took place 48 hours prior to his examination. As such, the inference could be drawn that the case against the accused was registered after consultations and manipulations. At the same time, since the complainant had failed to explain as to how the fresh injuries came to occur on the person of the kidnapee and why there was delay of 48 hours in registration of the case and his medical examination, therefore, it seriously effects the prosecution case.
That apart, there are serious improvements and contradictions Criminal Appeal No.72-SB of 2000 7 between the statements of the witnesses. It was not the case of the complainant in the first information report that the accused took the kidnapee, in order to kill, asked him to remove his nikkar. But these improvements made by him in the Court appear to have been made with the intention that the element of intention could be added so as to bring the case within the purview of Section 363 IPC. Furthermore, Nitin Bansal has nowhere stated that the accused had threatened him to kill or asked him to remove his "Nikkar".
The case is also replete with many improbabilities and possibilities. Had the accused any intention to kidnap Nitin Bansal in order to commit an offence then he would not have left him after kidnapping. There is nothing in evidence as to when the accused had left him in the field. Secondly, had the accused any intention to commit an offence then he would not have left Nitin Bansal with minor injuries. Nitin Bansal also does not state a word that the accused wanted to commit any offence. Thirdly, it is an admitted case of the complainant that accused remained present with the complainant Anil Kumar (PW4) throughout till Nitin Bansal was recovered. Complainant has admitted that he came to know about the incident at about 7:00 p.m. and then he rushed to his house. He has further admitted that when he reached his house, accused was present. He has admitted that accused accompanied him to trace the child. Had the accused kidnapped the child then he would not have joined the complainant in the search operation. Even according to the prosecution, the accused was present with the complainant at 7:00 p.m. Thus, assuming for the sake of arguments, if the accused had kidnapped the child then he would not have left him within half an hour and come back to join the complainant. Criminal Appeal No.72-SB of 2000 8
Thus, from the aforesaid facts and circumstances of the case, it appears that the evidence, as led by the prosecution, suffers from many defects and improbabilities. The testimonies of complainant Anil Kumar (PW4) and Nitin Bansal (PW5) could not stand to the test of reliability and trustworthiness. The case appears to have foisted upon the accused for the reasons that Bhag Singh his brother-in-law (Jija) was a tenant in the house of the complainant and in order to put pressure upon Bhag Singh, so that he may vacate the house, he got registered the case against the accused. The trial Court has not appreciated the evidence in the right perspective and has ignored the aforesaid aspects of the case. Consequently, the interference at my end in the impugned judgment has become inevitable.
For the aforesaid discussions, this appeal is accepted; impugned judgment is set aside and the accused is acquitted of the charges framed against him. He is directed to be set at liberty forthwith. Bail bond/surety bond, furnished by him, stand discharged. Fine, if deposited, be refunded.
(A.N.Jindal) Judge 19.03.2010 mamta-II