Allahabad High Court
Aslam Ansari vs State Of U.P. on 8 April, 2019
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 19th January, 2019 Delivered on 8th April, 2019 A.F.R. Court No. - 45 Case :- JAIL APPEAL No. - 3482 of 2017 Appellant :- Aslam Ansari Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Ashwani Kumar Mishra A/C,Sukhvir Singh A/C Counsel for Respondent :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
1. This jail appeal has been preferred by the sole appellant, Aslam Ansari against the judgment and order dated 18th March, 2017 passed by the Additional Sessions Judge/Fast Track Court No. 1, Fatehpur in Sessions Trial No. 119 of 2016 arising out of Case Crime No. 82 of 2016, under Sections 364 of the Indian Penal Code, Police Station-Khaga, District-Fatehpur, whereby the appellant has been convicted for an offence punishable under Section 363 I.P.C. and has been sentenced for rigorous imprisonment of 7 years and a fine of Rs. 5,000/-. In case of default in payment of fine, the appellant was to undergo a further rigorous imprisonment of six month.
2. The prosecution case, as emerges from the record, is that a first information report dated 23rd February, 2016 was lodged by the informant, namely, Mohammad Salman alleging therein that today at about 9:30 A.M. in the morning, when a beggar came to his door, his two and half years old daughter Sana Parveen came out to give flour to the beggar, she was taken away by him on the pretext of giving toffee and when his daughter did not return, coming out from house, the informant started shouting, upon which several persons of the colony chased the beggar, who was found behind Sukhdev College and he was caught after rounding up by them. After search, his daughter was found to have been kept in the bag of said beggar. The said beggar disclosed his identity as Mohammad Aslam and thereafter he was brought to the Police Station.
3. After registration of the criminal case, the concerned Investigating Officer has conducted the statutory investigation of the aforesaid criminal case in terms Chapter XII Cr.P.C. and submitted the charge-sheet against the appellant. The case was committed to the Sessions Court, where the charge was framed under Section 364 Cr.P.C.
4. During trial, the prosecution in support of its version produced total five witnesses, namely, (1) Mohammad Salman (informant) as P.W.-1, (2) Chotaiya (resident of the informant's colony) as P.W.-2, Tasleem Bano (mother of the informant) as P.W.3, Mr. Izhar Ahmad (Sub-Inspector/Investigating Officer) as P.W.-4 and Constable Vinod Kumar (witness of Chik FIR and G.D. Entry) as P.W.-5. Thereafter the statement of the appellant was recorded under Section 313 Cr.P.C., after which the defense did not lead any evidence. After hearing the parties, the trial court passed impugned judgment and order dated 18th March, 2017 convicting the appellant under Section 363 I.P.C. and sentencing him 7 years of rigorous imprisonment and fine which is impugned herein.
5. Heard Mr. Sukhvir Singh, learned Amicus Curiae on behalf of the appellant and Mr. Sanjay Singh, learned Additional Government Advocate for the State.
6. Submission of the learned Amicus Curiae on behalf of the appellant is that he was falsely implicated in the present case by concocting the story of kidnapping of the adolescent girl. The prosecution witnesses are not reliable because of non-disclosure of the day of incident in their testimony and in fact, no one has seen the incident of taking away the adolescent girl. It is further submitted that the prosecution has failed to prove its case beyond reasonable doubt but the trial court has committed error while appreciating the evidence and had wrongly convicted the appellant. It is further submitted that the sentence imposed upon the appellant is excessive and the trial court has not given proper opportunity of hearing to the accused-appellant on the point of sentence. With such submissions, learned Amicus Curiae, Mr. Sukhvir Singh prays to set aside the impugned judgment and order of the trial court and to set the appellant at liberty.
7. On the other hand, learned A.G.A. has vehementally opposed the submissions raised on behalf of the appellant and has submitted that the prosecution witnesses have no reason to falsely implicate the appellant and in view of the facts and circumstances of the case, their testimonies are as natural and trustworthy. Learned A.G.A. further submits that there is no material contradiction in the prosecution evidence to give any occasion to the appellant to raise doubt about the prosecution version. Learned A.G.A. has further submitted that the trial court has rightly imposed rigorous imprisonment of seven years upon the appellant, in view of the facts and circumstances of the case and has given proper opportunity of hearing to the defense side on the point of sentence and hence, no interference is required.
8. Having considered the submissions of both the side, I have perused the lower court's record in order to appreciate the evidence afresh in the light of submissions of the learned counsels for the parties.
9. Before coming to the facts of the case, it may be seen that the criminal liability of the appellant is scrutinized for offence under Section 363 I.P.C., which reads thus:-
"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."
10. The term kidnapping has been defined under Section 361, which reads thus:-
"361. Kidnapping from lawful guardianship.--Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[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."
11. The provision of Section 363 has four essential ingredients i.e. (i) there must be an act of taking or enticing away minor or a person of unsound mind, (ii) such minor must be under 16 years of age, if a male, or under 18 years of age, if female, (iii) the taking and enticing must be out of keeping of the lawful guardian of such minor or person of unsound mind, and (iv) such act of taking or enticing must be without the consent of such guardian.
12. In the case of State Versus Raja Ram reported in (1973) 1 SCC 544, the Apex Court had an occasion to indicate the object and purpose for enacting Section 361, the relevant portion whereof is quoted thus:-
"The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor out of the keeping of the lawful, guardian of such minor" in s. 361, are significant. The use of the word "keeping" in the context connotes the idea of charge, protection, maintenance and control, further the guardian's charge and control appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial : it is only the guardian's consent which takes the case out of its purview. Nor is it necessary 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 the keeping of the lawful guardian would be sufficient to attract the section."
13. It is also clear from the language of Section 361 that kidnapping is an offence irrespective of any intent, with which it is committed. The offence of kidnapping from lawful guardianship is complete, when the minor is actually taken from the lawful guardianship.
14. In the light of above noted legal position, a conspicuous view over the evidence available on record reveals that in the present case, the victim is aged about two and half years and no doubt has been raised with regard to the age of victim. All the witnesses are well known to the age of victim, as the P.W.-1 and P.W.-3 are father and grand-mother of the victim and P.W.-2 is neighbor of P.W.-1. They have categorically stated the age of victim as two and half years and there is nothing on record to raise any reasonable doubt in this regard.
15. The P.W.-1 and P.W.-3 have stated in their examination-in-chief that on 23rd February, 2016 at about 09:30 a.m., the appellant had come to their house as beggar, whereupon the wife of P.W.-1, namely, Rubina Bano gave one bowl of flour to the girl Sana Parveen, who was aged about two and half years, to hand over the same to the beggar but when she did not return within five to seven minutes, the informant with the help of residents of same colony started searching his daughter and during search, the appellant was caught and it was found that the girl was kept into a bag by closing the mouth of the girl by cloth. Thereafter, the beggar revealed his identity being the present appellant and he was brought to the Police Station Khaga, where the firs information report was lodged.
16. The cross-examination of these two prosecution witnesses i.e. P.W.-1 and P.W.-3 does not reveal any such material inconsistency, on the basis of which their ocular evidence can be doubted. In this regard, the submission on behalf of the appellant that the prosecution witnesses failed to state the date of incident is not correct. It is only the day, when the incident occurred, which could not be disclosed by the prosecution witnesses. The P.W.-3 in her cross-examination has stated that the date was 23 but, she is unable to recollect the day of incident. Both these witnesses have clearly disclosed the date of incident in their examination-in-chief as "23rd February, 2016". The P.W.-3 has also clearly stated that the date of incident as "23rd". So far as the P.W.-2 is concerned, he is resident of same colony where informant resides and on the date of incident, he helped the informant in searching the victim in the natural course of events and his name finds place from the very beginning of the initiation of criminal case that is the first information report. The "day" and the "date" of incident are two different facts and it is quite usual in due course of life that the particular day i.e. Sunday, Monday and likewise is not remembered with precision in connection to any incident or eventuality. What is material for the purposes of the case is the "date of incident", which has been stated by the prosecution witnesses with accuracy. The testimony of prosecution witnesses was recorded after about one year and if they could not recollect the "day of incident", on which the incident had occurred, it is quite natural and the prosecution version does not get any dent worth noticing. Such discrepancy of not disclosing the "day of incident" is so trivial that it does not give any credence to the contention made on behalf of the appellant. The stand taken by the learned Amicus Curiae on behalf of the appellant is misconceived.
17. In the cross-examination, P.W.-1, a suggestion was made by the defense side that the incident relates with the Railway Station and the appellant was asked by the P.W.-1 to do his household work and upon refusal to do so, false allegation was made against the appellant with the help of local Police. This suggestion has been clearly denied by the P.W.-1. Moreover, this reason of false implication is itself so vague, general and omnibus that the same does not give any benefit to the appellant for the purposes of his prosecution in the present case. There is nothing on record to indicate that the appellant was already known to the prosecution witnesses or there was any previous enmity between the parties and hence, the testimonies of prosecution witnesses are worth reliable and cannot be discredited by the appellant side.
18. The act of taking or enticing away the victim out of the keeping of her lawful guardian without the consent of her guardian is also duly proved by the prosecution beyond reasonable doubt. The testimonies of prosecution witnesses appear to be quite natural and appear to be an outcome of due course of events, which are reliable and as such, all the ingredients of Section 363 I.P.C. have been duly proved by the prosecution against the appellant beyond reasonable doubt.
19. So far as the issue of sentence awarded to the appellant is concerned, the record reveals that the judgment of conviction was passed before lunch on 18th March, 2017 and the case was posted by the trial court after lunch for hearing on the question of sentence and thereafter the order of sentence was passed against the appellant.
20. The procedure prescribed under Section 235 (2) of the Code of Criminal Procedure provides that if the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360 Cr.P.C., hear the accused on the question of sentence, and then pass sentence on him according to law.
21. While rendering judgment in the case of Allauddin Mian Versus State of Bihar reported in A.I.R. 1989 S.C. 1456, the Apex Court has explained the scope and requirement of Section 235 (2) Cr.P.C., and has made a rule in following words:
".....We think as a general rule the Trial Courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender. ...."
22. In its latest judgment in the case of Babashahab Maruti Kamble Versus State of Maharashtra [Review Petition (Criminal) No. 388 of 2015 in Special Leave Petition (Criminal) No. 458 of 2015, decided on 1st November, 2018], the Apex Court while following Allauddin's case (Supra) has observed in following manner:-
"Therefore, it is clear from the purpose of Section 235(2) Cr.P.C. as explained in the aforesaid cases, that the object of hearing under Section 235(2) being intrinsically and inherently connected with the sentencing procedure, the provision of Section 354(3) which calls for recording of special reason for awarding death sentence must be read conjointly with Section 235(2) of the 1973 Code. This Court is of the opinion that special reasons can only be validly recorded if an effective opportunity of hearing as contemplated under Section 235(2) CrPC is genuinely extended and is allowed to be exercised by the accused who stands convicted and is awaiting the sentence. These two provisions do not stand in isolation but must be construed as supplementing each other as ensuring the constitutional guarantee of a just, fair and reasonable procedure in the exercise of sentencing discretion by the court." (Emphasis added)
23. Although the aboveboard cases relate to the offence of murder, though the principle underlying therein with respect to procedure for sentencing the convict is that the object of hearing under Section 235 (2) Cr.P.C. is intrinsically and inherently connected with the sentencing procedure and ensures the constitutional guarantee of a just, fair and reasonable procedure in the exercise of sentencing discretion by the Court.
24. In the present matter, the trial court passed judgment of conviction on 18th March, 2018 before Lunch and posted the matter after Lunch for order on sentence against the convict and after recording submission of both the sides, the impugned sentence was passed.
25. This procedure adopted by the trial court is not praiseworthy and the trial court could have provided clear opportunity to the convict by postponing the matter for the next day or thereafter. However, in view of the law laid down by the Apex Court in the case of Tarlok Singh Versus State of Punjab, reported in 1977 (3) SCC 218, this Court finds that course of remand of the case to the trial court for the purposes of proper opportunity of hearing to the appellant for awarding sentence is not required to be adopted and this Court is well equipped for the said purpose. In Tarlok Singh's case (Supra), it was observed as follow:
"In Santa Singh v. State of Punjab, AIR 1976 SC 2386, this Court considering S. 235 (2) Cr. P.C. held that the hearing contemplated by that sub-section is not confined merely to hearing oral submissions but extends to giving an opportunity to the prosecution and the accused to place before the court facts and materials relating to the various factors bearing on the question of sentence and, if they are contested by either side, then to produce evidence for the purpose of establishing the same. Of course, in that particular case this Court sent the case back to the Sessions Court for complying with S. 235(2) Cr. P.C. It may well be that in many cases sending the case back to the Sessions Court may lead to more expense, delay and prejudice to the cause of justice. In such cases it may be more appropriate for the appellate court to give an opportunity to the parties in terms of s. 235(2) to produce the materials they wish to adduce instead of going through the exercise of sending the case back to the trial court. This may in many cases save time and help produce prompt justice."
26. In the case in hand, the appellant has been sentenced with the punishment of seven years imprisonment as provided under Section 363 I.P.C., with fine of Rs. 5,000/- and default sentence of six months. The appellant is reportedly aged about 56 years at the time of passing of the impugned judgment and is a vagabond and the source of livelihood for himself and for his family is the act of begging pursued by him. He is languishing in jail since 23rd February, 2016 i.e. the date of incident. The appellant has been charged with the offence of kidnapping of a small girl child of two and half years, who was unable to defend herself and was in dire need of safe and secure custody of her lawful guardians. Although, the prosecution has not come up with the stand that the appellant was habitual of such acts and was habitual offender, though the offence is serious one in view of the fact that the victim was aged about two and half years. It is admitted fact that no harm was caused to her and she has been recovered within few minutes after the incident. The punishment of seven years imprisonment is maximum sentence provided under Section 363 I.P.C., which has been awarded by the trial court to the appellant.
27. Considering the overall facts and circumstances of the case, the nature of offence, the age and status of appellant, as noted above, this Court finds that it is not a case, which calls for imposition of maximum punishment provided under Section 363 I.P.C. and further finds it just and proper to reduce sentence of imprisonment upto three and half years but the part of sentence regarding fine appears to be appropriate.
28. The present appeal stands partly allowed and the judgment and order of conviction of the appellant passed by the trial court for an offence punishable under Section 363 I.P.C. is affirmed, however, the order of sentence is modified by reducing it upto three and half years with fine of Rs. 5,000/- and the default sentence.
29. The trial court shall be informed accordingly.
30. The registry is directed to ensure payment of Rs. 15,000/- as fees to the learned Amicus Curiae for the assistance provided by him.
(Manju Rani Chauhan, J.) Order Date :- 08.04.2019 Sushil/-