HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal No.973 OF 2007 DATED: 05.08.2011 BETWEEN: Chalivendra Chanti .. Appellant And The State of A.P. Rep.by Public Prosecutor .. Respondent HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal No.973 OF 2007 JUDGMENT: This criminal appeal is filed against the judgment dated 28.02.2007 passed by the Additional Assistant Sessions Judge, Narsaraopet in Sessions Case No.517 of 2006. 2. The appellant was tried by the learned Assistant Sessions Judge for the charge under Section 363–A of IPC. At the conclusion of the trial, the learned Additional Assistant Sessions Judge found the appellant guilty for the charge under Section 363-A IPC, convicted him for the said offence and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.5,000/-. Challenging the said order of conviction and sentence, the appellant preferred the present appeal. 3. I have heard Dr. K.Satyanarayana Rao, learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the State. 4. It was the case of the prosecution that on 08.09.2006 at about 10.30 AM PW.1 Shaik Khajavalli, resident of Purushothapatnam, in Chilkaluripet Town of Guntur District went to the Barber Shop along with his two minor children i.e. Farjana, a girl aged 6 years and Abdul Sattar, aged three years. When his two children were sat on the bench near the Barber Shop, PW.1 crossed the road and proceeded to the other side of the road to purchase coconuts for his children. When he returned after purchase of coconuts he found his children missing. It is said that when he asked the persons nearby the place of occurrence, he was informed by them that a person, who is short and of black complexion forcibly took away the children in his rickshaw. PW.1 searched for the children and was unable to trace out them. Thereafter, at about 11.45 AM, he along with his wife PW.2 went to Chilakaluripet Town Police Station and presented a report to the Assistant Sub-Inspector of Police stating that one unknown person kidnapped his two children. Basing on the said report, PW.11- Assistnt Sub Inspector of Police registered a case in Crime No.264 of 2006 under Section 363-A IPC and took up investigation. 6. On 09.09.2006 at mid night 12.45 on receiving information about the incident that PWs.6 and 7 detained the appellant along with the children at Chowdavaram Canal Centre, PW-11 Proceeded to the said place, arrested the appellant who kidnapped the two children. PW-11 also seized the rickshaw of the appellant under cover of mediator’s report. He investigated into the offence and after completing the investigation filed charge sheet. 7. The prosecution in order to prove the guilt of the accused before the learned trial Court, examined PWs.1 to 11, marked Exs.P.1 to P.6 and M.O. 1. On consideration of the evidence on record, the learned trial Court convicted the appellant for the charge under Section 363-A IPC and sentenced him to punishment as above. 8. The evidence relied up on by the trial Court for convicting the appellant, may be summarized as follows: 9. PW.1 is the father of the minor children, who were allegedly kidnapped by the appellant. He stated about his going to the Barber Shop asking his children to sit on the pial of the Barber shop, his going to purchase coconuts on the other side of the road and on return, his noticing missing of the children. He also spoke about the persons in the vicinity informing him about the rickshaw puller, whose identity was not known taking away the children on his rickshaw. PW.3, a witness who was said to be examined by the prosecution for the purpose of eliciting that he saw the appellant taking away the children in his rickshaw turned hostile and he stated before the Court that he does not know anything about the incident and also that he was not present when the incident took place. PW.4-Shaik Shabbeer of Chilakaluripet, who was running a tea stall near the Barber Shop spoke about the appellant taking away the children while they were sitting on the bench near the Barber shop. PW.5, another witness also spoke about the rickshaw puller taking away the children on his rickshaw. 10. PWs.6 and 7 are the crucial witnesses in this case. PW.6 stated in his deposition before the trial Court that he was running hotel in the name and style of ‘Surya Restaurant’ at Chowdavaram Canal Centre. At about 9.00 or 10.00 PM, he noticed the appellant stopping his rickshaw beside his restaurant and he also found one female child and a male child in the rickshaw. He further stated that the appellant informed him that the said children are his children and on suspicion, when he enquired the children, they spoke in Urdu language. Thereafter, he called LW.9-Nurul Baig, who spoke to the children and ascertained that the accused beat them and made them to beg. PW.7, who is running coffee shop opposite to the hotel of PW.6 stated that on 08.09.2006 night at about 10.00 PM while he was in his hotel, two children came to his coffee shop begging with glass. He further deposed that when he asked the appellant, the appellant told him that the children are his own children. He further stated that he entertained suspicion about the appellant and gave a phone call to the relative of his brother at Chilakaluripet, who in turn informed him about missing of PW.1’s children. 11. PW8, resident of Chilakaluripet stated that on the date of incident he saw the appellant taking away the two children and two children were in the rickshaw and that he was under the impression that the two children were the children of the appellant. He further deposed that after some time, one person came to the shop and informed about missing of his children. PW.9 is a rickshaw owner and he stated in his evidence that five or six months prior to the incident, the appellant came to him and took the rickshaw on hire through one Koteshwara Rao. Subsequently, this witness identified the appellant before the police as well as the Court and also the rickshaw. PW.10 is the mediator and he deposed before the trial Court that at 12-00 mid-night on the date of incident, the Assistant Sub-Inspector of Police, Chilakaluripeta Town Police Station arrested the accused in his presence and that of another mediator at Surya Restaurant at Obulapuram Village. He also spoke about the seizure of MO-1- Rickshaw under Ex.P.3-mediatornama. 12. PW11, the Assistant Sub-Inspector of Police, Chilakaluripet Town Police Station at relevant time is the investigating officer in this case and he spoke about receiving intimation about the appellant detained by PWs.6 and 7 and he proceeded to the restaurant of PW.6 at about 12.45 mid-night along with PW.10-mediator and staff. He stated that near Chowdavaram Canal Centre he noticed the appellant, who was detained by PWs.6 and 7. He also spoke about PW.1 identifying the two children. He arrested the accused in the presence of PW.10 and another mediator and recovered MO1-rickshaw under Ex.P.3-mediatornama. He further stated about his conducting identification proceedings, during the course of which PWs.4 and 8 identified the accused under identifying proceedings Ex.P.4. 13. One of the contentions urged by the learned counsel appearing for the appellant is that there is no direct evidence regarding kidnapping of the minor children of PW.1 by the appellant. This contention does not seen to be correct, because though the appellant was not known earlier to PWs.4 and 8, they deposed before the trial Court about appellant taking away the two children on his rickshaw, subsequently they identified the appellant before the trial Court. Therefore, merely because, the appellant was stranger to Pws.4 and 8, it cannot be said that there are no eyewitnesses to the act of kidnapping by the appellant. The said contention therefore, cannot be accepted. Another contention urged by the learned counsel is that no test identification parade got conducted by the investigating officer and there is no evidence to show that during such test identification parade, the witnesses identified the appellant and their evidence of identifying the appellant for the first time in the Court cannot be accepted. I see absolutely no force in the contention. This is a case wherein PWs.6 and 7 caught hold of the appellant along with two children within a short duration after the incident i.e. at about 10.00 PM on the same day. Subsequently, on information, PW.11- investigating officer came to the restaurant of PW.6 and arrested the appellant under Ex.P.3-mediatornama. Thus, the accused was apprehended by the investigating officer at 12.45 mid-night on the very same day. Moreover, the evidence of identifying the culprit during the course of test identification parade is only corroborative evidence. What the witnesses stated before the Court is the substantive evidence. In the instant case, the trial was taken up within a short period from the date of occurrence and PWs.4 and 8 identified the appellant before the trial Court. Therefore, their evidence cannot be brushed aside on the ground that no test identification parade was conducted. 14. Further, the appellant is altogether stranger to PW.1 and the remaining prosecution witnesses. It cannot therefore be said that the appellant was falsely implicated either by the investigating officer or that the remaining witnesses gave false evidence against him. Further there is absolutely no explanation from the accused as to the presence of the two children with him when he was arrested by the investigating officer. The absence of proper and reasonable explanation from the appellant furnishes additional circumstance which points out towards the guilt of the appellant. The learned counsel appearing for the appellant laid much stress upon the point that there is no evidence to show that the appellant took away the two children for the purpose of begging. The contention urged is absolutely not correct for the reason PW.6 the owner of the Surya Restaurant and PW.7, owner of the coffee shop, who detained the appellant have categorically stated in their depositions that they saw the children begging in the vicinity of the restaurant and the coffee shop. Their evidence further revealed that the children told them that the appellant made them to beg and that they are not the children of the appellant. Further, as I have already pointed out, there is absolutely no explanation offered by the accused as to why he took away the children, who were sitting near the Barber Shop. For all these reasons, it has to be held that the appellant kidnapped the children for begging and made them to beg. 15. Lastly, the learned counsel for the appellant submitted that the appellant had already undergone nearly six years of sentence of imprisonment and that the sentence may be reduced to the period already undergone. In view of the seriousness and heinous nature of the offence, I do not accede to the submission made by the learned counsel. The offence committed by the appellant warrants any amount of severity in the punishment and the punishment imposed by the learned trial Court in my view is proportionate to the offence committed by the appellant. Thus, the order of sentence passed by the learned trial Court also does not require any interference in this appeal. 16. For the foregoing reasons, the conviction and sentence passed by the learned trial Court is confirmed. 17. In the result, Criminal Appeal is dismissed. _________________ Date: 05.08.2011 R. KANTHA RAO, J kvrm HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal NO.973 OF 2007 DATE: 05.08.2011