1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR. JUDGMENT Mohammad Ishtaque Khan vs. The State of Raj. S.B.CRIMINAL APPEAL NO.212/1987 Date of Judgment ::: 19th August, 2008 PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Deepak Sharma for Mr. R.N. Sharma for the appellant. Mr. B.K. Sharma, Public Prosecutor, for the State. BY THE COURT: 1. Challenge in this appeal is to the judgment dated 25th May, 1987 whereby the learned Additional Sessions Judge No.1, Alwar has convicted the accused-appellant Ami Khan @ Mohd. Ishtaque Khan in the offences under Section 368 and 202 of IPC and sentenced as under: U/S 368 of IPC Rigorous Imprisonment for three years and a fine of Rs.500/-; in default of payment of fine to further undergo rigorous imprisonment for two months. U/S 202 of IPC Rigorous Imprisonment for one month Both the sentences were ordered to run concurrently. 2. The prosecution case is woven like this: That on 19th September, 1984 PW/1 Deegram S/o Sadhu Ram R/o Bahala Tehsil Ramgarh District Alwar submitted a written report Ex.P/1 before S.H.O. Police Station Matasya Industrial Area, Alwar stating that a contractor named Wazid Khan was living in his house for the last 2-3 months who had taken contract of removing the Chesis from Ley-land Factory Alwar. It is alleged that on the previous day 2 i.e. On 18th September, 1984, he came to his house and having eloped or enticed his sister Mst. Santosh aged 15 years kidnapped her. His sister was wearing golden tabiz on her neck, golden Kundal on her ears, Silver Kankati, Payjeb and wrist watch. He conducted a vigorous search but of no avail. The police lodged the FIR Ex.P/2 on this complainant and commenced investigation. 3. The Investigating Officer recovered Mst. Santosh vide memo Ex.P/3 from House No.73, Mohalla Kolutola, Balai Datt Street, Gali Mushafir Khana situated in Kolkota and brought her to Alwar where she was subjected to medical examination at general Hospital, Alwar for determination of her age as also rape. Her statement was recorded under Section 164 of Cr.P.C. by the Judicial Magistrate. Further the I.O recorded the statements of witnesses acquainted with the facts and circumstances of the case and after usual investigation sent the accused persons namely Wazid Khan and Ami Khan for trial to the Court. 4. The accused Wazid Khan has been absconding. Hence only the accused Mohd. Ishtaque @ Ami Khan was indicted for the offences under Section 368, 202 and 176 of IPC who pleaded not guilty and claimed trial. In order to further its version, the prosecution has examined as many as eleven witnesses. In his explanation under Section 313 of Cr.P.C., the accused claimed innocence. On completion of trial, the accused appellant was convicted and sentenced as indicated hereinabove. 3 5. Heard the submissions advanced by the learned counsel for the appellant, learned Public Prosecution appearing for the State and with their assistance scanned the relevant material available on record. 6. The learned counsel for the appellant has contended that the main accused of this case has been absconded and the appellant has only been charged with the offences of concealing Mst. Santosh in his house despite the knowledge that she was abducted by his brother Wazid Khan. The evidence of the prosecutrix Mst. Santosh reveals that she lived in his house comfortably and she was recovered by police from a house situated in Kolkota. Firstly, it was not in the knowledge of the appellant that Mst. Santosh had been abducted by Wazid Khan. Secondly, even if it is taken to be true, the appellant did not commit any offence of having concealed her or confined her in his house as there is no evidence to this effect available on record. Thus the appellant deserves to be acquitted and the impugned judgment of the lower court is liable to be set aside. 7. Per contra, the learned Public Prosecutor has urged that the impugned judgment of the lower Court is cogent and well merited. The prosecution has succeeded in establishing the guilt against the appellant, as such, his appeal deserves to be dismissed. 4 8. Having reflected over the submissions advanced by both the parties and scanned the statements of PW/6 Mst. Santosh, it is found that Mst. Santosh along with the co-accused Wazid Khan had remained in the house of the appellant only for one day at Ajmer. The prosecutrix in her deposition has stated at para 3 of her statements before the Court that the accused Wazid Khan at the point of knife took her to Ajmer, where his brother Amir Khan was living. She has alleged that only Wazid Khan only had coitus with her and thereafter he took her to Kolkota from where she was recovered by the Police. 9. It is well settled that to bring home an offence under Section 368, IPC, the prosecution must prove (a) that someone (victim) has been kidnapped or abducted; (b) that the accused had knowledge about the victim being kidnapped or abducted: (c) despite such knowledge the accused concealed the victim or wrongfully confined him or her. To apply Sec. 368 of IPC, the accused must be proved to have had knowledge of the fact of kidnapping or abduction, knowledge not merely suspicion or reason to believe, in the accused about the kidnapping or abduction must be proved. Wrongful concealment would appear to mean no more than wrong confinement in secret as defined in Sec.346. Moreover, there can be no concealment without the intention. The mere fact of a girl being received into a house and retained there by 5 the owner, even after he may have become aware of or found reason to believe that she had been kidnapped, does not amount to concealment of her unless an intention of keeping her out of view be apparent. 10. In the instant appeal PW/6 Mst. Santosh has categorically stated that she was taken to the house of Ami Khan who happened to be the brother of Wazid Khan. There she remained for one day and the second day Ami Khan collected 400 rupees after selling her some ornaments. With this amount, Ami Khan purchased two railway tickets for Kolkota and handed over to Wazid Khan. The prosecutrix has stated nowhere in her statement that she was forcibly kept out of the view of people or she was confined to a particular room or a particular place or a particular house. It is also not proved from the statements of Mst.Santosh that she was at all forcibly concealed in any manner by the appellant Ami Khan. There is no evidence with regard to her confinement or concealment on record which may fasten the guilt upon the accused appellant. The prosecution has miserably failed to prove the alleged offence against the appellant beyond reasonable doubt. The lower court has held the appellant guilty in the offence under Section 368 of IPC, on the basis of sole evidence that the appellant Ami Khan asked Wazid Khan to take her to Kolkota otherwise the police shall appear and nab him. This evidence is not 6 sufficient to base the conviction of the accused as there is no mention of this fact in her statement that she was forcibly concealed by Ami Khan in his house or she was confined at any particular place and kept out of the view of people. No evidence with regard to the offence under Section 202 of IPC is also found on record. The finding of conviction of the appellant in the offences under Section 368 and 202 of IPC is based on surmises and conjunctures with which I respectfully differ. 11. The impugned judgment of the lower court is not found to be just, proper and cogent. It suffers from factual as also legal infirmities. In view of the above discussion, the impugned judgment cannot be sustained and it deserves to be set aside. 12. In the ultimate analysis the Criminal Appeal filed by the appellant Mohd. Ishtaque Khan @ Ami Khan S/o Samshuddin Khan, B/c Patan, R/o Mahen, Police Station Karimddin II, District Gazipur (U.P.) is allowed. The conviction and sentence awarded to him vide impugned judgment dated 25th May 1987 are set aside. The accused- appellant is on bail. His bail bonds stands discharged. (MAHESH BHAGWATI), J. PCG