Criminal Appeal (SJ) No.220 of 2007 Against the judgment of conviction dated 16.11.2006 and order of sentence dated 18.11.2006 passed by Additional Sessions Judge, Fast Track Court-II, Nalanda at Biharsharif in Sessions Trial No.40/2008 of 2006/2006. MD.SONU, Son of Md. Hameed Driver, Resident of Mohalla-Katrapar, P.S.Laheri(Biharsharif) District-Nalanda .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellant: Sri Neeraj Kumar @ Sanidh, Amicus Curiae For the Respondent: - Sri S.N.Prasad, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The appellant was indicted of committing the offences under Sections 363, 365 and 364 IPC by the Presiding Officer Fast Track Court-II, Nalanda at Biharsharif for being tried in Sessions Trial No.40 of 2008 and by judgment dated 16.11.2006, while he was acquitted of the charge under Section 365 IPC was convicted of offences under Sections 363 and 364 IPC and was directed to suffer rigorous imprisonment for ten years as also to pay a fine of Rs.10,000/- besides suffering rigorous imprisonment for four years and paying the fine of Rs.5,000/- under the two respective counts. In case of default in making the payment of fine, the appellant was directed by the consolidated order to suffer simple imprisonment for one and half years. The 2 substantive sentences of imprisonment were directed to run concurrently. The appellant challenges the judgment of conviction and sentence through the present appeal. 2. Aman, a boy aged about three and half years, son of Md. Nazrul Bari(P.W.4), was in the lap of Md. Afzal(P.W.3)who was moving in the market place on 26.11.2002 at about 5.30 P.M. at Mohalla Bhusatta in the township of Biharsharif. He went near the shop of Ekramul Haque(P.W.1)with the child in his lap. The present appellant was admittedly an employee of Md. Nazrul Bari(P.W.4) who was running a biscuit factory. It is stated that the present appellant was also there and he picked up the child from the lap of P.W.3 and asked him to look into his own shop as there was some one in it. 3. It is stated by P.W.4 that P.W.3 went to look into his own shop leaving the child in the lap of the present appellant and when he came back, he found that neither the appellant nor the child Aman was any where around. A search was made for both the appellant and the child, but in vain as a result of which Md. Afzal who happened to be the Sala of (brother-in-law) of P.W.4 informed him. Md. Nazrul Bari filed a written report (Ext-1) before the Officer-in-Charge of Bihar Police Station, on the basis of which, the FIR was drawn up and the investigation was taken up by P.W.7 S.I. Padma Kumari. 3 4. P.W.7 has stated that after having taken up the investigation herself, she went to inspect the place of occurrence and also recorded the statements of witnesses. During the course of investigation it came into light that some amount was demanded by some one by giving a ring to the informant in lieu of returning the child and as such P.W.7 filed an application for taking out the print out of the calls made from a particular telephone number. The police learnt that the Nawada police had recovered the victim child Aman from the possession of Md. Faiyaz(P.W.5)who was the member of a committee which was functioning to take care of abandoned or uncared children and it appears from the statement of that particular Md. Faiyaz(P.W.5)as if the boy had been handed over to him by P.W.6 Kedar Prasad who was the owner of Galaxy hotel. The police found the material sufficient and sent up the present appellant for trial which ended in the impugned judgment. 5. The defence of the appellant was that while working as an employee in the biscuit factory of the informant his salaries for many months totaling about a lakh was due to be paid to him, but the informant was not ready to pay the wages of the appellant and as such he left the employment but continued demanding his salaries. In order to putting criminal pressure upon the appellant, the informant had framed facts for foisting a false case 4 upon him. 6. The prosecution examined as many as seven witnesses in support of the charges. Md. Ekraumul Haque(P.W.1) was a shopkeeper of the same vicinity from where the appellant had disappeared with the child. P.W.2 Ghulam Sarwar was yet another shopkeeper of the same place. P.W.3 Md. Afzal was the sala of P.W.4 who was moving in the market place with the child in his lap. P.W.4 is the informant himself who happened to be the father of the little child Aman and who filed Ext-1, the written report. P.W.5 Md. Faiyaz Ahmad was the member of the committee functioning in Nawada, which was taking care of abandoned and uncared child and who as per P.W.6 Kedar Prasad, was the proprietor of Galaxy Hotel, Nawada and was called up to receive the child into his custody. Aman was found in room no.609 and from where the police is said to have recovered the child Aman. On consideration of the evidence of these witnesses, the court below passed the impugned judgment. 7. The learned counsel whose name appears in the list was not appearing and rather was reporting after being contacted on his cellular phone number which appears on the power signed by him to be out of station. The court was, as such, forced to request Sri Neeraj Kumar @ Sanidh to assist it in hearing of the present appeal. 5 8. Sri Sanidh submitted that the appellant was acquitted under Section 365 IPC and he has been convicted under Section 364 of the Penal Code, but the evidence was completely lacking that the appellant had any motive or intent of committing the murder of the child or disposing him of in such a way as to presume that the child was murdered. The evidence, rather, indicated that the child was confined by the appellant for extracting ransom and in fact P.W.4, the father of the child stated that he had made payment of Rs.1,00,000/- out of demanded amount of Rs.5,00,000/- and the child was released thereafter. The contention, as such, was that the intent or purpose which is necessary to be established as per in the provision of Section 364 IPC, not being established or in other words being different from what law requires, the conviction of the appellant under Section 364 IPC was completely illegal. It was next contended that there was complete lack of an important chain in the evidence as to how the child happened to be found in room no.609 of Hotel Galaxy and how it was detected that the child was lying there that he was put into the custody of P.W.5 Md. Faiyaz Ahmad. It is suspicious, appears quite shrouded in mystery and that further creates a doubt regarding the veracity of the prosecution story and its evidence. Contention further was that though P.Ws.1 and 2 appeared eye witnesses to the occurrence during their examination- 6 in-chief, but on being cross-examined both the witnesses appeared not eye witnesses to the occurrence and considering their evidence was not proper. Contention further was that P.W.4, the informant was admittedly not an eye witness and in the background of admitted position that the appellant had been an employee of the informant, the suggestion given to P.W.2 in paragraph-9 and P.W.4 in paragraph-15 that the facts were framed in foisting a false case upon the appellant appears substantial and in that light the appellant deserved to be acquitted. 9. Sri S.N.Prasad, the learned A.P.P. was contesting the contentions of Sri Sanidh except that it might not be an offence under Section 364 IPC. Sri Prasad submitted that the court was simply missing the important aspects of the trial right from the stage of framing of charges till it was delivering the judgment as it ought to have either framed or added the charge under Section 368 IPC and ought to have convicted the appellant for that particular offence. Sri Prasad was also critical of the judgment as regards that part by which the appellant was acquitted of the charge under Section 365 IPC. It was contended that the evidence available on record brought within the four corners of that particular provision and it appears that the acquittal of the appellant for that particular offence was unjustified. However, Sri Prasad submitted that the wrongful confinement of the victim 7 after being kidnapped was duly established by the evidence on record along with the offence of simple kidnapping and the court having the record of the examination of the appellant under Section 313 Cr.P.C. could have recorded the conviction of the appellant under Section 368 IPC and pass an appropriate sentence in lieu of Section 364 IPC. 10. Section 368 IPC reads as under:- “Wrongfully concealing or keeping in confinement, kidnapped or abducted person.-Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.” It may appear from the reading of the above provision that a person knowing that the person whom he had wrongfully kept in confinement is a victim of either of the offence of kidnapping or abduction, still, in case, continues confining him or concealing him is supposed to commit the offence defined and made punishable offence under Section 368 IPC. The purpose or intent for wrongfully confining or concealing such a victim of an offence, either of kidnapping or abduction, is not to be considered rather what appears is that the purpose has to be the same act of wrongfully confining or concealing the victim. Thus, the evidence which may be required for establishing such an offence under Section 8 368 IPC is merely to be such as could be constituting the ingredient either of the offence of abduction or of kidnapping. Besides, the evidence must also indicate that there was real wrongful confinement or concealment of the victim of the offence with the knowledge that the person confined or to be confined is a victim of either of the offences of kidnapping or abduction. It is too well known to be pointed that abduction simplicitor is not punishable though the offence of kidnapping is punishable under Section 363 IPC. It is true that there was no charge framed by the learned trial Judge under Section 368 IPC, but I find from the record made by the learned trial Judge of the statement of appellant under Section 313 Cr.P.C., that specific question was put to him that after having picked up the child from the lap of P.W.1 the appellant kept him confined in his custody. Non- framing of charge and convicting an accused for that particular charge which was not read over and explained to him may be causing prejudice to an accused, because it could be jumping a surprise upon him for which he was never afforded an opportunity to defend himself during the trial. But, law is very clear that if the court has put the question to an accused on circumstances appearing against such an accused who had not been explained the charge for which he could later be convicted, then the defence of prejudice or the argument in that behalf may 9 not be available to him. The record under Section 313 Cr.P.C. made by the learned trial Judge, I have already noted, is complete as regards the circumstance of keeping the victim confined in his custody was duly put to the appellant. Thus, it was rightly contended by Sri Prasad that even if the charge had not been framed by the trial court, the court may consider the conviction of the appellant for an offence under Section 368 IPC and pass an appropriate sentence upon him. 11. But the fundamental question is as to whether the prosecution had succeeded in the trial court in establishing the ingredients of kidnapping for which the appellant was convicted under Section 363 IPC and was sentenced to substantive period of sentence. 12. P.W.3 Md. Afzal has stated that he had the child in his lap and he had gone near the market place where there were other shops of other persons when this appellant came and took the child into his own lap and misled the witness (P.W.3) to go to and took into his own shop as there appeared a man inside it. P.W.3 went inside his shop to peep into it and when he came back none was there; he found the appellant and the child both not present there. Search was made and not finding either the child or the appellant, the informant was informed. 13. P.W.4, the informant also supports the above facts that he was informed by P.W.3 as to how the child 10 had been picked up by the appellant and taken away. The child remained away from its parents is quite established from the evidence of P.W.7, the investigating officer of the case, who stated that the child was found in hotel Galaxy on 17.01.2001. The two witnesses, namely, P.Ws.1 and 2 have also stated that the appellant had taken the child into his custody and by misleading P.W.3 he had disappeared with the child. P.Ws.1 and 2 were shopkeepers. It may be a fact as was argued by Sri Sanidh that P.W.1 has stated in paragraph-8 that he had heard from persons about the incident but whatever benefit the defence had drawn out of that particular evidence contained in paragraph-3 appears demolished by itself by bringing on record in paragraph-15 of P.W.1 that the appellant had picked up the child and had taken him into his own custody from that of P.W.3 in presence of P.W.1. Thus, P.W.1 appears a competent witness. Not only that, because he was averring those facts in his examination- in-chief but he was stating in cross-examination, the same facts in paragraph-15. His evidence being that of an independent person appears inspiring confidence and the support lent by him to the occurrence appears sufficiently indicating that the appellant had kidnapped the child. 14. The question which could be raised, though it has not been raised by Sri Sanidh as to whether the 11 taking away of the child from the lap of P.W.3 could be tantamounting to taking away the minor from its legal guardian. I simply want to point out that P.W.3 was none else, than the brother of the mother of the child and if he had been handed over the custody by his parents, then it could be said that the custody of the legal guardian was continuing till the child was in custody of P.W.3. Legal guardianship as is used in criminal law could not be confined to the premises of a house or to the arms of the parents or to a particular place or places where the guardian is legally recognized and in whose custody a minor had been put who could be having control over such a minor. It is too well known to be pointed out that a school going child, if he leaves his parents’ house to board a bus to travel up the school, then the legal guardianship continues in the school bus and there from into the school. Here the fact was very short that one of very close relatives of the child had picked him up so as to taking him around the market place where the incident had occurred. The child was very much within the legal guardianship. The facts which have been stated to by the witnesses established beyond doubt that it was this appellant who had got the child into his own custody and thereafter had duped P.W.3 by a false representation of fact so as to disappearing with the child. It was a case of kidnapping established fully and the evidence clearly 12 indicated by circumstance-even if there was no direct evidence-that on account of getting the custody of the child, it has always to be assumed that the child remained in custody of the present appellant till he was found out. Thus, the custody of the child till he was released was that of the present appellant and the same was always wrongful and it constituted the act of concealing the child which the appellant had himself kidnapped. As such it was rightly submitted by Sri Prasad that the court was completely amiss when it was acquitting the appellant of the charge under Section 365 IPC. It is true that there is no appeal against acquittal of the appellant for that particular charge but there is no harm if this court holds that the acquittal of the appellant was illegal and against the weight of evidence available on record. 15. The evidence of P.W.4 indicates that he received some message telephonically that he was to pay Rs.5,00,000/- for getting back his son. There were some negotiations and ultimately Rs.1,00,000/- was paid and the child was found in room no.609 of Galaxy Hotel. The child was found there is established from the evidence of P.Ws.5 and 7. P.W.6 called up P.W.5 who was one of the members of the committee in Nawada which was formed to take care of abandoned and uncared children to come down to the hotel to take the child into his custody till the 13 police had come to take back the child. The evidence of these two witnesses clearly indicates that the child was abandoned in that particular room no.609 by someone. Evidence has not come on record as to who had abandoned the victim in room no.609. In fact the proprietor of the hotel P.W.6 Kedar Prasad did not clearly point out as to whether it was this appellant or it was some one else. But, the child was released by being abandoned in the hotel room is clearly established by that evidence. Thus, what appears from the evidence of P.W.4, the informant is that the real purpose or intent of taking away the child and keeping him concealed or confined was not to murder or to dispose him of in such a way as to presume that the child was murdered. The simple and only purpose which appears stated by P.W.4 or which appears from the evidence of that witness, was to extract ransom and on part payment of it, the child was released. So the conviction of the appellant under Section 364 IPC was quite illegal and against the evidence available on record. 16. In the result, the appellant has to be acquitted of the offence under Section 364 IPC. I have scanned the evidence on analyzing the provision as also considering the evidence, what I find is that the appellant was rightly convicted of offence under Section 363 IPC. Besides, on the strength of the evidence 14 available and in the light his questioning under Section 313 Cr.P.C. he is convicted of offence under Section 368 IPC. The appellant is in custody since May, 2005. This Court sentences him under Section 368 IPC to the period he has served till date. 17. With the above alteration in the conviction of the appellant and the sentence which I have imposed upon him, the appeal is partly allowed. On account of acquittal of the appellant under Section 364 IPC, if he is not required in any other offence, shall be released forthwith on account of the order of sentence as I have just passed. 18. This Court records its sincere appreciation of the assistance rendered by Sri Neeraj Kumar @ Sanidh to it and recommends the payment of one fee of argument to him by the High Court Legal Services Committee, Patna. Patna High Court, Dated, the 14th day of September, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)