IN THE HIGH COURT OF JUDICATURE AT PATNA SLA No.53 of 2010 MILAN KUMAR Versus THE STATE OF BIHAR & ORS ----------- 2. 20.07.2010 This is the application for leave to file appeal against the judgment dated 29.4.2010 of the Railway Judicial Magistrate, Bhagalpur passed in Complaint Case No. 830 of 2002/Tr. No. 138 of 2010 whereby the O.P. Nos. 2 to 5 have been acquitted of the charges under Sections 323, 363, 384 and 380 of the I.P.C. At the very outset, it has to be mentioned that the O.P. Nos. 2 to 5 are the mother-in-law, father-in-law and brother-in-law of the petitioner/complainant. The complainant’s case was that he was living in Mohalla Samsav, at Bhagalpur with his wife, sister Anju Kumari and one son aged five months and he was engaged in dealing in medicines. The complainant further stated that on 29.8.2001 at 5:00 P.M .his wife became ill and he took her to a doctor for treatment. While under treatment, the ailment became serious and on 4.9.2010 he was advised by the doctor to take her to P.M.C.H. and then he was carrying her to P.M.C.H but in the way she died, hence, he returned to his village with the dead boy. He further stated that he informed his in-laws but they did not come, hence, the dead body was cremated. The complainant further stated that on 6.9.2001 the O.Ps. came and consoled him and they went away on 7.8.2001. It is further alleged that at 4:00 P.M. that day when he came back to his house, his sister Anju Kumari told him (complainant) that the O.Ps. had come and they took away the five months old child with them and they also took away the ornaments and clothes of his wife and they had told his sister Anju Kumari tell her brother (complainant) to give Rs. 50000/- to them. 2 On these allegations the complaint was filed and the O.P. Nos. 2 to 5 put on trial for the offence. While recording order of acquittal, the learned Magistrate considered that the O.Ps. had filed a case under Section 304-B against the complainant and a judgment under S.T. No. 731 of 2002 was also proved as Ext.A which showed that the complainant had been convicted in that case and sentenced to undergo R.I. for ten years under Section 304-B. The defense plea as taken by the complainant was that in order to save his skin from the case under Section 304-B, the complainant had filed the case as defense measure. The learned trial court considered the evidence of the complainant and found that in cross-examination he stated that his wife was under treatment for last 4-5 months but again he stated that she was under treatment from 29.8.2010. It was also stated that the complainant did not produce any prescription regarding the treatment of his wife, even nature of ailment of the wife was not disclosed. The learned trial court also considered that the complainant’s sister Anju Kumari who was a health worker but she was also unable to say about the disease of the complainant’s wife. The other witnesses, namely, Uday Kumar Sah, Raja Ram, Karsto Pandit and Janardhan Sah tried to say about the occurrence but they admitted that they were not eye-witnesses to the occurrence. On consideration of the case and circumstances, the learned trial court came to find that there was no material to prove the case beyond doubt. Hence, the trial court acquitted the accused. The learned counsel for the petitioner took the plea that the five months old child of the complainant is not with him and the same is in the custody of O.P. who are the maternal grand mother (Nani) and 3 other relations of the child and that, therefore, an offence of kidnapping was made out. It was submitted that in order to avoid his arrest in the dowry death case lodged by the O.Ps., the complainant had absconded leaving the child uncared and that therefore, the child had to be taken care of by the O.Ps. The learned A.P.P. drew attention to the exception to Section 361 of the Indian Penal Code which defines kidnapping. The exception is as follows:- “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 the basis of provisions under the exception it was argued that the complainant having absented from the house leaving the child uncared, the O.Ps. who included the grand-mother (Nani) and other relations have bona fide believe and right to take care of the child in their custody. Thus, the trial court has rightly found the offence not proved. But still considering the exception of Section 361 of the Indian Penal Code as discussed above, I find that any case as lodged by the complainant has not been proved and the trial court has rightly acquitted the O.Ps. Finding no merits, the application is dismissed. (C. M. Prasad, J.) Ravi/-