Mustak vs State Of U.P.
2015 Latest Caselaw 2336 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgment Reserved on 18.8.2015
 
Judgment Delivered on 16.9.2015
 
Case :- CRIMINAL APPEAL No. - 4805 of 2013
 

 
Appellant :- Mustak
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ram Mohan Tiwari, S.K. Mishra
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Om Prakash-VII,J.

1. This criminal appeal has been preferred by the accused appellant against the judgement and order dated 19.10.2013 passed by the Additional District & Sessions Judge Court No.2, Etah in Session Trial No. 215 of 2009 (State of U.P. vs. Mushtak) convicting and sentencing the appellant for the offence punishable under Sections 363 IPC to undergo five years rigorous imprisonment and a fine of Rs. 5000/-. In default of payment of fine, he has to undergo three months additional imprisonment.

2. The facts of the case, as unfolded by the informant Rajesh Kumar son of Chandra Pal in the First Information Report (in short 'F.I.R.'), are that his daughters Km. Shikha aged about 15 years and Km. Shiva, aged about 13 years were the students of Intermediate and High School in Gandhi Inter College, Jaithra. On 17.11.2008, the daughters of the informant had gone to school and at about 3.30 p.m. while they were returning for house and had reached Bhlaul Mod, a Maruti Van came there and Mushtak son of Amiruddin, Amiruddin son of Darav Khan and Sher Bano wife of Amiruddin resident of Dariyao Ganj Road, Jaithra and an unknown person alighted and told to the informant daughter Shikha that her father had met with an accident at Etah and he had called you (Shikha) and after taking her inside the van, told Shiva that she should go to house and they rushed towards Etah. Sanjeev Kumar son of Chandra Pal, Rakesh Kumar son of Gangadin, resident of village Sokha, who at that time were going to market, asked her to keep patience and when they went her house to drop her, they saw the informant in a good condition there then they and Shiva told that Mushtak, Amiruddin and Sher Bano on the pretext of accident of the informant had taken away Shikha in Maruti Van. Sanjeev Kumar and Rakesh told that they had not suspected as they are the neighbour of the informant. They took away the daughter of the informant with bad intention. Informant was searching them at Etah and other places but they could not be traced.

3. On the basis of the written report (Ext. ka-1), chik First Information Report (Ext. Ka-5) was registered at Police Station concerned on 20.12.2008 at 9.30.00 a.m. mentioning all the details as had been described in Ext. Ka-.1. G.D. entry ( Ext. Ka-6) was also made at the same time.

4. Investigation in the matter was started. The Investigating Officer inspected the place of occurrence and prepared site plan (Ext. ka-3). The Investigating Officer also recorded statements of witnesses.

5. After completing the investigation, charge-sheet (Ext. ka-4) against the accused appellant was filed. Concerned Magistrate took the cognizance. The case being exclusively triable by session court, was committed to the Court of sessions.

6.	Accused/appellant appeared and charge under Sections 363 & 366 IPC was  framed in the trial court against him.    The accused has denied the charges framed against him and claimed his trial.
 
7.	Trial proceeded, and in order to prove its case, prosecution on its behalf examined six witnesses, wherein  PW-1 Rajes Kumar, the informant, PW-2 Shiva,  PW-3 Sanjeev Kumar, PW-4 Virendra Prasad, Head Clerk of the Gandhi Sarwajanik Inter College, Jaithra, PW-5 Sub-Inspector Kunwar Pal Singh and  PW-6 Constable Chhatrapal Singh.
 
8. 	After closure of the prosecution evidence, statement of the accused appellant under Section 313 Cr.P.C. was recorded.
 
9.	Accused appellant in his statement under Section 313 Cr.P.C. denied the allegations and stated that he has been falsely implicated due to enmity. 
 
10.	In defence, DW-1 Bramha Shanker and DW-2 Maharaj Singh were examined.
 
11.	Having heard the learned counsel for the parties and going through the record, the trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellant beyond reasonable doubt and convicted and sentenced the accused  appellant, hence this  appeal.
 
12.	I have heard Shri Ram Mohan Tiwari, learned counsel for the appellant, learned AGA for the State at length, and perused the entire record carefully.
 

13. Castigating the impugned judgement and order, learned counsel for the appellant has submitted that FIR was lodged belatedly after consultation but no plausible explanation has been given for the same. Eye account witnesses are related to the informant and are interested witnesses. Prosecution case is not supported by any independent witness. It was further submitted that a lenient view be taken in the matter as accused appellant is in jail from 19.10.2013 i.e. the date of the impugned judgment and order and he was also in custody in this matter for about thirteen months during trial. It was further submitted that the whole prosecution story is improbable and unbelievable. The plea taken by the accused appellant is believable as the same is supported by the statement of defence witnesses. It was further submitted that the kidnapped/ abducted girl has been recovered and she is married.

14. On the other hand, learned AGA appearing for the State has submitted that FIR was not lodged after consultation. Accused appellant was known person to the informant, family members and the informant were trying to trace-out the whereabouts of the kidnapped girl. Thus, the delay in lodging the FIR has been properly explained. Prosecution case is supported by the eye account witnesses. It was further submitted that the trial court has imposed only five years rigorous imprisonment and a fine of Rs. 5,000/-, therefore, no leniency in imposing the sentence for the offence under Section 363 IPC is warranted in the present matter. Hence, the appeal may be dismissed.

15. I have considered the rival submissions made by the learned counsel for the parties and have carefully gone through the entire record and evidence.

16. In the present matter, offence is said to have been committed on 17.11.2008 at 3.30 p.m. when the victim girl and her real sister Shiva were returning from school. FIR in the matter was lodged on 20.12.2008. Reasons for delay in lodging the FIR has been explained in the written report itself that informant and his family members were searching the kidnapped girl and when she could not be traced-out, they lodged the FIR. The same fact has been stated by the witnesses examined on oath before the trial court. The finding of the trial court on this point is that prosecution has properly explained the delay in lodging the FIR. If the finding recorded by the trial court on this point is compared with the facts and evidence available on record, it is clear that on 5.12.2008 informant had moved a complaint to the authorities and he was continuously approaching the authorities to lodge the FIR. Looking to the nature of evidence and the efforts being made by the informant and the family members of the kidnapped girl to trace-out the girl and to lodge the FIR, the finding recorded by the trial court on this point cannot be said to be perverse.

17. It may also be mentioned here that victim girl was kidnapped / abducted by the accused appellant on the pretext that her father had met with an accident and he had called her. Accused appellant was well-known to the informant and the victim girl. PW-2 Shiva, who was also accompanied the victim girl has been examined by the prosecution. Since whereabouts of the victim girl was not known till the date of judgment and order, it appears that due to that reason prosecution could not examine her but the presence of PW-2 Shiva and PW-3 Sanjeev Kumar on the spot cannot be doubted. Submission of the learned counsel for the appellant is that if PW-3 was present on the spot at the time of occurrence, he should have objected the accused persons. Further submission is that PW-2 and PW-3 have neither made any efforts to object the accused persons in committing the present offence nor they raised any alarm etc., which is against normal human behaviour.

18. If the entire evidence is analysed in consonance with the submissions made by the learned counsel for the appellant, it emerges that PW-2, the real sister of the victim girl, was asked by the accused persons to go to her home. This fact was stated by her to PW-3 Sanjeev Kumar and one Rakesh, who were present near the place of occurrence. Since accused persons were well-known to the informant side, there was no occasion to raise any alarm by the PW-2 and PW-3. PW-3 has explained that he did not accompany the accused persons as he thought to drop the PW-2 Shiva to her home. If the persons present on the spot has not raised any alarm immediately, then also the evidence of prosecution witnesses cannot be disbelieved. Conduct of these witnesses is natural one and on this score, the finding recorded by the trial court also does not require any interference.

19. As far as the submission about relative and interestedness of the PW-2 and PW3 is concerned, it is settled legal position that when the statement of witnesses, who are relatives or are known to the affected party, is credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was family member of the deceased or victim or interested witness or person known to the affected party. There can be cases where it would be but inevitable to examine such witnesses, because, as the events occurred, they were the natural or the only eye witness available to give the complete version of the incident. Close relative of the deceased or victim would normally be most reluctant to spare the real culprit and falsely implicate an innocent one.  In this regard, I may refer to the judgment of Hon'ble Supreme Court in the case of Namdeo v. State of Maharashtra, (2007) 14 SCC 150.

20. In the instant matter, PW-1 is the father of the victim girl, who was not present on the spot and accused appellant had taken away the victim girl on the pretext that PW-1 met with an accident. He is simply an informant. Statement of this witness is only material in regard to the efforts made by him just after the incident on the point of lodging the FIR. PW-2 Shiva was accompanying the victim girl. Therefore, her statement only on this ground that she is the real sister of the victim girl cannot be discarded. PW-2 is natural and probable witness. So far as the presence of PW-3 on the spot and the credibility of his statement is concerned, he has explained in the statement before the Court regarding the reasons for his presence on the spot at the time of occurrence. He had taken PW-2 Shiva to her home and when he reached the home of PW-1 alongwith PW-2, he (PW-1) was found present there in a fit condition. Thus, in the present matter, testimony of PW-3 on the ground of relative witness cannot be discarded. It is worthy to note here that if one is relative of the victim or informant, he cannot be termed as interested witness. Interested witnesses are those who are interested to get the accused convicted. In the present matter, close scrutiny of statement of PW-3 reveals that he had disclosed before the Court the true facts, which were seen by him. Hence, the submission of learned counsel for the appellant in this regard is not accepted.

21. So far as the finding recorded by the trial court regarding statement of DW-1 and DW-2 is concerned, they stated that they had no knowledge about the present incident. DW-1 has stated that had such type of incident taken place at the time, date and place of occurrence, he would have information about the same. Similar statement has been made by DW-2, as DW-2 runs a grossery shop in the vicinity of place occurrence. Prosecution case is that accused appellant took the victim girl in the Maruti Van from the spot. It is not the case of prosecution that at the time of incident, they were aware about the offence committed by the accused persons. They came to know about the commission of the present offence when PW-2 and PW-3 reached at the house of the informant and found PW-1 in his house in a fit condition. Therefore, prosecution case cannot be disbelieved only on the basis of the statement of DW-1 and DW-2. As far as failure to note the registration number of the concerned Maruti Van by PW-3 is concerned, it is clear that he was not aware about the commission of the present offence, as accused persons were known to him. He simply saw that the accused persons took the victim in the vehicle in question on the pretext of accident of victim's father. Incident took place in such a manner in which it was not possible for the witnesses to note the registration number of the vehicle in question. Thus, the submission made by the learned counsel for the appellant in this regard is not acceptable and the finding recorded by the trial court on this point is also not liable to be interfered with.

22. The trial court has not found proved the offence under Section 366 IPC against the accused appellant on the ground that the victim was not recovered, therefore, it is not clear as to whether the essential ingredients to constitute offence under Section 366 IPC were attracted in the present matter or not. The finding of the trial court for the offence under Section 363 IPC is clear and based on the evidence available on record. Victim was aged about fifteen years at the time of occurrence and this fact has been proved by the prosecution beyond reasonable doubt. No interference is required in the finding of the trial court on this point as the same is correct. Since victim girl was minor at the time of incident, necessary ingredients to constitute offence under Section 363 IPC is fully attracted in the present matter. The trial court has rightly held guilty to the accused appellant for committing the present offence under Section 363 IPC.

23. Now the Court comes to the quantum of sentence for the offence under Section 363 IPC. Awarding sentence is always a difficult task which requires balancing of various considerations. In the present matter, maximum sentence imposed upon the accused appellant is of five years and a fine of Rs. 5,000/-. Submission of the learned counsel for the appellant is that out of the maximum sentence imposed upon him, the accused appellant has served-out about three years sentence, hence a lenient view in the matter be taken.

24. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of the offence and the manner in which it was executed or committed. It is the obligation of the court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. The measure of punishment should be proportionate to the gravity of the offence. Object of sentencing should be to protect society and to deter the criminal in achieving the avowed object of law. Further, it is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].

24. In view of the above propositions of law, the paramount principle that should be the guiding factor is that the punishment should be proportionate to the gravity of the offence.

25. Section 363 of the Indian Penal Code reads as under:

"363. Punishment for kidnapping.--Whoever kidnaps any person from [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."

26. In view of the above-quoted provisions of Section 363 IPC, it is clear that for the offence under Section 363 IPC regarding kidnapping, maximum punishment of seven years could be imposed and the accused shall also be liable to pay fine. In the present case, the trial court has imposed five years rigorous imprisonment and a fine of Rs. 5,000/-. The trial court has not imposed the extreme sentence / punishment and has taken a lenient view in imposing the sentence upon the accused appellant.

27. Hence, in view of the above-quoted provisions of Section 363 IPC, the settled legal position and the findings recorded by the trial court on the point of imposing sentence in the present case, I am of the opinion that the sentence / punishment imposed upon the accused appellant by the trial court in the impugned judgment and order would meet the ends of justice and the same is not manifestly excessive or unreasonable.

28. Thus, I am of the opinion that the conclusion taken by the trial court regarding conviction and sentence of the accused appellant is in accordance with law and the evidence available on record.

29. Considering the entire aspects of the matter and looking to the circumstances, under which the present offence has been committed, this Court is of the opinion that the impugned judgement and order passed by the trial court is well thought and well discussed and the trial court has rightly held that the prosecution has succeeded to prove the guilt of the accused/ appellant beyond reasonable doubt. As such, the impugned judgement and order passed by the trial court is liable to be upheld and the appeal having no force is liable to be dismissed.

30. Accordingly the present Criminal Appeal is dismissed. The conviction and sentence imposed upon the accused/ appellant Mustaq is hereby confirmed.

31. The accused appellant is already in jail. He will serve-out the remaining sentence imposed upon him by the trial court.

32. Copy of this judgement alongwith lower court record be sent forthwith to the Sessions Judge, Etah for compliance.

Order date : 16th September, 2015

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