Khalid vs State
2011 Latest Caselaw 3152 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+                    Crl. Appeal No. 849/2010

%                                           Reserved on: 25th May, 2011

                                            Decided on: 6th July, 2011

KHALID                                                    ..... Appellant
                              Through:    Ms. Anita Abraham, Adv.

                     versus

STATE                                                        ..... Respondent
                              Through:   Mr. Pawan Bahl, APP for State.

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may        Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?               Yes

3. Whether the judgment should be reported          Yes
   in the Digest?

MUKTA GUPTA, J.

1. By this appeal, the Appellant has laid a challenge to the judgment dated

15th December 2007 convicting him for offence punishable under Sections

328/365/367/344/323 IPC and order on sentence dated 2 nd January, 2008

whereby he was directed to undergo Rigorous Imprisonment for a period of

four years and fine of `10,000/- for offence punishable under Section 328

IPC. In default of payment of fine, he was directed to undergo Rigorous

Imprisonment for six months. He was directed to further undergo Rigorous

Imprisonment for two years and to pay a fine of `10,000/- for offence

punishable under Section 365 IPC. In default he was directed to undergo

Rigorous Imprisonment for six months. He was also directed to undergo

Rigorous Imprisonment for four years and to pay a fine of `10,000/- for

offence punishable under Section 367 IPC. In default of fine he was directed

to further undergo Rigorous Imprisonment for six months. He was also

sentenced to undergo Rigorous Imprisonment for one year and to pay a fine of

`2,000/- for offence punishable under Section 344 IPC. In default of payment

of fine, he was directed to further undergo Rigorous Imprisonment for three

months. He was also sentenced to undergo Rigorous Imprisonment for six

months for offence punishable under Section 323 IPC. Thus, the Appellant in

total has been directed to undergo Rigorous Imprisonment for four years and a

fine of ` 32,000/- and in default of payment of fine to undergo further

Rigorous Imprisonment for one year and nine months.

2. In brief the prosecution case is that one Deepak went missing, for

which a missing report was lodged by his father on the 30th November, 2005.

Since there was no clue of Deepak, the missing report was converted into an

FIR for an offence punishable under Section 363 IPC. On 7th August, 2006

Deepak went to fetch water at a public hydrant in village Bhamrua, District

Rampur, U.P. where a mela was going on. From the hydrant he was taken by

the village boys to the village Pradhan Atiq Ahmed to whom Deepak told

about his tale of woes that he has been abducted by a Kala Jadu Wala. Atiq

Ahmed passed on the address of Deepak's parents and the facts to Jagdish

Saran, Manager, Vishal Samaz Vikas Sansthan, Civil Lines, Rampur who in

turn informed the ACP Crime Branch Delhi. Pursuant thereto Deepak's father

along with the Police party, Jagdish Saran and Atiq Ahmed recovered Deepak

from the custody of the appellant Mohd. Khalid. Deepak was brought to

Delhi and his MLC Ex. PW8/A was prepared by Dr. Zothuamluam at GTB

Hospital, Shahdara. Deepak and other witnesses were examined and after the

examination of the accused under Section 313 Cr.P.C., the Appellant was

convicted and sentenced as above.

3. The present appeal was filed belatedly when he had undergone the

substantive sentence and was undergoing sentence in default of payment of

fine. The Appellant who was present on production on all dates of hearing at

the outset stated that the Appellant had already undergone his substantive

sentence and the sentence in default of payment of fine was also going to be

complete shortly and, thus, he does not want to pursue the present appeal.

However, a notice of enhancement of sentence under Section 365/367 IPC

was issued to the Appellant by this Court vide order dated 4th October, 2010.

As regards notice of enhancement a reply has been filed stating that the

ingredients of the offences alleged are not made out and there are material

inconsistencies in the testimony of the witnesses. The alleged stupefying

substance has not been recovered nor identified. The missing report was filed

by the father belatedly as Deepak had allegedly gone missing on 3rd

November, 2005. However, the missing report was lodged only on 30 th

November, 2005. There are inconsistencies in the evidence of recovery of

PW1 Deepak. As per the MLC of PW1 the injuries were allegedly inflicted

three days ago and were caused by blunt object. The prosecution has not been

able to establish that the alleged injuries were caused by the Appellant. The

recovery memo of Deepak Ex.PW3/A is dated 14th August 2006 whereas

MLC of Deepak is dated 13th August, 2006. There are cuttings also in the

MLC which have not been initialed. The entire version of the prosecution

seems suspect. Relying on Bed Raj Vs. State of Uttar Pradesh AIR 1955 SC

778 it is contended that the enhancement of sentence should be resorted to

only if the sentence imposed is grossly inadequate.

4. Learned APP on the other hand contends that the statement of PW1

clearly implicates the Appellant. PW1 Deepak told about his harassment to

PW4 Atiq Ahmed who has supported his version. Not only in the MLC but

even while recording the statement of PW1 the Learned Metropolitan

Magistrate has observed the injuries on the person of PW1. The discrepancy

in the date on the MLC is inconsequential and the same is in a separate hand-

writing and thus a typographical error. The MLC could not have been dated

13th August, 2006 as the child was recovered on 14th August, 2006, which is

the consistent statement of all the witnesses. In view of the treatment meted

out to a small child PW1, the sentence awarded by the Learned Additional

Sessions Judge was highly inadequate and calls for interference by this Court.

5. I have heard learned counsel for the parties and perused the record.

Learned counsel for the Appellant contends that the Appellant has already

undergone the sentence awarded to him and is now only undergoing the in

default imprisonment which is also going to end shortly. The issue which

remains to be dealt in the present appeal is whether there should be

enhancement of the sentence awarded to the Appellant. PW 1 Deepak was

abducted and wrongfully confined by the Appellant on the 3rd November,

2005. He has stated that on the day of incident, he had gone to see the Mela

without informing his parents about the same and fascinated by a magic stall

he kept on standing there without noticing that public had withered away.

Thereafter, the Appellant dragged him inside the stall and put a handkerchief

on his mouth as a result of which he became unconscious and from there he

was taken to Tighri Garh, U.P. Appellant forced him to learn magic and line

with him. This witness has stated that as and when he used to tell the

Appellant that he wants to go to his house, the Appellant used to beat him and

on one occasion he burnt him on his left shoulder. When he was taken to

Bhamrawa ka Mela, he worked there for 5-6 days and when one day he went

to the house of Pradhan of the village to fetch water, he was weeping at that

time. When the Pradhan enquired PW1 narrated the entire facts before him

and gave his postal address to him. From there he was taken to village Juthia.

He was made to live in that village one or two days. In the village, his father

reached there with the police and he along with Mohd. Khalid were brought to

Delhi. This witness has further stated that the accused used to beat him badly

almost everyday. In his cross-examination, PW1 has stated that since the

native of the village of the accused were there in the village, he had not made

any complaint to any one in village Juthia. PW4 Atiq Ahmed, who was the

Pradhan of village Bhamrawa since 2005, has stated that on 7th August, 2006

during evening hours a boy came to a public hydrant in front of his house to

fetch water. The other children who were present in front of his house to

fetch water brought that boy before him and he told him that he was abducted

by a Kala Jadu Wala. On enquiring about his address, the boy gave the

address of some colony in Delhi. Thereafter, he narrated this incident to PW5

Jagdish Sharan who used to run an organization named Vishal Samaj Vikas

Sansthan and wrote a letter at the address given by that boy. This testimony

of PW4 is duly corroborated by the testimony of PW5 Jagdish Sharan who has

deposed that PW4 had told him about the fact that one child who hails from

Delhi has been confined by a person who shows Kala Jadu. PW4 also told

him that the boy Deepak was present at village Bhambura & was a resident of

a colony, near Bhajanpura, Delhi After recording the said facts he sent a fax

message to ACP Crime Branch, Delhi. On the night of 13th August 2006 the

Police reached his house. From the testimony of PW4 and PW5 it is clear that

the police reached at the house of PW5 on 13 th August, 2006 who took them

to the house of PW4 where they came to know that the boy was in village

Jhuthia. PW4 and PW5 accompanied the police and the father of PW1 to

village Jhuthia and Deepak was recovered from near a hand pump. Appellant

Mohd. Khalid was also present. Thereafter Deepak & Mohd. Khalid were

brought to Delhi. Thus I find no force in the contention of the learned counsel

for the Appellant that there is discrepancy in the date recorded on the MLC

and as to when and how Deepak was recovered from village Jhuthia.

6. Learned counsel for the Appellant has relied upon the decision of

Hon'ble Supreme Court in Bed Raj vs. State of U.P. AIR 1955 SC 778 Their

Lordships in the said case have held that ordinarily there should not be

interference when the sentence passed imposes substantial punishment.

Interference is only called for when it is manifestly inadequate.

7. In the present case, a perusal of the MLC Ex. PW8/A shows abrasions

on the body of the victim and the object used for causing such bodily injuries

to PW1 was a blunt object. Learned Trial Court after appreciating the

evidence, sentenced the Appellant as mentioned above, which he has already

undergone and is now undergoing the sentence in default of payment of fine.

The mitigating facts considered by the learned trial Court were the young age

of the Appellant and that he was not involved in any criminal case earlier.

Though the learned Trial Court held that the facts make out an alarming

offence and thus no case is made out to deal with the Appellant leniently or

release him on probation, but still it awarded him sentence of Rigorous

Imprisonment for four years. Though while exercising the discretion, the

Trial Court on the facts of the case could have awarded a more severe

sentence, however it cannot be held that the learned Trial Court awarded

grossly inadequate sentence. As held by the Hon'ble Supreme Court, this

Court will interfere in the said discretion of the Learned Trial Court only if the

sentence awarded is grossly inadequate, which is not the case in the present

appeal. Thus, keeping in view the facts and circumstances of the present case

and the law laid-down by the Hon'ble Supreme Court in Bed Raj(supra). I

find no reason to enhance the sentence of the Appellant.

8. The appeal is accordingly dismissed. The Appellant be informed

through Superintendent, Central Jail Tihar.

(MUKTA GUPTA) JUDGE JULY 6, 2011 'ga'