Judgment reserved on 9.1.2019 Judgment delivered on 31.1.2019
Court No. - 50
Case :- JAIL APPEAL No. - 1602 of 2014 Appellant :- Satish Respondent :- State Of U.P.
Counsel for Appellant :- From Jail,Swetashwa Agarwal(A.C.) Counsel for Respondent :- A.G.A.
Hon'ble Aniruddha Singh,J.
1. Heard Sri Swetashwa Agarwal, learned Amicus Curiae as well as Sri P.K. Srivastava, learned AGA for the State and perused the record.
2. This jail appeal has been preferred from District jail, Saharanpur through Senior Superintendent of Jail, Saharanpur by appellant Satish against judgment and order dated 20.7.2012 passed by Additional Sessions Judge, Court No.9, Saharanpur in S.T. No. 537 of 2011 arising out of Case Crime No. 205 of 2011, Police Station Behat, District Saharanpur whereby appellant Satish was convicted under sections 342 and 363-A IPC and sentenced to one year's rigorous imprisonment with fine of Rs.1000/-, in default in payment of fine, one month's additional imprisonment under section 342 IPC and ten years' rigorous imprisonment with fine of Rs.50,000/-, in default in payment of fine, one year's additional imprisonment under section 363-A IPC. All the sentences to run concurrently and sentence served out, be adjusted in the sentence awarded by the Court. He has been acquitted under Section 364 IPC.
3. According to prosecution case, FIR was lodged against unknown person alleging that on 8.6.2011 at 1:30 P.M. two sons of complainant namely, Ubaid(7 years) and Shibli Ahmad(4 years) were missing. Missing report was reported to the police station concerned on 10.6.2011 at 3:30 P.M. Later on, case was converted under section 364 IPC on 13.6.2011. Subsequently, on 13.7.2011 Ubaid was recovered from the possession of appellant from Tea Stall and at the pointing out of appellant, seven other children were also recovered from Balmiki Temple near railway station of Saharanpur.
4. After investigation, charge sheet was submitted against the appellant on 22.7.2011 under section 363-A, 342, 364 IPC. Case was committed to the Court of Sessions for trial. Charges were framed. The appellant pleaded not guilty and claimed for trial. The prosecution examined five witnesses, P.W.1 Abdul Rehman(complainant and father of abductee), P.W.2 Ubaid (abductee himself), P.W.3 Sultan Ahmad(uncle of the abductee), P.W.4 SI Itwari Lal(I.O.), P.W.5 Constable Gajraj Singh.
5. Statement of accused was recorded under section 313 Cr.P.C.. He pleaded not guilty and stated that he has been falsely implicated but produced no witness in defence.
6. After hearing learned counsel for the appellant and Government Counsel, impugned judgment & order was passed. Hence this appeal.
7. Learned Amicus Curiae submitted that the impugned judgment and order is against facts and law. On the date of incident i.e. 8.6.2011, the appellant was in jail. He came out from jail on 9.6.2011. Hence there is no question of involvement of the appellant in this case. Learned Amicus Curiae further submitted that there is no evidence of kidnapping or abduction(so-called abductee) on record. There is no independent witness to prove the prosecution case as stated in the FIR. There is neither evidence of begging nor any evidence of using force for begging against the appellant. Another child of complainant was recovered at the railway station on 6.7.2011 who was selling 'gola' in the field of Yusuf. The FIR was lodged after two days and delay has not been properly explained. Other recovered children are not connected with any crime. The appellant is languishing in jail since 13.7.2011(seven years and six months). Hence, lenient view may be taken.
8. Sri P.K. Srivastava, learned AGA submitted that there is no illegality in the judgment. He further submitted that delay in filing FIR has properly been explained as the complainant was busy in searching his missing sons. The recovery of abductee and 7 other children was made from the possession of the appellant.
9. Question is whether the charges levelled against the appellant under Section 342 and 363-A IPC have been proved beyond reasonable doubt or not.
10. Word 'proved' is defined under Section 3 of Evidence Act as under:-
"Proved".-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
11. The question is whether a prudent man under these circumstances can believe that the facts deposed by the witnesses do exist beyond reasonable doubt.
12. From perusal of record, it transpires that Ubaid and Shibli Hammad (sons of complainant) were missing from his house on 8.6.2011 and missing report was registered in police station on 10.6.2011. One son namely, Shibli Hammad who was four years of age, came back. Ubaid was recovered from the possession of appellant on 13.7.2011 after one month and five days of incident. Ubaid was examined before the Court as P.W.-2. Before recording the statement, he was examined by the Presiding Officer/Officer of Court concerned to test his veracity whether he was able to give evidence or not and he found fit, thereafter the statement of Ubaid was recorded. Hence, it is very clear that at the time of recording statement as well as at the time of missing and recovery, P.W.-2 was minor. P.W.-2 clearly stated in his statement before the Court that he with his younger brother went to the station due to fear of study as they were not interested in studies. He identified the appellant and stated that they met with the appellant and he captured both. Later on, his brother who was aged 4 years started weeping, so he released his younger brother but not Ubaid. The appellant tortured him to beg in night with other children and compelled for committing theft and when he denied, he assaulted him by cutting with blade and keys on his face. He clearly stated that name of Ubaid was also changed by appellant as 'Rahul'. Hence 7-8 years old child has clearly stated against the appellant stating therein what was done with him. There is no enmity or relation between P.W.2 and the appellant and he is also culprit in the case. Hence, evidence of P.W.2 Ubaid cannot be disbelieved on any ground.
13. P.W.1 Abdul Rehman is father of P.W.2 Ubaid. He clearly stated in his statement that his two children were missing, one Shibli came back to home. He was found at the railway station, Saharanpur. When this fact came to the knowledge of P.W.-1 by some persons, he alongwith police personnels went to the police station and received his son. Later on, P.W.-2 abductee was recovered on 13.7.2011 in presence of P.W.-1, P.W.-3 Sultan Ahmad and police personnel from the possession of appellant. Recovery Memo (Ferd) was prepared and proved before the Court. Hence recovery of Ubaid from the possession of appellant is also proved beyond reasonable doubt. On this issue, it is also pertinent to mention here that there is no enmity between the appellant and P.W.-1 and P.W.-3. Hence, statement of P.W.-1 and P.W.3 cannot be disbelieved on any ground. P.W.-3 Sultan Ahmad was also present at the time recovery of P.W.2 from the possession of appellant as P.W.3 stated in his statement before the trial Court.
14. P.W.4 SI Itwari Lal has clearly stated in his statement that P.W.2 was recovered from the possession of appellant with seven other children and they were given in the custody(supurdagi) of Superintendent of Child Home and Ext. Ka-8 was prepared on this issue. This fact is also proved beyond reasonable doubt that seven other children were also recovered from the possession of appellant and sent to Child Home and they were also compelled by the appellant for begging and committing theft; after recovery, police had no option except to send them to Child Home because guardians of seven children were not known to the police. P.W.-4 SI Itwari Lal has also proved Exhibit Ka-8 which is the memo by which seven children were given in custody of Child Home. Name of seven children were Sanjay, Sumit, Mintoo, Mohd. Kasim, Sonu, Kishan and Mohd. Aamir. This fact is also corroborated by evidence of statement of P.W.-2, P.W.-1 and P.W.-3. Hence this fact has been proved against the appellant beyond reasonable doubt.
15. In defence, after statement recorded under section 313 Cr.P.C., no evidence was produced by the appellant. If these facts were wrongly shown by the prosecution, the appellant was in option to claim for production of children stating that they were not misused by him and not recoverd from his possession.
16. Other witnesses have proved all relevant documents prepared by the prosecution. They are public servants and work done by them was in discharge of their official duty and unless and otherwise it is proved, there was no reason to falsely implicate the appellant, the statement of Government servants cannot be disbelieved. Statements of witnesses are corroborated by the documents prepared during investigation.
17. The appellant has been convicted under Section 342 and 363-A IPC. Both the Sections are quoted below:-
“342. Punishment for wrongful confinement.—Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.”
“363A. Kidnapping or maiming a minor for purposes of begging.—
(1) Whoever kidnaps any minor or, not being the lawful guardian of a minor, obtains the custody of the minor, in order that such minor may be employed or used for the purpose of begging shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
(2) Whoever maims any minor in order that such minor may be employed or used for the purposes of begging shall be punishable with imprisonment for life, and shall also be liable to fine.
(3) Where any person, not being the lawful guardian of a minor, employs or uses such minor for the purposes of begging, it shall be presumed, unless the contrary is proved, that he kidnapped or otherwise obtained the custody of that minor in order that the minor might be employed or used for the purposes of begging.”
18. Sub Section(4) of Section 363-A IPC defining 'begging' is reproduced below:-
“(4) In this section,—
(a) ‘begging’ means—
(i) soliciting or receiving alms in a public place, whether under the pretence of singing, dancing, fortune-telling, performing tricks or selling articles or otherwise;
(ii) entering on any private premises for the purpose of soliciting or receiving alms;
(iii) exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal;
(iv) using a minor as an exhibit for the purpose of soliciting or receiving alms;”
19. Minor is also defined in this Section which is reproduced below:- "(b) ‘minor’ means—
(i) in the case of a male, a person under sixteen years of age; and
(ii) in the case of a female, a person under eighteen years of age.]”
20. From perusal of Section 363-A IPC, begging covers pretence of singing, dancing, fortune-telling, performing tricks or selling articles or otherwise. From perusal of Sub Section (1), (2),(3), & (4) of Section 363-A IPC and from perusal of evidence produced by P.W.-2, it is very clear that the act of begging was done by P.W.-2 on direction of appellant.
21. It is clearly defined in sub section (4) of Section 363-A IPC that in case of male, a person under sixteen years of age and in case of a female, a person under eighteen years of age is minor. From perusal of evidence adduced by the prosecution, it is proved beyond reasonable doubt that seven children and Ubaid were under 16 years of age and Ubaid was 7-8 years of age. Contrary to evidence of P.W.-1, P.W.-2 and P.W.-3, no evidence was adduced about the age of abductee before the trial Court as well as before this Court. Hence this Court finds that charge under Section 363-A IPC levelled against the appellant is proved beyond reasonable doubt.
22. Clause (3) of Section 363-A IPC provides presumption against the accused appellant. If any person employs or uses a minor for the purposes of begging, it shall be presumed that he has kidnapped or otherwise obtained the custody of that minor in order that minor might be employed or used for the purposes of begging.
23. So far as Section 342 IPC is concerned, it relates to wrongful confinement which is defined under Section 340 IPC. Section 340 IPC is quoted below:-
“Section 340 Wrongful confinement.-Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said “wrongfully to confine” that person.”
24. Section 340 IPC clearly denotes that one who wrongfully restrains any person from proceeding beyond certain circumscribing limits, commits offence of wrongful confinement.
25. As discussed above, it is also proved beyond reasonable doubt that P.W.-2 Ubaid has been confined wrongfully by the appellant for the purposes as stated above. Hence offence under Section 342 IPC is also proved against the appellant beyond reasonable doubt. Arguments of learned counsel for the appellant are found baseless and without merit.
26. So far as question of independent witness is concerned, in these types of cases, nobody comes forward to give evidence due to fear of enmity etc. There is sufficient evidence of compelling for begging. Delay of two days in lodging FIR has been properly explained. P.W. 2 Ubaid was recovered on 13.7.2011 after one month and five days of incident and was restrained by the appellant in his custody for one month and five days. Hence delay in lodging FIR about missing of P.W.-2 Ubaid is immaterial. All witnesses i.e. P.W.-1, P.W.-2 and P.W.-
3 are independent witnesses and evidence of P.W.-1, P.W.-2 and P.W.-3 are fully reliable.
27. Section 363-A IPC was inserted in the year 1959 and the object and reason of adding this section was “to put down effectively the evil of kidnapping of children for exploiting them for begging, the provisions existing in the Indian Penal Code are not quite adequate. There is also no special provision for deterrent punishment for the greater evil of maiming of children so as to make them objects of pity. This section makes kidnapping or obtaining custody of a minor, and the maiming of a minor for employing him for begging, specific offences and provides for deterrent punishment.
28. In the case of Syad Akbar v. State of Karnataka, AIR 1979 SC 1848 Hon'ble Supreme Court has observed that “there is no such discretion in case of presumption of law. While the presumption of fact merely affects the burden of going forward with the evidence,presumption of law go so far as to shift the legal burden of proof so that in the absence of evidence sufficient to rebut it on a balance of probability a verdict must be directed.”
29. In this case under Section 363-A IPC, presumption will be against the appellant and burden lies upon the appellant to prove his innocence otherwise use of such minor for the purposes of begging be presumed. This burden was not discharged by the appellant. Therefore, he is guilty of offence under Section 363-A IPC and liable to be sentenced accordingly.
30. View taken by the trial Court is possible view, hence no interference is called for in appeal on the point of conviction. In the above backdrop, this Court finds that the appeal is liable to be dismissed on the point of conviction. Hence dismissed on the point of conviction.
31. Learned counsel for the appellant further submitted that amount of fine i.e. Rs.50,000/- imposed under Section 363-A IPC, is arbitrary and without reason.
32. From perusal of Section 363-A IPC, it is clear that no minimum fine has been prescribed and this Court finds that fine be awarded in proportionate of the offence and should not be arbitrary; and it would meet the ends of justice if awarded fine is reduced from Rs.50,000/- to Rs.5000/-(Rupees five thousand) and in case of default to deposit, three months' additional simple imprisonment. The fine under Section 363-A IPC is reduced accordingly. Rest of the judgment and order dated 20.7.2012 on the point of conviction and sentence shall remain intact.
33. Appellant Satish shall be released forthwith after his serving out sentence awarded by the Court if he is not wanted in any other case. He is languishing in jail since 13.7.2011 as stated by learned Amicus Curiae. The appeal is partly allowed.
34. Let Sri Swetashwa Agarwal, Amicus Curiae be paid Rs.7,000/- by the Registry of this High Court within two months.
35 Copy of this judgment be also supplied to the accused appellant through the concerned Superintendent of Jail.
36. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record.
Order Date :- 31.1.2019 P.P.