STATE OF GUJARAT Vs. MANDAN @ SADHU SEVADAS

JUDGEMENT

(1.) State has preferred this appeal against the order of acquittal recorded by Assistant Sessions Judge, Junagadh in Sessions Case No. 39 of 1996 on 5.5.1997.

(2.) The respondent-accused was tried for offences punishable under Section 363 (c) and 325 of the Indian Penal Code on the allegation that four years prior to 17.10.1995, the complainant's maternal uncle's son Rizwan aged about 12 years was kidnapped, a fracture was caused on his left hand and he was engaged for begging at different places. His name was given as Kalu Mandan. The complaint was initially registered at Mangrol Police Station which was forwarded to Okha Police Station for investigation. On completion of investigation, charge sheet came to be filed and the case was committed to the Court of Sessions on 22.2.1996. The accused pleaded not guilty and contended that he is entirely innocent.

(3.) It appears that the complainant Imthiyas Gulam Hussien disclosed before the Court that one of his friends conveyed information that Rizwan was seen begging at Okha. On receipt of this information, the complainant went to Okha Police Station and found that Rizwan was there and the person who kidnapped Rizwan was also there. It appears that in the police station, on inquiry, Rizwan stated that he was beaten and his left hand was fractured. In the cross examination, the complainant has stated that Rizwan used to come at any time and used to go at any time and in the past, and thrice such incident, i.e. leaving the house and staying away without conveying information, took place. In the cross examination, he has further admitted that Rizwan was mentally abnormal. Complaint was not given to the police though he was missing. He further stated that because of his mental condition he used to move with anyone. Even in Okha Police Station, when Rizwan was questioned, he was not answering correctly. One Atlaf Ibrahim, Exh.23, conveyed information to Hanifbhai that he has seen one boy begging with one "Bavaji", but in the cross examination he has stated that he has never seen the accused begging and he is seeing the accused for the first time. It is admitted by Gulam Hussien PW.4 Exh.16 and Mohammad Rafiq PW.5 that Rizwan was mentally abnormal. It appears that before the Court, no birth certificate or ration card was produced. It is also admitted that near relatives of Rizwan are not taking responsibility and many other relatives of Rizwan are staying at Mangrol. It is also not known where Rizwan was at the time when the case was being heard. It further appears that because of his mental abnormality, Rizwan was not in a position to give correct answers. This is the sum and substance of the prosecution case.