RAM RATAN Vs. STATE

JUDGEMENT

(1.) RATAN, aged about 30 years, resident of village Mahmoodpur within police station Bhuta, district Bareilly has been convicted and sentenced under Secs. 365 and 343 I. P. C. to undergo R. I. for 3 years and one year respectively. The sentences have been made to run concurrently. Facts of this case are rather peculiar. Bisheshwar Singh (P. W. 1) is a lawyer and lives in the town of Bareilly. Raj Kishan Singh is his son. Sandeep Kumar Singh alias Deepak, a child of about 6 years (P. W. 3) is son of Raj Kishan Singh. All these persons used to live together. Sandeep Kumar Singh was a student in Shishu Vidya Mandir at a short distance from the house of Bisheshwar Singh. Ram RATAN was in the services of Bisheshwar Singh from some years before November 1971. Smt. Laxmi (D. W. 1) was wife of one Nathu. She had a son from Nathu. Ram RATAN took her fro n Nathu on giving some money. Smt. Laxmi and her son also used to live with the appellant at the house of Bisheshwar Singh. On 9-11-1971 the appellant took Sandeep Kumar Singh to his school at about 10 a.m. and then he took him away to his village Mahmoodpur. Sandeep Kumar Singh, therefore, did not return to his house. Bisheshwar Singh came to know that he was not in his school and that Ram RATAN was also not there. On that day at 10-35 p m. Bisheshwar Singh informed the police. Jaipal Singh, Head constable (P. W. 5) made an entry about it in the general diary. Bisheshwar Singh then tried to find out his grand son and the appellant. At last on 14-11-1971 Bisheshwar Singh along with members of his family, Nandey Singh, his Thanath (P. W. 2) and Smt. Laxmi went to Mahmoodpur. The appellant handed over Sandeep Kumar Singh in a grove of his village and took away Smt. Laxmi and her son. Two documents came into existence. One was given to Ram RATAN and another one Ex. Ka. 1 was given to Bisheshwar Singh. In this document it was stated that Bisheshwar Singh had lodged a false report against the appellant, that the boy was found at the place of his maternal grand father Pooran Singh that he had handed over Smt. Laxmi and her son to Ram RATAN and that there was no more any dispute between the parties. On 17-11-1971 at 6.30 p.m. Raj Singh S. I. (P.W. 6) got a report prepared at the police station Baradari, Bareilly. This report gave rise to this case. Defence of the appellant was that the appellant had not taken away Sandeep Kumar Singh as alleged, that he had left the service of Bisheshwar Singh and taken away his wife, and therefore he had falsely impliscated in this case. The prosecution examined Bisheshwar Singh, Nanday Singh and Sandeep Kumar Singh (P. Ws. 1 to 3). On the other side, the appellant examined Smt, Laxmi, Kailash Narain and Ganga Ram (D. Ws. 1 to 3). On an appraisal of the material on record the 111 Addl. Sessions Judge, Bareilly convicted the appellant under Secs. 365 and 343 I.P.C. The learned counsel for the appellant has urged that the appellant can only be said to have committed an offence under Sec. 363 I.P.C. and that he cannot be said to have committed the offences under Secs. 365 and 343 I.P.C, Record has been examined carefully with the assistance of the learned counsel for the appellant and the learned counsel for the State. Section 365 punishes a person who kidnaps any person with intent to cause that person to be secretly and wrongfully confined. Section 343 punishes a person who wrongfully confines any person for 3 days or more. Thus the essence of both the offences under Secs. 365 and 343 is wrongful confinement. Expression "wrongful confinement" has been defined in Sec. 340 in this way : whoever wrongfully sestrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said "wrongfully to confine" that person. Thus "wrongful restraint" is the main ingredient of the offence of wrongful confinement. Expression "wrongful restraint" has beed defined in Sec. 339 in this way whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said "wrongfully to restrain that person." In the present case the evidence of Sandeep Kumar is that he was taken away from his school by the appellant to his village. There is nothing in his statement to show that he wanted to go to his father or grand-father's house from his school or from the village of the appellant. The appellant admittedly did not assault him any way. There is also nothing to show that he was badly treated or confined in any room or kotha. There were some women at the house of the appellant in which Sandeep Kumar Singh was kept by the appellant. In these circumstances the ingredients of wrongful restraint are not at all made out. In the result, the appellant cannot appropriately be convicted for the offence punishable under Sections 365 and 343 I. P. C. The prosecution evidence, however, clearly makes out an offence of kidnapping from the lawful guardianship punishable under Sec. 363 I.P.C. Therefore, the contention of the appellants counsel is well founded. The appellants' counsel has then contended that the appellant should not be sent to jail and that some fine be imposed on him. The occurrence took place about 8 years ago, Document. Ex. Ka. I clearly snows that the parties had compromised the matter, The appellant handed over the child Bisheshwar Singh and took away his wife Smt. Laxmi and her son. It appears that thare was some dispute between the parties about Smt. Laxmi and, therefore, the appellant took away Sandeep Kumar Singh. His action cannot be said to be legally justified. He should have taken recourse to law to take away Smt. Laxmi from the house of Bisheshwar Singh. In fact the intention of the appellant was to obtain his wife Smt. Laxmi from the place of Bisheshwar Singh. In these circumstances, there is ample justification in the suggestion of the appellants counsel. The appellant was convicted by the II Additional Sessions Judge on 7-12-1974. He was granted bail by this court on 10-2-1975. Thus the appellant remained in jail atleast for two months. Taking into consideration all that has been discussed above, ends of justice will be met if the appellant is sentenced under Section 363 I.P.C. to the period of imprisonment already undergone and to pay a fine of Rs. 500/-. Appeal is allowed in this way that the conviction and sentence of the appellant under Secs. 365 and 343 I.P.C. recorded by the II Additional Sessions Judge Bareilly on 7-12-1974 are set aside; instead the appellant is convicted under Sec. 363 I. P. C. and sentenced to imprisonment already undergone and to pay a fine of Rs. 500/-. The appellant is allowed 3 months time from this day to deposit the amount of fine in the court below. In default of payment of fine he will undergo R. I. for one year. The appellant is on bail. His bail bonds shall stand discharged after the amount of fine has been deposited by him in the court below. A copy of this order shall immediately be sent to the court below.