LIYAKATALI SHAUKTALI SAYYED Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The revision petitioner was tried for offences under Section 363, 366, 376 and 506 of I.P.C. It was alleged by the prosecution that on 21st April, 1993, he kidnapped one Miss.Tanwir with an intention to have sexual intercourse. It was also alleged that he committed raped on her and further threatened her to cause injury to her and her father. On 21st April, 1993 at about 7.00 p.m., Tanwir Banu, her cousin brother and sister left the house for Bakarkasai Masjid for joining Mahfil. At about 8.30 p.m. they came out of Masjid in order to go to their home. The revision petitioner was stated to have taken away Tanwir Banu on bicycle to a canal. Thereafter he took her to Swargate S.T.stand. He had made Tanwir Banu, who is 8 years of age, to sit in the bus. The conductor noticed the lonely child sitting in the bus and took her to the control room. The parents of the child were called. In the meantime, the parents have also been told that Tanwir had been taken away by one black complexion person. After searching for the child, the parents made report to Padmaji Police Chowky. F.I.R. was registered for kidnapping. Thereafter the child was taken to the hospital, where she was medically examined. The doctor opined that there was evidence suggesting forcible sexual intercourse. The petitioner was arrested on 22nd April, 1993. After investigation, the accused was charged with the aforesaid offences. On committal, the charges were framed against the petitioner under Section 363, 366,376 and 506 of I.P.C. The petitioner denied the whole offences. The defence put forward was that the petitioner had not been correctly recognised. It was also stated that the petitioner has been falsely implicated at the instance of the father of the child to take revenge. This was stated as the petitioner is said to have demanded salary from the father of the child. Since the salary was not paid, there was stated to be a dispute between the petitioner and the father. The prosecution had, however, dropped the charge under Section 376 of I.P.C. On examining the entire matter, the trial Court has come to the conclusion that the offence under Section 363 of the I.P.C. has been proved against the petitioner. Having convicted the petitioner, the trial Court also heard the petitioner on the question of sentence. It was submitted that the accused was below the age of 21 years at the time of commission of offence. He is a first offender. He is the only earning member in his family and therefore, it was prayed that the accused be released on the bond of good behavior. It was also argued that if the petitioner is sent to jail, he is likely to become a hardened criminal. Two authorities were also cited before the learned trial court to the effect that when the accused was below 21 years of age and was convicted under Section 411 I.P.C., he ought to be given benefit of mandatory provisions of Section 360. The other authority Satara Masiah vs. State, 1982 CrLJ 2246 was to the effect that "When a young man is convicted with no shady antecedents or previous conviction, then the accused must be released on probation." The learned trial Court considered all the aforesaid submissions and observed as follows :

(2.) In view of the above, the trial court sentenced the petitioner to suffer S.I. for two years and to pay a fine of Rs.500/- in default, to suffer S.I. for two months. The petitioner was, however, acquitted of the offences under Section 366, 376 and 506 of I.P.C. The petitioner carried the matter in appeal being Criminal Appeal No.230 of 1994. The said appeal has dismissed by the Addl. Sessions Judge, Pune on 4th March, 1998. The lower appellate Court examined the whole matter a fresh. The learned appellate Court observed that there is no reason for the minor girl to tell the name of the accused falsely. It is further observed that the accused was doing some job under the father of the child and therefore, she was knowing the accused and hence, she had no hesitation to go with the accused, when he told that she has been called by her father and that his uncle was beating somebody. The learned Judge further observed that although there are material contradictions and omissions in the evidence, the same are not relevant on the point of taking away the child by the accused. The learned Judge also observed that the child never made any false statement about the petitioner having raped her. If she had been interested in falsely implicating the accused, then she would have also stated about commission of rape by the accused. After considering all the relevant materials, the appeal against conviction has been dismissed. It has been held that "in view of all the above facts and circumstances of the case, in my opinion, the evidence the prosecution has brought sufficient cogent evidence on record to prove that on the date of incident, the accused took away the minor girl aged 8 years by name Tanwir Banu out of lawful guardianship of her parents, and thereby committed an offence of kidnapping punishable u/s. 363 of the I.P.C." The learned appellate Court also held that the sentence imposed on the petitioner is not excessive and is justifiable.

(3.) The counsel for the petitioner vehemently argues that both the Courts have erred in law in returning the verdict of guilt against the petitioner. He points out to the various discrepancies in the evidence of the prosecution. I am not at all impressed with the so called discrepancies in the prosecution evidence. When examining the evidence given by the child, the courts have to keep in mind the total non-maliciousness of a child's mind. This has been amply proved in the present case. Although the medical evidence goes to show signs of forcible sexual intercourse, but the minor never made any false allegations against the petitioner. This point has been rightly considered by both the courts below. It is also to be seen that admittedly, the petitioner was working as a servant with the father of the child. It would be, therefore, but natural for the child to accompany the petitioner on being requested to do so. Had it been a stranger, it would be wholly un-natural for the child to accompany the said person. The petitioner himself has admitted that he was working as a servant for the father of the child. It is the pleaded case of the petitioner that there was a dispute between the petitioner and the father of the child. In these circumstances, I do not think that the prosecution case was at all in-natural or un-trustworthy. I do not find any reason to interfere with the conviction recorded by both the courts below. On the question of sentence, it is true that whilst exercising its power to release a person on probation, the age of the accused person is relevant. It is also relevant to take into account as to whether or not there are previous antecedents. But on the other hand, it is also relevant to keep in mind the facts and circumstances in which the offence has been committed. In the present case, the Court cannot overemphasize the fact that the petitioner has been found guilty of abducting/kidnapping an innocent 8 years old child. What psychological impact it will have on the child throughout her life cannot possibly be gauged at this stage. The petitioner acted in pre-mediated manner. The crime was committed after planning the operation. The parents of the child were put to utmost misery until the child was found safe and sound. The other reasons given for the release of the petitioner on probation is that if such person is put on jail custody, he is likely to become a hardened criminal. In my opinion, this kind of pseudo intellectual argument merits outright rejection in the facts and circumstances of this case. A person who can plan the kidnapping of an eight year old child for wrecking vendetta on her father can hardly claim to be the type of young person, who is to be given the protection of Probation of Offenders Act. It is to be observed that admittedly, the petitioner at the time of commission of the offence was over 20 years of age. Merely because an accused person happens to be technically below the age of 21 years of age cannot automatically gives a right to the convict to be treated as a minor, eligible for the benefit of Probation of Offenders Act. Both the Courts below have recorded valid reason for not giving the benefit of probation to the petitioner as required under Section 361 of Cr. P.C.