Ghanshyam Panjiyar vs State of Bihar

S.N. Jha and Rajendra Prasad, JJ.—The sole appellant in this appeal has been convicted under Sections 363 and 364 off the Indian Penal Code. For the offence u/s 364 of the Penal Code he has been awarded sentence of imprisonment for life. No separate sentence has been awarded u/s 363 of the Penal Code.

On 31.7.1990 Jugal Kishore Mahtha (hereinafter referred to as ''the informant''), resident of Gandhi Chauk Baluwa Chatti, Madhubani lodged written report at the Madhubani Police Station stating that his daughters, Rekha Kumari, Sulekha Kumari and, Sunaina Kumari were students of Primary School, Gandhi Chauk, Madhubani. A day earlier on 30.7.1990 they went to the school to attend the classes. Rekha did not return from the school. Sulekha and Sunaina informed him that Ghanshyam Panjiar i.e. the appellant herein, had taken Rekha Kumari to Suri School. The informant went to meet the appellant in the lodge where he lived. He did not find him there. He came to know from his maternal uncle that the appellant along with a friend had gone to Janakpur - Kathmandu in Nepal. Thinking that Rekha Kumari had been kidnapped by the appellant he went to the police station and lodged the written report as aforesaid.

On the basis of the said report Madhubani PS Case No. 225/90 was registered and the investigation commenced at the end of which the police submitted charge-sheet against the appellant and he was thus put on trial. It is relevant to mention here that the case was initially committed to the Court of Session for trial u/s 366A, IPC. The trial Court however, took the view that the facts made out a case u/s 363 of the Penal Code which is not exclusively triable by Court of session and accordingly he sent the records back for trial by the Chief Judicial Magistrate. The Chief Judicial Magistrate took up the trial and proceeded to examine witnesses. In course of examination of witnesses, application was filed on behalf of the prosecution to commit the case to the Court of Session as the evidence on record also disclosed commission of offence u/s 364 of the Penal Code. On 24.5.1995 the Chief Judicial Magistrate rejected the application. The prosecution went up to the Sessions Judge in revision (Cr. Rev. No. 724/95). By order dated 23.11.1995 the Sessions Judge, Madhubani set aside the said order of the Chief Judicial Magistrate dated 24.5.1995 directing him to pass a fresh order. The Sessions Judge observed that if the Chief Judicial Magistrate finds that on materials available on record, a case u/s 364, IPC is made out, he may pass order committing the case to the Court of Session. The case was thereafter committed to the Court of Session and the trial commenced before the Sessions Court.

At the stage of trial the prosecution examined nine witnesses to prove its case out of whom PW 1 Ram Bahadur Thakur, PW 2 Ramdeo Panjiyar and PW 7 Shambhu Panjiyar turned hostile and did not support the prosecution case. It is relevant to mention here that all the three witnesses belonged to the village of the appellant, namely, Narsam. Amongst the remaining witnesses, PW 3 Raj Kumar Sah was examined on the point that the appellant was studying at Madhubani, PW 4 Ram Narayan Yadav was examined on the point of appellant''s status as a well-to-do person. PW 5 Surya Narayan Mahtha, having a homeopathic medicine shop near the school in question stated that the children of the informant had stayed at his shop for some time on the fateful day as the main gate of the school was closed. PW 6 Ram Sharan Mahtha, brother of the informant, was examined as hearsay witness on the point of kidnapping, PW 8 Sunaina Kumari daughter of the informant, as seen above, had accompanied the victim to the school. PW 9, Yugal Kishore Mahtha is the informant himself.

The appellant also examined two witnesses in his defence, DW 1 Manoj Kumar Raut stated that the appellant did not go to Kathmandu as claimed by the prosecution. About him, it may be stated at this stage itself that he was cited as charge-sheet witness but not examined by the prosecution. The other defence witness, DW 2 Bhavnath Thakur, proved certain documents.

From the brief introduction of the prosecution witnesses, it would appear that the material witnesses in this case are PW 5 Surya Narayan Mahtha and PW 8 Sunaina Kumari. Though PW 6 Ram Sharan Mahtha was a family member, his evidence is based'' on hearsay and therefore is of little help to the prosecution on the point of kidnapping. The evidence of PW 9 the informant himself also, as seen above, is based on hearsay from Sunaina Kumari and Sulekha Kumari.

We have carefully gone through the evidence of PW 5 Surya Narayan Mahtha and PW 8 Sunaina Kumari. We find that their evidence is fully consistent with each other in all material particulars. Counsel submitted that their evidence in Court is discrepant with their statements before the police u/s 161, Cr PC. We have not been able to find any contradiction though there may be omissions. What is worth mentioning is that these witnesses were examined at the earlier trial held in the court of Chief Judicial Magistrate but no contradiction whatsoever was pointed out between their evidence at the two trials which gives rise to presumption that their evidence was same as the earlier one in the former trial.

Counsel for the appellant tried to find fault with the prosecution case submitting that the name of the appellant was disclosed at a late stage. It was pointed out that the appellant is said to be distantly related to the informant''s family and it has come in prosecution evidence that the victim knew the appellant from before but there is nothing to indicate that prior to filing the written report the informant named the appellant as responsible for the victim''s kidnapping. In this connection pointed reference was made to the fact that missing of the victim was announced on loud speaker for hours together on the next day i.e. 31.7.1990 in which the appellant''s name was not mentioned. We find the submission to be without any merit, for, the object of public announcement was to trace the missing girl and not to implicate the appellant at that stage. It was only when the endeavours to find the whereabouts of the victim proved futile that the informant disclosed the name of the appellant in the written report which he lodged in the evening.

Counsel submitted that there is no positive evidence of allurement or enticement or even threat to take away the victim. There is also no evidence that there was any love affair or animosity between the appellant and the victim and/or their families. According to the counsel the words ''takes'' and ''entices'' in Section 361 of the Penal Code should be read together to find out if the offence of kidnapping is made out or not.

Section 359 lays down that the kidnapping may be of two kinds, namely, kidnapping from India and kidnapping from lawful guardianship. Section 361 which defines kidnapping from lawful guardianship, lays down that whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to be kidnap such minor or person from lawful guardianship The explanation appended to the Section defines the term ''lawful guardian'' to include any person lawfully entrusted with the care or custody of such minor or other person. There is no dispute in the instant case that the victim was under the lawful guardianship of her father, i.e. the informant. There is further no dispute about her age as being under 18 years. The only question which thus arises for consideration is whether the appellant took away or enticed the victim from the informant''s lawful guardianship. We are unable to appreciate the submission of the counsel that the words takes'' and ''entices'' should be read together. The two words have to be understood differently to cover different situations. In other words, the offences of kidnapping is made out where a person entices any minor etc. Similarly the offence is also made out, without any enticement if he simply takes away a minor etc. The prosecution thus is not required to prove that the victim was enticed. As a matter of fact, it is not known as to whether he had practised any enticement before the victim agreed to accompany him on the fateful day. The fact remains that there is positive evidence to show that the appellant took away the victim never to return thereafter or be heard of.

PW 5 stated that he has a homeopathic medicine shop at Gandhi Chowk, Madhubani. The three girls, Rekha, Sulekha and Sunaina, came to attend their classes in the school. Finding the main gate closed, they came to his shop and sat there. After sometime Ghanshyam Panjiar came there and called Rekha and took her aside and both of them proceeded to Suri School. After sometime when school gate opened, the other two girls went inside. He closed the shop and went to house. At 4 p.m. he opened the shop again. Yugal Kishore, the informant, came to his shop and asked about the whereabouts of Rekha. He told him that Ghanshyam had taken her towards Suri School. To the same effect is the evidence of PW 8 Sunaina Kumari. She categorically stated that finding the school gate closed she and her two sisters went to the shop of Suraj Chacha. While they were sitting there Ghanshyam came from the western side and on his call Rekha went to him and together they went towards Suri School. She did not return thereafter. The evidence of the two witnesses within whose eye-sight Ghanshyam allegedly took away the victim fully tallies with each other. Their evidence leaves no room for doubt that the offence of kidnapping within the meaning of Section 363 is well proved and the conviction of the appellant thereunder thus does not require any interference.

We are however, not able to uphold the appellant''s conviction u/s 364 of the Penal Code. Section 364 envisages kidnapping or abduction of a person in order that "such person may be murdered or may be so disposed of as to be put in danger of being murdered". There is no indication, muchless any positive evidence, to show that kidnapping of the victim was in order that she may be murdered or may be so disposed as to be put in danger of being murdered. The evidence rather suggests that she was taken to Kathmandu. It is relevant to mention here that while the victim was 10 years old at the time of incident, the appellant was 17 years old. According to the prosecution case, he had planned to go to Kathmandu along with his friend. May be, he enticed the victim to accompany them to Kathmandu The prosecution case thereafter is silent and we are left guessing as to what was the motive behind but then, for such silence or absence of evidence, the prosecution would suffer and not the accused. It may be mentioned that while Section 361 read with Section 359 defines kidnapping, punishable u/s 363 of the Penal Code, the Sections following are species of the same offence covering different situations, such as, kidnapping of minor in order that such minor may be employed or used for the purpose of begging punishable u/s 363A, kidnapping in order that he may be murdered or may be so disposed as to be put in danger of being murdered punishable u/s 364, kidnapping or ransom punishable u/s 364A, kidnapping for wrongful confinement punishable u/s 365, kidnapping of a woman to compel her to marriage etc. punishable u/s 366 and so on. It is for the prosecution to prove that the kidnapping was for a definite purpose so as to bring the case under any of these Sections. As observed above, the ingredients of Section 364 are not made out in this case and therefore in the absence of any positive evidence, we are not able to uphold the conviction of the appellant u/s 364, IPC.

The question that remains for consideration is what should be sentence for the offence u/s 363. As stated at the outset, though the appellant was convicted by the trial Court for the said offence, no sentence was awarded to him thereunder. It was stated at the Bar that the appellant has remained in jail for 3 years, 7 months and 10 days, till date, including period of 3 months and 10 days during the investigation and 3 years and 4 months after conviction, during the pendency of this appeal. We are of the view, in the facts and circumstances, that sentence of imprisonment for the period already undergone would serve the ends of justice.

In view of the above discussions, the appellant''s conviction u/s 364 of the Penal Code is set aside and he is acquitted of the charge. His conviction u/s 363 of the Penal Code however, is affirmed and he is sentenced to imprisonment for the period already undergone. He is accordingly directed to be released forthwith, if not wanted in any other case.

In the result, the appeal is allowed in part to the extent and in the manner indicated above.