Radhey Modi vs State of Jharkhand

The instant Criminal Appeal has been preferred against judgment of conviction and order of sentence, both, dated 19.11.2003, passed by 9th

Additional Sessions Judge, Hazaribagh, in Sessions Trial No. 229 of 2002, whereby the appellant Radhe Modi @ Radhey Modi has been convicted for

the offence punishable under Section 363 of the Indian Penal Code and awarded rigorous imprisonment for three years and also fine of Rs. 500/- and

in default of payment of fine, to further undergo simple imprisonment for two months.     By the said impugned judgment other two accused

persons namely Tribhuwan Modi and Dasrath Modi have been acquitted by the learned Trial Court.

The prosecution case is based upon the complaint case no. 137/99 dated 23.04.1999, filed by complainant Devchand Yadav, before learned

Additional Chief Judicial Magistrate, Hazaribagh on 01.05.1999 has directed officer-in-charge, Barkatha Police Station, exercising the power under

Section 156 (3) of the Criminal Procedure Code, for investigating the case. Thereafter F.I.R. bearing Barkatha P.S. Case No. 47 of 1999 dated

20.05.1999 was instituted by the officer-in-charge, Barkatha Police Station. The informant has stated that his son Laxman Yadav aged about 11 years,

was studying in class- V. It is alleged that Radhey Modi, brother of the accused Tribhuwan Modi has made friendship with his son Laxman Yadav

and has also gifted a watch to Laxman Yadav and Radhey Yadav started to visit his house frequently. The informant’s son Laxman Yadav also

used to visit the house of Radhey Modhi.

On 06.07.1998 at 07.00 a.m. the informant’s son went out of the house and did not return. The informant started to search his son at several

places and also went to the house of Tribhuwan Modi where Tribhuwan Modi, Dashrath Modi and Vinod Modi were present. They disclosed the

informant that Mantu Modi, brother-in-law of Munna Modi, who has a shop in Bombay has taken away his son along with Radhey and that he will

keep them in Bombay, and will send the money to the informant every month. Then the informant stated that, “my son studies and he will not work,

call him backâ€, upon which the accused started to evade and thus six months has lapsed. After six months, the informant himself went to Bombay in

search of his son, where the known villagers of the informant disclosed that his son has not came here. In spite of that, the informant further searched

his son at several places in Bombay and then returned to his village. It is further alleged that the informant after returning met the accused persons

and also met the accused Mantu Modi. The accused persons disclosed that they have sold his son and do whatever you can do.

  It is further alleged that the informant met the sarpanch of the village, Tulsi Modi but he did not help him. On 10.02.1999, the informant went to

Barkatha Police Station for the first time and informed about the occurrence but no action was taken. Thus, the informant has filed a complaint case

before the Court.

On the order of learned A.C.J.M., Hazaribagh, police instituted Barkatha P.S. Case No. 47 of 1999 dated 20.05.1999 against five accused persons

namely Tribhuwan Modi, Radhey Modi, Dasrath Modi, Binod Modi and Mantu Modi under Sections 120 (B), 363, 363 (A), 371 of the Indian Penal

Code.Â

  After investigation the police submitted Charge sheet vide no. 002/2002 dated 10.02.2002 against the accused persons namely Radhey Modi,

Tribhuwan Modi and Dasrath Modi under Sections 120 (B), 363, 363 (A), 371 of the Indian Penal Code.Â

The cognizance of the offence has been taken on 12.02.2002 and the case has been committed to the court of Sessions vide order dated

03.07.2002. The charge has been framed against all the three accused namely Radhey Modi, Tribhuwan Modi and Dasrath Modi under Sections 120

(B), 363/34, 363 (A)/34 and 371 of the Indian Penal Code to which they pleaded their innocence and thus were put under trial.

The prosecution to prove its case has examined altogether five witnesses and has also exhibited documentary evidence to prove its case beyond all

reasonable doubts.

  Rahman Ansari has been examined as P.W.1, Ramu Yadav, cousin brother of the informant has been examined as P.W. 2. Both P.W. 1 and

P.W. 2 has been declared hostile by the prosecution. Devchand Yadav, informant of the case has been examined as P.W. 3, Mukesh Yadav has been

examined as P.W. 4, Md. Kalam (investigating officer of this case) has been examined as P.W. 5.

  Complaint petition has been proved and marked as Exhibit- 1, the signature of the Officer-in-charge on the F.I.R. has been proved and marked

as Exhibit- 1/1 and charge sheet has been proved and marked as Exhibit- 2.

  After closure of the prosecution evidence, the statement of the accused/appellant has been recorded under Section 313 Cr. P.C. on 12.11.2003,

to which he has denied the charges and the evidence brought on record.

After hearing the learned counsel for the parties and on the basis of the materials available on record, the learned Trial Court convicted the

appellant, Radhey Modi under Section 363 of the Indian Penal Code and acquitted the other accused persons of the charges. Being aggrieved and

dissatisfied with the impugned judgment of conviction and order of sentence, the present appeal has been preferred before this Hon’ble

Court.   7. Heard learned counsel for the appellant, Mr. Afaque Ahmed, Advocate. Learned counsel for the appellant has submitted that the

impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has

further submitted that learned Trial Court has passed the impugned judgment beyond the materials available on record. Learned counsel for the

appellant has submitted that no case under Section 363 of the Indian Penal Code is made out against the appellant, as from perusal of the report dated

26.06.2018 submitted by the Officer-in-Charge of Barkatha Police Station, where it is clearly mentioned that Laxman Yadav son of the informant has

returned to his house in the year 2006 and now he is living in Mumbai with his wife and children.Â

  Learned counsel for the appellant has submitted that P.W. 1 (Rahman Ansari) and P.W. 2 (Ramu Yadav) has been declared hostile by the

prosecution. Learned counsel for the appellant has further submitted, that P.W. 3 (Devchand Yadav- informant of the case) in his cross-examination

has stated, that he has not seen any persons taking away his son Laxman Yadav. This witness (P.W. 3) has further stated during his cross-

examination that his wife has seen Radhey Modi, appellant taking away his son at 7.00 a.m. Learned counsel for the appellant has further submitted,

that wife of the informant, who has seen Radhey Modi (appellant) taking away his son in the morning, has not been examined in this case. As such,

non-examination of the wife of the informant has caused serious prejudice to the appellant.Â

  Learned counsel for the appellant has stated that, P.W. 4, Mukesh Yadav has stated during his examination-in-chief that Radhey Modi

(appellant) has taken away Laxman Yadav (son of the informant), but investigating officer (P.W. 5) during his cross-examination at paragraph 4 has

stated, that Mukesh Yadav (P.W. 4) has not informed him that Laxman Yadav P.W.4 is his cousin-brother, as such Mukesh Yadav (P.W. 4) is an

interested witness and his statement cannot be relied upon. Learned counsel for the appellant has submitted that under such purview of the matter, the

appellant Radhey Modi deserves to be acquitted.

The learned counsel for the State Mr. Mukesh Kumar has supported the impugned judgment of conviction and order of sentence, as the occurrence

took place in the year 1998 and the trial has concluded in the year 2003 and till that time the son of the informant has not returned to his house and as

such, the informant and his son has suffered a lot during the said period.Â

Heard, learned counsel for the appellant, Mr. Afaque Ahmed and learned counsel for the State, Mr. Mukesh Kumar, Additional Public Prosecutor

and perused the record including the F.I.R., depositions, Exhibits, statement of the accused under Section 313 Cr.P.C. and the report of the Officer-in-

Charge of Barkatha Police Station dated 26.06.2018. From perusal of the report dated 26.06.2018, it is clear that Laxman Yadav son of the informant

has already returned in the year 2006 itself and now he is living in Mumbai with his wife and children, as admitted by the informant himself as per the

said report. Further, wife of the informant, who has seen Radhey Modi taking away her son has not been examined in this case, causing serious

prejudice to the appellant. As such considering this evidence, the appellant Radhey Modi deserves acquittal by this Hon’ble Court, as the son of

the informant has already returned and there is no material constituting offence under Section 363 of the Indian Penal Code as the basic ingredient and

evidence are lacking.

10.Thus, the impugned judgment of conviction and order of sentence, both, dated 19.11.2003 passed by 9th Additional Sessions Judge, Hazaribagh in

Sessions Trial No. 229 of 2002 in connection with Barkatha P.S. Case No. 47 of 1999, consequent to G. R. No. 352 of 1999 is hereby set aside and

the appellant Radhe Modi @ Radhey Modi is acquitted of the charge and conviction under Section 363 of the Indian Penal Code.

11.The present criminal appeal is allowed.Â

12.The appellant, who is on bail, is discharged from liability of his bail bond.   Â

13.Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.Â