JUDGMENT
D.J. Moharir, J.
1. The appellant Sindhu Krishna Thakur of village Nagathana, Satara was along with two other women Nadira Siraj Khache and Jahira Hishamuddin Kazi tried for commission of offences under sections 363, 367, 368 and 370 read with section 34 of the Indian Penal Code. The appellant however came to be convicted of only the offence under section 363 of the Indian Penal Code as was disclosed and proved from the evidence led at the trial. She was sentenced to rigorous imprisonment for three years and a fine of Rs. 1000/-, in default further R. I. for four months. Accused Nos. 2 and 3 were however acquitted of the offences punishable under sections 368 and 370 of the Indian Penal Code.
2. Stated in brief, the prosecution case is that on 5th January, 1989 the appellant accused Sindhu though a resident of Satara went to a considerably far off place Kudal in Sindhudurg district. She was accompanied by two small children. She went to the house of the complainant Sunita Bhagwan Jalavi, who has a daughter by name Manju aged about nine years. Sindhu represented to Sunita that the two kids with her were her own children, that she was on the look out for suitable accommodation, a small room or so for setting up a vegetable stall. Sunita told her that no accommodation was available at her place. Sindhu represented that she needed accommodation somewhere in the vicinity of Sunita’s house i.e. in that locality, that she wanted to make a search for such accommodation. She needed somebody to take her around the locality. On that representation Sunita obliged her by asking her daughter Manju as also her neighbour and tenant’s daughter Anita to accompany Sindhu for that purpose. Sindhu took Anita and Manju along with her accordingly and went away. However, the children had not returned about 11.00 a.m. which was time for them to go to the school. It was, therefore, that both Sunita and Anita’s mother Yashodabai Chaugule started looking for the girls but could not find them. The area of search for the two girls widened. Even then the girls were not found. Striken with apprehension, Sunita and Yashodabai both told the neighbours about appearance of the stranger women and her taking the two children with her. Feeling that the children might have missed their way home, initially a report was lodged at the Kudal Police Station that the children were missing. The search of Sunita however continued and she happened to make inquiries from a auto-rickshaw driver Ravindra Parab as to whether he had seen such and such woman alongwith four children. Ravindra readily informed her that in fact it was his rickshaw that was engaged by one woman with four children accompanying her and that he had taken them upto to the petrol pump on the Kudal Road. Feeling further apprehensive, Sunita returned to the police station to give this much of additional information to the police, her complaint then came to be recorded, the complaint being that the said woman who was unknown and a stranger to her had kidnapped her daughter Manju and her tenant’s daughter Anita on the pretext that these children would show that woman the way around the village. On this complaint, offence was registered under section 363 of the Indian Penal Code in the first place. Investigation started and search for these two little girls ended at Sangmeshwar Taluka Mahad. Sindhu was found and apprehended there. Manju was found in the house of accused No. 2 and Anita in the house of accused No. 3 Sunita was then called to the Police Station at Mahad where she saw the two girls Manju and Anita as also the accused No. 1 detained in custody. The children were handed over to her custody. The investigation was completed and a charge-sheet was eventually presented against the accused Nos. 1, 2 and 3 all, the investigation having disclosed that the two children Manju and Anita had been kidnapped by accused No. 1 Sindhu and sold to the accused Nos. 2 and 3 as slaves for employment by them.
3. Charge was accordingly framed against the accused persons upon commital of the case by the Juidical Magistrate, First Class, Kudal. All the three accused pleaded not guilty and upon completion of trial and taking into consideration the defence disclosed by the accused in their examination under section 313 Cr.P.C., the learned Additional Sessions Judge came to the conclusion that charge was not at all proved so far as accused Nos. 2 and 3 were concerned. They were, therefore, acquitted. Though, accordingly to the learned Additional sessions Judge, the charge as framed had not come to be proved against accused No. 1 Sindhu, she had not yet been proved by the evidence on record to have committed the offence of kidnapping of Manju and Anita from the lawful guardianship and accordingly convicted under section 363 of the Indian Penal code and sentenced.
4. The State filed an appeal against the accused Nos. 2 and 3 being Criminal Appeal No, 202 of 1990. Another appeal was also filed by the State being Criminal Appeal No. 203 of 1990 for enhancement of the sentence as awarded to the appellant accused Sindhu. Both these appeal came to be dismissed on 22nd January, 1991.
5. On 4th March, 1991 Sindhu preferred the present appeal through jail. Learned Counsel Shri Niteen Jamdar was appointed to conduct this appeal on her behalf.
6. Shri Jamdar has assailed both the conviction of the appellant under section 363 of the Indian Penal Code as also the quantum of sentence awarded to her. The submission being that the sentence is all the same excessive one. It may be noted that the appellant has continued to be in jail undergoing the punishment of imprisonment till this date and the entire period of sentence would shortly be ever since the appellant had been in detention ever since her arrest on 8th January, 1989 at Sangmeshwar. The first of the submissions of learned Counsel Shri Jamdar which would indeed have to be accepted as an irrefutable one is that the appellant has been convicted under section 363 of the Indian Penal Code in respect of kidnapping of both the girls Manju who is the daughter of complainant sunita and Anita who is the daughter of Yashodabai Chaugule. Undisputedly Sunita is not the lawful guardian of Anita. It is not the prosecution case that the lawful guardian of Anita whether it be her mother Yashodabai or her father Shamrao Chaugule had lodged any complaint about the appellant having kidnapped Anita from the lawful guardianship of either of them so as to charge her with the commission of the offence under section 363 I.P.C. The offence of kidnapping under section 363 I.P.C. is committed not against the person kidnapped but against the person who has her custody as her lawful guardian. In the absence of even such a complaint, it is rightly contended by Shri Jamdar, the appellant could not have been convicted under section 363 of the Indian Penal Code. The absence of any complaint from Anita’s lawful guardian must become fatal. There can be no doubt that to that extent the conviction- in so far as it relates to the minor girl Anita- is bad in law.
7. As far the kidnapping of Manju from the lawful guardianship, the custody of the child on the dare of the incident i.e. 5th January, 1989 was admittedly that of Sunita, as the mother and for the reason that Sunita’s husband was out of station at that time. Of course it is also settled law that such temporary absence of the father would not be tantamount to extinguishment of the father’s lawful guardianship. Therefore, Sunita as the other natural guardian at spot, was the lawful guardian of Manju at the material time. It was in her complaint that offences in this case was registered under section 363 I.P.C. as is to be noted in the first instance. Therefore, about offence being required to be registered upon the complaint of the lawful guardianship is a requirement which is duly fulfilled so far as the kidnapping of Manju is concerned.
8. Discussing the prosecution evidence and referring to it in fair detail Shri jamdar proceeded with his further submission that there was a material defect which entered the trial in as much as Manju as the kidnapped child itself has not come to be examined by the prosecution on and secondly Yashodabai wife of Shamrao Chaugule who was also a material prosecution witness had been left out from being examined as the prosecution witness. Non-examination of either of these two persons cannot, in my opinion, create any such defect so long as the duty which is cast on the prosecution is for proving that the minor child Manju was taken out of the lawful guardianship of Sunita and that it was against the latter that the appellant had committed an offence under section 363 of the Indian Penal Code. When the evidence, as one goes through it, very clearly establishes that Manju was eventually found in the house of accused No. 2 and she was found to have been taken there by the appellant-accused No. 1 Sindhu, one would fail to appreciate the need for examining Manju herself as the material prosecution witness, it will also be required to be borne in mind that Manju was a child of nine years old at that time and a child does not have a will of its own as is the settled law. It would go with whosoever would take it. In the present case the evidence shows that Sunita had asked Manju to accompany Sindhu and, therefore, the child accompanied her. She went alongwith the appellant Sindhu wherever the latter took her and ultimately to Sangmeshwar where she was found in the house of accused No. 2. So far as the non-examination of Yashodabai is concerned, I have already held that the evidence of Yashodabai will be material if the question were to be of kidnapping of Anita from the lawful guardianship of Yashodabai herself. Having held that the conviction under section 363 I.P.C. of the Indian Penal Code would be bad, in regard to the kidnapping of the child Anita for want of a specific complaint from her lawful guardian, the non-examination of Yashodabai cannot have any impact adverse on the prosecution case so far as kidnapping of the child Manju from the lawful guardianship of her mother Sunita is concerned. It is, therefore, not open to the appellant to contend that any adverse inference be drawn against the prosecution for the non-examination of these two persons Manju and Yashodabai.
9. Relying upon a decision of the Division Bench of the Madhya Pradesh High Court in State of Madhya Pradesh v. Behra and others, 1968 Cri.L.J. 832 learned Counsel Shri Jamdar submitted that the prosecution had not proved the want of consent on the part of Sunita when the appellant took Manju with her from Sunita’s house on the morning of 5th January, 1989. It would only be appropriate to refer to the appellant’s examination under section 313 Cr.P.C. at this time. After being appraised and called upon to give her say in regard to the incriminating aspect of the prosecution evidence against her, the appellant was asked as to whether she had anything more to state on her own. Thereupon she stated that Yashodabai Chaugule was acquainted with her; Yashodabai told her that their girls (indicating thereby Yashodabai’s child Anita and also Sunita’s daughter Manju) be employed somewhere for earning their livelihood. She further stated that Jalavi meaning Sunita, herself had told her similarly. These two women had placed the said two girls Manju and Anita in her custody accordingly. She does not further say that she had accordingly taken these two girls to Sangmeshwar and get them employed with the accused Nos. 2 and 3. She is silent on that aspect.
10. Therefore, what has to be appreciated is whether inspite of this specific plea of consent given to the appellant by Sunita to take away the child Manju for employment somewhere, no question was asked to Sunita at all in this behalf. No suggestion was made to her that she had willingly handed over the custody of Manju to her and for her (Accused Sindhu’s) taking her to some other place, out of Kudal also, to secure an employment for her. That was not the scope of the cross-examination at all so far as Sunita was concerned. Quite to the contrary, Sunita has stated in her very examination-in-chief that when the appellant Sindhu came to her house and inquired about availability of vacant accommodation to set up a vegetable stall and when she was informed by Sunita that in her house no such accommodation was available, the accused Sindhu had expressed a desire for somebody being sent with her to make a search for such accommodation in the vicinity of the house meaning the house of Sunita. That is, the search for accommodation was to be made within the area and in the vicinity and locality where Sunita’s house was located. That was at best the extent of the authority given to the appellant by Sunita. Arguing to the contrary, learned Counsel Shri Jamdar submits that this promise is actually not clear and the Court must hold in favour of a doubt existing that perhaps the authority also extended to take the child Manju elsewhere in the town of Kudal or for that matter out of it for the purpose of securing an employment for her. The object of securing an employment was never canvassed in the cross-examination of Sunita as already observed and that it must never have been so canvassed, that it must not have been so agreed with the appellant at the time of the cross-examination of the witness, stands made demonstrably clear by one more sentence in the examination-in-chief of Sunita which has gone completely uncontroverted. Having stated that she asked her daughter Manju and the neighbour’s daughter Anita to accompany her daughter for the purpose of facilitating appellant’s search for accommodation in the locality, Sunita certainly expected the child to come back and, therefore, she states that it was about 11.00 a.m. So I called to my daughter Manju that she was to go to school. I found that Manju was not available within the vicinity of the house.’ In my opinion, the fact that Sunita realised that it was 11.00 O’Clock in the morning and time for Manju to go to school and that she therefore started calling out to her patently shows that she never expected Manju to be taken out of the town or even beyond the locality in which she lives at the instance of this appellant. The authority given by Sunita to the appellant was, therefore, precisely a very limited one permitting the accused to move alongwith her daughter in the locality only, not beyond and no further. When the evidence, therefore, establishes that ultimately on 9th January, 1989 Manju was found in the custody of the accused No. 2 and that Manju had been taken and handed over to the accused No. 2 by the appellant accused No. 1 Sindhu at Sangameshwar of taking away and out of the lawful guardianship without the consent of Sunita as the guardian is complete and so then the offence under section 363 of the Indian Penal Code.
11. It cannot be gain said by the appellant that the limited authority given by Sunita to the appellant Sindhu to take the child Manju with her could be further extended by her unilaterally without the knowledge and consent of Sunita herself, to any place or area beyond the locality in which Sunita resides. This plea of the appellant that absence of want of consent on the part of Sunita has not been proved by the prosecution also stands to lose all its efficiency and in fact credibility also, when the subsequent conduct of the appellant is taken into consideration. On the premise only assumingly, that the appellant had the authority to take Manju anywhere, even outside Kudal to secure an employment for her and that securing an employment for Manju was the object of Sunita in asking Manju to accompany the appellant, then, it is more than natural to expect that having secured some employment for Manju at the house of the accused No. 2, the appellant claiming to know Sunita (which is not a fact) would in the ordinary course of human conduct return to Kudal to inform Sunita that she had secured an employment for Manju at the house of accused No. 2 at Sangmeshwar in Taluka Mahad. Nothing of the kind appears to or is accused that it was with the consent of Sunita that she had taken her child Manju. As the other side of the coin, it establishes the premise that want of consent on the part of Sunita to the appellant’s taking Manju out of Kudal and thereby out of her lawful guardianship has been undisputably established.
12. The next submission of learned Counsel Shri Jamdar is as regards the identity of the accused as the person who had on 5th January, 1989, taken Manju from out of Sunita’s guardianship. This contention is as fragile as one could be found to be. Two circumstances and facts would squarely out at the root of any such contention. The first is that the fact of identification of the appellant Sindhu as the culprit is determinable not on the basis of any prior test identification parade but on the identification as is made in the Court at the trail. Sunita has plainly stated that the present appellant was the woman who came to her house that morning and with whom her child Manju had gone away that Morning. The second circumstance as pointed out by the learned Additional Public Prosecutor is that such a contention is hardly open to be raised by the appellant when the very foundation of the defence is an admission that she did take the child Manju with her on that day but that the taking away of the child was at the instance of Sunita herself for securing an herself raises no dispute about the fact of her being person who had taken Manju away that day from her, there is no substance in the contention that there is any doubt about the identity of the person, the present appellant Sindhu, as the kidnapper of the child. That contention also only deserves to be rejected.
13. No other submissions were advanced to challenge the conviction of the appellant under section 363 of the Indian Penal Code as recorded. As such, the conviction will have to be confirmed and maintained.
14. Learned Counsel Shri Jamdar next submits more earnestly this time, that the appellant has been in jail since the date of her arrest on 8th January, 1989, Having regard to the period of sentence of imprisonment awarded as substantive and the period imprisonment awarded in default of payment of fine of Rs. 1000/- by her are both therefore about to be completed. It would appear that-and of course when taking into consideration the remissions in the substantive imprisonment to which she would be entitled and which she would be entitled and which she would earn, the period of three years to be undergone. Shri Jamdar, therefore, submits that the Court be pleased to hold that the imprisonment already undergone has sufficiently met the requirements of justice and she be therefore released. Though learned Additional Public Prosecutor submits that in fact the appellant was liable to be dealt with more severely so far as punishment was concerned, it has to be borne in mind that an appeal for enhancement of sentence was already rejected by this Court. It would hardly make any difference if the remaining period of four months of imprisonment in default of payment of fine is undergone or whether such permission is given to the appellant in that behalf. In exercise of due discretion resting in the Court, I am inclined to extend the same in the totality of the facts and circumstances of the case.
15. The appeal therefore succeeds partly. The appellant’s conviction under section 363 of the Indian Penal Code for kidnapping the child Anita, daughter of Yashodabai and Shamrao Chaugule from the lawful guardianship of hereby set aside and she shall stand acquitted of the charge under section 363 I.P.C. to that extent. The appellant’s conviction under section 363 of the Indian Penal Code for kidnapping Manju daughter of Bhagwan Jalavi from the lawful guardianship of her mother Sunita is hereby confirmed. The sentence of imprisonment as also imprisonment in default of payment of fine is hereby reduced to that already undergone by the appellant. As such, the appellant is directed to be forth with released now unless required by the police in some other connection.