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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R. M. Joshi, J
Shagina Kayyum Mohd. Qureshi – Appellant
Versus
State of Maharashtra – Respondent
Based on the provided legal document, the following key points can be summarized:
The prosecution's burden was to prove unlawful custody for kidnapping. The court emphasized that mere assumptions or intent, without concrete evidence, are insufficient to establish kidnapping [Para 7].
The evidence regarding the child's unlawful removal from lawful custody was found to be inadequate. The court noted the absence of investigation into the source of the child's custody and observed that the evidence did not conclusively prove kidnapping [Para 7].
Although there was consistent evidence that the accused received a sum of money for selling the child, discrepancies in witness testimonies regarding who paid and who took custody of the child cast doubt on the prosecution's claims [Para 8].
The court highlighted that the prosecution failed to establish that the child was sold for immoral purposes such as prostitution or illicit activities. The presumption that the child might be used for such purposes was deemed legally impermissible without direct evidence [Para 8].
The court found that the offence under Section 363 (kidnapping) was not proved due to the lack of investigation into the child's actual custody source, and thus, the charge was not substantiated [Para 7].
Despite recognizing the sale of the child, the court noted that the sale of a male child does not automatically imply use for immoral purposes, as there is no direct evidence supporting such intent. The presumption applicable to female children does not extend to male children [Para 8].
The court discussed jurisdictional issues concerning the trial of the offence under the Juvenile Justice Act, noting that the specific charge under Section 81 of the Act was not framed, and the trial court's jurisdiction was appropriate following recent amendments [Paras 10-11].
Ultimately, the appeal was allowed, and the accused was acquitted of all charges. The court ordered the refund of any paid fines and directed the immediate release of the accused if not required elsewhere [Order, Para 11].
These points reflect the court's analysis, findings, and final decision based on the evidence and applicable legal principles.
| Table of Content |
|---|
| 1. case involves alleged child sale and kidnapping. (Para 1 , 2) |
| 2. appellant challenges evidence of unlawful custody and discrepancies. (Para 4 , 5) |
| 3. court evaluates credibility of prosecution's evidence. (Para 7 , 8 , 9 , 10 , 11) |
1. This appeal takes exception to the judgment and order dated 8th December 2022 passed in Sessions Case No.85 of 2017 whereby the appellant/accused came to be convicted for the offences punishable under Sections 363 and 372 of the Indian Penal Code 1860 (for short "IPC") and were sentenced to suffer rigorous imprisonment for 5 years and 7 years respectively with fine.
2. The facts which led to the filing of this appeal can be narrated in brief as under :
Manikpur Police Station received information from Shakuntala Chavan, a resident of Waliv, Vasai (East), that she came across a lady aged 40 years on the sky walk at Station Road, Vasai West and noticed her for a month or so. She claims that the lady was found with a boy aged 2 to 3 years, whom she was trying to sell for Rs.1,00,000/-. The said lady even asked her as to whether she was willing to pay Rs.1,00,000/- and take the child. On the information received from Shakuntala, the police d
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