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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
CRIMINAL APPEAL NO. 26 OF 2023
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 decided to raid the said place. Police Officer-Smt.Patil arranged for a raiding party consisting of Smt.Shakuntala, panch witnesses and police personnel. Entry was taken in the Station Journal/General Diary and they left the police station and went to the spot. Smt. Shakuntala indicated towards one lady to be the one who was intending to sell the child. A bundle consisting of Rs.2,000/- notes placed on front as well as rear side with plain papers in between was handed over by Shakuntala to the said lady, who in turn gave the child to her. The said lady was taken into custody and searched. During search, the bundle given to her was recovered. After completion of formalities, the child was sent to a children’s home. With the permission of the Magistrate, the arrest of the said lady came to be effected. After completion of investigation, a charge-sheet came to be filed against the accused/appellant.
3. A charge was framed against accused vide Exhibit-10. She abjured the charge. The prosecution, therefore, examined all four witnesses including Smt.Shakuntala-PW1 (Exhibit-17), Smt.Pawar, PSI (Exhibit-19), Shri Vishal Damani, Panch Witness -PW3 (Exhibit- 25) and IO Surendra Gard-PW4 (Exhibit-29). Incriminating circumstances were put to the accused in her statement under Section 313 of Cr.P.C. Learned Trial Court found that the evidence led by the prosecution is sufficient to bring home the guilt of the accused beyond reasonable doubt and hence, convicted the appellant as recorded hereinabove. Hence, this appeal.
4. Learned counsel for the appellant submits that in order to prove the charge of kidnapping under Section 363 of the IPC, it was obligatory on the part of the prosecution to prove that the child in question was removed from the lawful custody of his guardian without consent. It is contended that there is absolutely no evidence on record to hold that the child was kidnapped from the lawful custody of his guardian.
5. Insofar as offence punishable under Section 372 is concerned, it is his contention that the evidence led by prosecution is not free from doubt. He argues that there are material discrepancies in the testimony of Shakuntala PW1, police personnel and panch witnesses. It is pointed out that Shakuntala PW1, claims in her evidence before the Trial Court, that the alleged notes were given by police personnel to the accused, who in turn, gave the child to her. Whereas the police personnel as well as the panch witnesses claimed the same to have been done by Shakuntala. It is further argued from the evidence of PW1, it is clear that the raiding party reached the spot at the most around 7.00 to 7.30 pm, whereas the other witnesses claim to have gone there at 9.30 to 10 p.m.. It is his submission that the said discrepancy is not minor in nature s
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