Final Order 1

Order Details: Copy of Judgment
Pdf Text: C. C. No. 532 PW 2023 State Vs Mohd. Ashique
CNR-MHMM18-001655-2023
Exh.17
Received on – 09.03.2023
Registered on – 14.03.2023
Decided on – 23.04.2025
Dura. – 02 Ys. 01 Ms. 14 Ds.
Exh.17
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,
12TH COURT, BANDRA, MUMBAI
(Presided over by Komalsing Rajput)
(JUDGMENT U/SEC. 355 OF CRIMINAL PROCEDURE CODE)
a. The serial number of the case 532/PW/2023
b. The date of commission of offence 19.09.2022, at about 17.00 hrs., near
Masjid, Bandra Station, on Public Bridge,
Bandra West, Mumbai.
c. The name of the complainant Mr. Pramod Kumbhar, P.I., attached with
Bandra Police Station, Mumbai.
d. The name of the accused person,
his parentage and residence
Mohd. Ashique Mohd. Islam @ Asif @
Badshaha,
Age – 26 yrs., Occu. - Beggar,
R/o. - 1. Iron Bridge, Bandra Railway
Station, Bandra West, Mumbai, and
2. At Post Nujalpygudi, NGP, Dabgram,
Dist.-Siliguri, State – West Bengal.
e. The offence complained of or
proved
Under Sections 363 and 363-A of Indian
Penal Code.
f. The plea of the accused and his
examination (if any)
Accused pleaded not guilty.
g. The final order Accused is convicted.
h. The date of such order 23.04.2025
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Advocates for the Parties –
For State - Smt. Shanti Komati, Ld. A.P.P.
For Accused - Shri. Dinesh Prajapati, Advocate
JUDGMENT
(Delivered on 23rd April, 2025)
1. Accused is facing charge for offences punishable under Sections
363 and 363-A of Indian Penal Code.
2. The prosecution case, in brief is as under –
The informant Mrs. Jamuna Gawaddu Dhuria, hereinafter referred
as informant Jamuna, earning livelihood by ragpicking, residing on road
side on a bridge, near masque at Bandra Station, Bandra West, Mumbai,
with her three daughters and a son. At the same place another woman Mrs.
Ayasha Shahanawaz Khan, hereinafter referred as victim’s mother
Ayasha, resides with her husband Mr. Shahanawaz Fakrealam Khan and
with her minor daughter A, aged two years, hereinafter referred as victim.
Victim’s mother Ayasha, calling informant Jamuna, as mother. As both
families were living in open, victim was exposed to various health hazards
and security concerns. Victim’s mother Ayasha, was suffering from
mental pain and agony on account of her daughter’s condition. Therefore,
she handed over custody of victim i.e. a minor two years old daughter to
the informant Jamuna, to keep victim with her safely at her rented house.
The another handicapped person, named as Ashique, i.e. an
accused, a beggar, was also coming there during night time for sleeping on
road side. He developed relations with informant Jamuna and victim. He
used to provides sweet, etc. to victim. During festival period he was
bringing victim with him for begging. In consideration of it, accused was
paying Rs.50/- per day to the victim’s mother Ayasha. Informant came to
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know about it and objected to the conduct of accused and victim’s mother
and then informant refused to hand over victim to accused for begging.
On 19.09.2022, at about 05.00 O’Clock in the evening, informant
Jamuna and victim, were having food at the place of residence. Accused
came there and requested the informant to hand over victim to him under
the pretext of providing her cold drink. Informant refused to do so, but on
request of accused given him temporary custody of victim under
impression that he will bring her back after having cold drink.
For some time informant waited, but accused and victim not
returned. Informant started searching them with the help of family
members at several places across Bandra and other suburbs, but they had
not traced. They searched her for two days across Mumbai, but they had
not traced. Therefore, informant with the victim’s mother and other
persons, approached Bandra Police Station, Mumbai. On 21.09.2022, the
crime at C.R. No.1620/2022, for offences punishable under Sections 363
and 363-A of Indian Penal Code, was registered against accused.
3. The investigation started with utmost responsibility and promptness.
The identity of the accused was ascertained. The senior police officers
formed teams to trace the victim and accused. The Special Investigation
Team (S.I.T.), consisting of seven teams was formed. For about three
months or more period the search was taken across India, even on the
basis of minor clues. One of the member of S.I.T., on the basis of
assessment information of accused and with the help of C.I.D., West
Bengal, inferred that accused might be from District Kishanganj, Bihar, as
he was speaking Bengali as well as Bihari languages. After taking
thorough search and several rounds there the accused along with the
victim found at Kuchbihar Railway Station, on 06.01.2023, and was
apprehended there. Investigating Officer had been there immediately with
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other team members and arrested the accused. They had also taken
custody of the victim, found at the home of accused with his mother. Both
of them were brought to Mumbai. Accused was formally arrested.
4. During investigation accused was thoroughly interrogated and all
the relevant evidence was collected. The custody of the victim was handed
over to her mother. Several documents were seized. Statements of the
various witnesses were recorded. After collection of evidence
investigation was completed and as sufficient material was found against
the accused as the same person who kidnapped victim, Investigating
Officer filed final report/charge sheet under Section 173 of Code of
Criminal Procedure, in this court.
5. Charge was framed against accused, at Exh.3, to which he pleaded
not guilty and claimed to be tried. Prosecution in support of it’s case
examined three witnesses, as -
1. P.W.1, Jamuna Gavaddu Dhuria, informant, Exh.6,
2. P.W.2, Ayasha W/o. Shahnawaz Fakare Alam Khan, mother of victim, Exh.9 and
3. P.W.3, Bajrang Bandopant Jagtap, A.P.I., Investigating Officer, Exh.10.
In support of this oral evidence, prosecution relied on following
documents - as -
1. First Information Report, Exhs.7 and 8.
2. Office Copy of the the request letter, Exh.11.
3. Letter dated 06.01.2023, sent by Sr. P.I., Bandra P.S., Mumbai, Exh.12.
4. Arrest memo, dated 06.01.2023, Exh.13.
5. Copy of order of J.J.B., Exh.14.
6. Letter dated 20.10.2022, addressed to P.I. (Admin), Bandra P.S., Exh.15.
6. Heard both the sides. The defence of the accused is of total denial
and false implication. Considering the evidence on record, submissions of
both the parties and other facts and circumstances, the following points
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arrived for my determination. I recorded my findings on each of them for
the reasons discussed below -
Sr. No. POINTS FINDINGS
1. Does it prove that the accused kidnapped victim, a
minor? ....In the affirmative.
2. Does it prove that the accused kidnapped victim, a
minor in order that such minor may be employed or
used for the purposes of begging? ....In the negative.
3. What order? ....Accused is convicted
for offence punishable
U/Sec.363 of I.P.C.
REASONS
As to Point Nos.1 and 2 – Kidnapping
7. Both these points are interrelated, based on common facts and
common evidence, therefore, I decided all of them with common
reasoning. The evidence of all the three prosecution witnesses, can be
summarized as follows - -
1. P.W.1, Jamuna Gavaddu Dhuria, informant, Exh.6
That at the time of incidence she was residing near Mosque, at Bandra
Station, Bandra West, Mumbai. At the said place a married girl named as
Ayasha was also residing with her husband Mr. Shahnawaj Alam. She
delivered a girl child to whom she named as Ayat. After delivering a child
she found that living with a child at footpath is difficult. Therefore, she
requested Ayasha to keep her daughter Ayat with her at her rented house.
For upto age of two years Ayat was residing with her. On the footpath, near
Bandra Station, where they were residing a person named as Mr. Ashique,
i.e. you were also coming. You being beggar and used to sleep there near
footpath near by them, they become known to you. You also developed
relations with the family of Ayasha and used to bring her daughter Ayat
with you. She came to know that you were using that child for begging and
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then she stopped it. She told them that Ayat is now residing with her, she is
just like her daughter and she will not allow such a thing and also
admonished husband of Ayasha. Then it is stopped bringing Ayat for
begging. The incidence occurred on 19.09.2022, at about 02.00 O’Clock in
the afternoon. At that time you, her family members and family of Ayasha,
along with daughter Ayat, were present near Mosque, at Bandra Station
West, Mumbai. You requested them to send Ayat with you for having a
juice, but they refused to concede your request saying that she may have
cold and asked you not to bring Ayat with you. Despite that you forcefully
brought Ayat, with you, at about 02.00 O’Clock in the afternoon. Then
clock turned to 04.00 p.m., but you had not returned with child Ayat. They
waited for you, but you had not returned. For about two days they had taken
search of Ayat and you. But both of them had not been traced. Therefore,
she approached Bandra Police Station, Mumbai. Police told her to verify
whether child is with her mother Ayasha. Then she brought Ayasha to
police. Police convinced about the incidence and then she lodged report,
Exhs.7 and 8. She identified you as the same person, who brought child
Ayat with him, from the photograph, Article – A. After about four and half
months police traced child Ayat and you. They had been to Bandra Police
Station, Mumbai and taken custody of the child, who is now with her
paternal grand mother at Bhayander.
2. P.W.2, Ayasha Shahnawaz Fakare Alam Khan, victim’s mother, Exh.9
That she is residing with her husband Mr. Shahnawaz and children, a son
named as Master Ayan, aged about five years, a daughter Miss Ayat, aged
about three years and Miss Naina, who is just some months old. She knows
the informant Mrs. Jamuna Dhuria, who was residing at the same place with
her family members, where now she is residing. When her daughter Ayat,
was two months old, she herself and daughter Ayat started residing with
Mrs. Jamuna Dhuria. There are cordial relations between them. She know
you, as you were also residing at the same footpath where they were
residing. You used to carry daughter Ayat with you and was providing
eatables, etc. to her. The incidence occurred on 19.09.2022, when at about
02.00 O’Clock her daughter was at the footpath where they were residing
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with informant Mrs. Jamuna Dhuria. She was not present there and you
brought her daughter Ayat with you under the pretext of providing juice to
her. They waited for you for some time, but you had not returned, hence, on
next day they went to police station and lodged report. She identified you as
the same person who brought child Ayat with him, from photograph, Article
– A, affixed with charge sheet. After about four and half months police
traced child Ayat and you and had been to Bandra Police Station, Mumbai
and taken custody of the child. Now the child is with her paternal grand
mother at Bhayander.
3. P.W.3, Bajrang Bandopant Jagtap, Investigating Officer/A.P.I., Exh.10
That he is serving as Assistant Police Inspector, with Bandra Police Station,
Mumbai, since the month of April 2022, till date. On the basis of
information furnished by Smt. Jamuna Guddu Dhuriya, the offence at
C.R.No.1620 of 2022, was registered with their police station on
21.09.2022, for offences punishable under Sections 363 and 363-A of Indian
Penal Code. It is alleged that you, kidnapped a minor girl of two years of
age named as Miss Ayat Shahnawaz Khan, a daughter of Mrs. Ayesha
Shahnawaz Khan, from the custody of informant, on 19.09.2022, at about
02.00 O’Clock in the afternoon, under the pretext of providing some cold
drinks, etc. The matter was serious and it’s investigation was handed over to
Mr. Pramod Kumbhar, Police Inspector, attached with their police station.
After initial search the minor was not traced. Therefore, as per order of Dy.
Commissioner of Police, Zone – IX, Bandra, Mumbai, the Special
Investigation Team (S.I.T.) was formed, consisted of seven police officers
and staff members for their assistance. All the seven officers headed
separate teams assisted by staff members and he was heading one of such
team. These teams searched child almost across whole India for about three
months. He traveled a lot with his team and on 11.10.2023, he and his team
members had been to Bihar and West Bengal. On 13.10.2023, he had been
to the office of Crime Investigation Department, Kolkata, West Bengal and
requested there for help in investigation in written, vide Exh.11. The C.I.D.,
Kolkata, West Bengal, suggested them to go to District Kishanganj, where
the people speaks Bengali as well as Bihari language, as you were speaking
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both the languages. Accordingly, as per suggestion of the C.I.D., Kolkata,
West Bengal, they went to District Kishanganj, Bihar State, bordering the
State of West Bengal. He himself went there, with his assisting staff Mr.
Imtiyaz Makandar, Police Constable and Mr. Pandey, P.H.C. and taken
initial search by obtaining information, but nobody traced. There they
distributed pamphlets having photographs of the suspect and missing girl
along with their contact details. They also affixed those pamphlets across
Kishanganj city, mainly in dense localities there. They went to Golpukar
Police Station, near Bangladesh border and made certain inquiries. They
contacted locals and requested to inform them about the girl and the suspect
if they receives any information. They also went to North East Part where
Northen Frontier Railway plies. There also they distributed and affixed
pamphlets at Malda and Jalpaigudi Railway Stations. They searched a lot,
but no information received, they were there for seven days and then
returned to Mumbai. Their other teams were also taking search of girl and
suspect at other parts of the country but they had not received any
information. On 05.01.2023, when he was at Mumbai, his assistant Mr.
Imtiyaz Makandar, Police Constable, attached with his police station,
received a call from their informer from Kishanganj, an auto rickshaw
driver. He sent a video clip on his phone showing a person walking, and
asked Mr. Imtiyaz Makandar, Police Constable, to go through it and verify
whether the person in the video clip is you or not? Mr. Imtiyaz Makandar,
Police Constable, gone through the said clip and noticed that the person
found walking in the clip is you and shown that clip to him. He also verified
it and ascertained your identity. The informer also sent your mobile number.
From the said mobile number provided they verified your location and you
were found to be shifting your location from West Bengal State and moving
towards Bhutan border. Following this location, they immediately on
06.01.2023, itself left for Kuchbihar, near Bhutan border by aeroplane. They
contacted the Police Inspector of Railways plying in that area and informed
about the matter. They sent certain details and certain particulars about your
identity and requested him to keep watch on the station and detain you if
found anywhere. They made same request to border police, situated at
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Indian Border adjoining to Bhutan. You were found at Kuchbihar Railway
Station, by the team of Railway Protection Force. You were alone and child
was not with you. They received information about the development and
reached there on the same day i.e. on 06.01.2023, at about 09.00 O’Clock in
the evening. Then they went to Kuchbihar Railway Police Station, at
Kuchbihar and ascertained your identity as Mr. Mohd. Ashique, with the
help of local police officer Mr. Meena. They interrogated you and you
informed that the child abducted is at your house near New Jalpaigudi
Railway Station, West Bengal, with your sister and mother. They recorded
your statement, took local assistance and reached to your house with you.
There they found a minor was kept in a hut with your mother and sister, in
the slum area named as Deshbandhu Pada. On further inquiry there they
came to know that you falsely informed to your mother and sister that the
kidnapped girl is your biological daughter. You also falsely informed that
during your long stay outside West Bengal you solemnized marriage and
begotten said child from your wife. You also falsely informed them that on
account of dispute with your wife you came there with his child/daughter.
He ascertained identity of the child as the same girl kidnapped by you. His
team was also having a woman member, Mrs. Sathe, L.P.C. and the team
provided by Bengal Police was also having woman assisting staff. they
taken the child in their custody with the help of ladies staff members and
went to local police station, City Police Station, New Jalpaigudi, West
Bengal. There they prepared panchanama about the custody of the child and
did other documentation. They also apprehended you and taken you in their
custody. After taking into custody the child and you, they left Jalpaigudi for
Mumbai by railway with them on 07.01.2023. They brought them at Bandra
Police Station, Mumbai and he handed over the custody of child and your
custody to the Officer In-charge. He also handed over the relevant papers to
Investigation Officer. Then the custody of child is handed over to the
informant and her mother by his police station. Then your formal arrest was
done. Necessary entries taken in the relevant record and you were produced
before this court. Later on investigation was completed and charge sheet
was filed in this court and it is transpired that you kidnapped the child Miss
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Ayat, daughter of Mrs. Ayasha and brought her with you to West Bengal,
with intention to use her for begging. He can identify you as the same
person who kidnapped Miss Ayat, if you appeared before him. He has
produced on record with the charge sheet all the relevant documents
generated during the above exercise which commenced from the registration
of First Information Report upto your arrest, including letter sent by my
senior officer i.e. Sr. Inspector, Bandra Police Station, Mumbai, dated
06.01.2023, addressed to Inspector, R.P.F. New Cooch Behar, North
Frontier (N.F.) Railway Station, West Bengal, Exh.12. He also produced
arrest memo, dated 06.01.2023, done at the office of R.P.F. New Cooch
Behar, North Frontier (N.F.) Railway Station, West Bengal, along with
personal search list and report of your medical examination, Exh.13. Then
they brought you along with child to Mumbai and produced her before
Juvenile Justice Board, Mumbai. J.J.B., Mumbai, which passed order and
handed over child’s custody to her mother, vide order, Exh.14. He has
produced the Letter addressed to Police Inspector (Administration), Bandra
Police Station, Mumbai, dated 20.10.2022, along with all the documents
(Page Nos.92 to 112 of charge sheet) about Standard Operating Procedure
(S.O.P.) followed by them to search out the missing child, which includes
the pamphlet, photographs, correspondence, etc., Exh.15. Then he recorded
the statements of various witnesses, he also collected, concerned electronic,
medical and other evidence and completed the investigation. During
investigation it is transpired that you kidnapped minor girl child Miss. Ayat
Shahnawaz Khan, a daughter of Mrs. Ayesha Shahnawaz Khan, from the
custody of informant, without consent of her parents brought her to West
Bengal and detained her with him there for about six months. Therefore, he
filed charge sheet against you in this court. He can identify you if you were
produced before him.
8. If we go through the cross examination of the accused except
denials there is nothing on record to disbelieve any of the prosecution
witness and consequent prosecution case. All the witnesses are
independent persons, duly deposed each and every fact starting from
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handing over the custody of the victim to the accused upto his
apprehension by police and taking aback custody of victim from his
house. There found no explanation from the side of accused how he came
in custody of the victim which will justify his long detention of the victim
with him and bringing her to his place of residence from Mumbai. The
Section 106 of Evidence Act, comes into play, in such a situation or status
of evidence burden shifts on the accused to prove fact within his exclusive
knowledge which will justify the long detention of the victim by him by
proving any justifiable reason.
9. For proof of charge of kidnapping from lawful guardianship and
kidnapping for the purpose of begging the prosecution must prove that
accused had taken away minor out of keeping of lawful guardianship and
did such act in order to employ such minor for begging or use her for the
purpose of begging.
10. If we go through above evidence it is proved that accused
kidnapped victim from lawful guardianship, but the evidence to draw the
inference that he did such act for the purpose of begging is deficient.
There must be cogent evidence to prove said charge, however, no
evidence came on record in this regard. As such it can be said that only
charge of kidnapping from lawful guardianship prove and the charge of
kidnapping for the purpose of begging, etc. not proved. Therefore, I
recorded my finding on Point No.1, in the affirmative. However, on Point
No.2, in the negative.
11. Heard both the sides on the point of sentence. Ld. Advocate for the
accused made submissions at length and prayed for leniency. It is
submitted that accused belongs to poor family, he is handicapped and his
both the feet are not working. He is in jail since last two years or more and
there are dependents on him. It is also submitted that he shall be released
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on the same amount of punishment, as already undergone and thus,
leniency shall be shown to him. Ld. A.P.P. on the other hand prayed for
severe punishment. It is submitted that accused had kidnapped a minor
child of just two years and with a view to drove her away from her lawful
custody taken her to West Bengal. The offence is serious. There found no
grounds to show leniency. He submitted the severe punishment be
awarded.
12. After going through the record it is noticed that accused had taken
undue advantage of the situation of victim and cleverly taken her away
from the custody of her mother. The case is such that the scope for
showing him any leniency is very limited. Within this limited scope, if we
considered his submissions and counter submissions of the prosecution, it
is clear that accused belonged to poor strata and he himself is handicapped
in both the legs. His old aged mother is dependent on him. He has already
undergone considerable period in jail. Therefore, considering his status
some leniency needs to be shown to him on these grounds. At the same
time it can not be ignored that victim is a minor child of just two years of
age. The balance needs to be maintained between both these aspects of the
matter. In view of these factual and legal aspects of the matter I am of the
opinion that following sentence will serve the cause of justice.
Accordingly, following order -
ORDER
A. The accused Mr. Mohd. Ashique Mohd. Islam @ Asif @ Badshaha,
is convicted vide Section 248(2) of Code of Criminal Procedure, for an
offence punishable under Section 363 of Indian Penal Code and sentenced
to suffer rigorous imprisonment for three years and shall also pay fine of
Rs.1,000/-.
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B. If fine not paid, in default of payment of fine accused shall suffer
additional simple imprisonment of one month.
C. The accused Mr. Mohd. Ashique Mohd. Islam @ Asif @ Badshaha,
is acquitted vide Section 248(1) of Code of Criminal Procedure, for an
offence punishable under Section 363-A of Indian Penal Code.
D. Accused is entitled to set off as per Section 428 of the Code of
Criminal Procedure. As accused is in jail since 09.01.2023, the major part
of punishment has already been undergone by him and shall be released
after undergoing remaining punishment as ordered, if not required in any
other offence and after undergoing the default sentence of one month for
payment of fine.
E. Copy of this order to be given free of cost to the accused.
F. Inform Jail Authorities accordingly.
MUMBAI (KOMALSING RAJPUT)
DATE – 23.04.2025 J.M.F.C., 12TH COURT, BANDRA, MUMBAI
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I affirm that the contents of this PDF file judgment are same word for
ward as per original judgment.
Court Name : Komalsing Rajput
Name of Steno : S. R. Parab
Date : 23.04.2025
Signed by P.O. on : 23.04.2025
Uploaded on : 28.04.2025
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