Appellate Division Cases
(Criminal)
PARTIES
Dulal @ Md. Dulal Talukder and another ………………………………….Petitioner
Vs.
The State ………………………………Respomdents
JUDGES
Syed J. R. Mudassir Ilusain C J
Mohammad Fazlul Karim J
Amirul Kabir Chowdhurv J
Date Judgment
24th May 2005
The Penal Code (XLV of 1860), Sections 336/34, 366, 365.
Courts below failed to appreciate that the informant of the case is not the lawful guardian or custodian of victim Rahim Kahtoon and the victim was not taken out of the keeping or lawful custody of the informant and in the instant case none of the courts below considered the evidence of D. W. 1 the admitted mother of the victim where she stated that her daughter was not kidnapped by anybody but was given marriage to accused Rashid by herself and as such no offence under Section 366/34 of the Penal Code was constituted and the petitioners were not liable to be convicted for the offence as alleged…that the allegation against the petitioners is of abatement in commission of the offence of kidnapping but since it has not been proved by any legal evidence that the informant was the lawful guardian of the victim as according to Section 361 of the Penal Code the charge of kidnapping as defined under Section 365 of the Penal Code will be constituted and completed only when it is found that a minor under 14 years of age, if a female, or any person of unsound mind is taken out of the keeping of the lawful guardian of such minor or person of unsound mind without the consent of such guardian, the courts below ought to have acquitted the petitioners from the charge of abatement (4 & 5)
ADVOCATES
Nizcimul Huq, Advocate instructed by Md. Nowab Ali, Advocate-on-Record. For the Petitioners.Md. Abdur Rouf, Deputy Attorney General, instructed bv Mvi. Md. Wahidullah, Advocate-on-record For the Respondent.
JUDGMENT
1.Amirul Kabir Chowdhury J:- Dula @ Md. Dulal Talukder and another filed this petition for leave to appeal against the judgment and order dated 18.01.2003 passed by a Division Beneh of the High Court Division in Criminal Revision No. 625 of 1999 discharging the rule thereby affirming the judgment and order dated 28.07.1999 passed by the learned Additional Sessions judge, Munshigonj in Criminal Appeal No. 29″ of 1999 allowing the appeal in part upholding the order of conviction and sentence passed against the two petitioners, while acquitting coaccused A. Sattar, A Mannan of the charges under Sections 366/34 of the Penal Code.
2. The facts in short arc that the petitioners along with others were prosecuted under Sections 366/A34 of the Penal Code on the allegation that on 08.12.1992 the entered the house of Muslem Talukdar and kidnapped his adopted dauthter Rahima and on his information Sreenagar Police Station Case No. 6 dated 08.12.1995 was started and the police investigated the case and submitted charge sheet whereupon the case was sent for trial before the learned Additional District Magistrate, Munshigonj who framed charge against co-accused A. Rashid under Section 366A of the Penal Code. Against other accused including the petitioners charges were framed under Sections 366A/34 of the Penal Code. Prosecution produced 7 witnesses while defence examined one witness, mother of the victim Rahima. The learned Additional District Magistrate, Munshigonj by judgment and order dated 13.07.1996 found the petitioners and three others guilty of the offence and sentenced accused petitioner No. 1 Dulal under Sections 336/34 of the Penal Code to suffer rigorous imprisonment for four years and pay fine of TK. 5000/- in default, to suffer rigorous imprisonment for 6 (six) months more and the petitioner Kamala though was convicted under the same section of law, but was sentenced to suffer simple imprisonment for 6 (six) months and pay fine of TK. 3000/- in default, to suffer simple imprisonment for 2 (two) months more.
3. Against the aforesaid judgment and order of conviction the appeal being filed has been disposed of by the learned Additional Sessions Judge, Munshigonj as already mentioned above. Thereafter the petitioners moved the High Court Divisin in Criminal Revision No. 625 of 1999 and a Division Bench of the High Court Division by judgment and order dated 18.01.2003 affirmed the order of conviction and sentence with modification, altering the conviclion from Sections 366 to 365 of the Penal Code. Hence is this petition.
4. Mr. Nizamul Huq, learned Advocate appearing on behalf of the petitioners submits, inter alia, that the courts below failed to appreciate that the informant of the case is not the lawful guardian or custodian of victim Rahim Kahtoon and the victim was not taken out of the keeping or lawful custody of the informant and in the instant case none of the courts below considered the evidence of D. W. 1 the admitted mother of the victim where she stated that her daughter was not kidnapped by anybody but was given marriage to accused Rashid by herself and as such no offence under Section 366/34 of the Penal Code was constituted and the petitioners were not liable to be convicted for the offence as alleged.
5. He further submits that the allegation against the petitioners is of abatement in commission of the offence of kidnapping but since it has not been proved by any legal evidence that the informant was the lawful guardian of the victim as according to Section 361 of the Penal Code the charge of kidnapping as defined under Section 365 of the Penal Code will be constituted and completed only when it is found that a minor under 14 years of age, if a female, or any person of unsound mind is taken out of the keeping of the lawful guardian of such minor or person of unsound mind without the consent of such guardian, the courts below ought to have acquitted the petitioners from the charge of abatement. The submissions merit consideration. Leave is granted to consider the same. Preparation of paper book is dispensed with as prayed for. Bail granted earlier be further extended till disposal of the appeal. The petitioners are directed to makothe appeal ready for expeditious hearine.
Source: III ADC (2006) 422