COMPENDIUM FOR PROSECUTION

C-10P

3RD MAIMS NATIONAL MOCK TRIAL COMPETITION, 2024

BEFORE THE HON’BLE MAGISTRATE COURT OF SARAI MOHALLA, DELI

IN THE MATTER OF:

STATE………………..PROSECUTION

VERSUS

RAJIV SHARMA AND SHRIJA …………………………... DEFENCE

(Under Section 177 and 209 of the Indian Penal Code, 1860)

COMPENDIUM ON BEHALF OF THE PROSECUTION

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LIST OF CASES

1. State v Shaikh Mohammed Rafiq, 2009 SCC Online Bom 1666

2. Ashish v. State of Maharashtra, 2023 SCC Online Bom 2385

3. Prakash v State of Haryana, (2004) 1 SCC 339

4. Bapu Kisan Lackat & Ors v State of Maharashtra & Ors, 2006 SCC Online Bom 1661

5. Suresh & Anr v. State of U.P. & Ors, (2001) 3 SCC 673

6. Abdul Syed & Ors v. State of Madhya Pradesh (2010) 10 SCC 259

7. Parasa Raja Manikayala Rao & Anr v. State of A.P. (2003) 12 SCC 306

8. Chithresh Kumar Copra v State (Government of NCT Delhi) (2009) 16 SCC 605

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1. State v Shaikh Mohammed Rafiq, 2009 SCC Online Bom 1666

PARA 25. Next, what is to be considered is whether the learned Children's Court was
justified in acquitting the accused under Section 363 IPC?

PARA 26. Learned Children's Court has rightly observed that what was required to be
proved for an offence of kidnapping was that the accused had taken the victim out of lawful
guardianship. Learned Children's Court accepted the submission that the accused had given
a lift to the said boy who was waiting near the bus stop and who was standing at a distance
of about 15 metres from the Green Park Junction and in case the accused had any intention
of kidnapping the said boy, he would have proceeded with his car by the by-pass road
towards Mapusa side and therefore learned Children's Court observed that there was no
intention of kidnapping the victim boy from lawful guardianship. The learned Children's
Court entirely lost sight that the direction taken by the accused was wholly irrelevant. There
can be no dispute that as the boy was waiting at the bus stop, to go to school, he was very
much under lawful guardianship of his parents. Even if a child goes out on the street or into
the fields by himself or herself or goes to school, he or she is still continues to be under
control of his or her guardian. The offence of kidnapping has four essential ingredients
namely : -

(i) Taking away or enticing any minor,

(ii) The minor being below 16 years in case of a male and 18 years in case of female,

(iii) Out of keeping of the lawful guardian and

(iv) Without his or her (guardian's) consent.

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PARA 27. The word “keeping” in the context connotes the idea of charge, protection,
maintenance and control. The consent of the minor who is taken or enticed is wholly
irrelevant or immaterial and what is only material is guardian's consent. It is also not
necessary that there should be any force or fraud. Persuasion by an accused which creates
willingness on the part of the minor is held to be sufficient. (See (2004) 1 SCC 339 : AIR
2004 SC 227). The object of the section is to protect the children of tender age of being
abducted or seduced for improper purposes, as for the protection of the rights of parents
and guardians having the lawful charge or custody of minor or insane person. In
determining whether a person takes a minor out of the lawful keeping of his guardian, the
destination to which the minor is taken away is immaterial. The offence gets completed as
soon as the minor is actually taken out of the custody of his/her guardian. The Apex Court
in S. Varadarajan v. State of Madras (AIR 1965 SC 942) held that even where the minor
girl is kept by her father at the house of his relative, she still continues to be in the lawful
guardianship of the former. r at the house of his relative, she still continues to be in the
lawful guardianship of the former. It is further held that taking or enticiting away a minor
out of the keeping of lawful guardian is an essential ingredient of the offence of kidnapping.
In the case of State of Haryana v. Rajaram ((1973) 1 SCC 544) the Apex Court with
reference to the expression “takes or entices any minor ……. out of the keeping of the
lawful guardian of such minor” observed that the object of Section was to protect the minor
children from being seduced for improper purposes, as to protect the rights and privileges
of the guardians having the lawful charge or custody of their minor wards and the gravamen
of this offence lies in taking or enticing of a minor under the ages specified in this Section,
out of keeping of the lawful guardian. In State v. Sulekh Chand (AIR 1964 Punj 83) it
was held that offence of kidnapping under Section 363 consists solely of taking a
minor from keeping of her lawful guardian and no intention needs to be established.
(emphasis supplied). Learned Children's Court was not right in coming to the conclusion
that the accused would not have taken the boy by the by-pass road in case he had any
intention to kidnap victim boy. The accused was going to Mapusa and so also the victim
boy, and in case the accused had taken the said boy, by the by pass-road, the victim boy
would have immediately reacted, because that would not have taken him to his school
destination. Learned Counsel on behalf of the accused submits that mere giving a lift to a
minor boy would not amount to kidnapping. This is a wrong notion of law considering the
ingredients of the offence of kidnapping. That may help in mitigation of sentence. In the
case at hand, even assuming the accused gave a lift to the victim boy and the latter accepted
it, soon thereafter, within a distance of two kilometers the accused took the victim boy in
the field and misbehaved with him. The only inference in such a situation is that accused
gave a lift to the victim boy with a view only to physically abuse his person and that being
the position, in my view, the learned Children's Court was not at all justified in acquitting
the accused under Section 363 of IPC. Consequently, the acquittal of the accused under

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Section 363 of IPC has got to be reversed and as a result, the accused is hereby convicted
under Section 363 of IPC.

2. Ashish v. State of Maharashtra, 2023 SCC Online Bom 2385

PARA 8. The explanation added thereto expands the words “lawful guardian” to include
any person lawfully entrusted with the care or custody of such minor or other person.
However to complete the offence the person who takes away the minor must not fall within
the conspectus of the terms “lawful guardian”.

3. Prakash v State of Haryana, (2004) 1 SCC 339

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4. Bapu Kisan Lackat & Ors v State of Maharashtra & Ors, 2006 SCC Online Bom
1661

7. From this it is clear that whoever takes or entices a minor, under 16 years of age if a
male or under 18 years of age if a female, or any person oh unsound mind, out of the
keeping of the lawful guardian of such minor or person of unsound mind, without the

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consent of such guardian, is said to have committed the offence of kidnapping from lawful
guardianship; Naturally the next question arises who is natural guardian of a minor u/S.
4(a) of Hindu Minority and Guardianship Act, 1956, a minor means a person who has not
completed the age of 18 years and under clause (b) guardian means a person having care
of the person of a minor or of his property or of both his person and property and includes
the natural guardian. Section 6 of the Hindu Minority and Guardianship. Act provides that
natural guardian of a Hindu minor in the case of a boy or an unmarried girl is father and
after him the mother. However, it provides that custody of a minor who has not completed
the age of 5 years shall ordinarily be with the mother. Difference between the natural
guardianship and custody is well understood. Father of a Hindu minor is guardian though,
mother may be in custody or she may be entitled to custody up to certain age. In the present
case Vikas was aged about 12 years when the alleged incident occurred. Therefore, the was
minor and as such in view of the provisions of Section 6 of Hindu Minority and
Guardianship Act, the petitioner, being father, was natural guardian of the boy. He was the
lawful guardian of the child and he continued to be lawful guardian even when the boy was
removed from Z.P. Primary school, Pargaon by taking transfer certificate by his mother.
Explanation to Section 361 I.P.C. provides that the lawful guardian in the said Section
include any person lawfully entrusted with the care or custody of such minor. It may be
said that when Vikas was admitted in S.O.S. Bal-Gram.Suresh & Anr v. State of U.P. &
Ors, (2001) 3 SCC 673

5. Suresh V State of U.P, Ors, (2001) 3 SCC 673

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PARA 38. Section 34 IPC recognises the principle of vicarious liability in criminal jurisprudence.
It makes a person liable for action of an offence not committed by him but by another person with
whom he shared the common intention. It is a rule of evidence and does not create a substantive
offence. The section gives statutory recognition to the commonsense principle that if more than
two persons intentionally do a thing jointly, it is just the same as if each of them had done it
individually. A common intention presupposes prior concert, which requires a prearranged plan of
the accused participating in an offence. Such pre concert or pre planning may develop on the spot
or during the course of commission of the offence but the crucial test is that such plan must precede
the act constituting an offence. Common intention can be formed previously or in the course of
occurrence and on the spur of the moment. The existence of a common intention is a question of
fact in each case to be proved mainly as a matter of inference from the circumstances of the case.
6. Abdul Syed & Ors v. State of Madhya Pradesh (2010) 10 SCC 259

PARA 49: Section 34 IPC carves out an exception from general law that a person is responsible
for his own act, as it provides that a person can also be held vicariously responsible for the act of
others if he has the "common intention" to commit the offence. The phrase "common intention"
implies a pre-arranged plan and acting in concert pursuant to the plan. Thus, the common intention
must be there prior to the commission of the offence in point of time. The common intention to
bring about a particular result may also well develop on the spot as between a number of persons,
with reference to the facts of the case and circumstances existing thereto.

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7. Parasa Raja Manikyala Rao v State of AP, AIR 2004 SC 132

PARA 11. The section really means that if two or more persons intentionally do a common thing
jointly, it is just the same as if each of them had done it individually. It is a well-recognised canon
of criminal jurisprudence that the courts cannot distinguish between co-conspirators, nor can they
inquire, even if it were possible as to the part taken by each in the crime. Where parties go with a
common purpose to execute a common object, each and every person becomes responsible for the
act of each and every other in execution and furtherance of their common purpose; as the purpose
is common, so must be the responsibility. All are guilty of the principal offence, not of abetment
only. In a combination of this kind a mortal stroke, though given by one of the party, is deemed in
the eye of law to have been given by every individual present and abetting. But a party not
cognizant of the intention of his companion to commit murder is not liable, though he has joined
his companion to do an unlawful act. The leading feature of this section is the element of
participation in action. The essence of liability under this section is the existence of a common
intention animating the offenders and the participation in a criminal act in furtherance of the
common intention. The essence is simultaneous consensus of the minds of persons participating
in the criminal action to bring about a particular result. (See Ramaswami Ayyangar v. State of T.N
(1976) 3 SCC 779, AIR76 SC 2027) The participation need not in all cases be by physical presence.
In offences involving physical violence, normally presence at the scene of offence may be
necessary, but such is not the case in respect of other offences when the offence consists of diverse
acts which may be done at different times and places. The physical presence at the scene of offence
of the offender sought to be rendered liable under this section is not one of the conditions of its
applicability in every case. Before a man can be held liable for acts done by another, under the
provisions of this section, it must be established that: (i) there was common intention in the sense
of a prearranged plan between the two, and (ii) the person sought to be so held liable had
participated in some manner in the act constituting the offence. Unless common intention and
participation are both present, this section cannot apply.

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7. Chitresh Kumar Chopra v State, (2009) 16 SCC 606

PARA 13. As per the section, a person can be said to have abetted in doing a thing, if he, firstly,
instigates any person to do that thing; or secondly, engages with one or more other person or
persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in
pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids,
by any act or illegal omission, the doing of that thing. Explanation to Section 107 states that any
wilful misrepresentation or wilful concealment of material fact which he is bound to disclose, may
also come within the contours of “abetment”. It is manifest that under all the three situations, direct
involvement of the person or persons concerned in the commission of offence of suicide is essential
to bring home the offence under Section 306 IPC.