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Madhya Pradesh High Court · body

2007 DIGILAW 677 (MP)

Gendalal v. State Of M. P.

2007-07-04

K.S.CHAUHAN

body2007
JUDGMENT : This appeal has been preferred under section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment, finding and sentence dated 6-11-1992 passed by the 10th Additional Sessions Judge, Jabalpur in Sessions Trial No. 467/87 whereby the appellant has been convicted under sections 363 and 366 of Indian Penal Code and sentenced to undergo R.I. for 3 years under section 363 of Indian Penal Code and 4 years R.I. under section 366 of Indian Penal Code with fine of Rs. 2,000/-, in default to further undergo S.I. for one year with direction to run jail sentences concurrently. 2. The prosecution case in short is that complainant Ramkhilawan Dubey resides at Punjab Dairy, Pariyat, P.S. Panagar and works as an agent (muneem) in this dairy. Bhaiyalal Tiwari is his brother-in-law who resides in Quarter No. I-45, Krishinagar Colony, Adhartal, Jabalpur. The victim, aged 13 years, is the daughter of complainant. She was studying in Kandrakheda primary school in 4th standard. After examination, she went to the house of her Phupha-the husband of her father's sister-Shri Bhaiyalal Tiwari. Savitri Bai is the wife of complainant, Ramkhilawan Dubey. On 12-5-1987 Savitri Bai went to the house of Bhaiyalal and returned back to her house and stated that on 11-5-1987 at 10-11 a.m. Gendalal who was also working in the Punjab Dairy went to the house of Bhaiyalal Tiwari and stated that the condition of the mother of the victim is serious, therefore, she has been called upon. This fact was narrated by Parwati Bai to her. But victim has not reached her house. Thus, the complainant has doubted that the appellant had eloped his minor daughter on the pretext that her mother is ill. 3. On this information, the Crime No. 127/87 under section 363 and 366 was registered against the appellant at police station Adhartal Jabalpur. During the course of investigation, the map was prepared. School admission register was seized. The victim was recovered from the possession of the appellant on 17-5-1987. The recovery memo was prepared. She was referred for medical examination. The appellant was arrested on 18-5-1987. He produced affidavit which was seized on the same date. The statements were recorded. After completing the investigation the charge-sheet was filed in the Court of Chief Judicial Magistrate, Jabalpur from where the case was committed to the Sessions Court on 24-11-1987. 4. The recovery memo was prepared. She was referred for medical examination. The appellant was arrested on 18-5-1987. He produced affidavit which was seized on the same date. The statements were recorded. After completing the investigation the charge-sheet was filed in the Court of Chief Judicial Magistrate, Jabalpur from where the case was committed to the Sessions Court on 24-11-1987. 4. The appellant was charged under sections 363 and 366 of Indian Penal Code to the effect that on 11-5-1987 he kidnapped the victim a minor girl from the lawful guardianship of Ramkhilawan Dubey and Bhaiyalal Tiwari without their consent. He was further charged that on the same date, time and place kidnapped the victim a minor girl with intent to compel her to marry against her will. 5. The appellant abjured the guilt and claimed to be tried. 6. The prosecution examined as many as 8 witnesses and the appellant did not examine any witness in his defence. After considering the evidence, the trial Court found the charge under sections 363 and 366 of Indian Penal Code proved beyond reasonable doubt, held him guilty thereunder and sentenced as stated in the para 1 of this judgment. 7. Being aggrieved by the judgment, finding and sentence, the instant appeal has been preferred by the appellant Gendalal on the grounds mentioned in the memo of appeal under section 374(2)of the Code of Criminal Procedure. 8. The learned counsel for the appellant has submitted that the prosecution has failed to prove the fact that the victim was minor at the time of incident. It is further submitted that the victim has gone to different places like Katni and Rewa but she did not disclose to anybody else that appellant has kidnapped her, therefore, the case is of consent, hence no offence is made out, therefore, the appellant deserves to be acquitted. 9. On the other hand, Smt. S. Paliwal, learned G.A. appearing on behalf of the respondent-State supported the judgment, finding and sentence passed by the trial Court and submitted that the prosecution has fully established the case against the appellant, therefore, it does not call for any interference in this appeal. 10. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellant under sections 363 and 366 of Indian Penal Code? 11. 10. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellant under sections 363 and 366 of Indian Penal Code? 11. The entire record and evidence adduced in this case perused and critically examined. 12. P.W.-2 is the victim. She has deposed in her evidence that at the time of incident she was 14 years of age. She studied upto 4th standard in Kandrakheda Primary School. She has denied her age to be of 19 years and has stated that she has not sworn in affidavit Ex.D/2 and it does not contain her signature also. 13. Ramkhilawan Dubey (PW-3) is the father of victim. He has also deposed that victim was of 14 years at the time of incident. He has specifically stated that victim was born in the year 1974 and she was studying in the 4th standard at the time of incident. 14. Savitri Bai (PW-5) is the mother of victim. She has deposed that victim has studied in Kandrakheda School upto 4th standard. At the time of leaving the studies, the victim was of 16 years according to her estimation. She has further stated that she does not know the year in which the victim was born but stated that victim was born before 20 years. She has been contradicted by her previous statement Ex.D/3 wherein she has stated that victim was of 13 years at the time of incident. 15. Smt. Ganga Khare (PW-6) is the Headmistress of Primary School Kandrakheda. She has brought the School Admission Register of 1983 which is Ex.P/5-C. It contains the particulars of victim at Serial No. 825. She has been subjected to cross examination wherein she has deposed that she was not posted at the time when the victim took admission in that school. Further she has stated that at the time of admission the guardian gives the declaration and on that basis the date of birth is recorded in the school admission register. 16. On perusal of school admission register (Ex.P/5-C) the date of birth of victim is shown as 22-4-1974. She took admission in Class-I on 28-7-1983. The incident is of 11-5-1987. Accordingly, the age of victim was in between 13-14 years at the time of incident. 17. Dr. 16. On perusal of school admission register (Ex.P/5-C) the date of birth of victim is shown as 22-4-1974. She took admission in Class-I on 28-7-1983. The incident is of 11-5-1987. Accordingly, the age of victim was in between 13-14 years at the time of incident. 17. Dr. H. P. Thakur (PW-1) has taken the x-ray of the elbow, wrist and waist of the victim. On the basis of ossification test, he has stated that her age was in between 15-16 "½ years. The x-ray report is Ex.P/1 and x-ray plates are Ex.P/2 and Ex.P/3. He has stated in cross-examination that there may be difference of 2-3 years in the assessment of age according to the ossification test. 18. On perusal of school evidence, in this regard, it is manifestly clear that victim has deposed that her age was 14 years at the time of incident. Her father Ramkhilawan Dubey has also stated that the age of his daughter was of 14 years. However, her mother Savitri Bai stated her age to be of 16 years according to her estimation. She was not in a position to narrate the exact date of birth. 19. According to the school admission register, her date of birth was of 22-4-1974. The date of incident is of 11-5-1987, thus, she was of 13-14 years of age at the time of incident. According to ossification test, she was in between 15-16½ years on the date of examination dated 20-5-1987. 20. The appellant on the basis of affidavit Ex.D/2 tried to establish that she was of 19 years at the time of incident but has denied to sworn in such affidavit and put her signature on it. 21. From the perusal of entire oral and documentary evidence in this regard, it can safely be stated that she was below 18 years at the time of incident. Since she has denied to sworn in such affidavit and also her signature on it, therefore, it cannot be accepted that her age was of 19 years on the basis of such affidavit. She was totally under the control of appellant when the affidavit is purported to have been sworn in. Thus, the appellant has attempted to save himself from the clutches of law by producing this affidavit. 22. From the evidence, it is clear that she was studying in the 4th standard and at that time the examination was over. She was totally under the control of appellant when the affidavit is purported to have been sworn in. Thus, the appellant has attempted to save himself from the clutches of law by producing this affidavit. 22. From the evidence, it is clear that she was studying in the 4th standard and at that time the examination was over. At the time of admission in school, her date of birth 22-4-1974 was entered in the school admission register. This register was regularly kept in the regular course of business. Accordingly, she was of 13-14 years of age. According to ossification test also, she was in between 15-16½ years of age, thus, there is ample evidence to prove the fact that the victim was below 18 years at the time of incident. 23. Section 361 of the Indian Penal Code runs as follows : "Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation.-The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception.-This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose." 24. From the evidence it is clear that victim was a minor girl below 18 years of age at the time of kidnapping from the lawful guardianship of her guardians. 25. The victim has deposed that she resides at Pariyat but she had gone to the house of her aunt (Bua)-father's sister residing at Adhartal. She stayed there for two days. This evidence of the victim is corroborated by the evidence of her father Ramkhilawan Dubey (PW-3), Savitri Bai (PW-5) and Parwati Bai (PW-6). Thus, it is established that on the date of incident she was at the house of her aunt at Adhartal. 26. The victim has deposed that the appellant works in the same dairy with her father. This evidence of the victim is corroborated by the evidence of her father Ramkhilawan Dubey (PW-3), Savitri Bai (PW-5) and Parwati Bai (PW-6). Thus, it is established that on the date of incident she was at the house of her aunt at Adhartal. 26. The victim has deposed that the appellant works in the same dairy with her father. Such statement is corroborated by Ramkhilawan Dubey (PW-3). Thus, it is established that the appellant was working with the father of victim and, therefore, he was well acquainted with the victim and her family members and he used to come to the house of victim. 27. The victim has also stated that the appellant came at about 8-9 a.m. and stated to her aunt that the condition of the mother of victim is serious, therefore, to proceed to house with him. Parwati Bai (PW-4) has also stated the similar fact. Savitri Bai who visited the house of Parwati Bai was also apprised about the fact that the appellant came there and stated that the condition of Savitri Bai is serious and hence he carried the victim with him. This fact was also told by Savitri Bai to her husband Ramkhilawan. 28. Although these witnesses were subjected to cross-examination at length but nothing is elicited to discredit their testimony. Thus, it is established that the appellant enticed the victim by pretending and defrauding on the pretext that her mother was seriously ill. 29. From the perusal of the statement of victim, it reveals that victim was carried from Jabalpur to Katni and from Katni to Rewa and stayed her at the house of Jagdish. The attempts on behalf of the appellant were made to show that victim was the consenting party and herself accompanied with him. It is true that she did not narrate this fact to anybody in the journey from Jabalpur to Rewa. However, she has stated to Jagdish that the appellant has kidnapped her. As it has been established by the prosecution that she was below 18 years of age, therefore, she was not in a position to give the valid consent. In other words, her consent, if any, was immaterial. As it is also manifestly clear that when the appellant eloped the victim from the house of Bhaiyalal, he pretended and falsely stated that she has been called by her ailing mother. In other words, her consent, if any, was immaterial. As it is also manifestly clear that when the appellant eloped the victim from the house of Bhaiyalal, he pretended and falsely stated that she has been called by her ailing mother. But, in fact, her mother was not ill. Therefore, by pretending and defrauding, he has enticed her away from there. At this moment, the offence of kidnapping has been completed and subsequent consent if any was immaterial. When the appellant has eloped a minor girl then he should know its consequences. Furthermore he has betrayed the confidence reposed by victim and her family members taking the advantage of working with her father in same dairy and good relations with them. 30. H. D. Tiwari (PW-8) has deposed in his evidence that the victim was recovered from the possession of Gendalal vide recovery memo Ex.P/9 and the appellant was arrested vide arrest memo Ex.P/11. The victim has also deposed that she was kept at Rewa in the house of Jagdish Barau. Her father and police reached there after 8 days, thus, it is established that the appellant after kidnapping the victim, kept her in the house of Jagdish at Rewa, from where she was recovered by the police. 31. The appellant has produced affidavit Ex.D/2 which is purported to have been sworn in by the victim, on its' basis it cannot be said that the intention was to compel her to marry with him. 32. From the evidence adduced in the case, it is established beyond reasonable doubt that appellant enticed minor victim out of the keeping of her parents as well as her guardian at the time of incident with intent to compel her to marry against her will. The trial Court has discussed these aspects in great detail and has rightly came to the conclusion that the prosecution has proved its case beyond reasonable doubt and has rightly been convicted the appellant under sections 363 and 366 of Indian Penal Code. Such finding of the trial Court, is hereby affirmed. 33. The learned counsel for the appellant has submitted that the case of the appellant is of the year 1987 and the appellant has also remained in jail for sometime, therefore, benefit of Probation of Offenders Act be extended to him. 34. Such finding of the trial Court, is hereby affirmed. 33. The learned counsel for the appellant has submitted that the case of the appellant is of the year 1987 and the appellant has also remained in jail for sometime, therefore, benefit of Probation of Offenders Act be extended to him. 34. Since the appellant by pretending, kidnapped the minor girl with intent to marry her against her will, keeping in view the entire facts and circumstances of the case, no lenient view is required to be taken in the matter of sentence. The sentence awarded by the trial Court cannot be said excessive in any manner, therefore, such finding of the trial Court is also hereby affirmed. 35. From the foregoing discussion, the appeal is devoid of merit and hence deserves to be dismissed. 36. Consequently, the appeal fails and is dismissed accordingly. The appellant is on bail. His bail bonds are cancelled. He be directed to surrender before C.J.M. Jabalpur on 30th July, 2007 to serve out the remaining part of the sentence.