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Madhya Pradesh High Court · body

2008 DIGILAW 988 (MP)

Qasam Khan v. State Of M. P.

2008-08-07

K.S.CHAUHAN

body2008
JUDGMENT : This criminal appeal under section 374(2) of the Code of Criminal Procedure has been preferred being aggrieved by the judgment, finding and sentence dated 18-4-1994 passed by Sessions Judge, Khandwa, in Sessions Trial No. 172/93 whereby the appellant has been convicted under section 363 of Indian Penal Code and sentenced to R.I. for one year. 2. The prosecution case in short is that Kallu lodged the report at P.S. Harsood on 3-7-1993 at 12.15 p.m. to the effect that his daughter Laxmibai aged about 11 years was all alone at the house and when he returned in the evening, he did not find her in the house. He enquired and waited up to 9.00 p.m. but she did not return. This report was entered in Roznamcha Sanha No. 129 on 3-7-1993. Missing person report No. 8/93 was registered and enquiry was made. She was recovered on 6-7-1993. Her statement was recorded. It was found that appellant has enticed her giving assurance for performing marriage with her. Offences under sections 363 and 366 were registered against him. Map was prepared and appellant was arrested. Statements were recorded under section 161, Criminal Procedure Code. After completing usual investigation, charge-sheet was filed in the Court of JMFC Harsood, which committed the case to Sessions Court for trial. 3. The appellant stood charged under sections 366 and 363 of Indian Penal Code. He denied the guilt and claimed to be tried mainly contending that he has been falsely implicated. Prosecution examined as many as 4 witnesses and the appellant did not examine any witness in his defence. After appreciating the evidence, the trial Court convicted him under section 363, Indian Penal Code and sentenced as stated hereinabove in para 1 of this judgment. Being aggrieved by the judgment, finding and sentence, instant appeal has been preferred on the grounds mentioned in the memo of appeal. 4. Shri Pradeep Sharma, learned counsel for the appellant submitted that the trial Court has not appreciated the evidence in proper perspective. The conviction is made on the uncorroborated testimony of complainant which has resulted in gross miscarriage of justice. The prosecution has not proved the case beyond reasonable doubt against the appellant, therefore, finding of guilt is erroneous which deserves to be set aside and the appellant is entitled for acquittal. 5. The conviction is made on the uncorroborated testimony of complainant which has resulted in gross miscarriage of justice. The prosecution has not proved the case beyond reasonable doubt against the appellant, therefore, finding of guilt is erroneous which deserves to be set aside and the appellant is entitled for acquittal. 5. On the contrary, Shri Deepak Awasthy, Government Advocate appearing on behalf of the respondent-State supported the impugned judgment, finding and sentence mainly contending that the prosecution has proved that this appellant has kidnapped minor girl Laxmibai, therefore, the trial Court has rightly convicted and sentenced him. It does not call for any interference. 6. The main point for consideration in this appeal is that whether trial Court has committed any illegality in convicting and sentencing the appellant under section 363 of Indian Penal Code. 7. Kallu (PW-2) is the father of Laxmibai (PW-1). He has deposed that his daughter is 12 years of age. Transfer certificate (Ex.P-1) from concerned school has been produced. Her date of birth is 2-9-1981 which is mentioned in the school certificate. Laxmibai (PW-1) also deposed her age to be of 13 years. Laxman Prasad Parashar (PW-3) has deposed that Laxmibai studied in Janpad School Harsood. He is Headmaster there. He had issued transfer certificate Ex.P-1. He has brought the record, accordingly the entry of date of birth in Ex.P-1 is correct. 8. No any effective cross-examination has been done to these witnesses on the point of age of Laxmibai. Appellant has himself admitted her age of 12 years in the statement of accused recorded under section 313, Criminal Procedure Code. Therefore, irresistible conclusion is that Laxmibai (PW-1) was minor at the time of incident. Hence, the finding of the trial Court in this regard is correct. 9. Laxmibai (PW-1) has deposed that on the day of incident, she was alone. Her sister and mother had gone to Khargone. Her father who is Riksha puller had gone to market. Appellant came there and stated that he will perform marriage with her and he will keep her like a queen. He also extended threat and carried her by bus and kept her in a village for 2 days. He tried to outrage her modesty but in vain. He kept her at Harsood in a house of washerman. One person who was acquainted with her father was also residing in front of the house of this washerman. He also extended threat and carried her by bus and kept her in a village for 2 days. He tried to outrage her modesty but in vain. He kept her at Harsood in a house of washerman. One person who was acquainted with her father was also residing in front of the house of this washerman. On his asking, she narrated that appellant had carried her forcefully, then that person informed to the police who recovered her. 10. In cross-examination, she has stated that she did not tell to any person regarding kidnapping while going to Harda because the appellant stated that she is carried to her mother. She has refused that his father has beaten her, and therefore, she went from the house of her father. Thus, appellant kidnapped her on false pretext to perform marriage with her. 11. As it has already been held that Laxmibai was minor at the time of incident, therefore, her consent, if any, was of no value. Thus, he has kidnapped her from lawful guardianship of her father without consent. Her father immediately lodged the report which was recorded in Roznamcha Sanha (Ex.P-2). She was found with appellant and recovered vide Ex.P-6. FIR is Ex.P-4. She has given the statement against the appellant. There is no question to disbelieve the evidence of victim. Her evidence inspires confidence, hence, reliable. 12. Section 361 of the Indian Penal Code runs as follows :- "Section 361. 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." 13. In the case of Thakorlal D. Vadgame vs. State of Gujarat, AIR 1973 SC 2313 , it is held that the word "takes", does not necessarily connote taking by force and it is not confined to use of force, actual or constructive. These words merely mean "to cause to go", "to escort" or "to get into possession". In the case of Thakorlal D. Vadgame vs. State of Gujarat, AIR 1973 SC 2313 , it is held that the word "takes", does not necessarily connote taking by force and it is not confined to use of force, actual or constructive. These words merely mean "to cause to go", "to escort" or "to get into possession". It is further observed that the gravamen of this offence (under section 361, Indian Penal Code) lies in the taking or enticing of a minor under the ages specified in this section out of the keeping of the lawful guardian without the consent of such guardian. These words are significant. The use of the word "Keeping" in the context connotes the idea of charge, protection, maintenance and control; further the guardian's charge and control appears to be compatible with the independence for action and movement of the minor. The guardian's protection and control of the minor being available, whenever necessity arises." 14. Keeping in view the facts, circumstances and evidence of this case, it is evident that the prosecution has proved the case against the appellant beyond reasonable doubt and the trial Court has not committed any illegality in convicting and sentencing the appellant under section 363, Indian Penal Code hence the same is hereby maintained. The appeal is devoid of merit and deserves to be dismissed. 15. Consequently, this appeal fails and is dismissed accordingly. The appellant is on bail. His bail bonds are cancelled. He be directed to appear before CJM Khandwa on 9-9-2008 to serve out the remaining part of the sentence.