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2011 DIGILAW 551 (MP)

Ashok @ Beera v. State of M. P.

2011-05-05

RAKESH SAKSENA

body2011
JUDGMENT : Appellants have filed this appeal against the judgment dated 2nd April, 1996 passed by Additional Sessions Judge, Gadarwara in Sessions Trial No. 58/91, convicting the appellants of the charge under Section 366 of the Indian Penal Code. Appellant Nos. 1 and 2, viz., Ashok @ Beera and Hakke have been sentenced to rigorous imprisonment for 3 years with fine of Rs. 500/-. Appellant No. 3 Kodulal has been sentenced to rigorous imprisonment for two years with fine of Rs. 500/-. 2. Learned Counsel for the appellants submits that appellant Nos. 1 and 2 have served out their whole of the sentence, therefore, he does not want to press this appeal in respect to them. On perusal of record, it is found that appellant No. 1 Ashok and appellant No. 2 Hakke have been released from jail after serving out their sentences. 3. According to prosecution, on 18-1-1990, when prosecutrix (P:W. 2) was going along with her husband Bhola from her parents house at Sokalpur to the house of her husband in Village Bichhua, she was abducted by appellants Ashok and Hakke. She was subjected to rape by them and was taken to Gadarwara, where she was confined in the house of appellant Kodulal. It is said that in the Taparia of. Kodulal, accused Ashok again committed rape on her. In Gadarwara, when prosecutrix (P.W. 2) met her father Hariram (P.W. 4)«and brother Ravi Shanker, all the accused persons ran away leaving her. Report of the incident was lodged by prosecutrix in Police Station, Tendukheda on 23-1-1990. 4. After investigation, charge-sheet was filed and the case was committed for trial. Trial Court relying on the evidence of prosecutrix (P.W. 2), Bhola (P.W. 3) and Hariram (P.W. 4) convicted all the appellants under Section 366 of the Indian Penal Code. Finding that prosecutrix was a consenting party, with accused Ashok, Trial Court acquitted accused persons of the charge under Section 376 (2) (g) of the Indian Penal Code. As far as the culpability of appellant No. 3 Kodulal, learned Counsel for the appellants submits that there is absolutely no evidence on record to bring home the charge under Section 366 of the Indian Penal Code against him as the allegation of abducting the prosecutrix was only against accused Ashok and Hakke. As far as the culpability of appellant No. 3 Kodulal, learned Counsel for the appellants submits that there is absolutely no evidence on record to bring home the charge under Section 366 of the Indian Penal Code against him as the allegation of abducting the prosecutrix was only against accused Ashok and Hakke. Since appellant Kodulal was not present at the scene from where the prosecutrix was abducted, his conviction under Section 366 of the Indian Penal Code was unwarranted and unjustified. 5. On perusal of the evidence of prosecutrix (P.W. 2), it appears that accused Ashok and Hakke confronted her and her husband while they were going to their house. She was forcibly abducted by them and was taken to Gadarwara in the night. In Gadarwara, she was kept in the house of appellant Kodulal. Though, she stated that she told to Kodulal that Ashok and Hakke had carried her forcibly and committed rape on her, but this part of her evidence was an improvement. Prosecutrix was confronted with her First Information Report (Exh. P-3),wherein this fact was not found mentioned by her. Apart from it, in Para 13 of her statement Prosecutrix (P.W. 2) stated that in the hut of Kodulal in which she was confined other members of the family of Kodulal were also present. In these circumstances, the evidence of prosecutrix that she informed Kodulal about her miseries does not appear reliable. 6. For bringing home charge against an accused under Section 366 of the Indian Penal Code the prosecutrix ought to have either been kidnapped or abducted by the accused. Since the instant case, prosecutrix was a major woman, provisions of Section 362 of the Indian Penal Code would be attracted. Section 362 of the Indian Penal Code describes 'abduction' as follows :- "362. Abduction.- Whoever by force compels, or by any deceitful means induces, any person to go from an place, is said to abduct that person." 7. On a bare perusal of Section 362 of the Indian Penal Code, it is apparent that for making accused liable to be convicted for abduction, he should either by force compel or by deceitful means induce to any person to go from any place. On a bare perusal of Section 362 of the Indian Penal Code, it is apparent that for making accused liable to be convicted for abduction, he should either by force compel or by deceitful means induce to any person to go from any place. Since there is absolutely no evidence on record to indicate that appellant Kodulal forced, compelled or induced prosecutrix to go with accused Ashok and Hakke, it cannot be held that he committed offence under Section 366 of the Indian Penal Code, which essentially involves the ingredients of Section 362 of the Indian Penal Code. 8. In view of the above discussion, I am of the view that Trial Court committed error in convicting appellant Kodulal under Section 366 of the Indian Penal Code. Accordingly, the conviction and sentence of appellant Kodulal under Section 366 of the Indian Penal Code recorded by the Trial Court is set aside. He is acquitted of the charge. 9. In the result, this appeal with respect to appellant No. 1 Ashok and appellant No. 2 Hakke is dismissed as not pressed. Appeal in respect of appellant No. 3 Kodulal is allowed. Bail bond and surety bond of appellant No. 3 Kodulal stand discharged.