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Madhya Pradesh High Court · body

2011 DIGILAW 912 (MP)

Gyan Singh v. State of M. P.

2011-08-10

S.K.SETH

body2011
JUDGMENT 1. Appellant in this appeal is convicted of the offence punishable under section 366 of the Penal Code. He has been sentenced to seven years' rigorous imprisonment. 2. Briefly stated, the facts are that on 14.5.1993 Rajesh (PW.1) lodged a complaint in the Police Station, Chandannagar, Indore, that his cousin Laxmibai, a young girl aged about 17 years daughter of Sushilabai, was missing and could not be found. There upon the police took up investigation and ultimately apprehended appellant and Kesarbai. Police found that apart from these two accused, there were two other accused, viz., Amratlal and Indrabai, but they could not be arrested as they were absconding. Missing girl returned home on 15.6.1993. Therefore, a FIR was registered at Police Station, Chandannagar. After completing investigation, charge sheet was filed against appellant and Kesarbai. They were committed to stand trial for offence punishable under section 366 of the IPC. It is pertinent to point out that at the fag end of trial, accused Kesarbai jumped the bail and absconded, therefore, Trial Court pronounced judgment only against appellant. By the impugned judgment dated 6th December, 1996, appellant was found guilty of the charge laid against him, consequently, he has been ordered to undergo penal servitude as stated above. Hence he is in appeal before us. 3. At hearing, the main contention of learned counsel for appellant is that the ingredients of an offence under section 366, IPC have not been established on the present record. He submitted that at the time of alleged abduction, Laxmibai was major and there is no evidence that appellant offered any inducement or blandishment. She, of her own accord, abandoned her guardianship, therefore, it could not be said that appellant took or enticed Laxmibai away out of the keeping of her lawful guardian. It is further contended that the appellant in doing what he did, did not amount to offence punishable under section 366 of the IPC. 4. Section 366 provides for punishment for 'Kidnapping' or 'abduction'. 'Kidnapping' is defined in section 361 where' Abduction' is defined under section 362 of the IPC. Broadly speaking. 'kidnapping' is committed in respect of minor or a person of unsound mind; 'abduction' in respect of a person of any age. In kidnapping, person kidnapped is removed out of the lawful guardianship; 'abduction' has reference exclusively to the person abducted. 'Kidnapping' is defined in section 361 where' Abduction' is defined under section 362 of the IPC. Broadly speaking. 'kidnapping' is committed in respect of minor or a person of unsound mind; 'abduction' in respect of a person of any age. In kidnapping, person kidnapped is removed out of the lawful guardianship; 'abduction' has reference exclusively to the person abducted. 'Kidnapping' is a substantive offence but 'abduction' is an auxiliary act, punishable only when it is done with one or other intents specified in sections 364, 365 366 etc. 5. So far as present appellant is concerned, the case against him is fully established on the prosecution evidence. Laxmibai (PW 5) in her statement clearly stated that appellant met her at the fixed rendezvous and from there appellant alongwith Kesarbai took her to Gwalior to marry her against her will. In this connection they visited various places, including a village in Guna and stayed with absconding accused Amratlal and Indarbai. They then went to Hatta, where in fact a sham marriage ceremony was performed and she was left there by accused persons. It seems there present appellant and Amratlal fell out over the booty and Amratlallet the cat out of bag. Amaratlal accompanied Laxmibai on the pretext of escorting her back to Indore. During transit, Amratlal took advantage of his position and ravished her against her will. Somehow Laxmibai managed to escape and reached home where she disclosed to her mother Sushilabai (PW. 2) the ordeal she had undergone. The learned counsel has urged in connection with her statement that the rule of prudence requires that it should be corroborated in material particulars by some other evidence and that unless that is done, it would be dangerous to rely upon it. We are not impressed with contention. In Emperor v. Banubai Ardeshir. AIR 1943 Bom 150 = 44 Cri.LJ 534 (FB), a view has prevailed which is contrary to the contention put forward by the learned counsel and we respectfully agree with it. It was held that the rule of practice suggested by the learned counsel in the, case had no application to a case of abduction, even though the abduction was alleged to be with intent to seduce a woman to sexual intercourse. This rule, it was held, should be restricted to cases of rape only and should not be extended to other cases of sexual nature. This rule, it was held, should be restricted to cases of rape only and should not be extended to other cases of sexual nature. The evidence of Laxmibai is duly corroborated by evidence of Rajesh (PW 1) and Sushilabai (PW 2) in all material particulars. We have carefully examined statements of witnesses and consider that they are forthright and full of details and ample for the purpose of showing that the incidents took places as they were narrated. We accordingly, see no reason why they should not be believed. 6. The learned counsel, apart from the above aspect of the case, next, put forward certain contentions which are of a technical nature. He urged that in this case, it could not be said that deceitful means had been employed for the purpose of inducing the girl to leave Indore. We are unable to agree with this contention. The expression "deceitful means" is wide enough to include the inducing of a girl to leave her guardian's house on a pretext. 'Deceit' according to its plain dictionary meaning, signifies anything intended to mislead another; It is, really speaking, a matter of intention of the accused. The volition. the intention and the conduct of the woman do not determine the offence under section 366; they can only bear upon the intent. Once the necessary intent of the accused is established the offence is completed, whether or not accuse succeeded in effecting his purpose and whether or not there is post abduction consent of the girl/woman. In this regard, evidence on the record is clear and there is no escape from the conclusion that it is a case of abduction without any lawful intention which is the basis and gravemen of the offence under section 366. Appellant induced or compelled Laxmibai to go fro Indore and such abduction took place with intent that Laxmibai may be seduced to marry a person against her will and further she was forced to illicit intercourse when she was taken away or kept out of the lawful authority of her guardian. 7. In view of the evidence available on record, we do not find any infirmity or illegality with the impugned judgment holding the appellant guilty of the offence levelled against him in the charge-sheet. Thus, we find no merit and substance in the appeal and the same stands dismissed. 8. Appellant are on bail. 7. In view of the evidence available on record, we do not find any infirmity or illegality with the impugned judgment holding the appellant guilty of the offence levelled against him in the charge-sheet. Thus, we find no merit and substance in the appeal and the same stands dismissed. 8. Appellant are on bail. His bail bond is hereby cancelled and he is directed to surrender forthwith before the trial Court for undergoing the remaining part of sentence, failing which, Trial Court shall take suitable action as per law under intimation to this Court. 9. Office is directed to send a copy of this judgment along with record of the Trial Court forthwith. 10. Order accordingly. Devendra Singh for appellant; R.S. Bais, Dy. Government Advocate for respondent.