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Madhya Pradesh High Court · body

2019 DIGILAW 99 (MP)

Shiv Singh v. State of M. P.

2019-01-30

SHEEL NAGU

body2019
JUDGMENT : The present appeal arises out of the impugned judgment dated 27-9-2004 passed in S.T. No. 178/1999 convicting and sentencing the appellants under section 366 of Indian Penal Code to five years R.I. with fine of Rs.200/- (rupees two hundred only) each with default stipulation. 2. It is pertinent to point out that the appellant No. 3 Deena and Appellant No. 6-Jagman died during pendency of this appeal, therefore, the appeal as regards Appellant No. 3 and 6 stands abated and is dismissed as such. The appeal survives only against remaining appellants. 3. The prosecution story in brief is that the prosecutrix was earlier married to appellant Shiv Singh and due to certain matrimonial discord had started living away from matrimonial home with Atar Singh (PW-1) in live-in-relationship out of which a daughter was born on 3-3-1998. On 13-9-1998, co-accused Shiv Singh, Babu, Lakhpati, Mangi, Lajja, Deena, Jagman and Munshi sharing common intention came to Duliapura and entered the house of Atar Singh and forcibly tried to take the prosecutrix away with them. When one Kedar (PW-3) being neighbour came to the rescue of prosecutrix, he was inflicted lathi blow. The prosecutrix somehow fled and saved herself by taking shelter at the house of one Ramjilal. At this juncture, all the accused came to the spot and forcibly took the prosecutrix out of the house of Ramjilal and away with them. 3.1 The report of the incident was lodged on the next day vide crime No. 74/1999 registered by Police Station Pahadgad, district Morena alleging offences punishable under sections 363, 366, 426/323, Indian Penal Code against all the accused. 3.2 After investigation, charge-sheet was filed before the Court of competent criminal jurisdiction. 3.3 Charge under section 366 and 323, Indian Penal Code was framed to which appellants pleaded innocence and sought trial. 4. Learned trial Court after marshalling the evidence adduced, acquitted all accused of charge under section 323, Indian Penal Code whereas convicted the appellants for offence punishable under section 366, Indian Penal Code and sentenced them as aforesaid. CONTENTIONS OF PARTIES 5. 4. Learned trial Court after marshalling the evidence adduced, acquitted all accused of charge under section 323, Indian Penal Code whereas convicted the appellants for offence punishable under section 366, Indian Penal Code and sentenced them as aforesaid. CONTENTIONS OF PARTIES 5. The principal contention of the learned counsel for the appellant is that the trial Court convicted the appellants for the offence punishable under section 366 in the absence of any material that abduction was with an intent to marry the prosecutrix or to seduce her to illicit intercourse or knowingly that she may likely to be subjected to illicit intercourse. Reliance is placed on the verdict of Apex Court in the case of Kavita Chandrakant Lakhani vs. State of Maharashtra and another reported in (2018) 6 SCC 664 . 6. The attention of this Court is invited to finding rendered in paragraph 22 of impugned order where trial Court on the strength of the material available convicted the appellant Shiv Singh who was the husband of prosecutrix along with the other co-appellants herein and were related to appellant Shiv Singh forced themselves into the house where the prosecutrix was residing in live-in relationship with Atar Singh (PW-1) and forcibly took her away. On the basis of this material, trial Court has jumped to the conclusion that the said act of abduction was committed with the intention to force or seduce the prosecutrix into illicit intercourse or to marry the appellant. CONSIDERATION 7. It is undisputed fact that prosecutrix was earlier married to appellant Shiv Singh and due to matrimonial discord had separated and started living with Atar Singh (PW-1) and it appears that the appellant Shiv Singh was offended and therefore, committed the offence to bring his wife (prosecutrix) back to her matrimonial home, though by adopting unlawful means. 8. Importantly, in the present case the statement of the prosecutrix was not recorded for the reasons best known to the prosecution or else thing would have been more vivid. 9. In the absence of prosecutrix’s statement under section 161/164, Criminal Procedure Code or her testimony and any other material coming on record to indicate presence of elements of intention to force or to seduce prosecutrix to illicit intercourse or to marry, can not be presumed. Making of such presumption would be abhorrent to the settled principle of criminal jurisprudence that no conviction can be sustained on surmise/presumption alone. Making of such presumption would be abhorrent to the settled principle of criminal jurisprudence that no conviction can be sustained on surmise/presumption alone. 10. For ready reference and convenience section 366, Indian Penal Code is reproduced below : 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid]. (underlining supplied) 10.1 Abduction alone cannot attract the penal provision of section 366, Indian Penal Code. When abduction is proved to be done with intention to compel prosecutrix to marry anyone or with intention that prosecutrix may be forced or seduced into illicit intercourse, section 366, Indian Penal Code would stand attracted. 10.2 Herein the appellant No. 1 is the husband of prosecutrix. Prosecutrix was in a live-in-relationship with Atar Singh (PW-1) when the appellants (including Shiv Singh the husband of prosecutrix) abducted her with intent to bring her back to her matrimonial home. 10.3 Indisputably, the marriage between appellant No. 1 and prosecutrix was not annulled and thus continued to subsist when the incident occurred. Thus, in the absence of any evidence to the contrary, the abduction cannot be presumed to be committed with intent to compel prosecutrix to marry or be subjected to illicit intercourse. 11. 10.3 Indisputably, the marriage between appellant No. 1 and prosecutrix was not annulled and thus continued to subsist when the incident occurred. Thus, in the absence of any evidence to the contrary, the abduction cannot be presumed to be committed with intent to compel prosecutrix to marry or be subjected to illicit intercourse. 11. The available evidence on record is in shape of Kedar (PW-3) and Angad (PW-4) who were projected as eyewitnesses out of whom only Kedar (PW-3) supported the prosecution story disclosing that he tried to prevent appellants from abducting prosecutrix and in the process sustained minor injury on the head but that by itself can not compel this Court to presume that abduction was with an intent that prosecutrix may be compelled to marry any person or be forced or seduced to illicit intercourse. 12. This Court is bolstered in its view by one of the recent verdicts of Apex Court in Kavita Chandrakant Lakhani (supra). The relevant paras of which are reproduced below for ready reference and convenience : “16. In order to constitute the offence of “abduction”, a person must be carried off illegally by force or deception, that is, to compel a person by force or deceitful means to induce to go from one place to another. The intention of the accused is the basis and the gravaman of an offence under this section. The volition, the intention and the conduct of the accused determine the offence; they can only bear upon the intent with which the accused kidnapped or abducted the woman, and the intent of the accused is the vital question for determination in each case. Once the necessary intent of the accused is established, the offence is complete, whether or not the accused succeeded in effecting his purpose, and whether or not the woman consented to the marriage or the illicit intercourse. 17. Apart from this, to constitute an offence under section 366, Indian Penal Code, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal section. So far as the charge under section 366, Indian Penal Code is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the prosecution proves that the abduction is for the purposes mentioned in section 366, Indian Penal Code, the Court cannot hold the accused guilty and punish him under section 366, Indian Penal Code.” 13. In view of above, it is vivid that due to absence of intention to seduce for illicit intercourse or to marry, the trial Court wrongly convicted the appellants. 14. Accordingly, this Court is of the considered view that the appeal is liable to succeed and is therefore, allowed. Consequently, the conviction and sentence passed by the judgment dated 27-9-2004 in S.T. No. 178/1999 are set aside. 15. The appellants who are on bail need not surrender. Their bail bonds and surety bonds are discharged. However, in case the appellants are in custody, they shall be released forthwith. Appeal allowed.