High Court
Legal Reasoning
{1} CR APPEAL NO. 77 OF 2006IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 77 OF 20061.Satish @ Satyanarayan S/o Bhairavsingh GirigujarAge: 27 yrs., Occu.: Labour, R/o.Village Panwadi,Tq. & Dist.Sajapur, Madhya Pradesh.2.Sow. Anita w/o Satish GirigujarAge: 22 yrs., Occu. : Labour,R/o. As above.….AppellantsVersus.The State of Maharashtra,through Police Station Railway Purna,Tq.Purna, District : Parbhani.....Respondent …..Advocate for Appellants : Ms.Archana Jadhavar (Appointed) APP for Respondent : Mrs.Ashlesh S.Deshmukh….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 22 OCTOBER, 2024 PRONOUNCED ON : 25 OCTOBER, 2024 JUDGMENT :- 1. Instant appeal takes exception to judgment and order dated12-01-2006 rendered by learned 3rd Adhoc Additional SessionsJudge, Parbhani in Sessions Trial No.93 of 2005 recording guilt of theappellants for offence under Section 363 read with 34 of the IndianPenal Code (IPC). {2} CR APPEAL NO. 77 OF 2006PROSECUTION CASE IN BRIEF2. In trial Court, both above appellants were chargesheeted onthe premise that on 24-03-2005 they abducted and kidnappedinformant’s daughter and his minor granddaughter with intent tocompel informant’s daughter to marry against her will and furtherforce her to indulge in sexual intercourse. On report of PW1 Peeraji at exh.11, crime was registered foroffence under Sections 363, 366, 366A read with 34 of the IPC andtried by 3rd Adhoc Additional Sessions Judge, Parbhani vide SessionsTrial No.93 of 2005. On appreciation of oral and documentary evidence, learnedtrial Judge acquitted both accused from charge under Sections 366and 366A read with 34 of the IPC, but convicted them for offenceunder Section 363 read with 34 of the IPC. Hence, instant appeal.SUBMISSIONSOn behalf of appellants :3. Learned Counsel for the appellants challenged abovejudgment on the ground that prosecution has miserably failed toprove its case and charges beyond reasonable doubt. Leaned Counseltook this Court through the evidence of prosecution witnesses, more
Legal Reasoning
{3} CR APPEAL NO. 77 OF 2006particularly, PW1 informant, his daughter PW2 and minor girl PW3and would submit that they are not consistent and are not supportingeach other on material count. That their evidence is full of materialomissions, contradictions and they are at variance with each other. 4.Learned Counsel submitted that very informant’s evidence isconfusing. She emphasized that for almost more than two monthsinformant has not lodged missing report of his own daughter orgrand daughter. That delay of more than two months has occurred inlodging report of which there is no plausible explanation. Shepointed out that he informed that his daughter, who was a widow,had left the house with her own daughter to visit her brother’s place.That he claimed that he learnt that she did not reach there and shewas searched for, but still no missing report was lodged with Policeauthorities. 5.She further submitted that PW2 Mainabai, who was said to bea victim, has alleged that she was abducted, but her testimonycategorically shows that she herself accompanied the accused. Thereis no element of force or inducement. That her version is falsified byher own daughter PW3, as according to learned Counsel, PW3, the {4} CR APPEAL NO. 77 OF 2006minor, has admitted that accused and PW2 Mainabai and herdaughter PW3 were travelling in different bogies and therefore, thereis no question of abduction. She pointed out that there was noattempt to raise alarm or inform anyone about alleged abduction andtherefore, she questions the credibility and veracity of evidence ofPW2 Mainabai. Learned counsel pointed out that there is noevidence to show that victim was taken or sold as is alleged by her.Learned counsel pointed out that the man to whom she was allegedlysold is not surprisingly apprehended and even no investigation hasbeen carried out in that regard, to which it is pointed out that there isclear admission by very Investigating Officer. For all above reasons,she questions the very charge and case of prosecution. Taking this court through the evidence of minor PW3, learnedCounsel pointed out that her version does not tally with her ownmother PW2 in whose company she was for several days. Accordingto learned Counsel, minor’s evidence gives a different complexion tothe story of prosecution. That her evidence cannot be readilyaccepted as there is every possibility of child being tutored by PW1grandfather, PW2 mother and PW4 Shanker. 6.Learned counsel also criticized evidence of PW4 Shanker, who {5} CR APPEAL NO. 77 OF 2006allegedly informed PW1 informant about seeing PW3 on the RailwayStation and further being brought to Police Station. Learned Counselpointed out that both PW2 Mainabai and PW3 admitted in cross-examination that they never gave statement to Police. 7.Lastly, it is submitted that in the entire prosecution evidence,required ingredients for attracting offence of Section 363 of the IPCare patently missing. That there is no evidence of taking away orinducing in any manner and therefore, she questions both thefindings and conclusion reached at by learned trial Judge, whenaccording to learned Counsel, trial Court itself has discarded andrefused to accept prosecution story regarding commission of offenceunder Sections 366 and 366A of the IPC. Seeking reliance onjudgment of Hon’ble Apex Court in S.Vardarajan v. State State ofMadras, 1965 (2) Cri. LJ. 33, she urges to allow the appeal by settingaside the impugned judgment.On behalf of State :8. Learned APP supported the conviction by pointing out thatPW2 Mainabai and her daughter PW3, who are mother anddaughter are victim. That while going to her brother’s place, PW2Mainabai, who was accompanied by PW3, was lured with proposal of {6} CR APPEAL NO. 77 OF 2006marriage, food and shelter. However, evidence shows that appellantstook them and sold to one person and further took away minor PW3from the custody of PW2 Mainabai without her free consent.Therefore, according to learned APP, offence of Section 363 iscomplete. Both PW2 Mainabai and PW3 named and identifiedaccused. For above reasons, according to learned APP, no fault can befound in the manner of appreciation or the conclusion drawn bylearned trial Court and ultimateldy, she prays to dismiss the appeal. STATUS OF PROSECUTION WITNESSES AND SUM ANDSUBSTANCE OF THEIR EVIDENCE IN TRIAL COURT9.PW1 Peeraji Nathuji More, informant, in his evidence atexh.10, deposed that Mainabai is his daughter and Jyoti is herdaughter. That Mainabai lost her husband 4-5 years back. That hiselder son Chandrakant used to reside at Palasi. At the time of Holifestival, his daughter and granddaughter left to visit Chandrakant,but when he himself went to Palasi, he did not notice either hisdaughter or granddaughter and therefore, they searched for, but nottraced. After 2-3 months, Shanker Surve of his village informed himon phone about seeing granddaughter in company of a man and awoman. On such information, he approached Police Station andthere he came across his granddaughter, Shanker Surve and one {7} CR APPEAL NO. 77 OF 2006couple. On enquiry, his granddaughter told about her mother beingsold. He brought back his granddaughter after lodging reportexh.11.Material omissions are brought regarding this witness statingbefore Police that Shanker Surve gave phone message to him that hehad seen his daughter Mainabai at Kanhergaon Police Station; andthat his granddaughter Jyoti telling this witness that accused havesold away her mother. 10.PW2 Mainabai d/o. Peeraji More in her evidence deposed thatat the time of Holi, she started for her brother’s house with herdaughter. That at Kanhergaon Railway Station, she came across aman and a woman. According to her, they forcibly took her and herdaughter with them. They told that they would perform hermarriage and so she accompanied them. They also assured her food.But later on, she was beaten and restrained from returning backhome. That they took away her amount and she was taken toPanwadi and sold to one person. Her daughter was brought back toUmra. She was brought by Police. 11.PW3 Jyoti d/o. Uttam Tajne stated that her father is no more. {8} CR APPEAL NO. 77 OF 2006That incident took place 2-3 months back. That during rainy season,she and her mother were going to her maternal uncle’s place at Palasiand so they came to Kanhergaon Railway Station. Accused beforethe Court came there. While all were sitting under Neem tree,accused told her mother that there is “Saptah” and to come there andthey would give food, clothes and shelter. That Train going tomaternal uncle’s village came, but accused asked them to accompanythem. Thereafter, she and her mother were forcibly made to board ina Train by the accused and they were made to alight at AkolaRailway Station and from there they boarded another Train and wentto Panwadi. There, marriage of her mother was performed with ShankarSingh and accused obtained money from Shankar by selling themand they both left the spot. She insisted to drop her back to hermaternal uncle’s place, but they did not listen. Then accused againcame and made an enquiry with me whether she had maternal aunt’sdaughter and whether she would come with them to which shedenied. Thereafter, she was brought by them to Washim RailwayStation and from there they came back to Kanhergaon, had mealsand while accused went to answer call of nature, she met Mathurabaiand her husband Shanker and they took her to Railway Station Office {9} CR APPEAL NO. 77 OF 2006and a message was passed to Police where her uncle and grandfathercame and brought her home. 12.PW4 Shanker Shrawan Surve claims that he knew PW2Mainabai and her daughter PW3. That while he and his wife hadbeen to Kanhergaon Railway Station on 10-06-2005, PW3 camerunning, embressed him and told that a man and woman beat herand then she did not want to go with them, rather asked them totake her to her village. On further enquiry, she showed accused.Therefore, he took PW3 to Railway Station Office, sought help,accused claimed their concern about PW3 and Station Master gavemessage to Police, who came there. That grandfather and maternaluncle of PW3 were informed and her custody was given to hergrandfather. 13.PW5 Gautam Tukaram Dhule is the Railway Employee, whostated that while he was on duty in Railway Station Office, passengercame with a girl and told that parents of the girl are detached fromher. Thereafter, accused came in search of girl in their office. But thegirl told that they were not her parents and they sold her mother,after which Station Master gave information to Police. {10} CR APPEAL NO. 77 OF 200614.PW6 Prakash Chaghanlal Patedar deposed about MaharashtraPolice coming and taking custody of a lady and he later receivedinformation that accused before the Court had brought the lady totheir village. 15.PW7 Bhagwan Dattatraya Kapkar is the Investigating Officer. ANALYSIS 16. Here though appellants were chargesheeted for offence underSections 363, 366, 366A of the IPC, guilt is apparently recorded onlyfor offence under Section 363 read with 34 of the IPC.Essential ingredients of offence under Section 363 are as under :“Kidnapping from India -(1) The victim kidnapped was residing in India at the time ofoffence;(2) Accused committed offence of enticing the personkidnapped;(3) The kidnapping was without the consent of the victim or ofsomeone legally authorised to give the consent.Kidnapping from lawful guardianship -(1) The victim kidnapped was a minor being below 16, if male,or below 18, if female;(2) The victim kidnapped was in the keeping of a lawfulguardian; {11} CR APPEAL NO. 77 OF 2006(3) Accused took or enticed away the victim from such keepingof the lawful guardian;(4) Accused did so without the consent of the lawful guardian.”17.The landmark judgment on the above provision, which stillholds the field is of S.Vardarajan v. State of Madras, 1965(2) Cri. LJ33, wherein the Hon’ble Apex Court enunciated the legalrequirements for attracting offence under Sections 361 and 363 ofthe IPC and gave lucid distinction between the phrase “taking” and“enticing” and when offence can be said to be proved or made out.18.Undisputedly prosecution put-forth a case that PW2 Mainabai,a widow, daughter of PW1 informant and PW3 his granddaughter i.e.daughter of PW2 were said to be abducted and kidnapped. Theyboth being examined, their evidence is of significance. This Courthas already noted substance of their testimonies in aforesaidparagraphs. It is noticed PW2 Mainabai claimed to have left thehouse with her minor daughter to visit her brother’s place at Palasiand they both reached Kanhergaon Railway Station. She deposedthat at Railway Station, she came across a man and a woman and sheidentified both of them in the Court. She alleged that she and herdaughter forcibly being taken by them. According to her, she was {12} CR APPEAL NO. 77 OF 2006told that they will perform her marriage and therefore, she claimsthat she accompanied them. She further deposed that they alsostated that they would provide food to her. She further testified thatafter taking her with them, they took away amount from her and shewas taken to Panwadi and sold to one person. Her daughter wasbrought back to Umra.Her above discussed testimony shows that she herselfaccompanied when said man and woman told that they wouldperform her marriage. She has not at all testified and clarified howacquaintance and conversation developed between them and reachedto the point of her marriage. Infact she was at that timeaccompanied by her daughter. She has not elaborated that sheindulged in some conversation previously with them and disclosedthem about her family life. She directly deposed that they told herthat they would perform her marriage. Her such version clearlyshows that some discussion must have taken place before allegedoffer by said man and woman. She has categorically stated that sheaccompanied them. Therefore, necessary elements and ingredientsof abduction have vanished due to her such testimony. She hasherself stated that she went with them because they assured her toprovide food. It is even pertinent to note that, she has not elaborated {13} CR APPEAL NO. 77 OF 2006where she was taken, which of the two accused beat her, where shewas beaten and where she was restrained. Her testimony is thus fullof ambiguity. If according to her, she was sold to one person, sheshould have named that person and even investigating machinerywas expected to take such person in custody and it was expected ofinvestigating machinery to conduct detail and thorough investigationto unreveal the truth. By what mode she was taken has not come onrecord.In cross-examination she herself has admitted that whileproceeding towards house of her brother at Palasi and on reachingKanhergaon Railway Station, she did not even purchase RailwayTickets to undertake the journey. She admitted regarding notinforming anyone at Railway Station about she being prevented toboard the Train going to her brother’s place. She also admitted aboutnot informing any of the passengers either on the Railway Station orin the Train that she was being taken away or abducted. On thecontrary, she in paragraph 2 of cross-examination, after stating thatshe was prohibited from entering Train of her choice, she and herdaughter kept waiting at the Railway Station and admitted that theydid not make efforts to return back to village. Rather she alsoanswered that she had told her daughter Jyoti that accused are trying {14} CR APPEAL NO. 77 OF 2006to forcibly take her with them and Jyoti had been to the village. Hersuch answer shows that minor had returned back to her grandfather’splace at Ganeshpur. She contradicts herself in cross-examination byanswering that when accused told that they would perform hermarriage, she denied their proposal. This is contrary to what shestated in examination-in-chief that they told her that they willperform her marriage and would provide her food, she was taken. Inparagraph 3 of cross-examination, she admitted that her daughterbegs in the Train and she and her daughter eat the material receivedin the begging. She also admitted about accused telling her that it isnot good to beg and rather was suggested to take meal at ‘Bhandara’. The above discussed cross-examination, clearly suggests thather testimony that she was forcibly taken or abducted is suspicious.Inspite of Train going to her brother’s village not being boarded, shehas not returned to the village Ganeshpur and has rather deposedabout sending her daughter Jyoti to village for allegedly informingher father with regard to being prevented from boarding the Train. 19.Similarly, PW3 Jyoti testified that at Kanhergaon RailwayStation at around 2 p.m., accused persons, she herself, her mothertogether sat under the Neem tree and their accused allegedly told her {15} CR APPEAL NO. 77 OF 2006mother that there was “Saptah” and that they should come there andthey would get food, clothes, shelter. According to her, Train going toher maternal uncle’s village came but accused asked them toaccompany them and so they missed the Train. This is exactlycontrary to her mother’s version about offer of marriage, food and onsuch count, she and her mother being taken. She did state that sheand her mother were forcibly made to board the Train, in cross-examination paragraph 4 she answered that she asked her mother toreturn back home after departure of Train going to her maternaluncle’s village, but she deposed that her mother did not listen andrather compelled her to accompany her. According to her, accusedinduced to accompany them and accordingly, her mother agreed.She also answered that there being rush of passengers she and hermother boarded different bogie of the Train whereas accusedboarded different bogie. Her such answer also creates doubt aboutmother’s version regarding forcibly taken or abducted. 20.Another witness, who is also crucial is PW4 Shanker and heclaims that on 10-06-2005, he saw PW3 Jyoti and she came and weptand informed that one man and woman beat her and she does notwant to go with them and requested him to take her to village {16} CR APPEAL NO. 77 OF 2006Ganeshpur and she also pointed to the accused. This witness claimsthat accused came and claim their concern with PW3 and thereafter,Station Master telephoned Police Chowki and Police came and theywere asked to go to Goregaon Police Station and there he calledmaternal uncle and grandfather of PW3 and there custody of PW3was given to her grandfather. His such testimony shows that on10-06-2005, only PW3 was spotted on the Kanhergaon RailwayStation. Evidence of PW3 in witness box is that accused brought herfrom Washim Railway Station to Kanhergaon. It is still not clear as towhen and how the PW3, a minor, was brought from Panwadi toWashim Railway Station. If according to PW4 Shanker, he cameacross PW3 Jyoti at Kanhergaon Railway Station on 10-06-2005 andhe took her to Station Master and on information of Station Master,Police of Police Chowki had come there and they were directed to goto Goregaon Police Station, his statement was expected to berecorded on same day or atleast on the next day, but apparently hisstatement has been recorded by the Police after almost a week. 21.It is also pertinent to note that on meticulous appreciation ofdocumentary evidence of prosecution, it is noticed that inspite ofPW3 Jyoti handed over in custody of PW1 Peeraji on 10-06-2005, in {17} CR APPEAL NO. 77 OF 2006view of version of PW4 Shanker, FIR is not registered on the sameday, rather FIR carries date as 11-06-2005. It is also emerging thatPW1 Peeraji as well as maternal uncle of the minor had allegedlycome to take custody of PW3 Jyoti, a minor. Therefore, it waspossible to record their statements or take report. Even statement ofminor and her mother i.e. PW3 and PW2 respectively are recorded on18-06-2005. Informant Peeraji in his examination-in-chief itself hasstated that after leaving house to go to village Palasi, PW2 Mainabaileft with PW3 Jyoti during Holi festival, which generally happens inMarch. Therefore, for more than two months neither missing reportis lodged and as stated above, even inspite of PW3 Jyoti traced andtaken in custody on 10-06-2005, there is no prompt FIR by PW1Peeraji. The delay coupled with above narrated mysteriouscircumstances and ambiguity emerging from evidence of PW2Mainabai, prosecution version apparently has no head and tail.Essential ingredients of abduction or kidnapping are patentlymissing. PW3 minor was in company of PW2 mother herself, who isher natural guardian atleast till Panwadi. PW2 mother does notdepose that without her consent, her daughter was removed, rather itis evident that PW3 minor was brought back and found atKanhergaon Railway Station itself. PW2 Mainabai speaks that she {18} CR APPEAL NO. 77 OF 2006being taken to Panwadi and PW3 Jyoti was brought back at Umra.Where is this place has not been investigated. It was essentialbecause PW3 Jyoti is allegedly traced at Kanhergaon Railway Station.It is pertinent to note that here very informant’s evidence shows thatthere are material omissions regarding he receiving message aboutspotting PW2 Mainabai at Kanhergaon Police Station and that PW3Jyoti further told informant about her mother being sold. Therefore,though distinct places are coming on record, there is no clarity. Withsuch quality of evidence, there is no element of inducement,enticement or kidnapping or even abduction as PW2 Mainabai herselfhas agreed to accompany alleged man and woman. Inspite of severalopportunities to evade company or escape, no efforts are done byPW2 Mainabai and PW3 Jyoti. Therefore, with such quality ofevidence, prosecution case cannot be said to be proved beyondreasonable doubt. There are several lacunae, lapses and ambiguitiesin the prosecution case and hence, it is unsafe to accept such versionof prosecution.22.Further on same set of evidence, learned trial Judge hasalready acquitted accused from the charge of Section 366 and 366Aof the IPC. No sound reason is assigned for recording guilt for {19} CR APPEAL NO. 77 OF 2006offence under Section 363 of the IPC and as such there is apparentlyimproper appreciation and erroneous approach calling for indulgenceof this Court.23.Learned Counsel for appellants pointed out that learned trialJudge has awarded sentence of simple imprisonment for six monthsto appellants, but MCR period was from 12-06-2005 to 11-01-2006,which is apparently beyond six months.Learned APP has placed on record papers purportedly receivedfrom Jail Authority, Parbhani dated 24-10-2024 conveying thatconvicts - Satish @ Satyanarayan Bhairavsingh Girigujar and AnitaSatish Girigujar are already released on 16-01-2006 and 30-01-2006respectively. SUMMATION24.To sum up, for above reasons, as prosecution has failed toestablish the charge of Section 363 read with 34 of the IPC beyondreasonable doubt, benefit of the same is required to be extended byallowing the appeal. Accordingly, I proceed to pass following order.ORDERI)Criminal Appeal No.77 of 2006 is allowed. {20} CR APPEAL NO. 77 OF 2006II)The conviction awarded to appellant nos.(1) Satish @Satyanarayan s/o Bhairavsingh Girigujar and (2) Sow.Anita w/oSatish Girigujar in Sessions Trial No.93 of 2005 by the learned3rd Adhoc Additional Sessions Judge, Parbhani on 12-01-2006for the offence punishable under Section 363 read with 34 ofthe Indian Penal Code, stands quashed and set aside. III)The appellants stands acquitted of the offence punishableunder Section 363 read with 34 of the Indian Penal Code.IV)The bail bonds of appellants stand cancelled. V)The fine amount deposited, if any, be refunded to theappellants after the statutory period.VI)It is clarified that there is no change as regards the orderin respect of disposal of muddemal. VII)The fees of the learned Counsel appointed for appellantsis to be paid through the High Court Legal Services Sub-Committee, Aurangabad, as per Rules. ( ABHAY S. WAGHWASE ) JUDGE SPT