Madhya Pradesh High Court
Babulal vs The State Of Madhya Pradesh on 26 August, 2019
Author: Rohit Arya
Bench: Rohit Arya
1 Cr. Appeal No.1350/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Criminal Appeal No. 1350/2017
Babulal and another
Vs.
State of M.P.
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Shri Amit Singh Sisodiya, Advocate for the appellants.
Shri Amber Pare, Public Prosecutor for the respondent/State
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Reserved on: 13/08/2019
JUDGMENT
(26/08/2019) Rohit Arya, J., This appeal under section 374 Cr.P.C., at the instance of the convicts Babulal and Sarik is against the judgment dated 19/07/2017 passed by Additional Sessions Judge, Sarangpur, District Rajgarh in Special Sessions Trial No.487/2015.
The appellants have been convicted under section 363 IPC and sentenced to suffer three years rigorous imprisonment with fine of Rs.1,000/-, section 366-A IPC and sentenced to suffer five years rigorous imprisonment with fine of Rs.3,000/- and sections 7/8 of Protection of Children from Sexual Offences Act, 2012 and sentenced to suffer three years rigorous imprisonment with fine of Rs.1,000/- besides, in default to undergo six months rigorous imprisonment, one year rigorous imprisonment and six months rigorous imprisonment, respectively.
The accused have been acquitted by giving benefit of doubt from the offence under sections 39/192 and 3/181 of the Motor Vehicles Act, 1988.
2. As per prosecution story, on the date of incident i.e., on 03/12/2015 about 02.00 pm the prosecutrix (P.W.1) while on her way from house to her mother's place in the field to offer tea and reached near Badia road, two miscreants came on white Tavera bearing registration No.MP09-BC-9883 forcibly dragged her inside the car and moved towards village Talen. On screaming, they threatened to kill her. However, the villagers working nearby 2 Cr. Appeal No.1350/2017 fields saw the incident had informed her father Gokul Prasad, brothers Rameshchandra, Kedarnath and Bhagwandsingh who chased and stopped the car and nabbed the accused persons. Though the accused/appellants tried to flee away from the spot, they have been caught hold. Thereafter, all of them reached police station, Pachor alongwith accused and lodged FIR at crime No.844/2015 for the offence punishable under sections 363, 366/34 & 354 IPC and sections 7/8 of the Protection of Children from Sexual Offence Act,2012 as well as sections 39/192 and 3/181 of the Motor Vehicles Act, 1988. However, after completion ofinvestigation; the challan was submitted adding offence punishable under section 366A IPC.
3. The investigation was carried out by Mohansingh (P.W.5). Police prepared spot map (exhibit P/2), Supardgi panchnama (exhibit P/7) prepared in presence of witnesses Jagannath and Rameshwar and prosecutrix was given in supardgi to her father Gokul Prasad, the vehicle used for commission of offence was seized from accused Babulal vide panchnama exhibit P/8, arrest panchnama prepared and arrested the accused persons vide exhibits P/9 & P/10 and recorded statements of Gokul Prasad, Leeladevi, Kedarnath, Rameshchandra, Bhagwansingh, Lakshminarayan, Devnarayan. Both the injured accused were sent for medical examination. Dr. D.S.Bhadoriya (PW.6) conducted their medical examination on 03/12/2015 vide exhibits P/12 and P/13 and found simple injuries on their persons.
4. The Additional Sessions Judge while carefully examining the evidence of witnesses has found that there is consistency in the statements of PW-1 prosecutrix and PW.2 Gokul Prasad.
On account of overwhelming evidence of occurrence of the incident and involvement of the accused-appellants, spot map & seizure memos (exhibits P/2 & P/7), medical examination reports of accused (exhibits P/12 & P/13) and evidence of Dr. D.S.Bhadoriya (P.W.6), the trial court has concluded that the accused/appellants abducted the prosecutrix, a minor girl with intent to force her to marry against her wish and/or illicit intercourse. Accordingly convicted and sentenced the 3 Cr. Appeal No.1350/2017 accused/appellants as stated above.
5. Learned counsel for the appellant while criticizing the judgment contended that firstly; the Additional Sessions Judge has committed grave illegality having relied upon the evidence led by cited witnesses while concluding that the appellants committed the offence. secondly, there is no cogent material established on record that the appellants have sexually abused, harassed or harmed the girl in any manner whatsoever; thirdly, the appellants are in jail since 19/07/2017 and have undergone about three years of the sentence including the period they are in jail during trial and remission period, fourthly, there is no previous criminal conduct of the appellants; fifthly; the appellants aged about 25 and 22 years at the time of incident, hence, their future will be spoiled in the midst of hardened criminals inside the jail. Under the circumstances, prays for acquitting the appellants from the offence.
Alternately, learned counsel submits that the conviction under section 366A IPC and sentence for five years thereunder is vulnerable as the trial Court has failed to appreciate that neither the allegations made in the FIR nor the evidence brought on record suggests prevalence of ingredients of section 366A IPC in the instant case. The trial Judge in paragraph 7 to 22 of the judgment has discussed the evidence placed on record which in fact and in effect is in the realm of the alleged offence under section 363 IPC but, the conviction and sentence has been ordered under section 366A IPC as well.
Learned counsel submits that to complete the offence, if the accused by inducement procures the girl under the age of 18 to go from one place to do any act with intent that such girl may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person whereas no such evidence is on record. Hence, the conviction and the order of sentence under section 366A IPC is bad in law and the same deserves to be set aside.
However, he does not wish to challenge the finding of conviction recorded by the trial Court for the offence under sections 363 IPC & 7/8 of Protection of Children from Sexual Offences Act, 2012.
4 Cr. Appeal No.1350/2017Learned counsel further submitted that the appellants are in jail since 19/07/2017 and have undergone about three years of the sentence including the remission period by now as per the certificate dated 25/02/2019 submitted by the Superintendent, Sub Jail, Sarangpur, District Rajgarh and, therefore, prays for reduction of jail sentence to the period already undergone by the appellants.
6. Per contra, learned Public Prosecutor has supported the impugned judgment and findings arrived at by the trial Court and submitted that the conviction in question is well merited. Hence, no interference is warranted. However, he fairly admits the certificate of jail sentence of the appellants issued by the concerned Superintendent, Sub-Jail, referred above.
7. Heard.
8. Sections 366A and 366B were inserted by Amendment Act 20 of 1923 in IPC to effect to certain Articles of the International Convention for the Suppression of Traffic in Women and Children.
Said sections are intended to punish the export and import of girls for prostitution. Section 366A IPC deals with procurement of minor girls from one part to another part of the country. Section 366B IPC makes it an offence to import into India from any country outside India girls below the age of 21 years for the purpose of prostitution. The provisions are framed with pious aim to safeguarding public interest of morality than the chastity of a particular woman.
To complete the offence unde section 366A IPC, firstly, the accused must induce a girl; secondly, the person induced was a girl under the age of 18 years, thirdly, the accused has induced the victim knowing that it is likely that she will be forced or seduced to an illicit sexual intercourse; fourthly, such intercourse must be with that person other than the accused; fifthly, the inducement caused the girl to go there in the place or to do any act.
The facts of the case in hand suggests that the prosecution has alleged that the accused alongwith other accused while the 5 Cr. Appeal No.1350/2017 minor girl was on her way to meet her mother working in the field, had picked up the girl and dragged her inside white Tavera bearing registration No.MP09-BC-9883 and running away with her, the farmers working in the nearby fields saw the incident and informed her father and others who had intercepted the accused. Accordingly, the case has been registered. However, there is no evidence that the abduction was with an intent that she may be compelled or knowing it to be likely that she will be compelled or likely that she may be forced or seduced to illicit intercourse with a person other than the accused or that the accused knew that it was likely that she may be forced or seduced.
The existence of specific intention and knowledge is most important element in the constitution of the offence under section 366A IPC. The word 'seduced' used in the section is in the sense of inducement of a woman to submit to illicit intercourse at any time or on any occasion with a person other than the accused. Therefore, for want of evidence at the time the girl was abducted that there was intention on the part of the accused that the girl should be used for illicit intercourse with another person or that allegedly induced that she may be seduced for the said purpose, in the opinion of this Court, offence under section 366A IPC is not found to have been made out.
[Bhagwati Prasad Vs. Emperor, AIR 1929 All 70, Manik Molla Vs. Emperor, AIR 1945 Cal 432 and Ramesh Vs. State of Maharastra, AIR 1962 SC 1908, referred to].
In view of the above detailed discussion, the appellants deserve to be and are hereby acquitted from the offence under section 366A IPC.
However, looking to the unimpeachable testimony of the girl and the evidence on record, the trial Court did not commit any error in holding that the appellants/accused kidnapped a minor from her lawful guardian, i.e., father. Thus, the offence under sections 363 IPC & 7/8 of Protection of Children from Sexual Offences Act, 2012 is made out against the accused/appellants.
9. As before this Court, the finding of conviction recorded by the trial Court against the appellants under sections 363 IPC & 6 Cr. Appeal No.1350/2017 7/8 of Protection of Children from Sexual Offences Act, 2012 has not been challenged by the appellants, hence, the aforesaid finding is hereby affirmed.
10. With regard to the sentence awarded is concerned, the appellants has been sentenced by the trial Court as referred hereinabove. No previous criminal conduct of the appellants has been proved by the prosecution. The appellants remained in the custody for about three years including the period of remission. The alleged incident took place on 03/12/2015, i.e., about four years back. The age of the appellants mentioned in the impugned judgment is 25 years and 22 years respectively. As such, the ends of justice shall be sub-served, if the jail sentence of the appellants is reduced to the period already undergone by them with enhancement of fine amount.
11. Consequently, this appeal is allowed in part. The conviction of the appellants passed by the trial Court under sections 363 IPC & 7/8 of Protection of Children from Sexual Offences Act, 2012 is hereby affirmed but, the sentence is set aside and instead thereof, the appellants are sentenced to the period already undergone by them in jail i..e., about three years with increase of fine amount to Rs.8,000/- (the fine amount already deposited be adjusted) and in default of payment of fine to undergo six months rigorous imprisonment.
12. With the aforesaid, this appeal is disposed of finally.
13. The appellants are reported to be in jail, therefore, they be set at liberty subject to deposit of the enhanced amount of fine; if not required in any other case.
14. The Registry is directed to send copy of this judgment immediately along with the record to the Trial Court, for necessary compliance.
(Rohit Arya) Judge 26-08-2019 b/-
Digitally signed by M V R BALAJI SARMA Date: 2019.08.27 11:23:43 +05'30'