Madhya Pradesh High Court
Neelesh Bamoriya @ Sandeep Ahirwar vs The State Of Madhya Pradesh on 8 May, 2020
Equivalent citations: AIRONLINE 2020 MP 1830
Author: Vishnu Pratap Singh Chauhan
Bench: Vishnu Pratap Singh Chauhan
HIGH COURT OF MADHYA PRADESH : JABALPUR
S.B : HON.SHRI JUSTICE VISHNU PRATAP SINGH CHAUHAN
Cr.A. NO.10645/2019
Appellant: Neelesh Bamoriya alias
(In Jail) Sandeep Ahirwar,
S/o Shri Halke Ahirwar,
aged about 20 years,
Occupation Labour,
R/o Opposite Tapti School,
Satlapur, Tah &P.S. Goharganj,
Distt. Raisen (M.P.), permanent
address- Chainpur Road, Near
Hanuman Mandir, Bareli,
District Raisen (M.P.)
Vs.
Respondent: 1. State of Madhya Pradesh,
through Police Station Industrial
Area, Satlapur,
Distt. Raisen (M.P.)
2. Prosecutrix-A
Shri Narendra Nikhare, learned counsel for the
appellant.
Shri Vishal Yadav, learned Dy. Govt. Advocate for
respondent/State.
JUDGMENT
(08/05/2020) The appellant has filed this appeal under Section 374(2) of Cr.P.C. being aggrieved by the judgment of conviction and order of sentence dated 03/12/2019 passed by Additional Sessions Judge (Special Judge, under the provisions of Protection of Children from Sexual Offences Act, 2012), Goharganj, Distt. Raisen (M.P.) in Sessions Trial 2 No.SC/38/2018 whereby appellant stands convicted for the offence punishable under Section 363 of IPC and sentenced to suffer RI for three years along with fine of Rs.300/-, in default of payment of fine, additional RI for two months as well as under Section 11r/w12 of Protection of Children from Sexual Offences Act, 2012(hereinafter referred to as 'POCSO Act') and sentenced to suffer RI for one year along with fine of Rs.200/-, in default of payment of fine, additional RI for one month.
2. The case of prosecution against the appellant, in short, is that on 28/11/2018 father of the Prosecutrix (PW2) lodged a missing report bearing No.54/2018 (Ex.P/4) at Police Station Industrial Area, Satlapur to the effect that he is residing in a rental house of Jumman, opposite to Tapti School, Satlapur having six daughters, elder one prosecutrix aged about 12 years 10 months is studying in Class-8 th in Megha Vidya Mandir, not found in the house since morning also alleged some jewallary, ATM and money are missing. Placed a doubt on Appellant Neelesh Ahirwar who residing in the same building .
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3. On the basis of said missing report, case of missing person (Ex.P/5) and first information report (Ex.P/6) for the offence punishable under Section 363 of IPC registered against suspicious Neelesh Ahirwar at Crime No.325/2018. The matter was taken into investigation. After recovering Prosecutrix she was sent for medical examination, report Ex.P/13 had been obtained. Statement under Section 161 of Cr.P.C. of the prosecutrix were recorded and on her statement, accused were arrested. On the basis of the statement recorded under Section 161 of Cr.P.C., Sections 376, 506 and 120-B of IPC were added in the case against the accused/appellant and other co accused Bablu. Medical examination report of the appellant is Ex.P/11. Forensic Science Laboratory, Sager report Ex.P/22 received in this regard. After completion of investigation, charge sheet was submitted before the competent Court against the appellant along with co-accused Bablu Ahirwar.
4. Learned trial Court framed charges against the appellant for the offence punishable under Sections 363, 366, 376 (3) of IPC and under Section 3 read with 4 of 'POCSO Act'.Other co accused also faced trial.
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5. Appellant abjured his guilt and pleaded innocence. To bring the charges home, prosecution examined 11 witnesses. Appellant examined under Section 313 of Cr.P.C. and answered that he knew prosecutrix and her family well, prosecutrix went along with him and stayed at his home, on the next day went to Hinglaj temple where prosecutrix had a talk with her mother then he made prosecutrix board in bus to reach her home. Appellant pleaded a defence that prosecutrix had a love affair with him and repeatedly pressurized him to get marry with her, but he persuaded her that she is minor, cannot marry, then she told that if Pandit says so, she will be agree, therefore, she went to Hinglaj Mandi, there Pandit persuaded her, then she went back to her house. He has falsely been implicated in this case. Appellant did not produce any witness in his defence.
6. Learned trial Court after hearing both the parties delivered impugned judgment dated 3/12/2019 acquitting co- accused Bablu Ahirwar of the charge and also acquitted the appellant of the offence punishable under Sections 366, 376 (3) of IPC and 3/ 4 of POCSO Act, however, convicted the appellant of the offence punishable under Section 363 of IPC 5 and under Section 11 read with 12 of the POCSO Act and sentenced mentioned herein above.
7. Being aggrieved by that conviction and sentence, the appellant has preferred this appeal mainly on the ground that learned trial Court has not appreciated the evidence in proper prospective. There were much contradictions and omissions on the material points which affected the core of the case. Ingredients of offence has not been proved against the appellant. In these premises, he prays that by allowing this appeal, the appellant may be acquitted of the offences. During submissions, learned counsel also made a prayer that appellant was 20 years old at the time of incident. He may be extended the benefit of provisions of Provation of Offenders Act.
8. Learned Dy. Govt. Advocate while supporting the conviction and sentence passed by the trial Court, prayed for dismissal of the appeal.
9. Having heard learned counsel for the parties, perused the judgment and evidence adduced by the prosecution. Before moving further it is necessary to go through the 6 ingredients of Section 363 and 361 of IPC which reads as under :
"363. Punishment for kidnapping.-- Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
361. Kidnapping from lawful guardianship.--Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation.--The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
(Exception) --This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."
10. On bare perusal of both these sections, it is reflected that when a girl below the age of 18 years is taking away 7 from the guardianship of parents or guardian without their consent, the person who take away or entice the girl to go with him without the consent of guardian is said to commit offence of kidnapping. In the present case, appellant not denied the fact that he took the prosecutrix on motorcycle to his home, kept the prosecutrix at his home and on the next day went along with the prosecutrix to Hinglaj Mandir and thereafter sent back the prosecutrix to her home.
11. Perused the evidence. Prosecutrix (PW-1), her father (PW-2) , her mother (PW-3) categorically stated that prosecutrix was below the age of 13 years and she was a student of 8th standard at the time of incident. This fact is further supported by Principal of St. Pitter Higher Secondary School, Mandideep-R.S. Pal (PW-4) where prosecutrix was studying at the time of incident. Nothing has been asked by the defence in cross-examination to contradict the age of prosecutrix. It can safely be concluded that prosecutrix was minor, at the time of incident, below the age of 18 years.
12. The question before this Court is that whether appellant persuaded the prosecutrix and took her with him without obtaining consent of her mother-father ? In this regard, 8 perused the statement of father of the prosecutrix (PW-2). This witness lodged missing report (Ex.P/4) at Police Station Satlapur. This report instituted by ASI S.N. Yadav (PW-11) on 28/11/2018 and FIR (Ex.P/6) also registered on the same day at the instance of P.W.2.
13 Father of prosecutrix (PW-2) specifically stated that her daughter told him that with the help of co-accused Bablu appellant took her on motorcycle to Badi Bareily and on the next day sent her back by bus. This witness was declared hostile. While answering the leading question, this witness admitted that her daughter told him that when she was coming back after answering the call of nature, co-accused Bablu met her and threatened her to go at home and bring some money and flee away with Neelesh who is standing outside with motorcycle otherwise he will kill her mother- father. This witness further stated that her daughter under threat took the money and went along with Neelesh on motorcycle.
14. Mother of prosecutrix (PW-3) also stated that when she did not find her daughter, she searched hither and thither. This witness further stated that when her daughter came back, 9 she told that co-accused Bablu threatened her to go with Neelesh otherwise he will kill her mother-father, then she went along with Neelesh.
15. Prosecutrix (PW-1) categorically stated in her examination-in-chief that accused Bablu forcibly demanded the ornaments and money and she provided him Rs.20,000- and some ornaments and he also threatened to flee with Neelesh otherwise he will kill her mother-father, then she went along with Neelesh at Bareli in Hinglaj Mandir till evening stay there thereafter went to the house of Neelesh. On the next day again went with Neelesh to Hinglanj Mandir where Neelesh facilitated her to talk with her mother and thereafter he made board her in bus to go her home.
16. After considering the whole evidence of above witnesses, it reveals that Neelesh neither persuaded prosecutrix to go with him nor he was having any intention to take away prosecutrix without consent of her parents. It is co-accused Bablu who persuaded the appellant and prosecutrix to flee away without the consent of her guardians. But, when perused the cross-examination of prosecutrix, she categorically admitted that she is having friendship with 10 Neelesh and wrote love letter to Neelesh . Appellant produced Ex.D/1 to D/8 love letters wrote by the prosecutrix to him. Perused love letters. Ex.D/1, D/2, D/3 categorically reveals that prosecutrix was very much fell in love with Neelesh and Ex.D/4, D/5, D/7 also reveal that she provided money to the appellant-Neelesh on his demand and it is indirectly reflected that Neelesh was persuading her to manage the pills to parents, so that they sleep deeply and then she may come to him. But, prosecutrix did not state anything in her statement that appellant-Neelesh persuaded her to flee away with him. She categorically stated that co-accused Bablu threatened her to flee away with Neelesh after receiving the ornaments and money from her. Perused the whole cross-examination of prosecutrix She categorically stated in para-5 that she was inclined to marry with Neelesh. She went to Hinglaj Mandir for marriage. Since she was minor, therefore, priest of Hinglaj Mandir denied for marriage, then appellant Neelesh assured her that he would marry with her when she attained the age of majority, then she willingly went back to her parental house and did not disclose anything to her parents. She categorically stated that appellant-Neelesh did not 11 sexually abuse her and clearly admitted that appellant Neelesh neither pressurized nor threatened her to go with him. She further admitted that when she attains the age of majority, she will solemnize mariage with appellant-Neelesh.
17. The above cross-examination of prosecutrix clearly supported the defence taken by the appellant. No doubt, the part played by the accused, could not be regarded to facilitating or persuading the girl to go with him without the consent of her guardians.
18. On the basis of forgoing discussions, this court finds that the defence taken by the appellant, that prosecutrix fell in love with him and she pressurized to get marry with her, appellant persuaded her that she is minor, she could not marry with him, then prosecutrix told that if any Pandit says so, then she will be convinced, is supported by the prosecutrix in para-5 of her statement, in which she stated that- " ;g dguk lgh gS fd eS vkjksih uhys'k ls 'kknh djuk pkgrh Fkh A ;g dguk lgh gS fd blfy, eS vkjksih uhys'k ds lkFk fgaxyk'k ds eafnj 'kknh djus x;h Fkh A ;g dguk lgh gS fd eS ukckfyx Fkh blfy, eafnj okyks us 'kknh djokus ls euk dj fn;k A ;g dguk lgh gS fd fQj uhys'k us eq>s jkth [kq'kh ogka ls okil dj fn;k Fkk A ;g dguk lgh gS fd uhys'k us dgk Fkk fd rqe ckfyd gks tkvksxh rc 'kknh dj ysaxs A"
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19. Prosecutrix categorically stated in her examination-in- chief that it is co-acccused Bablu who threatened her to bring some ornaments and money from her house and went along with Neelesh otherwise he will kill her mother-father. This statement reflects that it is not the appellant-Neelesh, it is the co-accused Bablu who made the prosecutrix to go beyond the lawful guardianship of her parents. It is the offence against the guardian/parents of minor, therefore, consent of the minor is having no significance. If minor is persuaded by a person to leave the guardianship of parents and taken away the minor, he would commit the offence of kidnapping. In the present case, it is co-accused Bablu who made the prosecutrix to leave the lawful guardianship and evidence shows that it is appellant -Neelesh who persuaded prosecutrix to go back to her parents house with counseling with the priest of Hinglaj Mandir. The statement of prosecutrix shows that she was very much willing to marry with appellant- Neelesh. When she was persuaded that she was minor and could not marry with appellant Neelesh then she went back to her parental house.
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20. On the basis of above circumstances, it cannot be said that the appellant-Neelesh enticed or persuaded the prosecutrix to go with him and leave the lawful guardianship of her parents, ingredients of Section 361 of IPC are not made out against the appellant-Neelesh. Learned trial Court has not appreciated the evidence properly and in para-21 of the judgment concluded the fact of kidnapping on the basis of assumption and presumption. In criminal trial, the burden lies on the prosecution to prove the ingredients of offence beyond doubt. In this case prosecution failed to prove the ingredients of offence beyond doubt.
21. In view of forgoing discussions, this appeal is allowed. The conviction and sentence of the appellant-Neelesh Bamoriya alias Sandeep Ahirwar is hereby set aside. The appellant is in jail, he be released forthwith if not required in any other case.
22. If any I.A. is pending, the same stands disposed of.
(Vishnu Pratap Singh Chauhan) Judge ts Digitally signed by TULSA SINGH Date: 2020.05.08 11:56:53 +05'30'