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Showing contexts for: section 363 i.p.c. in State Of U.P. vs Sandeep Alias Bhura on 26 February, 2019Matching Fragments
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Dinesh Kumar Singh-I, J.)
1. Heard the arguments of Mrs. Archana Singh, learned A.G.A. from the side of appellant in Government Appeal No.829 of 2018 and Sri Atul Kumar, learned counsel for the appellant and learned A.G.A. for the State in Criminal Appeal No.4994 of 2018.
2. Government Appeal No.829 of 2018 has been preferred by the State against the judgment and order dated 29.8.2018 passed by learned Additional Sessions Judge/Fast Track Court No.3, Muzaffarnagar in Session Trial No.939 of 2012 (State Vs. Sandeep @ Bhura) whereby the accused-respondent Sandeep @ Bhura has been acquitted of charges under Sections 366, 376 IPC and has been convicted only under Section 363 IPC with three years and two months imprisonment and fine of Rs.2,000/- and in default of payment of fine, two months additional imprisonment. On the other hand, Criminal Appeal No.4994 of 2018 has been preferred by the accused-appellant Sandeep @ Bhura against the same judgment, praying therein to set aside his conviction under Section 363 IPC.
27. On the basis of other evidence, learned trial court has convicted the accused under Section 363 I.P.C. and has acquitted under Section 366 and 376 I.P.C. We have to evaluate the evidence afresh and see whether the learned trial court has misread the evidence and has arrived on wrong conclusion or the same has correctly drawn.
28. Learned counsel for the appellant-accused has vehemently argued that the conviction has been made against the weight of evidence on the record and same is bad in the eye of law and hence, the same deserves to be set aside.
31. First of all, we would take of the matter as to whether the offence under Section 363 I.P.C. is made out against the accused or not. The said section says that whoever kidnaps any person from 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. But the kidnapping is defined under Section 361 I.P.C. which shows that whoever takes or entices any minor under 16 years of age if a male, or under 18 years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian or such minor or person of unsound mind without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
41. The evidence which has come on record and has been extensively quoted above, also does not suggest that with a view to forcing her to have illicit intercourse or to marry the accused, she was abducted or intimidated. Therefore, the necessary ingredients of section 366 IPC are also not found present in this case.
42. But, as regards offence under Section 363 I.P.C., we are of the opinion that the offence appears to be made out because the victim is indisputably a minor as has been held by the trial court on the basis of the evidence on record and therefore, even if she had been taken away by the accused with her consent, the same would not be treated to be a valid consent under law and it would be held that she was taken out of possession of her lawful guardian and hence, the ingredients of offence under Section 363 I.P.C. appear to be satisfied in the present case and in view of that, we find that the trial court does not appear to have committed any error in holding the accused guilty under Section 363 I.P.C.