Bombay High Court
Deepak S/O Mohan Sakhare vs The State Of ... on 11 July, 2017
Bench: Z.A. Haq
1 apeal87.02
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.87/2002
Deepak S/o Mohan Sakhare,
aged about 30 years, R/o Mayanagar,
Kas Colony, Indora, Nagpur. ..Appellant.
..Vs..
The State of Maharashtra,
through P.S.O. Dawaniwada,
Distt. Gondia ..Respondent.
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Shri Y.B. Mandpe, Adv. for the appellant.
Shri V.A. Thakre, A.P.P. for the respondent / State.
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CORAM : Z.A.HAQ, J.
DATE : 11.7.2017.
ORAL JUDGMENT
1. Heard Shri Y.B. Mandpe, Advocate for the appellant and Shri V.A.
Thakre, A.P.P. for the respondent / State.
2. The appellant / accused has challenged the judgment passed by the
Sessions Court by which he is convicted for the offence punishable under
Section 363 of the Indian Penal Code and is sentenced to undergo rigorous
imprisonment for 3 years and to pay fine of Rs.1,000/- (Rs. One Thousand)
and in default of payment of fine to undergo rigorous imprisonment for 6
months. The appellant / accused has also challenged the conviction for the
offence punishable under Section 366 of the Indian Penal Code and sentence to
undergo rigorous imprisonment for 3 years and to pay fine of Rs.1,000/-
(Rs. One Thousand) and in default of payment of fine to undergo rigorous
imprisonment for 6 months.
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3. The case of the prosecution is that the appellant / accused and
victim Papitabai were acquainted with each other, the accused had asked
Papitabai to accompany him to Nagpur as the accused was knowing a boy
suitable to be life partner of Papitabai, however, Papitabai did not pay any
heed to the offer of accused, but on 8th October, 1997 when she was returning
from temple, the accused gagged her mouth, threatened her by showing knife
and had taken her to Nagpur where she was kept in the house of sister of
accused and then after about 8 days as sister of accused scolded the accused,
he reached Papitabai to the village.
On complaint lodged by Goma Raut (father of Papitabai)
investigation was undertaken and after completing the formalities, charge-
sheet came to be filed. The charges were framed by the Sessions Court,
explained to the accused, the accused did not accept the guilt and, therefore,
the trial was conducted.
After conducting the trial, the Sessions Court concluded that the
prosecution has proved that the accused had taken away Papitabai (minor girl,
aged about 16 years) out of lawful guardianship of her father and, therefore,
he has committed offence punishable under Section 363 of the Indian Penal
Code. The Sessions Court concluded that the prosecution has proved that the
accused kidnapped Papitabai with intent that she should be compelled to marry
against her will and she may be forced to illicit intercourse and, therefore, the
accused has committed the offence punishable under Section 366 of the Indian
Penal Code. With these conclusions the Sessions Court convicted the accused,
as per the order.
4. The learned Advocate for the appellant / accused has submitted that
the case of the prosecution is false and the evidence of Papitabai (P.W.1) does
not support the case of the prosecution. It is pointed out that in the cross-
examination Papitabai has stated that the accused had taken her away when
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she was returning from temple, however, this statement is not found in her
statement recorded by the police. It is pointed out that there are several other
variations in the evidence of Papitabai and certain omissions are pointed out
from the statement recorded by the police.
The learned Advocate for the appellant has argued that conviction
of appellant for the offence punishable under Section 363 of the Indian Penal
Code is unsustainable as the prosecution has not been able to prove that
Papitabai was taken away out of lawful guardianship of her father without the
consent of her father. Though the learned Ad-hoc Additional Sessions Judge
has touched this point, he has not adverted to it in the right perspective.
Neither in the report lodged by Goma (father of Papitabai) nor in his evidence
there is anything to show that Papitabai was taken away by the accused to
Nagpur without the consent of Goma. The learned Ad-hoc Additional Sessions
Judge has proceeded on the presumption that as minor is taken away, it
amounted to kidnapping as per Section 361 of the Indian Penal Code. In the
present case it is admitted fact that the accused and Papitabai were knowing
each other and in this background, it was necessary for the prosecution to
prove that Papitabai was taken away without the consent of Goma. The
prosecution having failed to prove the ingredients necessary to constitute the
offence punishable under Section 363 of the Indian Penal Code, the conviction
of the appellant / accused for that offence is unsustainable.
5. Similarly, there is nothing either in the report lodged by Goma or in
his evidence to show that ingredients necessary to constitute the offence
punishable under Section 366 of the Indian Penal Code existed. The only
reference in respect of this offence is found in the evidence of Papitabai,
however, as rightly pointed out by the learned Advocate for the appellant /
accused the evidence of Papitabai on this point is not reliable and it does not
inspire confidence. In the examination-in-chief Papitabai has stated that one
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day accused had told her that he will perform Papitabai's marriage with a
person of her community and the accused will incur the expenses of marriage,
however, in the statement recorded by the police it is recorded that the accused
was constantly telling Papitabai since 1½ - 2 months to accompany him to
Nagpur and he will perform her marriage with his friend, who belongs to her
community. Apart from the variations and omissions, in my view, the
conviction for the offence punishable under Section 366 of the Indian Penal
Code is unsustainable as it is recorded that the prosecution has failed to prove
the charge of kidnapping as per Section 361 of the Indian Penal Code.
The learned Ad-hoc Additional Sessions Judge has not adverted to
the above relevant aspects and, therefore, the judgment given by him
convicting the appellant / accused is not sustainable.
6. Hence, the following order:
(i) The impugned judgment is set aside.
(ii) The conviction of the appellant / accused for the offence punishable
under Sections 363 and 366 of the Indian Penal Code is quashed.
(iii) The appellant / accused is acquitted of the charge for the offence
punishable under Sections 363 and 366 of the Indian Penal Code.
(iv) The appellant / accused is in jail, having been arrested pursuant to
the issuance of non-bailable warrant as per the order passed on 14 th June,
2017.
(v) The respondent is directed to release the appellant / accused
Deepak S/o Mohan Sakhare forthwith, if not required in any other crime /
offence.
(vi) The appeal is allowed in the above terms.
JUDGE
Tambaskar.
