Satish @ Satyanarayan Bhairavsingh ... vs The State Of Mah
2024 Latest Caselaw 26655 Bom

Bombay High Court

Satish @ Satyanarayan Bhairavsingh ... vs The State Of Mah on 25 October, 2024

2024:BHC-AUG:26391


                                                   {1}            CR APPEAL NO. 77 OF 2006


                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                 CRIMINAL APPEAL NO. 77 OF 2006

                 1.    Satish @ Satyanarayan S/o Bhairavsingh Girigujar
                       Age: 27 yrs., Occu.: Labour,
                       R/o.Village Panwadi,
                       Tq. & Dist.Sajapur, Madhya Pradesh.

                 2.    Sow. Anita w/o Satish Girigujar
                       Age: 22 yrs., Occu. : Labour,
                       R/o. As above.                              ....Appellants

                                          Versus

                 .     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 dated

12-01-2006 rendered by learned 3rd Adhoc Additional Sessions

Judge, Parbhani in Sessions Trial No.93 of 2005 recording guilt of the

appellants for offence under Section 363 read with 34 of the Indian

Penal Code (IPC).

                                   {2}           CR APPEAL NO. 77 OF 2006


                   PROSECUTION CASE IN BRIEF

2. In trial Court, both above appellants were chargesheeted on

the premise that on 24-03-2005 they abducted and kidnapped

informant's daughter and his minor granddaughter with intent to

compel informant's daughter to marry against her will and further

force her to indulge in sexual intercourse.

On report of PW1 Peeraji at exh.11, crime was registered for

offence under Sections 363, 366, 366A read with 34 of the IPC and

tried by 3rd Adhoc Additional Sessions Judge, Parbhani vide Sessions

Trial No.93 of 2005.

On appreciation of oral and documentary evidence, learned

trial Judge acquitted both accused from charge under Sections 366

and 366A read with 34 of the IPC, but convicted them for offence

under Section 363 read with 34 of the IPC. Hence, instant appeal.

SUBMISSIONS

On behalf of appellants :

3. Learned Counsel for the appellants challenged above

judgment on the ground that prosecution has miserably failed to

prove its case and charges beyond reasonable doubt. Leaned Counsel

took this Court through the evidence of prosecution witnesses, more {3} CR APPEAL NO. 77 OF 2006

particularly, PW1 informant, his daughter PW2 and minor girl PW3

and would submit that they are not consistent and are not supporting

each other on material count. That their evidence is full of material

omissions, contradictions and they are at variance with each other.

4. Learned Counsel submitted that very informant's evidence is

confusing. She emphasized that for almost more than two months

informant has not lodged missing report of his own daughter or

grand daughter. That delay of more than two months has occurred in

lodging report of which there is no plausible explanation. She

pointed 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 she

was searched for, but still no missing report was lodged with Police

authorities.

5. She further submitted that PW2 Mainabai, who was said to be

a victim, has alleged that she was abducted, but her testimony

categorically shows that she herself accompanied the accused. There

is no element of force or inducement. That her version is falsified by

her own daughter PW3, as according to learned Counsel, PW3, the {4} CR APPEAL NO. 77 OF 2006

minor, has admitted that accused and PW2 Mainabai and her

daughter PW3 were travelling in different bogies and therefore, there

is no question of abduction. She pointed out that there was no

attempt to raise alarm or inform anyone about alleged abduction and

therefore, she questions the credibility and veracity of evidence of

PW2 Mainabai. Learned counsel pointed out that there is no

evidence to show that victim was taken or sold as is alleged by her.

Learned counsel pointed out that the man to whom she was allegedly

sold is not surprisingly apprehended and even no investigation has

been carried out in that regard, to which it is pointed out that there is

clear 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, learned

Counsel pointed out that her version does not tally with her own

mother PW2 in whose company she was for several days. According

to learned Counsel, minor's evidence gives a different complexion to

the story of prosecution. That her evidence cannot be readily

accepted as there is every possibility of child being tutored by PW1

grandfather, PW2 mother and PW4 Shanker.

6. Learned counsel also criticized evidence of PW4 Shanker, who {5} CR APPEAL NO. 77 OF 2006

allegedly informed PW1 informant about seeing PW3 on the Railway

Station and further being brought to Police Station. Learned Counsel

pointed 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 IPC

are patently missing. That there is no evidence of taking away or

inducing in any manner and therefore, she questions both the

findings and conclusion reached at by learned trial Judge, when

according to learned Counsel, trial Court itself has discarded and

refused to accept prosecution story regarding commission of offence

under Sections 366 and 366A of the IPC. Seeking reliance on

judgment of Hon'ble Apex Court in S.Vardarajan v. State State of

Madras, 1965 (2) Cri. LJ. 33, she urges to allow the appeal by setting

aside the impugned judgment.

On behalf of State :

8. Learned APP supported the conviction by pointing out that

PW2 Mainabai and her daughter PW3, who are mother and

daughter are victim. That while going to her brother's place, PW2

Mainabai, who was accompanied by PW3, was lured with proposal of {6} CR APPEAL NO. 77 OF 2006

marriage, food and shelter. However, evidence shows that appellants

took them and sold to one person and further took away minor PW3

from the custody of PW2 Mainabai without her free consent.

Therefore, according to learned APP, offence of Section 363 is

complete. Both PW2 Mainabai and PW3 named and identified

accused. For above reasons, according to learned APP, no fault can be

found in the manner of appreciation or the conclusion drawn by

learned trial Court and ultimateldy, she prays to dismiss the appeal.

STATUS OF PROSECUTION WITNESSES AND SUM AND SUBSTANCE OF THEIR EVIDENCE IN TRIAL COURT

9. PW1 Peeraji Nathuji More, informant, in his evidence at

exh.10, deposed that Mainabai is his daughter and Jyoti is her

daughter. That Mainabai lost her husband 4-5 years back. That his

elder son Chandrakant used to reside at Palasi. At the time of Holi

festival, his daughter and granddaughter left to visit Chandrakant,

but when he himself went to Palasi, he did not notice either his

daughter or granddaughter and therefore, they searched for, but not

traced. After 2-3 months, Shanker Surve of his village informed him

on phone about seeing granddaughter in company of a man and a

woman. On such information, he approached Police Station and

there he came across his granddaughter, Shanker Surve and one {7} CR APPEAL NO. 77 OF 2006

couple. On enquiry, his granddaughter told about her mother being

sold. He brought back his granddaughter after lodging report

exh.11.

Material omissions are brought regarding this witness stating

before Police that Shanker Surve gave phone message to him that he

had seen his daughter Mainabai at Kanhergaon Police Station; and

that his granddaughter Jyoti telling this witness that accused have

sold away her mother.

10. PW2 Mainabai d/o. Peeraji More in her evidence deposed that

at the time of Holi, she started for her brother's house with her

daughter. That at Kanhergaon Railway Station, she came across a

man and a woman. According to her, they forcibly took her and her

daughter with them. They told that they would perform her

marriage and so she accompanied them. They also assured her food.

But later on, she was beaten and restrained from returning back

home. That they took away her amount and she was taken to

Panwadi and sold to one person. Her daughter was brought back to

Umra. 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 2006

That incident took place 2-3 months back. That during rainy season,

she and her mother were going to her maternal uncle's place at Palasi

and so they came to Kanhergaon Railway Station. Accused before

the Court came there. While all were sitting under Neem tree,

accused told her mother that there is "Saptah" and to come there and

they would give food, clothes and shelter. That Train going to

maternal uncle's village came, but accused asked them to accompany

them. Thereafter, she and her mother were forcibly made to board in

a Train by the accused and they were made to alight at Akola

Railway Station and from there they boarded another Train and went

to Panwadi.

There, marriage of her mother was performed with Shankar

Singh and accused obtained money from Shankar by selling them

and they both left the spot. She insisted to drop her back to her

maternal uncle's place, but they did not listen. Then accused again

came and made an enquiry with me whether she had maternal aunt's

daughter and whether she would come with them to which she

denied. Thereafter, she was brought by them to Washim Railway

Station and from there they came back to Kanhergaon, had meals

and while accused went to answer call of nature, she met Mathurabai

and her husband Shanker and they took her to Railway Station Office {9} CR APPEAL NO. 77 OF 2006

and a message was passed to Police where her uncle and grandfather

came and brought her home.

12. PW4 Shanker Shrawan Surve claims that he knew PW2

Mainabai and her daughter PW3. That while he and his wife had

been to Kanhergaon Railway Station on 10-06-2005, PW3 came

running, embressed him and told that a man and woman beat her

and then she did not want to go with them, rather asked them to

take 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 gave

message to Police, who came there. That grandfather and maternal

uncle of PW3 were informed and her custody was given to her

grandfather.

13. PW5 Gautam Tukaram Dhule is the Railway Employee, who

stated that while he was on duty in Railway Station Office, passenger

came with a girl and told that parents of the girl are detached from

her. Thereafter, accused came in search of girl in their office. But the

girl 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 2006

14. PW6 Prakash Chaghanlal Patedar deposed about Maharashtra

Police coming and taking custody of a lady and he later received

information that accused before the Court had brought the lady to

their village.

15. PW7 Bhagwan Dattatraya Kapkar is the Investigating Officer.

ANALYSIS

16. Here though appellants were chargesheeted for offence under

Sections 363, 366, 366A of the IPC, guilt is apparently recorded only

for 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 of offence;

(2) Accused committed offence of enticing the person kidnapped;

(3) The kidnapping was without the consent of the victim or of someone 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 lawful guardian;

{11} CR APPEAL NO. 77 OF 2006

(3) Accused took or enticed away the victim from such keeping of the lawful guardian;

(4) Accused did so without the consent of the lawful guardian."

17. The landmark judgment on the above provision, which still

holds the field is of S.Vardarajan v. State of Madras, 1965(2) Cri. LJ

33, wherein the Hon'ble Apex Court enunciated the legal

requirements for attracting offence under Sections 361 and 363 of

the 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. They

both being examined, their evidence is of significance. This Court

has already noted substance of their testimonies in aforesaid

paragraphs. It is noticed PW2 Mainabai claimed to have left the

house with her minor daughter to visit her brother's place at Palasi

and they both reached Kanhergaon Railway Station. She deposed

that at Railway Station, she came across a man and a woman and she

identified both of them in the Court. She alleged that she and her

daughter forcibly being taken by them. According to her, she was {12} CR APPEAL NO. 77 OF 2006

told that they will perform her marriage and therefore, she claims

that she accompanied them. She further deposed that they also

stated that they would provide food to her. She further testified that

after taking her with them, they took away amount from her and she

was taken to Panwadi and sold to one person. Her daughter was

brought back to Umra.

Her above discussed testimony shows that she herself

accompanied when said man and woman told that they would

perform her marriage. She has not at all testified and clarified how

acquaintance and conversation developed between them and reached

to the point of her marriage. Infact she was at that time

accompanied by her daughter. She has not elaborated that she

indulged in some conversation previously with them and disclosed

them about her family life. She directly deposed that they told her

that they would perform her marriage. Her such version clearly

shows that some discussion must have taken place before alleged

offer by said man and woman. She has categorically stated that she

accompanied them. Therefore, necessary elements and ingredients

of abduction have vanished due to her such testimony. She has

herself stated that she went with them because they assured her to

provide food. It is even pertinent to note that, she has not elaborated {13} CR APPEAL NO. 77 OF 2006

where she was taken, which of the two accused beat her, where she

was beaten and where she was restrained. Her testimony is thus full

of ambiguity. If according to her, she was sold to one person, she

should have named that person and even investigating machinery

was expected to take such person in custody and it was expected of

investigating machinery to conduct detail and thorough investigation

to unreveal the truth. By what mode she was taken has not come on

record.

In cross-examination she herself has admitted that while

proceeding towards house of her brother at Palasi and on reaching

Kanhergaon Railway Station, she did not even purchase Railway

Tickets to undertake the journey. She admitted regarding not

informing anyone at Railway Station about she being prevented to

board the Train going to her brother's place. She also admitted about

not informing any of the passengers either on the Railway Station or

in the Train that she was being taken away or abducted. On the

contrary, she in paragraph 2 of cross-examination, after stating that

she was prohibited from entering Train of her choice, she and her

daughter kept waiting at the Railway Station and admitted that they

did not make efforts to return back to village. Rather she also

answered that she had told her daughter Jyoti that accused are trying {14} CR APPEAL NO. 77 OF 2006

to forcibly take her with them and Jyoti had been to the village. Her

such answer shows that minor had returned back to her grandfather's

place at Ganeshpur. She contradicts herself in cross-examination by

answering that when accused told that they would perform her

marriage, she denied their proposal. This is contrary to what she

stated in examination-in-chief that they told her that they will

perform her marriage and would provide her food, she was taken. In

paragraph 3 of cross-examination, she admitted that her daughter

begs in the Train and she and her daughter eat the material received

in the begging. She also admitted about accused telling her that it is

not good to beg and rather was suggested to take meal at 'Bhandara'.

The above discussed cross-examination, clearly suggests that

her testimony that she was forcibly taken or abducted is suspicious.

Inspite of Train going to her brother's village not being boarded, she

has not returned to the village Ganeshpur and has rather deposed

about sending her daughter Jyoti to village for allegedly informing

her father with regard to being prevented from boarding the Train.

19. Similarly, PW3 Jyoti testified that at Kanhergaon Railway

Station at around 2 p.m., accused persons, she herself, her mother

together sat under the Neem tree and their accused allegedly told her {15} CR APPEAL NO. 77 OF 2006

mother that there was "Saptah" and that they should come there and

they would get food, clothes, shelter. According to her, Train going to

her maternal uncle's village came but accused asked them to

accompany them and so they missed the Train. This is exactly

contrary to her mother's version about offer of marriage, food and on

such count, she and her mother being taken. She did state that she

and her mother were forcibly made to board the Train, in cross-

examination paragraph 4 she answered that she asked her mother to

return back home after departure of Train going to her maternal

uncle's village, but she deposed that her mother did not listen and

rather compelled her to accompany her. According to her, accused

induced to accompany them and accordingly, her mother agreed.

She also answered that there being rush of passengers she and her

mother boarded different bogie of the Train whereas accused

boarded different bogie. Her such answer also creates doubt about

mother's version regarding forcibly taken or abducted.

20. Another witness, who is also crucial is PW4 Shanker and he

claims that on 10-06-2005, he saw PW3 Jyoti and she came and wept

and informed that one man and woman beat her and she does not

want to go with them and requested him to take her to village {16} CR APPEAL NO. 77 OF 2006

Ganeshpur and she also pointed to the accused. This witness claims

that accused came and claim their concern with PW3 and thereafter,

Station Master telephoned Police Chowki and Police came and they

were asked to go to Goregaon Police Station and there he called

maternal uncle and grandfather of PW3 and there custody of PW3

was given to her grandfather. His such testimony shows that on

10-06-2005, only PW3 was spotted on the Kanhergaon Railway

Station. Evidence of PW3 in witness box is that accused brought her

from Washim Railway Station to Kanhergaon. It is still not clear as to

when and how the PW3, a minor, was brought from Panwadi to

Washim Railway Station. If according to PW4 Shanker, he came

across PW3 Jyoti at Kanhergaon Railway Station on 10-06-2005 and

he took her to Station Master and on information of Station Master,

Police of Police Chowki had come there and they were directed to go

to Goregaon Police Station, his statement was expected to be

recorded on same day or atleast on the next day, but apparently his

statement has been recorded by the Police after almost a week.

21. It is also pertinent to note that on meticulous appreciation of

documentary evidence of prosecution, it is noticed that inspite of

PW3 Jyoti handed over in custody of PW1 Peeraji on 10-06-2005, in {17} CR APPEAL NO. 77 OF 2006

view of version of PW4 Shanker, FIR is not registered on the same

day, rather FIR carries date as 11-06-2005. It is also emerging that

PW1 Peeraji as well as maternal uncle of the minor had allegedly

come to take custody of PW3 Jyoti, a minor. Therefore, it was

possible to record their statements or take report. Even statement of

minor and her mother i.e. PW3 and PW2 respectively are recorded on

18-06-2005. Informant Peeraji in his examination-in-chief itself has

stated that after leaving house to go to village Palasi, PW2 Mainabai

left with PW3 Jyoti during Holi festival, which generally happens in

March. Therefore, for more than two months neither missing report

is lodged and as stated above, even inspite of PW3 Jyoti traced and

taken in custody on 10-06-2005, there is no prompt FIR by PW1

Peeraji. The delay coupled with above narrated mysterious

circumstances and ambiguity emerging from evidence of PW2

Mainabai, prosecution version apparently has no head and tail.

Essential ingredients of abduction or kidnapping are patently

missing. PW3 minor was in company of PW2 mother herself, who is

her natural guardian atleast till Panwadi. PW2 mother does not

depose that without her consent, her daughter was removed, rather it

is evident that PW3 minor was brought back and found at

Kanhergaon Railway Station itself. PW2 Mainabai speaks that she {18} CR APPEAL NO. 77 OF 2006

being taken to Panwadi and PW3 Jyoti was brought back at Umra.

Where is this place has not been investigated. It was essential

because PW3 Jyoti is allegedly traced at Kanhergaon Railway Station.

It is pertinent to note that here very informant's evidence shows that

there are material omissions regarding he receiving message about

spotting PW2 Mainabai at Kanhergaon Police Station and that PW3

Jyoti further told informant about her mother being sold. Therefore,

though distinct places are coming on record, there is no clarity. With

such quality of evidence, there is no element of inducement,

enticement or kidnapping or even abduction as PW2 Mainabai herself

has agreed to accompany alleged man and woman. Inspite of several

opportunities to evade company or escape, no efforts are done by

PW2 Mainabai and PW3 Jyoti. Therefore, with such quality of

evidence, prosecution case cannot be said to be proved beyond

reasonable doubt. There are several lacunae, lapses and ambiguities

in the prosecution case and hence, it is unsafe to accept such version

of prosecution.

22. Further on same set of evidence, learned trial Judge has

already acquitted accused from the charge of Section 366 and 366A

of the IPC. No sound reason is assigned for recording guilt for {19} CR APPEAL NO. 77 OF 2006

offence under Section 363 of the IPC and as such there is apparently

improper appreciation and erroneous approach calling for indulgence

of this Court.

23. Learned Counsel for appellants pointed out that learned trial

Judge has awarded sentence of simple imprisonment for six months

to 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 received

from Jail Authority, Parbhani dated 24-10-2024 conveying that

convicts - Satish @ Satyanarayan Bhairavsingh Girigujar and Anita

Satish Girigujar are already released on 16-01-2006 and 30-01-2006

respectively.

SUMMATION

24. To sum up, for above reasons, as prosecution has failed to

establish the charge of Section 363 read with 34 of the IPC beyond

reasonable doubt, benefit of the same is required to be extended by

allowing the appeal. Accordingly, I proceed to pass following order.

                               ORDER

  I)     Criminal Appeal No.77 of 2006 is allowed.
                                       {20}             CR APPEAL NO. 77 OF 2006


      II)    The conviction awarded to appellant nos.(1) Satish @

Satyanarayan s/o Bhairavsingh Girigujar and (2) Sow.Anita w/o Satish Girigujar in Sessions Trial No.93 of 2005 by the learned 3rd Adhoc Additional Sessions Judge, Parbhani on 12-01-2006 for the offence punishable under Section 363 read with 34 of the Indian Penal Code, stands quashed and set aside.

III) The appellants stands acquitted of the offence punishable under 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 the appellants after the statutory period.

VI) It is clarified that there is no change as regards the order in respect of disposal of muddemal.

VII) The fees of the learned Counsel appointed for appellants is to be paid through the High Court Legal Services Sub- Committee, Aurangabad, as per Rules.

( ABHAY S. WAGHWASE ) JUDGE SPT