Gujarat High Court

Prem Bahadur Sundar Bahadur @ Shersingh ... vs State Of Gujarat on 30 September, 2025

Author: Gita Gopi

Bench: Gita Gopi

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                           R/CR.A/1441/2007                                           JUDGMENT DATED: 30/09/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                              R/CRIMINAL APPEAL NO. 1441 of 2007


                      FOR APPROVAL AND SIGNATURE:

                      HONOURABLE MS. JUSTICE GITA GOPI                         Sd/-

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                                   Approved for Reporting                        Yes                  No
                                                                                         -        ✔
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                         PREM BAHADUR SUNDAR BAHADUR @ SHERSINGH BIST(GURKHA)
                                                Versus
                                          STATE OF GUJARAT
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                      Appearance:
                      MR RAMNANDAN SINGH(1126) for the Appellant(s) No. 1
                      MS MONALI BHATT, ADDITIONAL PUBLIC PROSECUTOR for the
                      Opponent(s)/Respondent(s) No. 1
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                         CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                                           Date : 30/09/2025

                                                          ORAL JUDGMENT

1. The appellant as an accused has been convicted under

Sections 363 and 366 of the Indian Penal Code (IPC).

Under Section 363 of IPC, the appellant was sentenced

to undergo 5 years of rigorous imprisonment and to

pay a fine of Rs.1,000/- and in failure of payment of

fine, to undergo further simple imprisonment of one

month. Under Section 366 of IPC, the appellant was

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sentenced to undergo 5 years of rigorous

imprisonment and pay a fine of Rs.1,500/- and in

default of payment of fine, to undergo further simple

imprisonment of one and a half month. The

sentences were ordered to run concurrently. The

order was passed by the learned Presiding Officer, Fast

Track Court No.3, Vadodara on 07.09.2007 in

Sessions Case No.19 of 2007. Aggrieved by the

judgment and order of conviction and sentence, the

accused has preferred an Appeal under Section 374 of

the Code of Criminal Procedure, 1973 (hereinafter

referred to in short as 'Cr.PC.')

2. The facts of the case as could be noticed from the

record suggest that on 14.08.2006, a complaint was

given by Manibhai Govindbhai Tadvi alleging that on

13.08.2006, the appellant-accused abducted his

daughter aged about 17 years, between 00.30 hours to

04.00 hours from his legal guardianship. The accused

was a married man with two wives and the abduction

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of the minor daughter of the complainant was with the

intention to make the minor as accused's third wife

and for that purpose, he had enticed the minor for

marriage and for illicit intercourse.

3. It is further recorded that the accused took the minor

girl to Banswada, Rajasthan, from 15.08.2006 to

23.08.2006, rented a place in Village Chanduji ka

Gada where the accused entered into sexual

intercourse with the minor girl against her consent.

After investigation, the charge-sheet was filed under

Sections 363, 366 and 376 of IPC.

4. During the course of the trial, 7 witnesses were

examined. After the trial, the charge under Section

376 of IPC was not proved against the accused and

therefore, the accused came to be acquitted for that

offence.

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5. Learned advocate for the appellant Mr. Ramnandan

Singh submitted that the order of conviction and

sentence which has been passed is only on moral

grounds, where actually no witness has supported the

case of the prosecution case and it was under

misconception and suspicion that the First

Information Report (FIR) was filed. It is alleged that

the father had seen the minor daughter talking with

the accused, as the accused was staying on the upper

floor of their house and when the accused was not

found, the father and mother of the minor under

suspicious belief of accused abducting the minor had

filed the case.

6. Referring to the deposition of the victim girl- PW5,

learned advocate Mr. Ramnandan Singh submitted

that the victim was never taken away by the accused.

She had admitted that she left the house on her own

will and had gone to Jambusar, where the evidence

has come on record as given by victim as well as the

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father and mother that the victim was at her maternal

uncle's house. It is submitted that the allegation of

the victim being taken to Village Chanduji ka Gada by

the accused and keeping the minor girl in a rented

property has not been proved and nothing has come

on record to prove the fact that the accused had

removed the victim girl from the legal guardianship of

the parents.

7. Learned advocate Mr. Ramnandan Singh submitted

that the learned Judge was required to examine the

facts of the matter in view of the testimony where it

was found during the trial, of denial of the victim girl

supported by the deposition of the parents as legal

guardian and hence, there would be no case under

Sections 363 and 366 of IPC.

8. Per contra, it is submitted by learned Additional Public

Prosecutor Ms. Monali Bhatt that the charge was

framed against the accused, and it was proved that the

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accused had enticed the minor girl, to compel her to

marry him since he was a Nepali and was having two

wives with children and he wanted the minor girl to be

his third wife. The charge further states that he had

taken the girl from the legal guardianship of the

parents and resided in a rented room from 15.08.2006

to 23.08.2006. Thus, it is submitted by learned APP

that the age of the victim being below 18 years and

more precisely, 17 years and when nothing contrary

has come on record then the case which has been

believed by the learned trial Court Judge under

Section 363 and 366 of IPC is required to be upheld.

9. From the evidence of the complainant recorded as

PW1, it can be noticed that he is a labourer /

watchman working in Welcome Hotel and his wife is

working in a private dispensary. They have in total 5

children, the victim was aged 17 years. The father

stated the date of birth of the victim as of 01.04.1989.

As per his testimony on 12.08.2006 when he came

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back from his night shift in the morning, he saw that

his eldest daughter was not at home. Thereafter, the

wife informed that the victim girl as well as the

accused was also not there. The accused was residing

in a Room No.108 and therefore, the mother felt that

both must have eloped. As per the father, his wife

came to know that the daughter was not at home when

she had gone in the early morning to answer the

nature's call. Thereafter, they made enquiry with the

relatives of the accused at Vadodara City but they were

not found there. The father stated that prior to

incident, he had seen his daughter talking with Prem

Bahadur and since he was not there in the room, he

had a suspicion, enquired from the police and on the

same day, he gave a police complaint Exhibit 8. The

police had asked for evidence of age and therefore, he

had produced a photocopy of the birth certificate of the

daughter. The witness referred to Exhibit 9 which is

the photocopy of the School Leaving Certificate from

Nagar Prathmik Shikshan Samiti, Vadodara.

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10. In the cross examination, the witness was confronted

with the fact that it was the wife-the mother of the

victim who had scolded her and therefore, the girl had

left the house. Only on suspicion, the father stated

that he had given the complaint. He stated that his

wife had got angry since the victim girl left the house

and after the police enquiry, they found the victim girl

at the maternal uncle's house. He confirmed that the

victim was not found with the accused and further,

affirmed in the cross examination that the accused

had not taken his daughter away.

11. Learned APP Ms. Monali Bhatt has referred to the

question which was put forth by the Court during the

trial where the witness-father was asked to name the

maternal uncle, however, the witness could not name

so and such conduct of the father was noted in the

deposition. The further question of the Court which

followed which would be required to be noted was

whether the victim was found at the house of the

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brother-in-law, to that the witness stated that he had

not found her.

12. The evidence of the father cannot be considered as

contrary or strange since the complainant standing in

witness box when enquired about the name of the

brother-in-law, he could not have named him.

However, that fact cannot be given much weightage

since the mother of the victim girl was also examined

during the trial as PW4. The evidence of the father

totally denies any criminal act of the accused.

13. The case with the age of the victim girl as 17 years

would not bear much importance when the father

himself is not making any complaint in the

examination-in-chief. The father has not been

declared hostile. The evidence of the complainant has

not been confronted. A perusal of the complaint would

show that there was not much to confront. Hence, it

could be concluded that the complaint was given by

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the father on the basis of suspicion against the

accused.

14. The mother as PW4 could not give the exact date of

birth of the victim daughter but could say that she was

born on 1st April. According to the mother, on that

day, the daughter had some verbal spat with her and

in anger, the victim had left the house. The mother

stated that victim had gone to her maternal uncle's

home. Since the accused was living on the upper floor

and when enquired, he was not found, therefore, they

felt that the accused must have abducted their

daughter. Mother stated that she had informed this

fact to her husband and when victim was not found on

that day, so they had given a complaint. As per the

mother, after about a week, they found the daughter.

She had stated that she had informed the police in her

statement that it was the accused who had induced

the daughter and alluring her had taken the victim

daughter with him.

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15. In the cross examination, it is recorded that her

marriage took place 25 years ago and after two years of

marriage, the victim girl was born. She stated that the

accused was the Chowkidaar of the flat. She stated

that he was talking with her daughter and therefore,

had rebuked her. The quarrel which had occurred

was because of watching television and at that time,

the victim girl had threatened to leave the house and

when the accused was not found at home, on the basis

of suspicion, they had given a complaint against him.

16. Both the parents have denied of the accused taking the

victim girl from their legal guardianship. The evidence

of the victim was recorded as PW5. She has stated

that she was the eldest of all the siblings. They were

staying in the quarters of 2 nd Floor of Vadodara

Municipal Corporation compound. They were staying

there since the last two years. The victim stated that

she was not having any connection with the accused

nor she had any love affair with the accused. The

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accused had never asked her to marry him and be his

wife. She had further stated that the accused had

never stated that since she was 17 years, they would

have to wait till she attains the age of 18 years. The

victim also denied that the accused had taken her to

Rajasthan. She also denied the suggestion that on

12.08.2006, they had decided to run away during the

night hours. The victim was declared hostile and in

the cross examination, it had come that after 6-7 days,

her parents had brought her home. She denied of

stating before the police of having acquaintance with

the accused while walking on the stairs and that she

had left the house when she was about 17 years. She

also denied that she had given a statement to the

police that the accused had asked her to marry him

and since her parents were very strict and therefore,

she had asked him to wait till the age of 18 years.

She also denied that she has stated in the police

statement that they were often meeting each other.

She affirmed that she had knowledge that the accused

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had gone to Rajasthan for his job. In the cross

examination, she affirmed that while she was talking

with the accused with regard to the light bills, once her

mother saw her and scolded her. She also stated that

the quarrel with her mother was regarding watching of

television and since her mother had rebuked her, she

left the house on being furious. She had gone to her

maternal uncle-Thakor mama's house at Jambusar

without informing anyone in the family. She had even

told her maternal uncle not to inform her family and

she had informed the police about the name of the

maternal uncle and when the mother came to know

about it, she had brought her home, thereafter, they

had gone to the police. She has also affirmed about

her medical check-up and the medical check-up of the

accused was done.

17. The rest of the evidence is of the Doctors, PW2 and

PW3, and the same would require no reference since

the case under Section 376 of IPC has not been

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believed. Even the factum of the opinion of Doctor

regarding the age would now become insignificant, in

view of the evidence of both the parents as well as the

victim girl where it has been stated on record that, she

had not gone alongwith the accused nor the accused

had enticed her to join him. Nothing has come on

record as a proof that the accused had taken the

victim girl alongwith him to Rajasthan.

18. The Investigating Officer was examined at PW6 who

stated, that on 12.08.2006, the family after their

dinner watched television and at about 12.30 pm had

gone to sleep. In the morning, the mother did not find

the victim girl in her bed and the accused was not

found in Room No.108. On the basis of suspicion,

they felt that their daughter must have left with the

accused. The Investigating Officer stated that the

complainant had seen the daughter talking with the

accused and at that time, he had scolded her. It was

also stated that it was the accused who had taken the

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girl from the legal custody of the parents, enticing her

to enter into marriage.

19. The deposition of the Investigating Officer would show

that earlier the accused had stayed for about one

month in Banswada, Rajasthan with his brother-in-law

and was working there as a watchman. The

Investigating Officer stated that they had received the

evidence that the accused had taken the victim. He

under the instructions of the superior Officer

alongwith the Head Constable-Kashanbhai Mohanbhai

and the necessary staff had started for Rajasthan but

since it was raining heavily , they returned back from

Rajasthan to Dungarpur. Again had enquired, under

the permission of the superior officer, and with the

assistance of a person, the accused was found at the

FCI Godown, Udaipur and when they enquired, it came

to their knowledge that on 13.08.2006, in the

afternoon, the accused had come with a girl, and had

induced the girl for marriage. They were staying in a

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rented house in Village Chanduji ka Gada. The

panchnama of the rented house was drawn. As per the

Investigating Officer on 12.08.2006 at night about 2.00

pm the accused as decided alongwith the victim girl,

had left from Vadodara to Tandalja in a rickshaw and

had come at the Railway Station. Thereafter, from

S.T. Depot, they sat in a bus and had reached

Banswada and on 13.08.2006, where the accused

stayed with the brother-in-law, and then, they stayed

in a rented house at Village Chanduji ka Gada from

14.08.2006. During that period, the Investigating

Officer stated that they had established sexual

relation. The Investigating Officer stated that the

accused was already having two wives and five

children at Nepal. Since there was no law regarding

the number of wives in Nepal, the accused had decided

to make the victim girl his third wife.

20. The evidence of the Investigating Officer has not been

supported by any independent witness. The

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Investigating Officer had recorded the statement of the

owner of the house of the rented premises and he has

confirmed in the cross examination, that he had

recorded the statement of the owner of the house-Uday

Lal Kalal. However the said person had not been

examined to prove that accused alongwith victim had

resided in his house. I. O. affirmed that in the charge-

sheet, no one has been named as PSO of the matter.

The allegations of the victim being taken by the

accused at Rajasthan had not been proved.The learned

trial Court Judge has recorded the medical evidence

but has not believed Section 376 of IPC against the

accused. Now the only fact which becomes necessary

to be examined is whether the accused had kidnapped

the girl from the lawful guardianship of the parents.

Section 361 of IPC defines kidnapping from legal

guardianship where the girl under the age of 18 years

is taken or enticed from the keeping of the lawful

guardian of such minor, without consent of such

guardian, then offence would be considered as

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kidnapping from lawful guardianship.

21. Section 361 of the IPC is extracted hereinafter :-

"361. Kidnapping from lawful guardianship.-Whoever takes or entices any minor under sixteen years of age if a male, or under 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."

22. A complaint against the accused was given on the

basis of suspicion. The victim was found to be talking

with the accused , it was stated that he was staying in

Flat No.108 and therefore, on the basis of suspicion,

as per the deposition of the father and mother, the FIR

was lodged. The victim girl stated that she had gone

to Thakore mama's house. She had also informed the

police about the said fact. Nothing has come on record

to contradict the same. The parents have also stated

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