Madhya Pradesh High Court
Vishnu vs The State Of Madhya Pradesh on 8 July, 2021
Author: Vivek Rusia
-1- CRA No.282/21
HIGH COURT OF MADHYA PRADESH,
BENCH AT INDORE
CRA NO.282/2021
08.07.2021: (INDORE):
Shri Tarun Kushwah, learned counsel for the appellant.
Shri Prateek Patwardhan, learned PL for the State.
Heard through video conferencing.
With the consent of parties, appeal is admitted and is also heard
finally.
The appellant/accused has filed this appeal against the judgment
dated 24.12.2020 passed by learned Special Judge, Ratlam in Special
Case No.121/2018 whereby he has been convicted u/s 363 & 366 of
IPC and sentenced u/s 366 for the period of 4 years RI with fine of
Rs.2000 and six months RI in default stipulation.
Facts
of the case in short are as under:
2. On 8.12.2008 prosecutrix "P" (PW/2) along with her friend
prosecutrix "S" (PW/3) went to Ratnagiri Haat (local market) at near
about 4 pm to purchase the vegetables. They met with the appellant
who was known to them since last 2-3 years. He gave an offer to
prosecutrix "P" to go to Bhadwa Mata mandir for a drive . Prosecutrix
P & S went along with him in his motorbike . In the temple he gave a
proposal of marriage to prosecutrix "P" which she declined by saying
that she would marry as per wish of her parents. Thereafter they
stayed overnight in the temple and came back on 10.12.2008 to the bus
stand, Ratlam where the cousin brother of prosecutrix "S" came to
receive them. During their two days stay the appellant did not sexually
harass Prosecutrix P & S.
3. On 8.12.2018 near about 7 p.m the father of prosecutrix "P"
Madanlal (PW/1) came back to house , did not find his daughter in the
house. Her whereabouts were not known to the mother also. Then he
went to the police station for lodging the report but same was not
lodged by the police . The report of missing person No.83/2018 was
recorded in the Rojnamcha No. 31/10.12.81 on 10.12.2018 near about
16.40 hrs. and simultaneously FIR No.512/18 was also registered u/s
-2- CRA No.282/21
163 against the unknown person. As per the version in FIR, the
complainant Madanlal came to known that Vishnu resident of the same
village is also missing since 8.12.2018, therefore, he apprehended that
he has kidnapped his daughter prosecutrix "P".
4. After registration of the FIR the police recorded the statement of
prosecutrix "P" & "S" under section 161 Cr.P.C. Thereafter they were
produced before the Magistrate and their statement under section 164
Cr.P.C. were recorded. PW/2 & 3 in their statement have stated that
they went to Ratnagiri haat to purchase vegetables where Vishnu came
there in Motorbike. He gave an offer to visit temple and they went to
temple in a motorcycle where he gave a proposal of marriage to
prosecutrix "P" which she has turned down and they stayed one day in
temple and on 10.12.2018 came back to the bus stand Ratlam where
her brother Ajay Damar came and received them. Thereafter they went
to police station and lodged the report. She has specifically denied that
about commission of any sexual exploitation or molestation with her
by the appellant . They went with him with their own choice. On the
basis of this statement police called this applicant in the police station.
He went there on 14.12.2018 and police arrested him . Police has
filed charge sheet against him u/s 363 (2 counts), 366 (2 counts) IPC
and 11((iv) & (vi) of the POCSO Act.
5. The trial was committed to the Special Judge. Learned Special
Judge framed the charges against the appellant which he denied and
pleaded for trial. PW/1, 2 & 3 have supported the case of prosecution.
PW/4 Mansingh has produced the scholar register of the school
according to which learned Special Judge held that at the time of
offence prosecutrix "S" was above 18 years and prosecutrix "P" was
below 18 years. PW/5 Ajay Damor and PW/6 Kalabai, mother of
PW/3 have turned hostile. Thereafter police examined Nisha
Choubey, SI as PW/7 and Head Constable Kachrulal as PW/8. After
appreciating the evidence came on record learned Special Judge has
held that appellant has committed offence of kidnapping of prosecutrix
"P" who was below 18 years and compelled her for marriage,
therefore, he has committed an offence u/s 366 IPC. However,
-3- CRA No.282/21
learned Court has discharged him for the offence u/s 11(iv) & 11(vi) of
the POCSO Act on the basis of statement of prosecutrix "P" and
prosecutrix "S". The appellant has not been convicted for kidnaping of
prosecutrix "S" because she was major and went along with him by
own will. By virtue of section 71 of the IPC the appellant has not been
convicted u/s 363 separately but convicted u/s 366 IPC and sentenced
for 4 years RI with fine of Rs.2000, hence this criminal appeal before
this High Court by the appellant.
6. At the very outset learned counsel for the appellant submitted
that the appellant remained in jail since 14.12.2018 till 4.1.2019 and
thereafter from 24.12.2020 till today, therefore, he has undergone more
than 8 months of the sentence. He is aged about 22 years with no
criminal past. Though he has wrongly been convicted u/s 363 I.P.C.
but he is not assailing the findings recorded for convicting him for the
offence u/s 363 I.P.C. but praying for reduction of sentence from the
period of 4 years RI to the period already undergone. It is further
submitted by the learned counsel that the appellant has not committed
offence u/s 366 IPC which is liable to be set aside.
7. Learned Panel Lawyer opposes the aforesaid submission by
submitting that learned Special Judge has rightly appreciated the
evidence came on record. The appellant has committed offence u/s
363 & 366 IPC because of kidnapping of minor girl. She was
kidnapped and compelled for the marriage against her will hence
appellant has rightly been convicted u/s 363 and 366 IPC. He has
rightly been awarded 4 years sentence out of maximum sentence of 10
years, therefore, there is no scope of reduction.
I have heard the learned counsel for the parties and perused the record.
8. So far, the allegation of kidnapping of prosecutrix "P" by the
appellant is concerned he is not assailing that, hence the incident took
place on 8.12.2018 and the findings of kidnapping and conviction are
hereby upheld.
9. In order to examine the conviction of the appellant under
section 366 I.P.C. the definition of section 366 I.P.C. is reproduced
below:
-4- CRA No.282/21
366. Kidnapping, abducting or inducing woman to compel her marriage,
etc.--Whoever kidnaps or abducts any woman with intent that she may be
compelled, or knowing it to be likely that she will be compelled, to marry any
person against her will, or in order that she may be forced or seduced to illicit
intercourse, or knowing it to be likely that she will be forced or seduced to
illicit intercourse, shall be punished with imprisonment of either description
for a term which may extend to ten years, and shall also be liable to fine;
1[and whoever, by means of criminal intimidation as defined in this Code or
of abuse of authority or any other method of compulsion, induces any woman
to go from any place with intent that she may be, or knowing that it is likely
that she will be, forced or seduced to illicit intercourse with another person
shall also be punishable as aforesaid].
10. As per the aforesaid provision whosoever kidnaps or abducts
any woman with intent that she may be compelled or knowing it to be
likely that she will be compelled to marry any person against her will
shall be punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine. In the
present case as per the statement of prosecutrix "P". she went to the
Ratnagiri haat along with prosecutrix "S" to purchase the vegetables
where the appellant met them, who was known to them. He gave an
offer to visit Bhadwa temple for both consented and all the three 3
went to temple in his motorbike . According to prosecutrix "P", the
appellant disclosed his wish that he wants to marry her which she has
rejected and said that she would marry as per the decision of her
father. There is no allegation that accused/appellant kidnapped
prosecutrix "P" in order to compel her for the marriage. The
allegation of compel means there is a forceful act against the wish of
other. The appellant simply gave an offer of marriage or disclosed his
feelings that he wants to marry with prosecutrix "P" and upon refusal,
he did not force her and they came back, therefore, the requirement of
compelling for the marriage is missing in this case. At the time of
taking her to the temple she was not under impression that she was
likely to be forced for marriage against her will or when she refused
and in the temple she simply offered his feeling of marriage with her
and when she refused there was no force used by the appellant and
-5- CRA No.282/21
simply came back, therefore, the requirement that she may be
compelled or knowing it to be likely that she may be compelled to
marry is missing in this case, hence the conviction under section 366
I.P.C. is quashed. Since prosecutrix "P" was removed from the lawful
custody of her parents, hence the appellant has rightly been convicted
under section 363 of I.P.C.
So far as the sentence of 4 years RI under section 363 IPC is
concerned there is maximum sentence up to 7 years with fine. The
appellant is admittedly a first time offender. At the time of offence he
was 22 years with no criminal past. He was not aware that at the time
of commission of offence prosecutrix "P" was below 18 years. He did
not commit the offence knowing that she was below 18 years. One
chance of reformation should be given to him as there was no
allegation of using any force or molestation or kidnapping for
marriage, hence 4 years sentence is highly disproportionate which is
reduced to one year and the fine of Rs.2000 is maintained.
11. The appeal is partly allowed. The judgment dated 24.12.2020
passed by learned Special Judge, Ratlam in Special Case No.121/2018
is hereby accordingly modified as held above. Record of the appeal be
sent back.
(VIVEK RUSIA)
JUDGE
Digitally signed by HARI KUMAR
C G NAIR
hk/ Date: 2021.07.14 16:59:55 +05'30'
