Udham Vanshkar vs The State Of Madhya Pradesh
2021 Latest Caselaw 2426 MP

THE HIGH COURT OF MADHYA PRADESH MCRC-27941-2021 Udham Vanshkar Vs. State of MP

Through Video Conferencing

Gwalior, Dated : 16-06-2021

Shri Upendra Kumar Shrivas, Counsel for the applicant.

Shri Alok Sharma, Counsel for the State.

Case diary is available.

This second application under Section 439 of Cr.P.C. has been

filed for grant of bail. First application of the applicant was dismissed

by order dated 04.03.2021 passed in M.Cr.C. No.12359/2021.

The applicant has been arrested on 02.12.2020 in connection

with Crime No.219/2020 registered at Police Station Pandokhar

Distt. Datia for offence under Section(s) 363, 366 of IPC and Section

18 of POCSO Act.

It is submitted by the counsel for the applicant that the

applicant is in jail from 02.12.2020. It is alleged that the applicant

kidnapped a minor girl and took her to Rajkot, where they were

noticed by some relatives and, thereafter, the applicant ran away from

Rajkot by leaving the girl at Rajkot itself. It is submitted that there is

no allegation of rape and in fact the prosecutrix herself had gone

along with the applicant without any resistance and thus, no case of

kidnapping is made out. It is further submitted that the girl has been

examined, but he is not in possession of the deposition-sheet of her

evidence, therefore, it was prayed that time may be granted to place

THE HIGH COURT OF MADHYA PRADESH MCRC-27941-2021 Udham Vanshkar Vs. State of MP

the same on record. However, it was conceded that the girl has

supported the prosecution case.

The statement made by the counsel for the applicant regarding

non-availability of deposition-sheet of the girl was unfortunately

incorrect. When the counsel for the applicant was arguing the matter,

then it was noticed through the camera that deposition-sheet of the

girl is in the file of the counsel for the applicant, but still he was

trying to project that he is not in possession of the deposition-sheet of

the girl and sought adjournment. Seeking unnecessary adjournment

for the satisfaction of keeping the bail application pending cannot be

said to be in the interest of justice.

Be that whatever it may.

When the counsel for the applicant was pointed out that the

deposition-sheet of the girl is visible in his file and, therefore, he

should take it out, then he has fairly conceded that "yes" he is in

possession of the deposition-sheet of the girl. However, he tried to

project that he was mistaken and he thought that it is the statement

under Section 164 of CrPC.

Be that whatever it may.

At the request of the Court, counsel for the applicant has read

out the examination-in-chief of the girl, in which she has specifically

stated that she was enticed by the applicant to elope with him and in

THE HIGH COURT OF MADHYA PRADESH MCRC-27941-2021 Udham Vanshkar Vs. State of MP

spite of her resistance, he took her to Rajkot, where they were noticed

by their relatives and after noticing the relatives, the applicant ran

away after leaving the girl at Rajkot all alone.

It is submitted by the counsel for the applicant that since the

girl had voluntarily left her house without any objection, therefore,

no case of kidnapping is made out.

Unfortunately, the submission made by the counsel for the

applicant cannot be accepted in the light of the judgment passed by

the Supreme Court in the case of Anversinh @ Kiransinh Fatesinh

Zala Vs. State of Gujarat in Criminal Appeal No. 1919/2010

decided on 12.01.2021. The Supreme Court in the case of Anversinh

(Supra) has held as under:-

"17. The ratio of S. Varadarajan (supra), although attractive at first glance, does little to aid the appellant's case. On facts, the case is distinguishable as it was restricted to an instance of "taking" and not "enticement". Further, this Court in S. Varadarajan (supra) explicitly held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused.

18. Unfortunately, it has not been the appellant's case that he had no active role to play in the occurrence. Rather the eyewitnesses have testified to the contrary which illustrates how the appellant had drawn the prosecutrix out of the custody of her

THE HIGH COURT OF MADHYA PRADESH MCRC-27941-2021 Udham Vanshkar Vs. State of MP

parents. Even more crucially, there is little to suggest that she was aware of the full purport of her actions or that she possessed the mental acuities and maturity to take care of herself. In addition to being young, the prosecutrix was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part, even if presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not thought her actions through fully.

19. It is apparent that instead of being a valid defence, the appellant's vociferous arguments are merely a justification which although evokes our sympathy, but can't change the law. Since the relevant provisions of the IPC cannot be construed in any other manner and a plain and literal meaning thereof leaves no escape route for the appellant, the Courts below were seemingly right in observing that the consent of the minor would be no defence to a charge of kidnapping. No fault can thus be found with the conviction of the appellant under Section 366 of IPC."

It is for the Trial Court to assess the evidence of the prosecutrix

in the light of the judgment passed in the case of Anversinh

(Supra). However, for the purpose of bail application, this Court is

of the considered opinion that there is sufficient evidence on record

to show that the girl was enticed by the applicant to elope with him

and, accordingly, it cannot be said that no offence under Sections

363, 366 of IPC or under Section 18 of POCSO Act is made out.

Accordingly, the application fails and is hereby dismissed.

(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2021.06.17 10:46:13 +05'30'