Madhya Pradesh High Court
Surendra Kumar Shukla vs The State Of M.P. on 29 March, 2023
Author: Rajendra Kumar (Verma)
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CRIMINAL APPEAL No.131 of 1998
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
SHRI JUSTICE RAJENDRA KUMAR (VERMA)
CRIMINAL APPEAL NO. 131 OF 1998
BETWEEN :-
SURENDRA KUMAR SHUKLA SON
OF SURESH NARAYAN SHUKLA,
AGED ABOUT 21 YEARS,
RESIDENT OF HOUSE NO. 151,
STREET NO. 5, SHARDA NAGAR,
NARIYAL KHEDA, DISTT. BHOPAL
(M.P.)
....APPELLANT
(BY SHRI SHAILENDRA GANGRADE - ADVOCATE
AND
STATE OF MADHYA PRADESH
THROUGH POLICE STATION
NISHATPURA, DISTT. BHOPAL
(M.P.)
....RESPONDENT
(BY SHRI C.M. TIWARI - GOVERNMENT ADVOCATE)
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Reserved on : 16/02/2023
Pronounced on : 29/03/2023
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This Criminal Appeal having been heard and reserved for
judgment, coming on for pronouncement this day, Shri Justice Rajendra
Kumar (Verma) pronounced the following :
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 4/1/2023
10:18:16 AM
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CRIMINAL APPEAL No.131 of 1998
JUDGMENT
This Criminal Appeal under Section 374 (2) Cr.P.C. has been
preferred by the appellant being aggrieved by the judgment of conviction
and sentence dated 09.01.1998 in S.T. No.213/1996 passed by learned VII
ASJ, District-Bhopal, whereby the learned Judge has convicted the
appellant for the offence punishable under Section 366 of Indian Penal
Code (hereinafter referred as 'IPC') and sentenced him to undergo R.I.
for 01 year with fine of Rs.500/- also with default stipulation of 01 month
R.I.
2. According to prosecution story, prosecutrix and her father were
residing at Nariyal Kheda, Bhopal. She was studying in Class-8th. She
used to go to the house of appellant/accused for tuition class. On
26.03.1996, the prosecutrix along with her sister went out from their
house saying that they are going to attend a school party. When
prosecutrix was coming back after leaving her sister, on the way,
appellant/accused met and took her with him. In the evening, the
appellant/accused took the prosecutrix in a temple where he put garland
in her neck and clicked some pictures with him. In the night, he took the
prosecutrix at his brother's house. Thereafter, appellant/accused met
father of prosecutrix showing her letter and photographs saying that she
had performed marriage. On 27.03.1996 the prosecutrix was recovered
from the house of brother of appellant/accused. Thereafter, FIR got
registered against the appellant/accused.
3. After completing the investigation, police filed the charge sheet.
The appellant/accused abjured his guilt and claimed to be tried and took
the plea of false implication.
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 4/1/2023
10:18:16 AM
CRIMINAL APPEAL No.131 of 1998
4. In order to substantiate the prosecution case, the prosecution has
produced as many as 05 prosecution witnesses including prosecutrix
(PW-1), her father (PW-2) and her mother (PW-3). The trial Court also
recorded the statement of accused under Section 313 of Cr.P.C. After
considering the evidence adduced by the parties, the learned trial Judge
came to conclusion that the appellant is found guilty for the alleged
offence, hence, sentenced him as mentioned in Para-1.
5. The learned counsel for the appellant submitted that the judgment
passed by the learned trial Court is bad-in-law and contrary to facts and
evidence of the case. The evidence led by the prosecution witnesses
suffer from serious infirmity. He further submitted that the record of trial
Court clearly suggests that there is no evidence to show that the
appellant/accused abducted the prosecutrix. As per prosecution, the
prosecutrix was minor whereas the learned trial court found her to be
major, and therefore, she was a consenting party and accompanied the
appellant willfully. The prosecutrix herself admitted that she accompanied
the appellant willfully. The testimony of prosecutrix (PW-1) is not
trustworthy. The prosecutrix (PW-1) was in love with the
appellant/accused and she also wrote letter to him. Her father (PW-2) and
mother (PW-3) are interested witness and the learned trial court erred in
believing their testimony. Indeed, the prosecutrix wanted to marry with
him and being married with other one, the appellant refused to do the
same and being annoyed from said response of appellant/accused, the
prosecutrix has falsely implicated him in the present case. The father of
prosecutrix also offered the appellant to perform marriage with the
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 4/1/2023
10:18:16 AM
CRIMINAL APPEAL No.131 of 1998
prosecutrix in lieu of withdrawal of the criminal case. As per prosecutrix,
she wandered with the appellant many public places including house of
appellant's relatives but she had not raised any alarm when she had
opportunity to interact with the general public and family members of
appellant. There are material contradiction, omission and improvement in
the testimony of prosecution witnesses. In support of his contention, the
learned counsel for the appellant also relied upon the judgments passed
by Hon'ble Supreme Court in the case of Shyam and another vs. State
of Maharashtra reported in AIR 1995 SC 2169 as well as Ramji
Prasad vs. State of Bihar reported in 2013 Cri.L.J. 446. Thus, the
impugned judgment of conviction and order of sentence is bad in the eyes
of law and the same may be set aside and the appellant may be acquitted
from the charges alleged against him.
6. On the other hand, learned counsel for the respondent-State
opposed the submission made by appellant's counsel submitting that the
prosecution succeeded to prove its case beyond any reasonable doubt.
There is specific evidence against the appellant for committing the
alleged offences. The prosecution witnesses have stated sufficient against
the appellant to secure his conviction. The learned trial court has rightly
considered the evidence of the case. With the aforesaid submissions, he
prays for dismissal of the instant appeal.
7. I have heard learned counsel for the parties at length and perused
the record.
8. On perusal of impugned judgment, it shows that initially the
prosecution lodged the FIR against the appellant/accused for the offence
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Signed by: KAFEEL AHMED
ANSARI
Signing time: 4/1/2023
10:18:16 AM
CRIMINAL APPEAL No.131 of 1998
punishable under Sections 363 and 366 of IPC. As per prosecution, the
prosecutrix was minor at the time of incident, however, the learned trial
court found that the prosecution failed to bring cogent evidence on record
regarding minority of prosecutrix on the date of incident and thus the
learned trial court considered the prosecutrix as major on the date of
incident and acquitted the appellant from the offence under Section 363
of IPC. As far as Section 366 of IPC is concerned, the learned trial court
convicted the appellant on the ground that the prosecution succeeded to
prove that the appellant/accused took the prosecutrix in deceitful manner
hiding his status of being married. He compelled her to perform marriage
with him. The appellant/accused intended to perform marriage and sexual
intercourse with the prosecutrix.
9. Now this Court come to consider the legal aspect in relation to
Section 366 of IPC and on perusal of Section 366 of IPC, it says that
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; [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 be punishable as aforesaid.
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 4/1/2023
10:18:16 AM
CRIMINAL APPEAL No.131 of 1998
10. Under the IPC, Section 362 defines "abduction" and according
thereof, whoever by force compels, or by deceitful means induces, any
person to go from any place, is said to abduct that person.
11. It is well settled principle of law that mere abduction of woman not
sufficient to attract offence under Section 366 of IPC. It is necessary to
prove that accused abducted woman with an intent to compel her to marry
against her will or to force or seduce her to illicit intercourse.
12. Now this Court will examine the evidence available on record.
13. The prosecutrix (PW-1) is key witness of the case and on perusal of
her statement, it appears that she had been taking tuition from appellant
since last 6 to 7 months. On the date of incident, the appellant/accused
took her for getting form, thereafter, he took her into the house of his
friend. In evening, he took the prosecutrix in a temple where he expressed
his desire to perform marriage with her and the prosecutrix refused his
proposal. The appellant/accused put garland in her neck and clicked some
pictures. Thereafter, the appellant/accused took her into the house of his
brother. The prosecutrix resided for a night in the house of appellant's
relative. As per prosecutrix, the appellant used to say that he is unmarried
and she got aware about appellant being married later from children. She
stated that the appellant performed marriage with her forcibly. He
intimidated her to perform the marriage. In her cross examination, she
stated that the appellant was roaming her without her will. Further, in
Para-11 of her cross examination, she stated that the appellant/accused
was not roaming her forcibly. She also accepted that she wrote a letter to
her father expressing that she found a well groom. She further stated that
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 4/1/2023
10:18:16 AM
CRIMINAL APPEAL No.131 of 1998
she did not want to marry with the appellant and under threat or coercion,
she did the same. She denied that she willfully went to temple with the
appellant. The act of appellant was forcible. In Para-13 of her cross
examination, she clearly explained that the appellant never allured her for
performing marriage, however, he threatened her to do so.
14. The father of prosecutrix (PW-2) stated that the appellant/accused
gave him a letter along with photograph saying that the prosecutrix has
performed marriage with someone. The appellant did not inform as to
with whom she performed marriage. The prosecutrix narrated whole
incident to her father.
15. On careful analysis of testimony of prosecution witnesses
especially PW-1 (prosecutrix), she was not taken forcibly by the
appellant/accused. She travelled to various places with the
appellant/accused and she had opportunity to interact with public to
rescue herself from appellant but she never raised any alarm. There is no
evidence which shows that the appellant/accused used any force or threat
against the prosecutrix. There is also no evidence to say that the
prosecutrix was forcibly kidnapped and kept in custody by accused. She
left her house without any fear. The appellant/accused also produced
some letter or greeting cards said to have been written by prosecutrix to
the appellant to show love affair between them but the prosecutrix denied
the same stating that she had not written or given the same to the
appellant/accused. In all, it can be said that the prosecutrix was a
consenting party. The only incriminating thing which comes against the
appellant is that even if the prosecutirx was consenting party, the
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 4/1/2023
10:18:16 AM
CRIMINAL APPEAL No.131 of 1998
appellant took her for marriage without informing her about his status of
being married which comes under deception. The learned trial Court has
also considered the consent of prosecutrix to be guileful for securing the
conviction of appellant. On careful reading of statement given by
prosecutrix, it appears that only after the incident, she came to know
from children that appellant is married but it is hard to believe because
she had been going to appellant's house for tuition since last 6 to 7
months and how she did not get such information. It would be unsafe and
hazardous for defence to say that the consent of prosecutrix was based
upon deception.
16. Hence, in the face of lack of any cogent evidence, it is unsafe to
convict the accused. Therefore, this Court is of considered opinion that
view taken by the learned trial Court in convicting the appellant/accused
under Section 366 of IPC cannot be sustained. Consequently, impugned
judgment dated 09.01.1998 in S.T. No.213/1996 passed by learned VII
ASJ, District-Bhopal is hereby set aside. The appellant is acquitted from
the said offences. The appellant is on bail, his bail bond stands
discharged.
17. Appeal is allowed.
Copy of this judgment along with record of the learned trial court
be sent to the learned trial court for information and compliance.
Certified copy, as per rules.
(RAJENDRA KUMAR (VERMA))
Kafeel JUDGE
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 4/1/2023
10:18:16 AM
