Madhya Pradesh High Court
Gajju @ Gajendra Singh vs The State Of M.P. on 28 August, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:23989
1 CRA-1256-2000
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
CRIMINAL APPEAL No. 1256 of 2000
GAJJU @ GAJENDRA SINGH
Versus
THE STATE OF M.P.
Appearance:
Shri Vishal Patidar- Advocate for the appellant.
Shri Rajesh Joshi- G.A. for the State.
(Heard on: 30.07.2025)
(Delivered on: 28.08.2025)
JUDGMENT
This criminal appeal under section 374(2) of the Code of Criminal
Procedure, 1973 is preferred being aggrieved by judgment dated 3.11.2000
in S.T. No.510/1998 by Additional Sessions Judge, Indore (M.P.) whereby
the appellant/accused has been convicted under sections 363, 366 of the
Indian Penal Code, 1860 and sentenced to undergo R.I. for 3 years with fine
of Rs.500/- with default stipulation of 3 months additional RI for each
offence. The sentence of imprisonment is ordered to be run concurrently.
2. Facts of the case in brief are that First Information Report under
section 363 of the IPC,1860 against present appellant was lodged on
12.09.1998 and crime no.204/1998 was registered at Police Station Hathod,
District Indore at the instance of father of the prosecutrix (PW-9). The
allegations were levelled that prosecutrix (PW-10) aged 16 years was
studying in class-10 left home in the morning to attend the school but did not
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returned to home till 5 p.m. on 11.09.1998. When it came to the knowledge
of father of the prosecutrix (PW-9 ) that appellant/accused has taken her
minor daughter at 1:30 p.m. on 11.09.1998 through his metedor bearing
registration no.MP-09-D-0707. He submitted a written complaint (Exhibit-
P/8). Prosecutrix (PW-10) was recovered on 12.09.1998 from Rajendra
Nagar, Indore at the instance of appellant/accused vide Exhibit-P/5.
Prosecutrix statement was recorded and the fact that she was taken for
compelling marriage and she subjected to rape then offence under section
376 of the IPC, 1860 was enhanced. Appellant was taken into custody on
12.09.1998 vide Exhibit-P/14. Completing the investigation, final report was
submitted in the court of J.M.F.C. Hathod and vide order dated 1.12.1998
passed in RCT No.249/1998 the case was committed to the court of
Sessions, Indore.
3. The appellant/accused was put on trial for charges under sections
363, 266 and 376 of the IPC, 1860. The appellant/accused abjured his guilt
and claimed for trial.
4. To bring home the guilt prosecution examined prosecutrix (PW-10),
her father (PW-9), head master Shashikant (PW-2), Nitesh Kumar Jain (PW-
1), Tulsibai (PW-3), Uncle of the prosecutrix (PW-4), maternal uncle of the
prosecutrix (PW-5), cousin of the prosecutrix (PW-6), family friends of the
prosecutrix (PW-7) & (PW-8), Alok Jain (PW-11), Assistant Sub-Inspector
Ramdas Pal (PW-12), Dr. K.L. Mehra (PW-13), Incharge- Police Station
Thandla, Piyush Charles (PW-14), Vijay Sharma (PW-15), Constable Ram
Kishore (PW-16), Contsable Dule Singh (PW-17), Assistant Teacher Dinesh
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Kumar (PW-18), Umesh Chandra (PW-19) and Dinesh Jain (PW-20).
5. In cross-examination under section 313 of the Cr.P.C.,1973
appellant/accused either denied or expressed ignorance regarding facts and
circumstances of the prosecution evidence and appellant/accused took the
defense of false implication and adduced Exhibit-D/1 to D/13 in his
defense.
6. Appreciating the evidence, the trial court acquitted that
appellant/accused from section 376 of the IPC,1860 but convicted the
appellant under sections 363, 366 of the IPC and sentence as mentioned in
the para-1 of the judgment recording the finding that prosecutrix (PW-10)
was aged 16 years and two and a half years of age at the time of incident and
prosecutrix (PW-10) was taken by the appellant/accused from her house to
Rajendra Nagar, Indore without the consent of lawful guardianship of father
of the prosecutrix (PW-9) for the purpose of compelling her to marry with
the prosecutrix (PW-10).
7. This appeal is preferred on the ground that trial court committed
error in recording that prosecutrix (PW-10) was woman below the age of 18
years on the date of incident and that appellant/accused taken her from
lawful guardianship of father of the prosecutrix (PW-9) without consent.
8. Heard.
9. Counsel for the respondent/State supported the conviction as well as
sentence and opposed the prayer of the appellant.
10. Perused the record.
11. Finding of the trial court regarding the age of the prosecutrix (PW-
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10) are based on the testimony of head master Shashikant (PW-2) and entry
of scholar register Exhbit-P/2 in which date of birth of the prosecutrix (PW-
10) is mentioned as 27.06.1982. In the paragraph 6 of the deposition father
of the prosecutrix (PW-9) does not effect the credibility of Shashikant (PW-
2) and finding of the trial court that prosecutrix (PW-10) is a woman below
the age of 18 years at the date of incident does not calls for interference.
12. In the case of S. Varadarajan V/s. State of Madras AIR 1965 SC
942 it has been held that:-
"It must, however, be borne in mind that there is a
distinction between "taking" and allowing a minor to
accompany a person. The two expressions are not
synonymous though we would like to guard ourselves
from laying down that in no conceivable circumstance
can the two be regarded as meaning the same thing for
the purposes of s. 361 of the Indian Penal Code. We
would limit ourselves to a case like the present where
the minor alleged to have been taken by the accused
person left her father's protection knowing and having
capacity to know the full import of what she was doing
voluntarily joins the accused person. In such a case we
do not think that the accused can be said to have taken
her away from the keeping of her lawful guardian.
Something more has to be shown in a case of this kind
and that is some kind of inducement held out by the
accused person or an active participation by him in the
formation of the intention of the minor to leave the
house of the guardian. It would, however, be sufficient
if the prosecution establishes that though immediately
prior to the minor leaving the father's protection no
active part was played by the accused, he had at some
earlier stage solicited or persuaded the minor to do so.
In our, opinion if evidence to establish one of those
things is lacking it would not be legitimate to infer that
the accused is guilty of taking the minor out of the
keeping of the lawful guardian merely because after she
has actually left her guardian's house or a house where
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her guardian had kept her, joined the accused and the
accused helped her in her design not to return to her
guardian's house by taking her along with him from
place to place. No doubt, the part played by the accused
could be regarded as facilitating the fulfillment of the
intention of the girl. That part, in our opinion, falls short
of an inducement to the minor to slip out of the keeping
of her lawful guardian and is, therefore, not tantamount
to "taking"."
13. In this case, woman (P.W.-10) has stated in her statement that
appellant usually comes to her house and he took her to Rajendra Nagar,
Indore through metedor bearing registration no.MP-09-D-0707 and procured
a room and returned to Pithampur, Indore assuring her that he will return
back but he did not returned and he did not do anything further with her.
Though she had stated that appellant has told that he will marry her and
admitted in para-9 that letter Exhibit-D/1 to D/13 was written by her and the
contents of the Exhibit-D/1 to D/13 reveals that victim (PW-10) have
attained the age of discretion and going of the victim (PW-10) with the
appellant on the date of incident was not the result of any inducement of the
appellant. The going of the victim (PW-10) was in the sake of allowing her
to the company with him only and that act falls short of inducement to slip
out of the keeping of the lawful guardian and is, therefore, not tantamount to
"taking". Accordingly, the findings of the trial court in conviction of the
appellant is not sustainable.
14. Accordingly, this appeal succeed and is allowed and the conviction
& sentence of the appellant/accused under sections 363 and 366 of the Indian
Penal Code, 1860 is set aside and appellant is acquitted from the charges
under sections 363 and 366 of the IPC.
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15. The appellant is on bail. His bail bonds is cancelled and sureties are
discharged.
16. Record be remitted back to the trial court along with a copy of this
judgment.
(GAJENDRA SINGH)
JUDGE
ajit
