This appeal having been heard and reserved for orders, coming on for
pronouncement this day, Justice Sanjeev S. Kalgaonkar pronounced the
following:
This criminal appeal u/S 374 of the Code of Criminal Procedure, 1973
(for short „Cr.P.C.‟, hereinafter) is filed assailing the judgment of conviction
and order of sentence dated 12.02.2001 passed by learned Additional
Sessions Judge, Bhanpura, Distt. Mandsaur in S.T. No. 130/1999, whereby
the appellant was convicted for the offence punishable u/S 366 of IPC and
sentence to undergo rigorous imprisonment for 07 years with fine of Rs.
3,000/- and default stipulation of simple imprisonment for 03 years in case
of non-payment of the fine amount. For the sake of convenience appellant -
Khursheeda Bi shall be referred to as "accused" hereinafter.
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2. As per the case of prosecution, Gajraj Singh submitted a written
complaint to the Incharge of Police Outpost, Bhainsoda Mandi that his niece
"A" is missing since the afternoon of 17.07.1998. Sadiq alias Munna
informed that Anees S/o Aamil Baig was seen taking his niece on scooter.
He suspects that Anees has enticed and taken his niece. Khursheeda Bi,
mother of Anees used to talk with his niece. Khursheeda Bi has assisted
Anees in kidnapping of victim. On such allegations, Police Outpost
Bhainsoda Mandi of P.S. Bhanpura registered FIR at Crime No. 19/1998 for
offence punishable u/S 363 and 366 of IPC against Anees and Khursheeda
Bi. Meanwhile, father of another victim, also submitted a written complaint
to the Incharge of Police Outpost Bhainsoda Mandi on 18.07.1998 that his
daughter "B" aged around 16 years is missing since the afternoon of
17.07.1998. Kishan Meena and Santosh Kumar informed him that Rajendra
and Anees have taken his daughter and another girl from Pachpahad. This
application was clubbed with already registered Crime No. 19/1998 for
investigation. Later, Crime No. 105/1998 was registered at P.S. Bhanpura.
During investigation, one of the victim- "B" appeared before Outpost
Bhainsoda Mandi on 26.08.1998. She stated that Rajendra alias Titu, Anees,
Rajesh and Pappu had enticed them on promise of marriage. They were
taken to Indore and Ujjain. Rajendra alias Titu committed rape on her.
Victim was forwarded for Medico legal examination. The information
regarding dates of birth of both the victims was requisitioned and seized.
The statement of victim "B" were recorded u/S 161 and 164 Cr.P.C. The
accused - Khursheeda Bi was arrested. On completion of investigation, final
report was submitted against Khursheeda Bi, pending investigation against
other absconding accused - Anees, Rajendra alias Titu, Rajesh and Pappu.
3. Learned JMFC, Mandsaur committed the case for trial to the Court of
Additional Sessions Judge, Bhanpura, Distt. Mandsaur. Learned Additional
NEUTRAL CITATION NO. 2025:MPHC-IND:2125
Sessions Judge, Bhanpura Distt. Mandsaur framed charges for offence
punishable u/S 363 and 366 of IPC against accused - Khursheeda Bi. On
completion of trial, learned Additional Sessions Judge, Bhanpura acquitted
Khursheeda Bi of the offence punishable u/S 363 of IPC, but convicted her
for the offence punishable u/S 366 of IPC and sentenced her as stated in
para 1 of the judgment.
4. Feeling aggrieved by the impugned judgment of conviction and the
order of sentence, present appeal is filed on the following grounds:
1. The impugned judgment is against law and the evidence on
record.
2. The offence punishable u/S 363 of IPC was not made out against
the appellant.
3. Learned trial Court committed error in relying on mutually
inconsistent evidence of prosecution witnesses.
4. Learned trial Court committed error in appreciation of evidence on
record.
On these grounds, it is prayed that the appeal be allowed and the
impugned judgment of conviction and the order of sentence be set aside.
5. Learned counsel for the appellant/accused referring to the evidence on
record submitted that the appellant/accused was acquitted for the offence
punishable U/S. 363 of IPC. However, on same set of evidence, she was
erroneously convicted for the offence punishable u/S 366 of IPC. The
conviction is not sustainable in law.
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6. Per contra, learned counsel for the State submits that the learned
Additional Sessions Judge, after proper appreciation of the evidence on
record, had given well reasoned finding of conviction. The appeal is
meritless and deserves to be dismissed.
7. Heard, both the parties and perused the record.
8. The following points for determination arise in the matter:
(i) Whether, Khursheeda Bi kidnapped or assisted in kidnapping of
minor victims with the intention that the victims may be compelled
to marry against their will or they will be forced or seduced to
illicit intercourse.
(ii) Whether, the learned trial Court committed error in convicting and
sentencing the appellant for the offence punishable u/S 366 of IPC.
Point for determination No.1 and 2 - Reasons for conclusion
9. It is alleged that Khursheeda Bi, being the mother of absconding
accused Anees assisted Anees and his associates in kidnapping of the niece
of Gajraj Singh -"A" and daughter of Laxminarayan -"B".
10. The main witnesses for the prosecution - Laxminarayan PW-3, Geeta
Bai (PW-5), Victim "B" (PW-9) and Girdhar (PW-10) did not support the
prosecution.
11. Dhanpati Yadav(PW-20) deposed that both the victims had gone to
local market on 17.07.1998. Thereafter, they went missing. She tried to
search for both the victims. Munna informed that he had seen both the
victims being taken by Anees on his Scooter. Anees has allured and enticed
her daughter. Mother of Anees, (accused) is involved in kidnapping of her
NEUTRAL CITATION NO. 2025:MPHC-IND:2125
daughter. Her daughter could not be recovered till date. However, her
evidence is inconsistent with her previous statement on material allegations.
12. Gajraj (PW-22) also deposed on similar lines. He stated that Munna
alias Sadiq had seen the victims with Anees near Pachpahad. Anees has
taken both the victims on his scooter. His niece- "B" could not be recovered
till date. Anees is also absconding. Other victim "A" returned home, but she
did not inform anything about his niece. Santosh Kumar (PW-13) and
Kishanlal (PW-14) deposed that they had seen Anees driving the scooter
near Pachpahad. Both the victims were sitting on the scooter of Anees.
Later, they came to know that victims had been kidnapped.
13. Learned trial Court on the basis of aforestated evidence concluded
that accused, being mother of Anees, had assisted her son to kidnap the
victim "B" for marriage or illicit intercourse. In para 28 of the judgment, the
learned Additional Sessions Judge placed negative burden on the accused to
prove that she did not go to pachpahad and she did not send the victim with
her son.
14. There is not an iota of evidence available on record that Khursheeda
Bi was present at the time when victims were taken by Anees and his
associates or she extended any allurement or enticement to the victims to
leave their parental home and go with her son. None of the witnesses
including the victim "A" (PW-9) had deposed that the accused was involved
in extending allurement or enticement to the victim or assisted her son in
this regard. No one deposed seeing the accused with the victim and her son -
Anees near the time of the incident. The conclusion of the trial Court is
based on conjectures and surmises. The trial court's findings and
conclusions are, apparently, inconsistent with the evidence on record. The
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prosecution has to prove the guilt of the accused beyond reasonable doubt. It
must be proved that the accused must have committed the alleged offence,
not just, it may have been committed by accused. The prosecution had
failed to prove that Khursheeda Bi kidnapped or assisted in kidnapping of
minor victims from lawful guardianship with the intention that the victims
will be compelled to marry against their will or they will be forced or
seduced to illicit intercourse.
15. In view of the above discussion, this Court is of the considered
opinion that the learned Additional Sessions Judge has committed grave
error of law in convicting the accused - Khursheeda Bi for offence
punishable u/S 366 of IPC. The impugned judgment, being against the
evidence on record, is not sustainable.
16. Consequently, the appeal is allowed and the impugned judgment of
conviction and order of sentence dated 12.02.2001 passed in S.T. No.
130/99 is set aside. The appellant - Khursheeda Bi is acquitted of the charge
for offence punishable u/S 366 of IPC. Her personal bond and surety bond
stands discharged. Appellant/ accused be set at liberty forthwith. The fine
amount of Rs. 3000/- (if deposited) be refunded to the appellant.
The Registry is directed to remit record of the trial Court forthwith
alongwith the copy of this judgment.
(SANJEEV S KALGAONKAR)
JUDGE
sh/-
SEHAR Digitally signed by SEHAR HASEEN
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH INDORE, ou=BENCH
AT INDORE,
HASEE
2.5.4.20=900ec6fc757798eaeb3df7a32
860bd3298415a4d1c2d91436213f256
8c8f27da, postalCode=452001,
st=Madhya Pradesh,
serialNumber=E7DBBA955B262C04B8
413251CE7FB6F0B7DBA610C57F1559
N
C08BF6C6F5DD40D4, cn=SEHAR
HASEEN
Date: 2025.01.28 19:18:33 +05'30'
