Babloo and Others vs State of Maharshtra

V.M. Deshpande, J.—These two appeals can conveniently be decided by this common Judgment, since the same arise out of the Judgment and order of conviction passed by Additional Sessions Judge, Chadnrapur, in Sessions Case No. 104 of 2011, dated 15th February, 2013.

While Criminal Appeal No. 237 of 2013 is filed by Babloo son of Sudama Sen, Criminal Appeal No. 318 of 2013 is preferred by Rajesh Bodhan Shrivastav.

These two appellants were convicted by the learned Trial Court of the offence punishable under Section 363 read with Section 34 of Indian Penal Code, and were directed to suffer Rigorous Imprisonment for three years and to pay a fine of Rs. 500/- by each of them and in default, to suffer Rigorous Imprisonment for eight days.

They were also convicted of the offence punishable under Section 366-A read with Section 34 of Indian Penal Code, and sentenced to suffer Rigorous Imprisonment for five years and to pay a fine of Rs. 1,000/-, and in default, to suffer Rigorous Imprisonment for one month.

The Trial Court directed that these sentences shall run concurrently.

A charge was framed by the Additional Sessions Judge, Chandrapur, against the appellants and Panchafula alias Panchi wife of Manohar Meshram under Exh.14 in Sessions Case No. 104 of 2011.

From the said charge, it is clear that appellant Babloo was Accused No. 1, Appellant Rajesh was Accused No. 2, and Panchfula was Accused No. 3.

The charge was that firstly the Accused Nos. 2 and 3, namely Rajesh [Appellant in Criminal Appeal No. 318 of 2013] with Accused No. 3 -Panchafula with the absconding accused Babybai on 2nd April, 2011 kidnapped the victim girl, a minor, by keeping her out of the lawful guardianship of her mother and thereby they committed an offence punishable under Section 363 read with Section 34 of Indian Penal Code. Secondly, they were also charged for the offence punishable under Section 366-A read with Section 34 of Indian Penal Code, since, according to the charge, they kidnapped the victim girl with an intention that she will be forced to have illicit intercourse with Accused No. 1 -Babloo. Thirdly, appellant -Babloo was charged for having committed offence punishable under Section 376 , Indian Penal Code.

The prosecution case runs as under:-

PW 4 is Mumtaz Sheikh. She is the mother of victim girl [PW 2]. A First Information Report [Exh.36] was lodged by Mumtaz with Police Station, Rajura, on 15th April, 2011. By the said First Information Report, it was reported that on 2nd April, 2011 at about 9.00 O''clock in the night, her daughter/victim was called by Panchibai in her house. Since she failed to return till 11.00 O''clock in the night, the first informant visited the house of Panchibai. Upon enquiry, Panchibai pleaded ignorance. However, when the first informant made further enquiry with others, one Sapana Nikhade informed her that the victim girl proceeded in an auto rickshaw, requiring the first informant to visit the Railway Station for further enquiry, however, in vain. Therefore, on the next day, she lodged a missing report of her daughter.

After eight days, her daughter was brought by police. Thereupon, first informant made enquiry with her. That time, it was disclosed to her that as per the absconded accused Babybai, the first informant was unable to perform the marriage of victim and, therefore, absconded accused Babybai took her to Chitrakut and there she and appellant Rajesh informed that she had to marry with Babloo and kept her in the house of Babloo. She further disclosed to the first informant that on 8th April, 2011, Babloo took her in a Court and something was written on a stamp paper and her signature was obtained. That time, Babybai, the absconded accused and Rajesh [appellant], who are the husband and wife, were present in the said court. With such allegations, the First Information was recorded.

Since First Information Report was disclosing a cognizable offence, a crime was registered against the appellants, Panchibai alias Panchfula and Babybai vide Crime No. 72/11 for the offences punishable under Sections 363 and 366-A read with Section 34 of Indian Penal Code.

The accused persons abjured their guilt and claimed for their trial. In order to bring home the guilt of the accused persons who were charged, the prosecution has examined nine witnesses. They are : [1] PW 1 -Sheikh Abbas Sheikh Amaru, a Panch witness to the Spot Panchanama, who turned hostile, [2] PW 2 -prosecutrix, [3] PW 3 -Nilkanth Konduji Kude, Panch to the Spot Panchanama in respect of seizure of clothes, [4] PW 4 -Mumtaz Sheikh, mother of prosecutrix, [5] PW 5 -Dr. Anita Dayalal Arake, who examined the prosecutrix, [6] PW 6 -Rahul Dhonduji Nimgade, Police Constable, who has done some part of investigation, [7] PW 7 -Manish Haridas Bansod, API and Investigating Officer, [8] PW 8 -Ramdas Wanosa Jiotode, ASI, who, on the direction of the Investigating Officer, procured the document in respect of date of birth of victim from her school, and [9] PW 9 -Atmaram Ramchandra Shende, Headmaster of Sarvodaya Vidyalaya, who has proved the bona fide certificate showing the date of birth of victim as 23rd September, 1995.

After having a full-dress trial, the learned Judge of the Court below acquitted the accused -Panchafula alias Panchibai wife of Manohar Meshram of all the offences.

Appellant -Babloo son of Sudam Sen was acquitted of the offence punishable under Section 376 , Indian Penal Code.

However, as observed in the preceding paragraph of this judgment, both the appellants were convicted of the offences punishable under Sections 363 and 366-A , IPC.

Appellant Babloo Sudam Sen was provided legal assistance through Legal Aid by appointing Ms. S.H. Bhatia, whereas legal aid was also provided by the Legal Aid Committee to appellant Rajesh and his case was put forth before this Court by Ms. P.P. Chobe.

Both the appellants are in jail from 15th April, 2011.

Though prosecution has examined nine witnesses, the entire prosecution case revolves around two witnesses, namely PW 2 -victim and PW 4 -Mumtaz.

Victim''s evidence would reveal that she studied upto Xth Standard in Sarvodaya Vidyalaya, Sasti. The bona fide certificate issued by the Headmaster of Sarvodaya Vidyalaya, Sasti, which contains the date of birth of the victim is proved and it is at Exh.58. It shows the date of birth of the victim to be 23rd September, 1995. Further, the Birth Certificate issued by the concerned authority in respect of the victim is available on record and it is at Exh.37. That also shows that the date of birth of the victim was 23rd September, 1995. In view of the aforesaid documentary evidence in respect of date of birth, it is crystal clear that on the day of the incident when the victim was enticed by the accused persons, she was a minor.

From the evidence of victim, it is clear that appellant -Rajesh, who is also known by his nickname "Shahrukh", is the husband of the absconded accused Babybai. Panchibai, who was also acquitted by the court below, is the mother of Babybai.

As per the evidence of victim, when she had been to the house of Babybai, her husband Rajesh and mother Panchibai with one guest were present. However, the said guest is not identified by the victim girl as appellant Babloo in the Court.

Babybai served water to the victim and on drinking the same, she fell unconscious. She regained consciousness after two days and found herself at an unknown place. When she made enquiry with Babybai, it was disclosed to her that she was brought there for selling. Thereafter, Babybai and her husband -Appellant -Rajesh took her to a village where appellant Babloo was residing. There, it was disclosed to her that she has to marry Babloo.

The evidence of PW 4 -Mumtaz shows that her daughter -the victim left the house on being called by Panchibai and thereafter she could not be traced out for eight days.

From the evidence, it is clear that at the time of incident, the victim was minor. Further, she was removed from the lawful guardianship by the appellant Rajesh and absconded accused Babybai. It is to be noted that none of the prosecution witnesses, including the victim girl, in her evidence, points out the finger of guilt towards the appellant Babloo that he enticed her and took away from the lawful guardianship of PW 4 -Mumtaz.

Further, in the entire prosecution case, there is no material to show that at the relevant time, Babloo, who is a resident of Chitrakut, was at Sasti [Ward No. 5] in Rajura on the day of the incident. Therefore, it is crystal clear that the appellant cannot be held guilty of the offence punishable under Section 363 , Indian Penal Code.

As seen from the charge, it is clear that no specific charge was framed against Appellant Babloo that he has committed the offence punishable under Section 366-A , Indian Penal Code. Further, there is no evidence available in the prosecution case that he induced the minor girl, the victim. Evidence of victim girl is completely silent in respect of talk between her and the appellant Babloo. That reminds me of an authoritative pronouncement of a Division Bench of this Court in State Vs. Gopichand Fattumal and Others, . Para 7 of the said Judgment, which is apt in this case, is quoted below:-

"(7) The next question is whether any of the accused is guilty under Sec. 366-A of the Indian Penal Code. This section requires that a minor must be induced to go from any place or to do any act with the intention or knowledge that such minor may be forced or seduced to illicit intercourse with another person. There is no evidence of any direct talk between any of the accused and the girl nor even of any inducement offered through Patilba. Even so far as accused No. 3 is concerned, there is no direct talk between Anusaya and accused No. 3 which can be regarded as an inducement to her to move either from the house of Patilba or from the theatre to the room in question. His case also, therefore, does not come directly within the terms of this section. They cannot, therefore, be convicted under Sec. 366-A ."

Further, in the evidence of the prosecutrix, she has stated that when she had been in the house of appellant Babloo for three to four days, she was sleeping with mother of Babloo and Babloo was sleeping in a separate room. Thus, there is no physical contact between them. Further, the appellant Babloo is already acquitted of the offence punishable under Section 376 , IPC. In that view of the matter, I am of the view that the Appellant Babloo cannot be convicted of the offence punishable under Section 366-A also and he requires to be acquitted of both the charges, namely Sections 363 and 366-A , IPC.

In so far as Appellant Rajesh is concerned, it is clear that he is the husband of the absconded accused Babybai. His presence at the house of Panchibai on the day of incident is established. Further, according to the evidence of the prosecutrix, after regaining consciousness, she found herself in the company of Babybai and appellant Rajesh. She regained consciousness at an unknown place. Thereafter, it is the appellant and his wife who took away the victim girl to the place of Babloo. Thus, it is clear that the appellant is responsible for keeping away a minor girl from the lawful guardianship. In this regard, Section 366-A , which is relevant, reads thus:-

"366-A. Procuration of minor girl.-Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine. "

A bare reading of the aforesaid Section, in my view, shows that if a minor girl is induced to go from one place to another with an intent that such girl may be, or knowing that it is likely that she will be forced to have a sexual intercourse, then such person can be punished under Section 366-A . In my view, the ingredients of Section 366-A are also fulfilled against the appellant -Rajesh.

Since the girl was not physically ravished, some leniency can be shown to the appellant -Rajesh. He is sentenced for a period of five years for the offence punishable under Section 366-A . He is in jail since 15th April, 2011. Thus, as on date, he has already completed the jail sentence of four years and four months. Thus, the appellant Rajesh can be sentenced for the period which he has already undergone in jail. That leads me to pass the following order:-

[a] Criminal Appeal No. 237 of 2013 is allowed.

[b] the Judgment and Order dated 15th February, 2013 passed by Additional Sessions Judge, Chandrapur, in Sessions Case No. 104 of 2011 convicting and sentencing the appellant Babloo son of Sudama Sen of the offences punishable under Sections 363 and 366-A , Indian Penal Code, is hereby quashed and set aside.

[c] The Appellant -Babloo son of Sudama Sen be released forthwith, if not required in any other case.

[d] Fine amount, if any, paid by him, shall be refunded to him.

------

[1] Criminal Appeal No. 318 of 2013 is partly allowed.

[2] The Judgment and Order dated 15th February, 2013 passed by Additional Sessions Judge, Chandrapur, in Sessions Case No. 104 of 2011, convicting and sentencing the appellant -Rajesh Bodhan Shrivastav of the offences under Sections 363 and 366-A , Indian Penal Code, is hereby confirmed.

[3] The sentence imposed upon the appellant - Rajesh Bodhan Shrivastav is modified, and instead of sentencing him to suffer Rigorous Imprisonment for five years, it is directed that he shall suffer the sentence which he has already undergone in jail.

Both the learned counsel -Ms. Bhatia and Ms. Chobe be paid Rs. 5,000-00 [rupees five thousand only] each for providing legal assistance to the appellants.