Vinod vs State of M.P.

This criminal appeal has been filed under Section 374 of CrPC against the judgment dated 05/11/2012 passed by II nd Additional Sessions Judge, Dabra, District Gwalior in ST No.457/2011 by which the appellant has been convicted under Sections 363 and 366 of IPC and has been sentenced to undergo the rigorous imprisonment of 7 years and a fine of Rs.1,00,000/- with default imprisonment.

The necessary facts for the disposal of the present appeal in short are that on 25/01/2010, the appellant enticed the prosecutrix who was under 18 years of age and removed her out of the lawful guardianship without the consent of her guardian with an intention to compel her to marry the appellant. The gum insan report was lodged on 04/02/2010 by Gulab Singh (PW/2) in which it was mentioned that the prosecutrix has left the house on 25/01/2010 at about 6:00 in the morning without informing anybody and she could not be traced out in spite of intensive search made by the complainant. The prosecutrix was recovered on 25/07/2011. She was brought back to Police Station Bilauva and was handed over to the custody of her father. During this period, the prosecutrix moved alongwith the appellant from one place to other and in medical examination, it was found that the prosecutrix was carrying the pregnancy of 17 weeks and 3 days. The appellant was arrested on 25/07/2011. The prosecutrix was sent for medical examination. The statements of the witnesses were recorded and after completing the investigation, the police filed the chargesheet under Sections 363, 366, 376 of IPC. The Trial Court, by order dated 03/12/2011, framed charges under Section 363, 366 and 376 of IPC.

The appellant abjured his guilt and pleaded not guilty. The prosecution, in order to prove its case, examined prosecutrix (PW/1), Gulab Singh (PW/2), Dr. Nidhi Mishra (PW/3), Anguri Devi (PW/4), B.S.Sisodiya (PW/5), Dr. Pramod Sharma (PW/6), R.B.S.Shakya (PW/7), Ayodhya Prasad (PW/8), Ram Singh (PW/9), D.P.Sharma (PW/10), Neetu Baghel (PW/11) and Dr. Akshara Gupta (PW/12).

The appellant examined Rajamohan (DW/1) in his defence. The Trial Court, after recording the statements of the witnesses, came to a conclusion that she was a consenting party and had moved from one place to other and did not disclose about her kidnapping or forcible sexual intercourse by the appellant to anybody. Accordingly, the appellant was acquitted for offence under Section 376 of IPC.

As no appeal has been filed against the acquittal of the appellant for offence under Section 376 of IPC, therefore, it would not be necessary for this Court to examine that whether the findings given by the Trial Court, with regard to the acquittal of the appellant for offence under Section 376 of IPC are correct or not. However, the moot question for determination in the present appeal is that whether the appellant is guilty of kidnapping the prosecutrix with an intention to marry her which is punishable under Sections 363, 366 of IPC.

The prosecutrix (PW/1) has specifically stated that she was taken by the appellant on 25/01/2010. Referring to the omission in the case diary statement of this witness, it was submitted by the counsel for the appellant that in view of the fact that the date of kidnapping was not disclosed by the prosecutrix in her case diary statement, therefore, it cannot be said that the prosecutrix was kidnapped on 25/01/2010. It was further submitted that this witness was specifically confronted with her case diary statement and she further admitted that she has stated for the first time before the Court that on 25/01/2010, she was kidnapped. Accordingly, it was submitted that it is the major omission in the evidence of the prosecutrix and, therefore, the appellant is entitled for the benefit of the same as provided under Section 145 of the Evidence Act.

This contention made by the counsel for the appellant is misconceived and cannot be accepted. It is well established principle of law that every minor omission in the evidence of the witnesses cannot be treated as a contradiction and unless and until the omission gives deep dent to the prosecution case, the accused cannot take advantage of the minor omissions.

Although the prosecutrix, in her case diary statement, had not disclosed the date of her kidnapping but from the gum insan report, lodged by Gulab Singh (PW/2), it is clear that the prosecutrix was kidnapped on 25/01/2010. Gulab Singh (PW/2) had lodged the gum insan report (Ex.P/7) on 04/02/2010. Thus, the omission of the date of kidnapping in the case diary statement of the prosecutrix cannot be said to be of such a nature which may give a dent to the prosecution case. Thus, the contention raised by the counsel for the appellant that the prosecution has failed to prove that the prosecutrix was kidnapped on 25/01/2010, has no substance and is hereby rejected.

In order to ascertain that whether the prosecutrix was below 18 years of age on the date of her kidnapping, the prosecution has relied upon the marksheet of the prosecutrix Ex.P/5 as well as identity card Ex.P/6.

The prosecution has examined the prosecutrix (PW/1) and Gulab Singh (PW/2) to prove her date of birth. These witnesses were cross-examined in detail but age of the prosecutrix, claimed by these two witnesses, has not been challenged very seriously. The Trial Court also, after appreciating the evidence available on record, has come to a conclusion that the prosecutrix was below the age of 18 years on the date when she was kidnapped.

In absence of any serious challenge to the age of the prosecutrix, this Court is of the view that the Trial court did not commit any mistake in holding that the prosecutrix was below the age of 18 years on 25/01/2010. Once it is found that the prosecutrix was below the age of 18 years on the date of her kidnapping, then whether she had gone alongwith the accused on her own will or not, would not be material as the offence of kidnapping would be committed as soon as the minor is taken away from the lawful guardianship without the consent of the guardian and, therefore, the consent of the minor is immaterial.

In the present case, in view of the school certificate of the prosecutrix Ex.P/7 once it is found that the prosecutrix was minor on the date when she was taken away from the custody of her lawful guardian, this Court is of the considered view that the appellant has committed an offence punishable under Sections 363, 366 of IPC. Thus, the Trial Court did not commit any mistake in holding the appellant guilty for having committed offence under Sections 363, 366 of IPC.

So far as the question of sentence is concerned, it is submitted by the counsel for the appellant that during the pendency of the trial, the appellant had remained in custody for a period of 87 days. The appellant was granted bail by this Court by order dated 05/12/2015 but the appellant could not be released on bail as he could not deposit the fine amount of Rs.1,00,000/-. Thus, it is submitted by the counsel for the appellant that he is in jail from 05/11/2012 i.e., the date on which he was convicted.

It is clear from the record that the appellant had undergone the actual jail sentence of approximately 4 years and 8 months. If the period of remission is also included, then it would be clear that the appellant has already undergone the jail sentence of approximately 5? years.

The manner in which the incident is alleged to have taken place and the fact that the prosecutrix was aged about 17? years on the date when she eloped with the appellant, this Court is of the view that the jail sentence, which has already been undergone by the appellant, would be sufficient to meet the ends of justice.

So far as the question of fine is concerned, this Court is of the view that under the facts and circumstances of the case, a fine of Rs.1,00,000/- is on a higher side.

Accordingly, the jail sentence imposed by the Trial Court is modified. The appellant is punished for the period of jail sentence already undergone and a fine of Rs.40,000/- (Rupees Forty Thousand Only).

If the fine amount is not paid, then the appellant shall undergo the remaining jail sentence awarded by the Trial Court.

The appellant be released immediately after the fine amount is deposited.

The appeal is accordingly partially allowed to the extent mentioned above.