Virendra vs State of Madhya Pradesh

G.D. Saxena, J.—This is an appeal against the judgment and order dated 7th April, 2004, passed by Fifth Additional Sessions Judge, Bhind (M.P.) in S.S.T. No. 10/2002, State Vs. Matrulal & another whereby present appellant Virendra has been convicted of the offence under Sections 366 and 368 of I.P.C. and sentenced him to undergo rigorous imprisonment for a period of five years with a fine of Rs. 5,000/- (Rs. Five Thousand only) and in default to suffer additional rigorous imprisonment of one year whereas other accused Matrulal has been acquitted of the charges under Sections 363, 376 or in alternative u/s 376(2) (g) of I.P.C. The prosecution story was that on dated 29th February 2000, in night, the prosecutrix who was aged 14 years on the date of the occurrence, was sleeping in her residence with her parents at village Machharia, district Bhind. It is alleged that in the midnight, she without informing her parents left the house with accused. She was searched at the possible places by her father Shrikrishna but was not traced out. Ultimately, her father lodged the report at police station Mihona, district Bhind against accused Mattu, Bablu and Matru. The crime was registered and investigation was set in motion. In the meantime, her father got information by Sarpanch of village Sumaya that his daughter (the prosecutrix) was wrongfully confined in the house of Virendra. So, he went to that place and rescued her daughter from the custody of accused Virendra. After rescue of the prosecutrix, she was immediately examined by the doctor. During investigation, it also came to the notice that accused committed gang rape on the prosecutrix. After investigation, the charge sheet was filed against all accused before the Criminal Court. On committal, charge for offence u/s 368 of I.P.C. against accused/appellant Virendra was framed. Other accused Matru and Bablu were tried for offence under sections 363 and 376 or in alternative u/s 376(2)(g) of I.P.C. During trial accused Mattu and Bablu were absconded. Thereafter, the trial Judge after trial pronounced the judgment against accused/appellant, hence this appeal.

The contention of the accused/appellant is that the judgment under appeal is against the law and procedure and therefore same is liable to be set aside. It is submitted that the trial Judge convicted the accused/appellant without framing charge u/s 366 of I.P.C. hence, conviction u/s 368 is not sustainable in the eye of law. It is submitted that the prosecutrix was a major at the time of incident who willingly left her residence with an intent to marry with accused Mattu. At the time of leaving the house by prosecutrix, the accused/appellant was not accompanying other co-accused Mattu and Bablu. The prosecutrix after leaving her residence travelled with co-accused Mattu and Bablu willingly in a truck up to village Konch from where again she travelled in a jeep to the house of present accused/appellant. It is therefore contended that the prosecutrix left her house as per her own and free will and lived in the house of Virendra (present accused/appellant) and the prosecution failed to prove that the accused/appellant prior to stay of prosecutrix in his house had the knowledge that the prosecutrix was abducted by other co-accused. It is accordingly prayed that by allowing the appeal, judgment under challenge may be set aside and the accused-appellant may be acquitted of the alleged offence.

Per contra, the learned Panel Lawyer appearing on behalf of the respondent/State contended that the prosecution succeeded to prove the guilt against accused/appellant by adducing evidence and there is no infirmity or illegality committed so as to warrant interference in the impugned conviction and sentence. Hence, it is prayed that by dismissing the appeal, the judgment of the trial court may be maintained.

Heard the learned counsel appearing for the appellant and the learned Public Prosecutor for the respondent/State. Also perused the record of the trial court and the law applicable to the present case.

The question for consideration in this appeal is whether the ingredients of offence of wrongful confinement/concealment of the prosecutrix knowingly that the prosecutrix was abducted by other accused is proved by the testimony of abducted person and other witnesses, and/or whether the learned trial Judge has committed wrong in placing reliance on the said materials before reaching at the conclusion.

Prosecutrix (PW-4) daughter of Shrikrishna deposed that two years ago in the month of Chaitra (April) she was at her house. In night, she came outside of her house for urination. When returned, accused Mattu and Bablu who were standing there closed her face and mouth and carried her away into forest. Thereafter they carried her in a truck from village Sumaya to Konch district Jalon U.P. From Konch they carried her in a jeep to the house of accused Virendra. There accused Virendra, Bablu and Mattu committed intercourse forcefully with her. They kept her four days in the closed room of cattle-shed of Virendra and committed daily intercourse with her. She stated that firstly all the three expressed their wishes to marry with her but later on they decided to sell her. Thereafter the accused carried her by a bus to another city where they kept her for two days. Then they returned back to village Sumaya. After one day morning she, at the pretext of attending natural call, escaped from the place. On road she met with two girls to whom she stated about the incident and alongwith them she went to their houses. On information by the father of the girls to her father, her father came and took her back to her residence. In her evidence, she did not name accused Matru and for this limited purpose she was declared hostile by the prosecution. During her cross-examination when she was confronted with her police case-diary statement, some variations on the point of committing intercourse by accused Virendra alongwith two other accused Mattu and Bablu appeared.

The mother of the prosecutrix, Keshar (PW-5) deposed that when her daughter came back to the house she narrated the whole incident and stated that accused Mattu and Bablu committed rape with her. Her father Shrikrishna (PW-6) stated that 2-3 years back in night his daughter was abducted from the house by the accused Mattu and Bablu who carried her away to village Sumaya and detained her in the house of accused Virendra for four days where accused Mattu and Bablu committed rape on her. On information from Sarpanch of village Sumaya, he brought his daughter back to his house.

It is noted that during investigation, the Investigating Officer did not record the case diary statements of two girls and their fathers as well as Sarpanch of village Sumaya district Jalon (U.P.) to whom the prosecutrix narrated the incident for the first time after her rescue from the custody of accused. Not only that, the above witnesses were not examined before the trial Judge. Even the trial Judge did not frame the charge against accused/appellant Virendra, for abducting the prosecutrix knowingly that she will be compelled for illicit intercourse by the accused which is an offence punishable u/s 366 of I.P.C. and for committing gang rape punishable u/s 376(2) (g) of I.P.C. Further on perusal of the ocular evidence and medical evidence on record, the prosecution failed to prove that at time of incident, the age of the prosecutrix was below 16/18 years.

In Smt. Saroj Kumari Vs. State of U.P., the Hon. Apex Court observed as follows:-

To constitute an offence under Sec. 368, it is necessary that the prosecution must establish the following ingredients:-

(1) The person in question has been kidnapped.

(2) The accused knew that the said person had been kidnapped.

(3) The accused having such knowledge, wrongfully conceals or confines the person concerned.

That the child in question had been kidnapped by the second accused from its lawful custody, namely, the mother, P.W. 1, has been amply established in this case. In fact the appellant''s counsel was not able to point out any infirmity in the findings recorded by the Courts in this regard. So far as the second ingredient is concerned namely, that the appellant had the knowledge that the child had been kidnapped, it is an inference to be drawn by the courts from the various circumstances. The child was of tender age, being less than 15 hours old. The appellant admittedly had no child of her own. The second accused, it has been established, had not delivered a child within 15 days of November 5, 1963. The second accused was in the company of the appellant in the latter''s room along with the child when the Police party visited her on the morning of 6th November, 1963. It was not the plea of the appellant that the second accused was on a visit to her with the child at the material time. In fact the appellant''s plea was that the entire story of seizure of the child from her room is absolutely false and that she does not know the second accused. It was her further plea that the second accused was not in her room at the material time. From these circumstances, the only legitimate inference that can be drawn, as has been done in this case by the two Courts, is that the appellant must have had knowledge that the child had been kidnapped from the lawful custody of its mother. Therefore the second ingredient is also satisfied in this case.

So far as the third ingredient is concerned, the facts, as found by the two Courts, clearly indicate that the appellant made it appear that the child was hers and by her so doing and keeping it in her custody, it may be safely held that she had wrongfully concealed or confined the child which had been kidnapped by the second accused. Whether there had been wrongful concealment or confinement u/s 368, is a matter to be considered from the facts and circumstances of a particular case. In the case before us, such wrongful concealment is clearly established by the evidence on record, which has been accepted by both the Courts. Therefore the appellant has been rightly convicted of the offence u/s 368.

Now coming back to the factual aspect as appeared from the evidence of the prosecutrix and her parents it appears that on the night of incident the absconded accused Mattu and Bablu abducted the prosecutrix with knowledge that she will be induced or forced for illicit intercourse. It has also come on record from the evidence of prosecutrix that she was carried away by accused Mattu and Bablu in a truck and jeep to village Sumaya where in a room of present accused Virendra she was detained for four days or more under surveillance of other accused Mattu where accused Mattu, Bablu and Virendra always came and committed rape against her wishes. After four days'' stay of the prosecutrix in the house of accused Virendra, all accused decided to sell of her. In this respect accused Virendra gave a letter to other accused. Then, accused Mattu and Bablu carried the prosecutrix to another city where she lived with them for two days. By the time, the person to whom she was to be sold could not be contacted to the accused Mattu and Bablu and consequently they returned back to the room of accused Virendra. By getting an opportunity, the prosecutrix rescued herself from the clutches of other accused. On way, she met the girls of village to whom she narrated the incident. Father of that two girls in turn informed to father of prosecutrix about her presence in village Sumaya. In this manner, the prosecutrix was brought by her father back to his village. On retuning home, she informed incident to her parents.

Now this court has to consider whether the present accused had the knowledge that the prosecutrix had been abducted for committing an offence in furtherance of which she was wrongfully concealed or confined in his house? As mentioned earlier, from statement of prosecutrix it is gathered that the accused Virendra was available with other co-accused Mattu and Bablu at all times during her confinement in his separate room. It is true that during investigation the Investigating Officer did not record the case diary statements of two girls and their fathers and Sarpanch of village Sumaya, district Jalon whom the prosecutrix narrated the incident for the first time after her rescue from the custody of accused nor these witnesses were examined before the trial Judge and even the trial Judge did not frame the charges against accused/appellant Virendra, for abducting the prosecutrix knowingly that she will be compelled for illicit intercourse by the accused. It is also apparent from statement of prosecutrix that there is a material omission in her court statement and case-diary statement in regard to committing rape by accused Virendra with other accused on her. But there is nothing on record to show that the prosecutrix left her residence with her own accord and accompanied the accused. Further there is nothing which proves the enmity of accused Virendra with prosecutrix or her family members for falsely implicating him in commission of the incident. Therefore, looking to the said material omission on the part of the prosecutrix and in absence of specific charge for commission of offence of gang rape against accused/appellant Virendra, the learned trial judge rightly did not convict the accused/appellant Virendra for offence u/s 376(2)(g) of I.P.C. On the contrary, from the material available and looking to the role assigned to accused/appellant Virendra in entire incident, the trial Judge rightly convicted him for offence for wrongfully concealing or keeping in confinement the abducted person u/s 368 of I.P.C. read with section 366 of I.P.C. and awarded sentence of five years'' rigorous imprisonment. Hence this court does not find any substance in this appeal. The appeal is accordingly dismissed. The appellant is on bail. He shall surrender to his bail bonds or shall be arrested to undergo the remainder of his impugned sentence.