‘ M lll||||l\|\|\l\i||||\| N l F 0 06 5 i): mg e Bench (mmmai) ; IN TEE HIGH COURT OF JUDICATURE AT JABALPUR Jm cr1.Appea1 ma. \°\3 199 cEIMIMLyPEAL Emma sEcTmN 374;; OF THE c9133 OF Gamma. PaocEmm ‘ 1 Bhagvati baiw w7a Jitram' Kewat Agéa 'abaut 22 year's, ‘r/a‘ Bhingrajpaua, F 5- Sarkanda, District Bi1aspur (MP) ’ mm?! lani§ \ ‘; I %‘€%qg\ Won? /f/L. f/él/ §y &KQ,LP...M..§AWWMK ”ma-«nun... m“... a/Kewa't, Purai bai vim lias of Bisahu Kamli Kewat, aged 50 years, ‘r/a Dhingrajpara, RS. ’Sarkaada, nis’srict— Bilaspur (MP) aminf Vanna. s /$tate 0f Madhya Pradesh‘ ’ thrpugh 8.3.9., Police-sta+icm— $arkané a, 7? District- Bilasnnr(MP) N \ .n ¥ é ¢\.m‘¥s m§ h: Ewnnmeat 9 E ~ HIGH COURT OF CHHATTISGARH AT BILASPUR Hon’ble Mr. Justice Pritinker Diwaker Criminal Appeal No. 1019/1997 ' APPELLANTS Bhagwati Bai and another Versus State of Madhya Pradesh RESPONDENT ShriMaIa'y Shrivastava counsel for the appellants. Shri Neeraj Mehta PL for the State. CRIMINAL APPEAL UNDER SECTION 374 11) OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT (1 3.04.201 1) This appeal is directed against the judgment and order dated 28.4.1997 passed by Additional Sessions Judge, Bilaspur in Sessions Trial No. 68/1996 convicting the accused/appellants for the offence punishable under Section 366 IPC and sentencing \each of them to undergo rigorous imprisonment for two years and pay frne of Rs. 200 in default of payment of fine to further undergo simple imprisonment for three months. 2. Facts of the case in brief are that on 23.12.1994 written report Ex. P—3 was lodged by Ganeshia Bai (PW-6) aged about 21 years at the relevant time to the effect that on 17.1 1.1994 accused/appellants on the pretext of taking her to Kota (Chhatisgarh) took her to Agra by Utkal Express where she along with them stayed in a hotel and then they took her to their uncle’s house at village Khandoli saying that as their uncle had gone to Delhi, they could stay there. It is alleged that after engaging the prosecutrix in the household work, the accused/appellants had vanished from the said house and when they did not return till evening, she started weeping, on which she was told by the husband of one Shanti that the appellants had sold her out and they would not come back. It is alleged that she was threatened and physically tortured and somehow she had managed to get back to Bilas'pur. It is further alleged that other women namely Santoshi Soni, Ramshila, Nina etc. of Bilaspur were also sold out by the appellants. Based on this written report, FIR (Ex. P—4) was «2._ registered on 23.12.1994 for the offence under Section 366 IPC and after investigation challan was tiled by the police for the said offenCe on 30.1.1995. 3. So as to hold the accused/appeHant guilty, prosecution has examined O8 witnesses in support of its case. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellants as mentioned above in paragraph No.1 of this judgment. 5. Counsel for the appellants submits that even if the entire case of the prosecution is taken as it is, the accused/appellants cannot be convicted under Section 366 IPC as basic ingredients of this provision are missing in the case. He submits that while recording its findings the Court below has committed a serious error in not considering the evidence of the witnesses in its true spirit and that being so the judgment impugned is liable to be set aside. 6. Complainant (PW-6) has/stated in her evidence that on the pretext of taking her to Kota (CG) the accused/appellants took her to Agra where initially she stayed along with them in a hotel for three days and then they went to the house of uncle of accused/appellant No.1 at village Khandoli by bus. According to her, at village Khandoli she met‘ one girl who had told her that she too was brought there perforce by the accused/appellant No.1. Subsequently, according to her, after offering food to her, accused/appellant No.1 left the house along with accused/appellant No.2. She has further stated that on being asked by her, the landlord had told her that the accused/appellants had gone to the hotel to make payment and that they would come in the evening. However, according to this witness, when the accused/appellants did not turn up even in the night, she started weeping, the said. landlord putting a pistol in her temple asked her not to weep and told that ’she had been sold out by the accused/appellants. She has stated that after staying at Khandoli, she ‘ m’ .#3_ somehow managed to come down to Bilaspur. According to her, at Bilaspur she met Dr. Sumanlata Tripathi (PW-1) — the President of Mahila Mandal of the Colony who along with some other persons took her to the police station. Dr. Sumanlata Tripathi (PW—1) has stated in her evidence that one Omprakash Soni had informed her about the complainant having been :soid out at Agra and then after collecting the people from the locality, she had gone to lodge the report along with the complainant. She has stated that even after getting bail, accused/appellants used to threaten the complainant. Viswasa Bai (PW-2) has not supported the case of the prosecution and has been declared hostile. Smt. Sudha (PW-3) — the Member of Mahila Mandal, Bilaspur has stated that the complainant had informed her that on the pretext of providing her work, the accused/appellant No.1 had taken her to Agra where she was sold out. Nirmala Upadhyaya (PW-4) — the Secretary of Mahila Mandal has supported the case of the prosecution and stated that the complainant had informed her as to the manner in which she was taken to Agra, sold out there and managed to come down to Bilaspur. Naeem (PW-5) has not supported the case of the prosecution and has been declared hostile. Omprakash Soni (PW-7) has stated that the complainant had informed ‘ her as to how she was taken by the accused/appellants. Prakash Soni (PW-8) is the investigating ofhcer who has supported the case of the prosecution. For read reference Section 366 IPC is quoted below: “366. Kidnapping, abducting or inducing woman to compel her marriage, etc.- Whoever kidnaps or abducts and woman with intent that she may be compelled, or knowing it to be likely that she wrll be compelled to many any person against her will or in order that she may be forced or seduced to illicit intercourse or knowmg it to be likely that she Will be forced or seduced to illiCit intercourse shall be punished With imprisonment o either description for a term which may extend to ten years and shall also be liable to fine” 7. Thus to constitute an offence under Section 366 IPC, it is imperative for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that ® __(f_ complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Abduction alone does not bring an accused under the ambit of this penal section. Mere abduction of a woman is not enough to invoke the provisions of Section r 366 IPC but it must be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse. Unless the purpose for abduction as laid down in Section 366 is proved by the prosecution, accused cannot be punished and held guilty for the same. ln the case in hand there is no allegation that the complainant was kidnapped or abducted by the accused/appellants with intent to compel her to marry a person against her will or that she was seduced to have illicit intercourse in the order. 8. ln aforesaid view of the matter, this Court is of the considered opinion that the prosecution has not established any of the ingredients mentioned in Section 366 IPC. Therefore, the findings of the Court below convicting the accused/appellants for the offence under the said Section cannot be upheld and the same is accordingly set aside. 9. This Court does not find any force in the argument of the State counsel that the offence alleged against the appellants will fall uls 370 IPC for the reason that offence under the said section is not an offence with lesser magnitude but a separate one. Section 370 IPC is quoted bow: ”370 —— Buying or disposing of any person as a slave — Whoever imports, exports, removes, buys, sells or disposes of any person as a slave, or accepts receives. or detains against his will any person as a slave, shall .be punished with imprisonment of either description for ‘ a term which may extend to seven years, and shall also be liable to’fine". 10. ln view of Section 464 of the Code of Criminal Procedure, it is possible for the appellate or revisidnal coirrt to convict an accused for an offence for which no charge was framed unless the court is of the opinion el them. They are on bail. Their bail b0 it win be relevant to examine nds stand discharged. Sdl— Ker D‘Waker Pfit‘“ Judge