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2002 Supreme(SC) 992
2002(7) Supreme 68
SUPREME COURT OF INDIA
(From Bombay High Court)
S. Rajendra Babu and P. Venkatarama Reddi, JJ.
Rajendra @ Raju -Appellant
versus
State of Maharashtra -Respondent
Criminal Appeal No. 1024 of 2002
(Arising out of SLP (Crl.) No. 2948 of 2002)
Decided on 1-10-2002
Counsel for the Parties :
For the Appellant : Sudhir Kulshreshtha.
For the Respondent : Naresh Kumar and V.N. Raghupathy, Advocates.
IMPORTANT POINT
The view taken by High Court to convict appellant under Sections 354 and 366 IPC appears to rest on surmises and is thus liable to be set aside.
Headnote:Indian Penal Code, 1860-Sections 341, 354, 366 and 506 Part II-Appellant tried under as against PW 1 and her daughter-Trial Court convicted-But High Court acquitted conviction under Sections 341 and 506 Part II IPC but maintained conviction under Sections 354 and 366-Appeal against- Abduction i.e. to compel a person by force or deceitful means to induce to go from one place to another -Ingredients sought to be established by surmise-Result-Appeal allowed.
Held : It is not that PW 1 was not knowing that the appellant was not taking them to their house but somewhere else. If PW 1 did not want to go with the appellant, there was hardly any difficulty for her to have declined. If really the appellant intended to have sexual intercourse with her there would have been no chance either for her or her daughter to rescue themselves from the clutches of the appellant while they were being confined in a room of the Lodge. Even if PW 1 came to Buldi area along with the appellant on his scooter to go to her home, on noticing that she was being taken elsewhere to a place other than her home, she would have immediately suspected a foul play and would have raised an alarm. It cannot be taken that PW 1 is so innocent as to be carried away by the antics of the appellant to simply go with him when she did not intend to go with him. At the same time, the High Court held that the accused must have brought the prosecutrix and Shabana to Buldi area by making some mis-representation or under some pretext and as the prosecutrix was knowing the accused, since he was visiting the area of hutment of the prosecutrix, she must have accompanied the accused on his scooter along with her daughter believing in his representation". While the High Court held that though PW 1 did not disclose as to what representation was made by the accused or under what pretext she and her daughter were taken by the accused on his scooter and, on the other hand, PW 1 introduced the story of her forcibly taking, nevertheless, it held that it was by adopting deceitful means that PW 1 was abducted by the appellant. This conclusion of the High Court rests on a pure figment of imagination inasmuch as what misrepresentation or pretext was held out to PW-1 is not spelt out and not established as a fact. The High Court could not have speculated on how PW-1 could have accompanied willingly right upto the lodge and then infer that she did so only yielding to a pretext or misrepresentation held out to her when in fact no evidence was adduced on this aspect at all. Therefore the finding that the appellant adopted deceitful means to abduct PW-1 or PW-22 cannot be sustained. In order to constitute offence of abduction a person must be carried off illegally by force or deception, that is, to compel a person by force or deceitful means to induce to go from one place to another . In the instant case, neither of these two ingredients are established. On reaching the Lodge, it is difficult to visualise that the appellant had asked PW-1 to have sexual intercourse with her in the presence of her 11 years old child, and that he allowed her to easily slip out of his hands from the Lodge, if that was his intention. Hence that part of the case also is doubtful. These facts are sufficient to hold that the offence alleged against the appellant was hot established. The view taken by the High Court appears to us to rest on surmises. In that view of the matter, we allow this appeal and set aside the order passed by the High Court affirming the conviction of the appellant under Section 366 IPC read with Section 354 IPC. (Paras 6, 7 and 8)
JUDGMENT
Rajendra Babu, J.-Delay in filing special leave is condoned.
2. Leave granted.
3. The prosecution case is that on 5.6.1997 PW 1 - Shahnaz Bano along with her daughter Sabana Bano - PW 22 went to Jaswant Talkies at Nagpur to watch matinee show which was over by 3 p.m.; that as the said PW 1 and PW 22 emerged out of the theatre, the appellant, who was going on road on a scooter No. MFW 9252 Bajaj Super, having seen them, is stated to have stopped the scooter and offered to give lift to them on his scooter upto their house; that when PW 1 declined to accept his offer, the appellant is stated to have threatened PW 1 that he would kill her by pointing out a knife at her; that on account of the fright created by the appellant, PW 1 is stated to have gone with him on his scooter along with her daughter PW 22; that PW 1 and PW 22 were thereafter taken to a Lodge owned by PW 3 - Smt. Shabha located in Buldi area and on reaching that place the appellant is alleged to have held the hand of PW 1 and started taking her towards a room inside the Lodge; that the son of PW 3 started closing the door of the room from outside allegedly on the direction of the appellant and on seeing this PW 1 asked the boy not to close the door and at that time her daughter PW 22 Sabaha Bano was also inside the room; that thereafter, PW 1 forcibly pulled her hand out of the appellant s hold and managed to become free from the clutches of the appellant and went out of the room along with her daughter; that PW 1 then started crying "Beijjatee" and on seeing the mob gathering on the road, the appellant is stated to have driven away on his scooter; that, thereafter, PW 1 and PW 22 went to their house in a cycle rickshaw: that on reaching home PW 1 narrated the incident to her husband who asked her to lodge a report at the Police Station and said that otherwise he would not keep her at his home; that PW 1 and her husband went to the Police Station and lodged a complaint at about 5 p.m. as per Exhibit 22 which was registered for offences under Section 341, 354, 366 and 506 of the Indian Penal Code at about 8.05 p.m. that the appellant is also stated to have reached the same Police Station by then where the complaint had been lodged in which he was working and on noticing that case had been registered against him, he left his scooter in front of the Police Station and ran away. PSI PW 10 seized the scooter and drew a seizure memorandum and recovered a Spear Blade from the dickey of the said scooter; that the appellant is stated to have surrendered at the Police Station and a charge sheet was filed against him. On committal to the Court of Session he was tried for offences under Sections 341, 354, 366 and 506 Part-II IPC.
4. The trial court held the appellant guilty of the charges levelled against him and sentenced him to undergo different periods of imprisonment for offences under Sections 341, 506 Part - II and 366 IPC. The substantial sentence imposed on the appellant was to undergo rigorous imprisonment for 10 years and to pay certain amount of fine. The appellant preferred an appeal. The High Court set aside the conviction and sentence imposed on the appellant under Sections 341 and 506 Part-II IPC and acquitted the appellant of those offences. However, the High Court maintained his conviction under Sections 354 and 366 IPC by modifying the sentence to six months for the offence under Section 354 and six years for the offence under Section 366 with a fine of Rs. 500. Hence this appeal.
5. After analysing the evidence the High Court came to the conclusion as follows :-
24. It is difficult to believe that the accused obstructed the prosecutrix and her daughter Shabana in the square near Jaswant Talkies and forced them to sit on the pillion at the point of knife and then forcibly took them up to the lodge at Buldi. This occurrence was alleged to have taken place at 3 p.m. It was in the broad-day light. The alleged obstruction was in front of Indora Police O
