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2008 Supreme(MP) 1426
IN THE HIGH COURT OF MADHYA PRADESH
K.S. CHAUHAN, J.
Qasam Khan – Appellant
Versus
State Of M.P. – Respondent
Cri. Appeal No. 492 of 1994
Decided on : 07-08-2008
Advocate Appeared:
For the Appellant : Pradeep Sharma
For the Respondent: Deepak Awasthy
The main legal point established in the judgment is that the prosecution must prove the case beyond reasonable doubt, and the interpretation of key legal provisions, such as section 361 of the Indian Penal Code, can influence the court's decision.
Headnote:
Kidnapping - Criminal Appeal - Code of Criminal Procedure - Indian Penal Code - Section 363, 366 - Thakorlal D. Vadgame vs. State of Gujarat, AIR 1973 SC 2313
Fact of the Case:
The appellant was convicted under section 363 of the Indian Penal Code for kidnapping a minor girl and sentenced to R.I. for one year. The prosecution proved that the appellant enticed the minor girl, kidnapped her, and attempted to outrage her modesty.
Finding of the Court:
The trial Court convicted the appellant under section 363, Indian Penal Code, and sentenced him. The High Court upheld the conviction and dismissed the appeal, maintaining that the prosecution had proved the case beyond reasonable doubt.
Issues: The main issue was whether the trial Court had committed any illegality in convicting and sentencing the appellant under section 363 of the Indian Penal Code.
Ratio Decidendi: The court held that the prosecution had proved the case against the appellant beyond reasonable doubt. The court also referred to the interpretation of section 361 of the Indian Penal Code from the case of Thakorlal D. Vadgame vs. State of Gujarat, AIR 1973 SC 2313, which clarified the meaning of 'keeping' and 'taking' in the context of kidnapping a minor.
Final Decision: The appeal was dismissed, and the appellant's bail bonds were cancelled. He was directed to appear before CJM Khandwa to serve out the remaining part of the sentence.
JUDGMENT :
This criminal appeal under section 374(2) of the Code of Criminal Procedure has been preferred being aggrieved by the judgment, finding and sentence dated 18-4-1994 passed by Sessions Judge, Khandwa, in Sessions Trial No. 172/93 whereby the appellant has been convicted under section 363 of Indian Penal Code and sentenced to R.I. for one year.
2. The prosecution case in short is that Kallu lodged the report at P.S. Harsood on 3-7-1993 at 12.15 p.m. to the effect that his daughter Laxmibai aged about 11 years was all alone at the house and when he returned in the evening, he did not find her in the house. He enquired and waited up to 9.00 p.m. but she did not return. This report was entered in Roznamcha Sanha No. 129 on 3-7-1993. Missing person report No. 8/93 was registered and enquiry was made. She was recovered on 6-7-1993. Her statement was recorded. It was found that appellant has enticed her giving assurance for performing marriage with her. Offences under sections 363 and 366 were registered against him. Map was prepared and appellant was arrested. Statements were recorded under section 161, Criminal Procedure Code. After completing usual investigation, charge-sheet was filed in the Court of JMFC Harsood, which committed the case to Sessions Court for trial.
3. The appellant stood charged under sections 366 and 363 of Indian Penal Code. He denied the guilt and claimed to be tried mainly contending that he has been falsely implicated. Prosecution examined as many as 4 witnesses and the appellant did not examine any witness in his defence. After appreciating the evidence, the trial Court convicted him under section 363, Indian Penal Code and sentenced as stated hereinabove in para 1 of this judgment. Being aggrieved by the judgment, finding and sentence, instant appeal has been preferred on the grounds mentioned in the memo of appeal.
4. Shri Pradeep Sharma, learned counsel for the appellant submitted that the trial Court has not appreciated the evidence in proper perspective. The conviction is made on the uncorroborated testimony of complainant which has resulted in gross miscarriage of justice. The prosecution has not proved the case beyond reasonable doubt against the appellant, therefore, finding of guilt is erroneous which deserves to be set aside and the appellant is entitled for acquittal.
5. On the contrary, Shri Deepak Awasthy, Government Advocate appearing on behalf of the respondent-State supported the impugned judgment, finding and sentence mainly contending that the prosecution has proved that this appellant has kidnapped minor girl Laxmibai, therefore, the trial Court has rightly convicted and sentenced him. It does not call for any interference.
6. The main point for consideration in this appeal is that whether trial Court has committed any illegality in convicting and sentencing the appellant under section 363 of Indian Penal Code.
7. Kallu (PW-2) is the father of Laxmibai (PW-1). He has deposed that his daughter is 12 years of age. Transfer certificate (Ex.P-1) from concerned school has been produced. Her date of birth is 2-9-1981 which is mentioned in the school certificate. Laxmibai (PW-1) also deposed her age to be of 13 years. Laxman Prasad Parashar (PW-3) has deposed that Laxmibai studied in Janpad School Harsood. He is Headmaster there. He had issued transfer certificate Ex.P-1. He has brought the record, accordingly the entry of date of birth in Ex.P-1 is correct.
8. No any effective cross-examination has been done to these witnesses on the point of age of Laxmibai. Appellant has himself admitted her age of 12 years in the statement of accused recorded under section 313, Criminal Procedure Code. Therefore, irresistible conclusion is that Laxmibai (PW-1) was minor at the time of incident. Hence, the finding of the trial Court in this regard is correct.
9. Laxmibai (PW-1) has deposed that on the day of incident, she was alone. Her sister and mother had gone to Khargone. Her father who is Riksha pulle
