LAXMAN CHAMAR Vs. STATE OF M.P.

JUDGEMENT

(1.) THE appellant has been convicted for committing an offence under Section 363 of the Indian Penal Code and sentenced to two years' R.I. and fine of Rs. 100/ - and In default, further one month's R.I. vide Judgment dated 20.9.89 passed by Second Additional Sessions Judge, Rewa in Sessions Trial No. 153/88. Aggrieved thereby, he has preferred the present appeal. According to the prosecution case, on July 13, 988 in the night at about 9.30 P.M. Premwati, who used to work as a labourer in Truck No. CIE 1147 of which the accused -appellant was the driver and by virtue of the fact that Premwati was working as a labourer on the same truck, she was having close relations with the accused appellant, had gone to the truck of the accused -appellant at Bhita in her village. Marriage of Premwati was performed with one person of village Patehara and she had come back only two three days prior to the date of the incident, to her parental home. In the night, Premwati had gone to serve the dinner to the accused. The truck was at the distance of 100 metres from her house. When Premwati did not return for quite sometime, her brother Sukhlal made an enquiry and went near Pond and found that she was sitting with the accused in the truck. On seeing Sukhlal, the accused -appellant started the truck and tried to drive away. Sukhlal raised hue and cry and caught hold of the door of the cabin. Still accused did not listen and ran away with the truck. Premwati's father Rameshwar had gone to another village to play the Band. When Jageshwar, uncle of Premwati came to know about the incident, he lodged the report -Ex. P -8 at the police station at 16.45 P.M. When Sukhlal had raised hue and cry, it attracted PW 6 Chandrashekhar and other persons. Sitaram Singh Sikarwar (PW 11) Station House Officer registered an offence u/s 363,366 IPC and thereafter, took Jageshwar in a Jeep and his employees and followed the truck. Before going to the Police Station, Jageshwar had apprised about the incident to Sarpanch Santosh Kumar Tiwari (PW 4) who in turn took his scooter and followed the truck alongwith his companions. As the diesel of the truck finished at village Dubgawan, the accused (sic)pped the truck. Chandrashekhar and his companions who had also followed (sic)uck, reached there. In the meantime, Station House Officer also reached the spot and recovered Premwati from the truck and prepared Panchnama Ex. P -2. Truck was seized and the seizure memo Ex. P -3 was drawn. Premwati was referred for medical examination: Doctor.(sic)S. Upadhyaya (PW 8) found that she was in between 14 and 18 years of age and radiological examination was advised. Dr. Anandsingh (PW 7) submitted radiological examination report Ex. P -7 and on the basis of X -ray plate -Ex. P -6, he found that Premwati was above 16 years and below 18 years.

(2.) ACCUSED abjured the guilt and contended that he was innocent and took special defence that he was having enmity with Chandrashekhar, Shridhar and Kunjleshwar. In defence, one Harihar was examined as DW 1, according to whom, Premwati's marriage was performed with the accused two years prior to the incident and Pramwati was residing with the accused. However, Parents wanted to perform marriage of Premwati elsewhere. Learned counsel for the appellant has submitted that it is a case where element of taking away Premwati is totally missing. Hence, no offence u/s 363 IPC is made out. He has further submitted that there could be an error of two years on radiological examination. Learned State counsel has made an effort to support the Judgment. In the instant case, Premwati is the best witness to the incident whether she was taken away from the custody of the parents or had gone willingly. There' is evidence that Premwati is living with the accused as husband and wife and she has hereself deposed that she was not taken away and was going on her own under her free will with the accused. The very witness in the case is Premwati who is said to have been taken away. She has deposed that she was used to work in the truck in question as a labourer. Laxman the accused -appellant, used to drive the truck. At her instructions, the accused had taken the truck to Dubgawan. Her brother Sukhlal wanted that she should not go. She has clearly stated that she has told every body that she was going willingly with the accused and that the accused was not taking her away. She has denied to have given the police statement and has stated that it may be that her parents may have performed her marriage elsewhere while she was still child, she had not gone to village Patehara. She was not aware as to whether her marriage was performed at village Patehara. She has admitted that she was living with the accused even for the last one and half months. Thus, it is apparent from her deposition that she was having thick relations with the accused -appellant but it was not being liked by the family members. She has clearly stated that her age is 25 years. The Court has assessed her age to be between 18 and 19 years. She had deposed in the court on July 27, 1989. The incident took place on the night of 13th July, 1988. Thus, as per the assessment of the Court, her age appears to be 18 years. Furthermore, on the basis of radiological examination, Dr. Anand Singh (PW 7) has deposed that the prosecutrix, at the time of the incident, was above 16 but below 18 years of age. Thus, from the medical evidence, there could be an error of two years on either side, it cannot be said that the age of the prosecutrix was less than 18 years. She is clearly proved to be above 18 years of age as per the radiological examination report. Thus, no offence u/s 363 IPC appears to be made out.

(3.) SO as to constitute the offence of kidnapping, it is necessary for the prosecution to establish the element of taking away. In the instant case, there is no evidence of inticing away or taking away. Thus, in the instant case, it is not proved that the girl was kidnapped. This is apparent from the fcts that her brother Sukhlal was objecting. If Premwati was not going on her own, she could have tried to support her brother. On the contrary, she stated that she has disclosed to everybody clearly that she was going out of her own free will, and being above 18 years of age, she was free to take such a decision. From the evidence, it is established that the prosecutrix was a married woman. Thus, her lawful guardian, if she is taken to be a minor, was her husband and not the father. Whatever, that may be. Since her age appears to be above 18 years, the question of her being taken away from the custody of guardian does not arise. Further, medical examination appears to be not supporting the prosecution case. Premwati was already living with Laxman, the accused -aapellant for the last one and half months. Statement of Sukhlal, the brother of the prosecutrix goes to show that she had asked Premwati as to what she was doing in the truck. Premwati did not reply. Thereafter, the accused started the truck and both of them went away. It also goes to show that Premwati was having some affair with the accused which appears to have been objected by Sukhlal. Sukhlal has further narrated that Premwati was also asking the accused to start the truck but his version is not supported by Premwati hereself. Even when the truck was stopped, Premwati did not come out and kept sitting in the truck, This goes to show that when was not willing to come back. Thus, the element of taking away is missing. Rather she was going on her own under her free will. The evidence intrinsically indicates that it was not an offence of kidnapping as she was working in the truck as labourer. Thus, in view of the decision of the Supreme Court in Janardan V/s State of Kerala,, AIR 1965 SC 983, no offence is made out. The evidence of other witnesses is to the effect that they had followed the truck on hearing hue and cry raised by her brother. Jageshwar has stated that they had found the girl as well as Sukhlal beneath the truck. She was not inside the truck but was hiding alongwith the accused beneath the truck. Thus, no offence u/s 363 is made out. Learned counsel for the appellant has submitted that the accused and the prosecutrix are still living together as husband and wife, as there was marriage, as is deposed to by the defence witness. Whatever that may be. No offence u/s 363 appears to be made out. Hence, the conviction and sentence as passed against the appellant are set aside and the appellant stands acquitted of the charge. He is on bail. His bail bonds are discharged.