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Minor girl who eloped voluntarily is not termed ‘kidnapping’ under Section 363 IPC: High Court of Calcutta

If a minor girl has voluntarily gone with another person and was not induced but was engaged in a romantic relationship with him, it will not fall under section 363 IPC for offence of kidnapping. This was decided in the case of Sk.Sajid @ Sk.Sagir @ Pancha Vs. State of West Bengal [C.R.A./718/2014] by Hon’ble Judge Bibek Chaudhuri in the High Court of Calcutta.

The facts of the case are that a complaint was filed against the accused for abduction of a minor girl. The circumstances of the case were such that the minor had gone out on the pretext of seeing god immersion and thereafter disappeared. The father of the minor girl was informed that the appellant has her in the custody and only if she was married to him, he would return the minor to the family. The father refused to his demand and filed complaint under Section 366A of the IPC. In the course of trial proceedings, it was established that the appellant was involved in a romantic relationship with the minor. The medical examination proved that the woman was accustomed to sexual intercourse. After his conviction by the lower court, this appeal was filed.

The question of law that is brought forth in this case is whether all conditions of Section 366 were met and if not, then which provision shall be applied here. For this the court analyzed the said provision closely and listed out all ingredient of the provision explicitly as below-

(1) there must be inducement of a minor girl by the accused; (2) the girl must be under the age of 18 years and (3) the inducement shall be to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person

The contention put forth by the appellant was that ‘inducement’ is necessary for one to be booked under this section. However when the statement of the minor girl was taken, she has stated that she voluntarily fled away with him and she used to love him. Thereafter, they got married in a mosque and began living as husband and wife. On the other hand, the prosecution argued that a case should be made out under Section 363 for kidnapping as she was forcefully kept away from her legal guardian.

The court said that it was in full agreement with the advocates that the learned trial Judge absolutely misconstrued the provision of Section 366A of the IPC and passed the order of conviction and sentence under the penal provision of Section 366A of the Indian Penal Code under misconception of fact and law.

To decide upon the application of Section 363 IPC, the case of State of Haryana vs. Raja Ram AIR 1973 SC 819 was referred to wherein it was held “he object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian”

The court said that in the instant case, it is ascertained from the statement of the minor girl in Court that she left her house with the accused voluntarily on her accord. Therefore the accused cannot be held guilty for the said offence and was thereby acquitted of all charges by the court.

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Ingredients of Section 498 A IPC should be proved beyond reasonable doubt for conviction: Supreme Court of India

The ingredients of Section 498­A IPC have to be proved against the accused by the prosecution beyond reasonable doubt to upheld conviction. This was held in the case of  Nimay Sah v. State of Jharkhand, [Criminal Appeal No.211 of 2011], by Hon’ble Justice N.V. Ramana in the Supreme Court of India.

The deceased in the present case was married to the accused. She was harassed for the demand of dowry of Rs.10000 by the accused persons. Devendra Shah who is the complainant and father of the deceased went to her matrimonial home to pacify the in-laws and assured them of the payment of the said amount. Eventually, when the harassment did not stop, the complainant sent his son, to the deceased’s matrimonial home who brought her back to her parental home. The day on which the event happened, the accused husband went to the deceased’s parental home and took her for a morning walk. When confronted about the whereabouts of the deceased, he said that the deceased was attending the call of nature and would be back soon. He left thereafter. When the deceased did not return after an hour, the complainant started searching for her and she was ultimately found dead, near the canal with strangulation marks on her neck. An FIR was registered against the accused persons under Section 304B read with Section 109 IPC.

The Trial Court relying upon the submissions of the prosecution convicted the accused persons under Sections, 304, 498, and 34 IPC. the accused person appealed before the High Court. The High Court on analysis of evidence found it to be consistent and corroborative, thereby, confirmed the judgment and order of conviction passed by the trial Court. On an appeal filed by the original accused before the Supreme Court, the counsel for the appellants submitted that the prosecution story comprises vague allegations, unsubstantiated by evidence. The learned counsel appearing on behalf of the respondent state stressed the fact of concurrent conviction and argued that there existed sufficient evidence to prove the culpability of the appellant-accused.

The Court observed that apart from these vague allegations, no specific instance of hostile attitude or persistent demands of dowry have been pointed out by any of these witnesses. Additionally, the brother of the deceased has admitted in his cross-examination that the deceased used to write him letters from her matrimonial place and none of them mention any harassment on account of the demand of dowry. Thus the ingredients of Section 498 IPC have not been proved against the accused beyond a reasonable doubt, there is nothing on record to convict the appellant­accused for the charge under Section 498­A IPC. 

The order passed by the High Court was set aside and the appellant-accused was acquitted of all charges.

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Taking advantage of the mental condition of the victim should be dealt with an iron hand: Supreme Court of India

The order passed by the High Court in reversing the order of acquittal and convicting the accused of the offenses under Sections 376 & 506 IPC was justified by the Supreme Court in the case of Chaman Lal v. State of Himachal Pradesh, [Criminal Appeal No. 1229 of 2017], by the Hon’ble Justice M.R. Shah.

It was alleged that the accused had sexual intercourse with the prosecutrix forcibly and without her consent. On medical examination, it was found that the prosecutrix was eight months pregnant. The prosecutrix was mentally retarded and gave birth to a female child. Blood samples of the prosecutrix, the baby, and the accused were taken for a DNA test and the was found that the accused was the biological father of the female child. The accused was arrested and charged with offenses under Section 376 and 506 of IPC. The learned trial Court acquitted the accused mainly on the ground of delay in lodging the FIR and also on the ground that the prosecutrix was not mentally unsound to understand the consequences and what was happening.

Feeling aggrieved and dissatisfied with the judgment and order of acquittal passed by the learned Trial court, the state preferred an appeal before the High Court. The High Court reversed the order of the trial court and ordered for the conviction of the accused under the charged offenses. On an appeal filed by the accused in the Supreme Court, it was observed that it is required to be noted that by the impugned judgment and order, the High Court has convicted the accused for the offenses under Section 376 and 506 IPC. It is required to be noted that on reappreciation of the evidence, the High Court has found that the IQ of the victim was very low and she was suffering from mental illness and was not in a position to understand the good and bad aspects of sexual assault.  In the statement filed by the accused under Section 313 of CrPC, he had denied that he had sexual intercourse with the prosecutrix. But the same was proved after the DNA test. Thus the accused came with a false defense.

Reliance was placed in the case of Babu v. State of Kerala, (2010) 9 SCC 189), where it was held that while dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise sustainable. Therefore, the High Court is justified in reversing the order of acquittal and convicting the accused for the offenses under Sections 376 & 506 IPC. The appeal was dismissed.

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Any record of statement taken in police custody not to be considered as custody: High Court of Delhi

When a police officer reduces into writing any statement made to him by a witness, in the course of investigation under Section 161 of CrPC, such a statement cannot be used to refuse grant of bail to an accused.  This was decided in the case of Junaid and Ors. v. State of Delhi BAIL.APPLN.3163/2020 in the High Court of Delhi by Hon’ble Justice Suresh Kumar Kait.

The petitions have been filed of the same incident and FIR and the evidence on record are the same against all the accused/petitioners for grant of bail. In the North East area of Delhi at different places, incidents of stone pelting and rioting were reported. On 24.02.2020, at around 3:00 PM, Hindu mob which was pro CAA also entered the arena and they too started pelting stones etc. at the Muslim community, forcing them to retreat. Muslim rioters were concentrated towards the Muslim dominated Chandbagh area, while the Hindu rioters were towards the Yamuna Vihar area. Some of the rioters on both the sides also went to the roof tops of the buildings of their area over-looking Mohan Nursing Home and adjoining buildings, while Muslim mob took position at the roof top of building.

The counsel for the petitioner submitted that the evidence against the petitioner and statements recorded u/s 161 Cr.P.C were false. It is submitted that the petitioner is innocent and has been falsely implicated in the present case. He was called through notice under Section 160 Cr.P.C. that he was required for some normal inquiry and would be sent back after taking the statement. He was not arrested from his house and was taken to police station as cleared by police in charge-sheet.

The court observed that the notice of Section 160 Cr.P.C. is also provided in charge-sheet which shows the authenticity of the above submissions. Further the court also observed that to prove the involvement of the petitioner, the prosecution has relied upon a video of an NDTV prime time show, about which, the prosecution themselves have admitted that it fails to establish the identity of any of the accused. It could be seen that the trial has not started yet and it will take a long time and it is only on the basis of the statement of the person which is not corroborated by any independent evidence that the prosecution wants to keep the petitioner into custody

The court drew attention to the fact that The “statement under Section 161 Cr.PC is Inadmissible in Evidence and cannot be Relied Upon For Conviction”, as reiterated by Hon’ble Supreme Court in the case Parvat Singh vs. State of Madhya Pradesh in Criminal Appeal No.374/2020.

The court in this case said that after viewing the submissions made and the cases referred, it can be seen that there is no evidence whatsoever, either direct or circumstantial or forensic against the petitioners. Neither there was any motive whatsoever either for them or for any other person allegedly present on the roof of Saptarishi building, to commit the offence, nor has the prosecution alleged any motive in the entire case.” Accordingly, bail was granted to the petitioners.

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Sympathetic view can be taken against the accused to reduce the sentence even in serious non compoundable offences: Supreme Court of India

A sympathetic view was taken in this case to reconsider the quantum of sentences awarded to the appellants by inspiring the victim’s confidence that the apology has voluntarily been accepted given the efflux of time and owing to the maturity brought about by age. This was held in the case of Murali v State represented by the Inspector of Police, [Criminal Appeal No.24/2021], by Hon’ble Justice Surya Kant in the Supreme Court of India.

The two original accused in the case cornered the victim and assaulted him by striking him on his head with a hockey stick and tried to kill him by giving a neck blow with a sharp edged object. The act was blocked by the victim which led to the severance of the victim’s thumb and finger of the right hand. The victim managed to escape and the matter was reported by his friend. The trial court opinioned that there existed a clear intention to murder the victim and if not for the victim defending himself, a fatal injury would have been caused to his neck  and would have died instantaneously. A concurrent sentence of three   months’   rigorous imprisonment        under Section 324 IPC and one month rigorous imprisonment under Section 341 IPC was imposed on the both the accused. The High Court upheld the conviction.

The counsel for the appellants submitted that the parties have on the advice of their elders entered into an amicable settlement. The appellants have admitted their fault, taken responsibility for their actions, and have maturely sought forgiveness from the victim. In turn, the victim has benevolently acknowledged the apology and considering the young age of the appellant at the time of has forgiven the appellants and settled the dispute. Reliance was placed on the case of Ram Pujan v. State of UP [(1973) 2 SCC 456], where it was held that the major offence for which the appellants have been convicted is no doubt a non compoundable offence, but the fact of compromise can be taken into account in determining the quantum of sentence.

The Court observed that “In our considered opinion, it would  not be appropriate to order compounding of an offence not compoundable under the code, ignoring and keeping aside statutory provisions. In our judgment, however, the factum of compromise between the parties is indeed a relevant circumstance which the court may keep in mind. There is no question of the settlement being as a result of any coercion or inducement. Considering the parties are on friendly terms now and they inhabit the same society, this is a fit case for reduction of sentence.

The sentence of both the accused was reduced to the period already undergone by them, setting them free and discharging their bail bonds.

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