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CASE NO.: Appeal (crl.)  791 of 1998

PETITIONER: Gabbu

RESPONDENT: State of M.P.

DATE OF JUDGMENT: 12/05/2006

BENCH: S.B. Sinhan & P.P. Naolekar

JUDGMENT: JUDGMENT

P.P. Naolekar, J. :

       Accused-appellant Gabbu was tried  for committing offences  under Section 366 read with Section 34 and under Section 506-B of  the Indian Penal Code (IPC) along with Sheru who was charged  under Sections 366, 376 and 506-B, IPC and Sardar charged under  Sections 368 and 506-B, IPC.  The Session Court convicted the  accused-appellant under Sections 366 and 506-B, IPC and  respectively sentenced him to undergo two years rigorous  imprisonment with fine of Rs. 500/- and one year rigorous  imprisonment with fine of Rs.500/-, and in default of the payment of  fine simple imprisonment for two months was awarded.  Accused  Sheru was convicted under Section 366 and 376, IPC and the third  accused  Sardar was acquitted.  The High Court in appeals preferred  by the accused appellant and the other accused Sheru, confirmed the  order of the Session Court.  Feeling aggrieved by the order of  conviction and sentence, accused-appellant Gabbu has preferred this  appeal by special leave.  The other accused Sheru has not filed any  appeal and order of conviction and sentence against him has attained  finality.         As per the prosecution case, complainant Bisan Singh, the  husband of prosecutrix, and the prosecutrix were labourers and  residing behind the Technical School, Dhar.  On the night of  25.7.1992 when the complainant was sleeping in his house, his wife   Sita Bai went out of the house to attend the call of nature and there  the accused-appellant along with accused Sher Singh alias Sheru at  point of a weapon gave her threats and abducted her against her  wishes.  The complainant kept on searching his wife and he went to  the house of accused Sheru at Brahmakundi and came to know that  the accused was missing since last night.  He made search at other  places also but could not find her.  He narrated the story to different  persons who told him that the accused had taken away his wife  somewhere else.   The report was lodged on 26.7.1992 at the Police  Station, Dhar, but the same was not registered properly.   As per the prosecution version, when the prosecutrix went to  attend the call of nature she was threatened by the accused-appellant  by showing a knife and the other accused put a hand on her mouth  and they abducted her. The accused-appellant accompanied the  prosecutrix and the other accused upto the place called Gunabad.   Thereafter, the other accused took the prosecutrix away to Ghata  village by truck and thereafter to Bhanwar Kuan, Indore in a motor.   Thereafter, she was taken to village Nibhodi where she was allegedly  kept in the house of the acquitted accused who was a distant relative  of the other accused Sheru.  She was sexually exploited and raped  by the other accused at that place.  The prosecutrix escaped from  Nibhodi and reached her maternal uncle’s place and narrated the

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incident to him and her husband.  A report to the Superintendent of  Police regarding this incident was given and the case was registered  against the accused persons on 22.10.1992.   In this appeal, we are concerned with the case of accused  Gabbu only who has been convicted under Sections 366 and 506-B,  IPC.  So far as this accused is concerned, the Session Court found  that  accused Gabbu and Sheru came to the house of prosecutrix in  the evening of the day of incident when her husband was not there.    They said to the prosecutrix that as no child was born to her they  would administer some medicine to her so that she would become  pregnant and accordingly applied some medicine on the hand of the  prosecutrix.  She raised alarm and  later informed her husband about  the application of medicine by the other accused who was  accompanied by the accused-appellant, thereafter she was abducted  by the accused at night.  The Session Court further recorded a finding  that the prosecutrix in her statement clearly stated that accused  Sheru and Gabbu entered in her house at night and accused Gabbu  showed knife to her and Sheru put his hand on her mouth and  brought her upto Gunabad,  the statement of the prosecutrix that she  was abducted by Gabbu cannot be disbelieved.  So far as Section  506-B, IPC is concerned, the Session Court held that accused- appellant Gabbu pointed knife at her person and threatened to kill her  and on the basis of her evidence, the charge is proved.   The High Court held that nothing is brought in the cross- examination of the prosecutrix whereby the story of the incident  narrated by her, should not be believed.   The story given by her is  tell-tales and does not create any doubt about all what has been said  by her.  The argument that normally a person will raise a cry when he  is being forcibly taken away, was dealt with by the High Court by  recording a finding that she did not raise alarm as she was frightened  and it was to be borne in mind that she was an illiterate, rural and  rustic village lady who would believe in superstitions, more  particularly when in 10 years married life she did not have a child and  accused-appellant Gabbu had promised her that he would do  something by which she could have a child.  The tribe to which the  prosecutrix belonged is known to believe in superstitions.  The High  Court observed that it was not impossible that because of the fear  she did not raise any cry, more particularly when she was taken away  to a place unknown to her.   As far as delayed FIR is concerned, it was held by the High  Court that the complainant had already gone to the police station  immediately next date, i.e. on 26.7.1992 and made a complaint.   Since it was not registered by the police,  a written complaint was  made on 22.10.1992 when the prosecutrix returned back and thus the  prosecution had established its case and accordingly the High Court  confirmed the order of conviction and sentence passed against  the  accused-appellant. The prosecution case centres around the statement of the  prosecutrix who was examined as Witness No. 4.  She deposed that  on the day of incident in the evening accused-appellant Gabbu  came  with the other accused Sher Singh (Sheru) and they told her that she  had no child and then asked her to show her hand.  On her  refusal to  show the hand, Gabbu forcibly caught her hand and accused Sheru  applied some medicine.  Thereafter, they again came at 10-11 p.m.   They forcibly made her to get up.  Sheru forcibly caught her mouth  and Gabbu pointed the knife towards her and threatened not to raise  alarm.  She did not raise any alarm because she was frightened.   Sheru and Gabbu took her on foot upto village Gunabad.  Thereafter,  she accompanied the other accused Sheru as Gabbu, the accused- appellant, left them at Gunabad.  She further narrated about what  happened to her when she went along with the other accused.  She  agreed in her cross-examination that there was no door in her hut  and also no arrangement of light.  Oil was applied by Sheru, the other  accused, forcibly.  On the day of incident, she along with her husband  was sleeping on one single cot.  She recognized Gabbu  from his

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voice when he said if she would raise alarm she would be killed.  In  this commotion, her husband got up.  The accused forcibly dragged  her and took her away.  She stated that she had not gone on her own  desire.  The threat was given by Gabbu at village Gunabad. It appears from the evidence of the prosecutrix that the story of  the prosecution as alleged in the FIR that the prosecutrix was  abducted when she had gone to attend the call of nature has been  given a complete go-bye by the prosecutrix when she stated that the  accused entered in her house where she was sleeping with her  husband and from there she was forcibly taken away by the accused- appellant with the other accused.  She also stated that due to the  commotion her husband woke up, yet the accused forcibly dragged  her away from her house.   It is difficult to believe that the prosecutrix who is a matured  lady married for 10 years would be made to walk from her place of  residence to the other village and she would not raise any hue and  cry apart from the fact that her husband who was sleeping with her  had woken up and yet  the accused had forcibly taken the prosecutrix  away from her house.  The husband in natural course of conduct  would have resisted her wife being taken away forcibly.  If he had  some handicap because of being single, he would have certainly  raised alarm and called the other persons.  The place from where the  prosecutrix was taken away, as referred in the FIR on one hand and  stated in the evidence of the prosecutrix on the other, raises a grave  doubt about the happening of the incident as alleged by the  prosecution.  Delay in lodging the FIR is another factor which creates doubt  in the prosecution version.   Apart from this, to constitute an offence under Section 366,  IPC, it is necessary for the prosecution to prove that the accused  induced the 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 that the accused knew it to be  likely that the complainant may be seduced to illicit intercourse as a  result of her abduction.  Mere abduction does not bring an accused  under the ambit of this penal Section.  So far as a charge under  Section 366, IPC is concerned, mere finding that a woman was  abducted is not enough, it must further be proved that the accused  abducted the woman with 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 or  knowing it to be likely that she will be forced or seduced to illicit  intercourse.  Unless the prosecution proves that the abduction is for  the purposes mentioned in Section 366, IPC, the Court cannot hold  the accused guilty and punish him under Section 366, IPC.   We have gone through the statement of the prosecutrix.  The  prosecutrix nowhere alleged that she was abducted with the intention  to commit an offence, that she was compelled to marry the accused  or any other person or that the accused knew that she would be  forced or seduced to illicit intercourse or that it was likely that she  would be forced  or seduced her to illicit intercourse.         The story unfolded from the evidence led by the  prosecution appears to be that the accused-appellant along with the  other accused in the evening went to the house of the prosecutrix and  the other accused applied some medicine on her hand so that she  might get pregnant after 10 years of marriage.   The accused might  have persuaded her to accompany them so that they could   administer the medicine to her and she being an illiterate lady  believing in the superstitions agreed to accompany them.  After the  accused- appellant left both of them at village Gunabad, the other  accused had other intentions and committed the offence as alleged  by the prosecution.  That does not ipso facto prove the fact that from  the very beginning the accused-appellant had any intention of  inducing the prosecutrix  to forcibly marry him or the other accused or

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she was induced or seduced to illicit intercourse with the accused- appellant or with the other person whose company he left at  Gunabad.  There is no allegation that from the house of prosecutrix  upto Gunabad the accused-appellant made any advances against the  prosecutrix so as to show his intention of committing forcible  intercourse with her. In overall consideration of the material placed on record by the  prosecution, we do not find that the prosecution has proved that the  accused-appellant has committed an offence under Section 366, IPC.   There is a doubt as to the place of incident and the motive of the  accused in taking away the prosecutrix.  We find it difficult to believe  in the story put up by the prosecutrix that she was forced to leave her  place of residence under  a threat by showing a knife to her.

For the aforesaid reasons, we allow the appeal and set aside  the order of conviction and sentence passed by the Session Court  and confirmed by the High Court under Sections 366 and 506-B, IPC  against the accused-appellant.