MOHAMMAD HAMID ANSARI and ANOTHER v. STATE OF CHHHATTISGARH

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AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Criminal Appeal No. 450 of 2012

1. Mohammad Hamid Ansari, S/o Mohammad Safik Ansari, Aged about 23 years, R/o Mahuadih, P.S. Shankargarh, District Sarguja, Chhattisgarh.

2. Mohammad Tauhid Ansari S/o Mohammad Jamaluddin Ansari, Aged about 23 years, R/o Belsar, P.S. Shankargarh, District Sarguja, Chhattisgarh.

---Appellants Versus

State of Chhattisgarh through Station House Officer, Police Station Patna, District Korea, Chhattisgarh.

---Respondent

For Appellants :- Mr. A.K. Prasad, Advocate For State :- Mr. Afroz Khan, P.L.

Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Rakesh Mohan Pandey Judgment on Board

13/12/2022

Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of CrPC has been preferred by the two appellants herein namely Mohammad Hamid Ansari (A-3) and Mohammad Tauhid Ansari (A-2) against the impugned judgment dated 14/05/2012 passed by learned Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,

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1989, Koriya, Baikunthpur whereby they have been convicted for offences punishable under Section 366 of IPC and Section 3(2)(v) of the Act of 1989 and they have been sentenced to undergo R.I. for 5 years with fine of Rs. 1000/-, in default of payment of fine additional R.I. for 3 months and imprisonment for life with fine of Rs. 1000/- in default of payment of fine additional R.I. for 3 months, respectively.

2. Case of the prosecution, in brief, is that on 03/09/2009, in between 10:30 to 11 AM, the appellants herein along with one co-accused namely Sagnu Uraon (now acquitted), in furtherance of their common intention, forcibly abducted Deepika (P.W.-7) in a Bolero bearing Registration No. CG 15B/0786 near Saatharpara railway line in order to compel her to marry Mohammad Tauhid Ansari (A-2) and thereby, committed the aforesaid offences.

3. Further case of the prosecution is that complainant Smt. Kismait Bhagat (P.W.-8) used to stay with her daughter Deepika (P.W.-7) in a rental house in Patna, Baikunthpur wherein Deepika (P.W.-7) was working as Shikshakarmi. On the date of the incident, when the complainant returned from her work, she was informed by Mary Lucy Bada (P.W.-2) that some people have abducted Deepika (P.W.-7) near Saatharpara railway line in between 10:30 to

11 AM in a four-wheeler vehicle. When the complainant enquired, she got to know that Mohammad Tauhid Ansari (P.W.-2), resident of Mahuadih, Shankargarh came in a

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silver coloured Bolero bearing Registration No. CG 15B/0786 and with the help of driver Sagnu Uraon (A-1), took her daughter Deepika (P.W.-7) in order to compel her to marry him, knowing fully well that she was a member of Scheduled Tribe. When she could not find her daughter, complainant Kismait Bhagat (P.W.-8) lodged a report at Police Station Patna wherein Crime No. 168/09 (Ex. P/8) was registered against Mohammad Tauhid Ansari and Sagnu Uraon for offence punishable under Section 366/34 of IPC. During investigation, statements of the complainant and witnesses were taken and Deepika (P.W.-

7) was searched and found and upon her statement, it was found that both appellants herein along with Sagnu Uraon (A-1) had abducted her to compel her to marry knowing fully well that she was a member of Scheduled Tribes. Deepika (P.W.-7) was was handed over to her mother Kismait Bhagat on supurdnama (Ex. P/5) and the appellants/accused persons were taken into custody. Recovery of silver coloured Bolero bearing No. CG 15B/0786 was made vide Ex. P/9 and after due investigation, the appellants/accused persons were charge-sheeted for offences punishable under Sections 366, 186, 34 of IPC and Section 3(2)(v) of the Act of 1989 which was committed to the Court of Special Judge for trial in accordance with law.

4. Prosecution, in order to bring home the offence, examined as many as 15 witnesses and exhibited 19 documents.

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Statements of appellants/accused persons were taken under Section 313 of CrPC wherein they denied guilt, however, they did not examine anyone in their defence and only exhibited two documents.

5. Learned Special Judge, after appreciation of oral and documentary evidence on record, though acquitted co- accused Sagnu Uraon (A-1), however, convicted the present appellants/accused persons namely Mohammad Tauhid Ansari (A-2) and Mohammad Hamid Ansari (A-3) for the aforesaid offences.

6. Mr. A.K. Prasad, learned counsel for the appellants, would submit that the Special Judge is absolutely unjustified in convicting the appellants/accused persons for offences punishable under Sections 366/34 of IPC and Section 3(2)

(v) of the Act of 1989 as the statement of Deepika (P.W.-7) would clearly demonstrate that she joined the appellants/accused persons voluntarily and none of the two appellants/accused persons compelled her to marry, as such, the ingredients of Section 366 of IPC are not available in the present case and therefore, the appellants/accused persons are liable to acquitted from charge under Section 366/34 as well as Section 3(2)(v) of the Act of 1989.

7. Per contra, Mr. Afroz Khan, learned State counsel, would submit that prosecution has been able to bring home the offence against the appellants/accused persons and they

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have rightly been convicted by learned Special Judge, as such, the instant appeal deserves to be dismissed.

8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

9. Both the appellants/accused persons have been convicted for offence punishable under Section 366 of IPC, which provides as under :-

"366. Kidnapping, abducting or inducing woman to compel her marriage, etc. - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, 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, shall be punished with the imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."

10. Section 366 of IPC is an aggravated form of Section 365 of IPC. To bring home an offence under Section 366 of IPC, the prosecution is to prove (a) that the accused kidnapped as understood in section 360 or 361 IPC or abducted the victim as understood in Section 362 of IPC; (b) that the victim of the aforesaid kidnapping or abduction was a female; (c) that the accused during the kidnapping or abduction had intention or knew it likely that (1) such woman might or would be forced to marry a person

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against her will, or (2) that she might or would be forced or seduced to illicit intercourse, or (3) by means of criminal intimidation or otherwise by inducing a woman to go from any place with intent that she may be or knowing that she will be forced or seduced to illicit intercourse.

11. The Supreme Court in the matter of Gabbu v. State Of M.P . of M.P.¹has laid down the conditions for applicability of Section 366 of IPC and has held that mere abduction is not enough to attract the provision and prosecution must further prove that the abduction was for the purposes mentioned in Section 366. It has been held thus in paragraph 11 :-

"11. 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 the 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."

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12. Similarly, in the matter of Kavita Chandrakant Lakhani

v. State of Maharashtra and Anr.², it has been held by their Lordships of the Supreme Court that mere abduction of women is not sufficient to attract offence under Section 366 and it is necessary to prove that accused abducted woman with intent to compel her to marry against her will or to force or seduce her to illicit intercourse.

13. Reverting to the facts of the present case in light of the aforesaid parameters laid down by their Lordships of the Supreme Court in Gabbu (supra) and Kavita

Chandrakant Lakhani (supra), it is quite vivid that in the instant case, Deepika (P.W.-7), at the time of the incident, was aged about 25 years and was working as Shikshakarmi Grade III and she herself has stated before the Court that Mohammad Tauhid Ansari (A-2) was known to her as he was known to her cousin and neighbour Vikas' sister and she used to talk to him on mobile phone frequently. She has further stated that on the fateful day, the two appellants/accused persons along with co-accused Sagnu Uraon (A-1) abducted her in a Bolero vehicle and took her towards Korba and then to Bilaspur in a bus and then to Nagpur in train and finally to Gumla (Jharkhand) but she did not inform anyone that the appellants/accused persons have abducted her. After reaching Gumla (Jharkhand), when appellant/accused Mohammad Tauhid Ansari (A-2) took Deepika (P.W.-7) to

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the Court to meet an advocate and sign some papers, she refused to sign the said papers and informed about the incident to a lady advocate namely Chandralekha Devi (P.W.-5), who then contacted Deepika's mother Kismait Bhagat (P.W.-8). In cross-examination, Deepika (P.W.-7) has admitted that since she knew the appellants/accused persons, she went with them and she has further admitted that though Mohammad Touhid Ansari (A-2) wanted to marry her but both the appellants/accused persons did not compel her or pressurize her in any way to marry one of them. She has further admitted that she was abducted on 03/09/2009 till 11/09/2009, she did not inform about the incident to anyone and though she travelled in bus as well as train and she met many passengers along the way but still she did not inform anyone about the incident.

14. In sum and substsance, the ingredients of Section 366 of IPC are not available in the present case and prosecution has miserably failed to prove that appellants/accused persons abducted Deepika (P.W.-7) to compel her or pressurize her to marry one of them rather it is apparent from the record that Deepika (P.W.-7) voluntarily accompanied them and stayed with the

appellants/accused persons from 03/09/2009 to 11/09/2009 without making any attempts to inform about the incident to anyone, though she had ample opportunity to do so. In that view of the matter, we are of

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considered opinion that the Special Judge is absolutely unjustified in convicting the appellants/accused persons for offence punishable under Section 366 of IPC and they deserve to be acquitted of the charge punishable under Section 366 of IPC levelled against them.

15. The appellants/accused persons have also been convicted for offence punishable under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, which states as under :-

"3. Punishments for offences of atrocities. -

(1) XXX XXX

(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -

(I) to (iv) XXX XXX

(v) commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property knowing that such property belongs to such member, shall be punishable with imprisonment for life and with fine."

16. Since in the foregoing paragraphs of this judgment, we have already that appellants/accused persons are to be acquitted from charge punishable under Section 366 of IPC, as such, their conviction for offence punishable under Section 3(2)(v) of the Act of 1989 is also liable to be set aside, being meritless. Consequently, the impugned judgment recording conviction and awarding sentence to the appellants/accused persons for offences punishable under Section 366 of IPC and Section 3(2)(v) of the Act of 1989 is hereby set aside and both the appellants/accused persons are acquitted of the charges levelled against them. Since they are already on bail, they need not surrender,

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however, their bail bonds shall remain in force for a period of six months in view of the provision contained under Section 437A of CrPC.

17. Accordingly, this criminal appeal stands allowed. Sd/- Sd/-

(Sanjay K. Agrawal) (Rakesh Mohan Pandey) Judge Judge

Harneet