Sannaia Subba Rao
& Ors. Vs. State of A.P.  INSC 1218 (24 July 2008)
JURISDICTION CRIMINAL APPEAL NO. 1306 OF 2003 SANNAIA SUBBA RAO & ORS.
..Appellants Versus STATE OF A.P. ..Respondents
appeal arises out of the judgment and order dated 5.8.2003 passed by the
learned Single Judge of the High Court of Andhra Pradesh at Hyderabad,
convicting the three appellants under the provisions of Section 366A and
Section 372 read with Section 511 Indian Penal Code, 1860 (for short `IPC') and
requiring each of them to undergo rigorous imprisonment for a period of 10
years and 5 years respectively on each count, which is to run concurrently. By
the said order, the order dated 16.12.1996 passed by the learned Additional
Assistant Sessions Judge, Guntur in SC No. 25 of 1995, acquitting the three
accused was set aside.
Subba Rao - appellant No. 1 and smt. Dhanalakshmi - appellant No. 2 are
respectively the father and mother of Sankar - appellant No. 3. The mother of
the prosecutrix filed a missing report on 29.07.1992 at Pattabhipuram Police
Station. In the said report it was stated by her that her youngest daughter
Prabhavathi-prosecutrix studying in Inter 1st Year in B.H. Girls Junior College
went to the college on 25.7.1992 at 12.30 p.m. and thereafter did not return to
her house and that the family made an enquiry amongst the relatives and friends
both in the Guntur town and in the remaining villages but she could not be
traced anywhere. It was further stated that her whereabouts are not known and
that they have got doubt about her missing on three persons namely Subba Rao,
his wife and his son Sankar, who are residents of old Pattabhipuram, Guntur. It
was also stated that the missing girl was about 16 years of age and 5 feets 3
inches in height.
aforesaid missing report was registered as Cr. No. 88/92. After receipt of the
said report, the Police started investigation, but despite the said
investigation they could not trace out the girl. It transpires from the
prosecution case that the girl was traced out on 11.9.1992, 2 when she came to
a bus shelter, which is opposite to the Check Post of Agricultural Market at
found the girl weeping at the bus stand, PW-8 and PW-9 who are respectively
working as watchman and supervisor at the Agricultural Market Committee,
Ravendrapadu took her to the house of PW-8. The girl was kept in the house of
PW-8 for two days during the course of which both PW-8 and PW-9 tried to find
out the background and particulars of the girl and accordingly were able to
trace out her house where they met the mother and informed her the whereabouts
of her daughter. The mother, along-with the aunt and brother of the prosecutrix
accompanied PW-8 and PW-9 to Ravendrapadu and thereafter they took back the
girl to their house.
terms of the aforesaid statement, the girl was taken back by the mother on
14.9.1992. She went to the police station on 19.9.1992 and on the same date she
was sent to the Government General Hospital, Guntur for treatment as she was
found to be weak both physically and mentally. Thereafter on 25.9.1992 she
again went to the Police Station and presented a written report which was later
on proved and exhibited in the trial as Ex. P-1. On the same day i.e. on
25.9.1992, Police examined the prosecutrix and recorded her 3 statement and
thereafter also got the statement of PW-8 and PW-9 recorded. The Police
thereafter examined many other witnesses and visited the house of the three
appellants who were accused in the report submitted. Finally, a charge sheet
was submitted by the Police against all the three accused persons who are
appellants herein under Section 363, 366A, 368 and Section 372 read with 511 of
the course of the trial, 13 witnesses were examined, including the prosecutrix,
her mother and the investigating officer who were examined as PW 1, PW 2 and PW
12 respectively. The case of the accused was of clear denial. After completion
of the trial, arguments were heard by the Additional Asst. Sessions Judge who
thereafter passed an order of acquittal against all the three accused persons
holding that the whole prosecution story is doubtful and that any case against
the accused has not been proved, and therefore, they are entitled to benefit of
aggrieved by the aforesaid order of acquittal, an appeal was filed in the High
Court by the State against all the three accused persons. The learned Single
Judge after hearing the appeal on 4 5.8.2003 passed a judgment and order
setting aside the order of acquittal passed by the learned Trial Court, holding
that the evidence on record does prove a case against the appellants/accused
persons both under Section 366 A and 372 read with Section 511 IPC. On the
question of sentence the learned Single Judge held that having regard to the
nature of the offence and the fact that a minor girl being dragged forcibly
into an auto rickshaw almost in the heart of the Guntur town that too in a
broad day light and the purpose for which she was so kidnapped, warrant
imposition of maximum sentence prescribed under the aforesaid provisions.
Having held thus, all the three accused persons were convicted under Section
366A IPC and were sentenced to undergo rigorous imprisonment for a period of 10
years and also to pay a fine of Rs. 5,000/- each and in default to undergo
simple imprisonment for a period of two months and also under Section 372 read
with Section 511 IPC and were sentenced to undergo rigorous imprisonment for a
period of five years each and also to pay a fine of Rs. 2,500/- each and in
default to undergo rigorous imprisonment for a period of 30 days.
aggrieved by the aforesaid judgment and order of conviction and sentence, the
appellants filed the present appeal in this Court. We heard the learned senior
counsel appearing for the appellants and learned counsel appearing for the
State and have also perused the records connected with the criminal trial and
also the appeal. While admitting the appeal, the appellants were granted bail
and therefore all the three appellants as on today are on bail.
M. Karpuga Vinayakam, the learned senior counsel appearing for the appellants
forcefully contended, inter alia, that the learned Single Judge of the High
Court of Andhra Pradesh has set aside the order of acquittal without discussing
and appreciating the grounds on which the learned trial court passed the order
of acquittal and also without giving any reason for setting aside the order of
placing strong reliance on various case laws, it was submitted before us that
the High Court having not given reasons for not accepting the conclusions
reached by the Trial Court while acquitting the accused persons committed a
grave error of law in setting aside the order of acquittal and converting the
same to an order of conviction. It was further submitted that there was no
compelling reasons for converting the order of acquittal into order of
conviction, 6 especially in view of the two different versions of the
prosecution case during the course of trial.
learned senior counsel has also taken us through the entire evidence on record
and on the basis thereof, he submitted that as the prosecutrix herself has
given two different versions of the case she cannot be said to be a trustworthy
witness and therefore no conviction can be based on the basis of her statement
and the High Court should not have interfered with the order of acquittal.
could be no dispute with regard to the proposition of law, which is clearly
laid down by this Court in various decisions. The power of the High Court in an
appeal from acquittal is no different from its power in an appeal from
conviction when it can review and consider the entire evidence and come to its
own conclusions by either accepting the evidence rejected by the trial court or
rejecting the evidence accepted by the trial court. In this regard we may refer
to observations made by this Court in the case of Hari Ram v. State of
Rajasthan, [(2000) 9 SCC 136] which are under:
is too well settled that the power of the High Court, while hearing an appeal
against an acquittal, is as wide and comprehensive as in an appeal against a 7
conviction and it has full power to reappreciate the entire evidence, but if two
views on the evidence are reasonably possible, one supporting the acquittal and
the other indicating conviction, then the High Court would not be justified in
interfering with the acquittal, merely because it feels that it would, sitting
as a trial court, have taken the other view. While reappreciating the evidence,
the rule of prudence requires that the High Court should give proper weight and
consideration to the views of the learned trial Judge. But if the judgment of
the Sessions Judge was absolutely perverse, legally erroneous and based on a
wrong appreciation of the evidence, then it would be just and proper for the
High Court to reverse the judgment of acquittal, recorded by the Sessions
Judge, as otherwise, there would be gross miscarriage of justice..................
the case of Bhagwan Singh v. State of M.P., [(2002) 4 SCC 85], the trail court
acquitted the accused but the High Court convicted them. Negativing the
contention of the appellants that the High Court could not have disturbed the
findings facts of the Trial Court even if that view was not correct, this Court
"7. We do not
agree with the submissions of the learned counsel for the appellants that under
Section 378 of the Code of Criminal Procedure the High Court could not disturb
the finding of facts of the trial court even if it found that the view taken by
the trial court was not proper. On the basis of the pronouncements of this
Court, the settled position of law regarding the powers of the High Court in an
appeal against an order of acquittal is that the court has full powers to
review the evidence upon which an order of acquittal is based and generally it
will not interfere with the order of acquittal because by passing an order of
acquittal the presumption of innocence in favour of the accused is reinforced.
The golden thread which runs through the web of 8 administration of justice in
criminal case is that if two views are possible on the evidence adduced in the
case, one pointing to the guilt of the accused and the other to his innocence,
the view which is favourable to the accused should be adopted. Such is not a
jurisdiction limitation on the appellate court but Judge-made guidelines for
circumspection. The paramount consideration of the court is to ensure that
miscarriage of justice is avoided. A miscarriage of justice which may arise
from the acquittal of the guilty is no less than from the conviction of an
innocent. In a case where the trial court has taken a view ignoring the
admissible evidence, a duty is cast upon the High Court to reappreciate the
evidence in acquittal appeal for the purposes of ascertaining as to whether all
or any of the accused has committed any offence or not."
Court in the case of Chandrappa v. State of Karnataka [ (2007) 4 SCC 415],
after referring to the catena of decisions has laid down following general
principles with regard to powers of the appellate court while dealing with an
appeal against an order of acquittal:
"42. From the
above decisions, in our considered view, the following general principles
regarding powers of the appellate court while dealing with an appeal against an
order of acquittal emerge:
(1) An appellate
court has full power to review, reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
(2) The Code of
Criminal Procedure, 1973 puts no limitation, restriction or condition on
exercise of such power and an appellate court on the evidence before it may
reach its own conclusion, both on questions of fact and of law.
expressions, such as, "substantial and compelling reasons",
"good and sufficient grounds", "very strong circumstances",
"distorted conclusions", "glaring mistakes", etc. are not
intended to curtail extensive powers of an appellate court in an appeal 9
against acquittal. Such phraseologies are more in the nature of
"flourishes of language" to emphasise the reluctance of an appellate
court to interfere with acquittal than to curtail the power of the court to
review the evidence and to come to its own conclusion.
(4) An appellate
court, however, must bear in mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of criminal jurisprudence that
every person shall be presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced, reaffirmed and strengthened
by the trial court.
(5) If two reasonable
conclusions are possible on the basis of the evidence on record, the appellate
court should not disturb the finding of acquittal recorded by the trial
that view of the aforesaid general principles, we have appreciated the entire
evidence on record and also the judgment and order passed by the Trial Court
and High Court to ascertain as to whether the order of acquittal passed by the
learned Trial Court was justified and as to whether the High Court has set aside
the order of acquittal without adhering to the settled proposition of law as
order of acquittal, as it appears from the order, was based on appreciation
that PW-1, the prosecutrix made inconsistent versions from stage to stage and
the evidence given by her in the trial was 10 totally different from the one
set out in her report which was marked as Ex. P-1, therefore as there were
contradictions in her versions, her evidence was not accepted as trustworthy.
learned Trial Court also held that PW-1 gave wrong information that she was an
orphan and that her parents have died. The learned Trial Court also pointed out
certain contradictions in the evidence of PW-1 at different stages and on the
basis thereof it was held that the nature of evidence led in by the prosecution
being wholly doubtful, the prosecution story itself becomes doubtful and
therefore it is a case of acquittal.
the appeal filed against the order of acquittal, the High Court however,
observed that PW-1 was a minor being aged about 17 years and that she was under
lot of mental and physical strain and stress after she was kidnapped. The
learned Single Judge after examining the evidence held that there was no reason
to doubt the aforesaid evidence and since there was no enmity between her and
the accused persons, the said evidence of PW-1 was fully justified to warrant
the order of sentence in respect of both the offences.
stated hereinbefore the prosecutrix was missing from her house from 25.7.1992
and the missing report came to be filed by PW-2, the mother of the prosecutrix
on 29.7.1992. Although the said missing report was treated as the First
Information Report but the police was unable to trace out the girl. She however
was traced at the bus stand opposite to the Check Post of Agricultural Market
Committee, Ravendrapadu. She was found weeping and was also giving incoherent
statements but on the basis of the papers found with her, her family was traced
and after tracing, her mother and brother came and took her away on 14.9.1992.
She was, however, found to be under great mental strain and stress and
therefore the police before whom she appeared and filed a written report sent
her for treatment.
the Missing Report, the mother of the prosecutrix named the three accused
persons stating that they are suspects. In the written report submitted, which
is exhibited as Ex. P-1, the prosecutrix has stated and has alleged as to how
she was kidnapped while she was going to the college. In the said report it was
stated by her that on 25.7.1992 on the way while going to the school at about
12.30 in the noon some unknown person came on a bicycle and told her that
appellant No. 3 12 was calling her and threatened her to go urgently. It is
alleged that out of fear she went to the house of Appellant No. 3 where she met
Appellant No. 2 who told her that Sankar would be coming soon, she had also
stated in the said report that Sankar asked her to bring either 200 or 150
rupees and on refusal threatened her to collect the said amount. She went to
the house to which the milk is daily supplied by her parents to collect the
money, when the Appellant No. 3 along with other persons was following her and
was keeping a guard on her.
was stated that on her request she received 200 rupees which she showed to
Sankar, as she was asked to do so. It was alleged that immediately thereafter
she was dragged into an auto rickshaw and she was made to forcibly sit in the
middle of the back seat with a man with beard and dark complexion on one side
and the stout female with fair complexion on the other side and the appellant
No. 3 sat by the side of the auto driver. She stated that as soon as she got
into the auto rickshaw, she was sedated by putting some drug in front of her
nose. She stated that after she was free of sedation, she found that she was in
a room. In the said room, she stated to have met Subba Rao, the appellant No.
1. She also alleged that she was beaten by 13 them for giving complaint
against them by her parents. She stated in that report that she was given
instructions as to how she should narrate the incidence to the police. She
thereafter stated the manner in which she reached the bus stop near
Ravendrapadu village and thereafter how she was recovered by her family members.
In the said report however, there were no allegations of any rape on her by any
of the accused persons.
police thereafter having got some clues as to how the prosecutrix was kidnapped
made investigation and examined many witnesses and also visited the house of
the accused persons and thereafter finally submitted a charge-sheet. The
charge-sheet was practically based on the similar line as what was stated by
the prosecutrix in her written report submitted on 25.9.1992.
the said charge-sheet, it was stated that on 19.9.1992 she was produced before
the police and since she was found not fit to make any statement due to
physical and mental strain and stress suffered by her, she was sent for medical
examination to detect her mental condition and also to detect whether any
sexual assault was committed.
doctor, who examined her, gave an opinion that she was suffering from
posttraumatic ice stress disorder and advised her to come for regular follow
up. The other doctor who is a Gynecologist gave an opinion that there was no
the said charge-sheet, it was stated by the police that the prosecutrix was a
minor and was kidnapped against her will for the purpose of selling her to a
brothel house to do prostitution and she was wrongfully confined for about 49
days and was subjected to mental harassment and torture. The charge-sheet was
submitted under the provisions of Sections 366A, 363, 368 and 372 read with
Section 511 IPC.
learned Trial Judge, however, framed charge against all the three appellants
herein under the provisions of Section 366A IPC and Section 372 read with
Section 511 IPC. After framing of charges against the said accused persons, the
trial court started the trial, during the course of which the prosecution
examined 13 witnesses including the prosecutrix and her mother.
order to prove her age, a School Leaving Certificate was produced according to
which her date of birth was recorded as 12.6.1975. To prove that she was a
minor, the prosecution also examined the headmaster of Pattabhipuram High
School, Guntur where prosecutrix studied from Class VI to Class X from the year
1986 to 1991. He was examined as PW-13 and he has categorically stated that in
the Admission Register, her date of birth was mentioned as 12.6.1975.
He has also proved
the certificate dated 17.3.1994 which showed her date of birth as 12.6.1975. He
was cross-examined at length by the defense.
prosecutrix was examined as PW-1 and in her deposition, she gave embellished
and more aggravated form of deposition by alleging major offences against the
accused persons by stating that during the said period she was sexually abused
by both the appellant No. 1 and appellant No. 3.
have carefully examined the said statement and allegations made by the
prosecutrix against both the accused persons. She had stated in her deposition
recorded on 14.5.1996 that the first accused i.e.father of appellant No. 3
sexually abused her for 5-6 times whereas 16 the appellant No. 3 who is the
son also sexually abused her for 5-6 times. It was also stated by her that
whenever both the accused were outside the room, they used to lock the room
from outside and that she was provided meals by one lady who used to take her
outside to attend the calls of nature and she also used to lock the room from
inside whenever she used to stay with her.
further deposed that during the period of confinement of 39 days and the
intermittent period after the first and the third accused abused her sexually,
the accused apprehended that her mother might give a complaint against them and
they may be in trouble, because of which the appellant No. 1 brought some
letters and papers and asked her to write as if she was writing it as love
letters to appellant No. 3 so that they could be used by them in future to show
and prove that she and the accused no. 3 loved each other and that she of her
own accord finally eloped with accused No. 3.
further stated in her deposition that the first accused and that bearded person
brought her out on one night from that room and brought her to Railway Station
where she was handed over to an old 17 man from where the old man brought her
to Ravendrapadu Check Post and left her by telling her not to reveal anything.
stated that M. Sambasiva Rao, PW-8 met her at the bus stop and asked her to sit
in the room of the Check Post when he brought another person who was aged about
30 years and that she was afraid that they may commit sexual act on her and
that is why she was weeping, but they took her to the house of PW-8 where her
wife Aruna looked after her well. M. Sambasiva Rao, PW-8 left the house in the
morning of Sunday and after enquiring about her residential address brought her
mother and the elder brother to her house in the evening of Monday and she came
to her house with the all these persons.
stated that she was thereafter sent for medical examination, after completion
of which she submitted her report which was exhibited as Ex. P-1. She also
stated that she knew all the accused and that she had no enmity with any of
them and that she had no relationship with them. She has also stated that she
was kidnapped so as to sell her to prostitution home, which according to her
was told by the first accused to her, but as they could not succeed in selling
her, they 18 committed rape on her and spoiled her. She stated that at the
time of incident her age was about 15 years.
was cross-examined at length by the defense. PW-2 the mother of the prosecutrix
was examined, she also supported the case of PW- 1 particularly in respect of
her kidnapping as she was informed by her daughter. She also stated that she
had suspicion on all the three accused persons as she was told by one Vijaya
Durga that first and third accused are used to kidnapping girls. She stated
that she went to the house of first accused on the next day of missing of the
girl who informed her that the prosecutrix did not come to their house and that
she might have gone to Ananthapur, where a friend of her was residing. She also
stated that on 29.7.1992, she gave a report to the Police which was exhibited
as Ex. P-2.
the aforesaid narration of the deposition of PW-1 and PW-2, it is established
that PW-1 in her deposition in the trial has given a more embellished version
of what has happened between the period of her kidnapping and the date when she
was allowed to come back although at the initial stage i.e. immediately after
she came back after confinement of about 39 days she did not state anything
about sexual 19 intercourse or rape being committed on her by accused No. 1
and 3, but in her deposition subsequently she had reported sexual intercourse
on her by accused Nos. 1 and 3 repeatedly on 5 or 6 occasions.
there are allegations that accused Nos. 1 and 3 wanted to sell her for
prostitution, but neither there is any reference nor an incident which shows
that an attempt was made to sell her in brothel house to do prostitution.
gone through the entire evidence on record, we are of the considered opinion
that it cannot be said that any case under Section 366A or a case under section
372 read with Section 511 IPC was made out against any of the three accused
persons. To that extent, in our considered opinion the Trial Court was
far as Section 366A is concerned, in such an offence what is required to be
proved by the prosecution is that there is cogent and reliable evidence to
prove and establish that a minor girl under the age of 18 years was induced to
come from one place to the other with the intention that such girl may be,
forced to have illicit intercourse 20 with another person. Therefore, in such
an offence, the chief ingredient is that the girl is made to go from one place
to other with the intention or knowledge that she may be forced to illicit
intercourse. The evidence on record does not reveal any such intention. That
the prosecutrix was subjected and forced to illicit intercourse came to be stated
for the first time only during the trial which according to us is nothing but
embellishment in order to see that the accused persons are made and are
subjected to major punishments.
appreciating the evidence, it will be our obligation, duty and responsibility
to see that chaff are separated from the grains. The written report which was
submitted immediately after her recovery according to us gave a clear and true
picture as to what had happened. The deposition of her which although contained
a part of the statement recorded in the written report came to include
embellishments, trying to frame the three accused persons for the major
have to ignore that part of the evidence and when we do so, we find that no
offence is proved and established as against accused- 21 appellant No. 1 and
appellant No. 2 or there is even no allegation in the said written report which
is exhibited as Ex. P-1 that any of them had in any way contributed in
kidnapping her from her lawful guardian.
senior counsel appearing on behalf of all the appellants also vehemently
submitted that it cannot be said that the appellant was a minor for according
to the school certificate itself her age would be more than 17 years and there
could always be a difference of about 4- 5 months in ascertaining age and in
order to ascertain the age, she should have been examined by the medical
expert, and therefore, the benefit should go to the accused persons so far as
the age is concerned.
are unable to accept the aforesaid contention for according to us, the
prosecution has been able to establish the age of the prosecutrix as below 18
years, as they have been able to produce the school certificate which is proved
by the headmaster of the school from whom the certificate was obtained. The
aforesaid document being a legal document and having evidentiary value, has to
be given due weightage as has been held by this Court in the case of state of
22 Chhattisgarh v. Lekhram [(2006) 5 SCC 736]. This court in the said case
held as under:
"12. A register
maintained in a school is admissible in evidence to prove date of birth of the
person concerned in terms of Section 35 of the Evidence Act. Such dates of
births are recorded in the school register by the authorities in discharge of their
........................It may be true that an entry in the school register is
not conclusive but it has evidentiary value. Such evidentiary value of a school
register is corroborated by oral evidence as the same was recorded on the basis
of the statement of the mother of the prosecutrix."
to us, the onus on the prosecution to prove the age of the prosecutrix was
effectively discharged by the prosecution.
that view of the matter, we are of the concluded opinion that the prosecutrix
was a minor on the date of the offence. We are, however, unable to persuade
ourselves to believe that the accused persons are guilty of the offence under
Section 366A IPC or under Section 372 read with Section 511 IPC. The
prosecution has not been able to conclusively prove and establish by cogent
evidence that the prosecutrix was kidnapped by accused persons with the
intention of having sexual intercourse with them or with any other person. No
such reliable or cogent evidence have been laid by the prosecution to 23 prove
the charge. Similarly, there is no reliable and cogent evidence to prove and
establish that she was kidnapped by the accused persons with the intention of
selling her for prostitution. Therefore, the charge under Section 372 read with
Section 511 IPC is also not proved against the accused persons.
having come to aforesaid conclusion, we have a further responsibility to see as
to whether any other offence is made out.
High Court was of the opinion that even though a case of rape was made out, but
even then the Trial Court did not frame charge in that regard. But however the
learned Single Judge did not remand the case back to the Trial Court for
framing of charge under Section 376 IPC for punishing the accused persons under
the aforesaid charge, as the same could have called for protracted trial. To
that extent he may be justified but there are number of cases which justify the
court to convert a case from major offence to minor offence, if a case for
conviction under such minor offence is made out.
charge-sheet was submitted also under Section 363 IPC by the Police but the
Trial Court did not frame any charge under Section 24 363 IPC. Charge was
framed for offences punishable under Section 366A and under Section 372 read
with Section 511, IPC.
Supreme Court has held in the case of Willie (William) Slaney v. State of M.P.
[(1955) 2 SCR 1140] that any error or omission in framing charge could be
rectified even at the appellate stage provided no prejudice is caused to the
a case of kidnapping was alleged against the appellants in respect of which a
charge under Section 366A was also framed and therefore the accused persons
knew that they were being charged for taking away a minor out of the custody of
the lawful guardian and they got full opportunity to defend themselves as
against such an allegation.
ingredients of Section 363 IPC involve an act of kidnapping of any person from
the lawful guardianship. Kidnapping from the lawful guardianship is defined
under Section 361 IPC, where it is stated that whoever takes or entices any
minor under sixteen years of age if a male, or under eighteen years of age if a
female, or any person of unsound mind, out of the keeping of the lawful
guardian of 25 such minor or person of unsound mind, without the consent of
such guardian, a case of kidnapping is made out.
366A IPC also envisages an act of kidnapping of a minor girl out of the lawful
guardianship with the intention of committing a sexual intercourse which is of
a higher degree than that of an offence under Section 363 IPC.
366A IPC is a major offence whereas Section 363 IPC is a minor offence compared
to that of Section 366A IPC. There is therefore a difference in respect of the
said two offences in respect of the punishment also. Section 366A IPC envisages
a maximum punishment of ten years whereas Section 363 IPC envisages a
punishment of seven years.
the provisions of Section 222 of the Code a provision is made that in a case
where the accused is charged with a major offence and the said charge is not
proved, the accused could be convicted of a minor offence if such a case is
made out though he was not charged with the same.
In the case of Tarkeshwar Sahu v. State of Bihar [(2006) 8 SCC 560], this Court
after relying upon the decision of this Court in Lakhjit Singh v. State of
Punjab [1994 Supp. (1) SCC 173] and the case of Shamnsaheb M. Multtani v. State
of Karnataka [(2001) 2 SCC 577] held that if the offence committed is clearly
covered and have the ingredients of a minor offence, in that event, the Court
is empowered to convict the person under minor offence by invoking the
provisions of Section 222 of the Code.
In the case of Willie (William) Slaney (supra) it was stated by this Court that
the object of the charge is not to introduce a provision that goes to the root
of the jurisdiction but to enable the accused to have a clear idea of what he
is being tried for and of the essential facts that he has to meet. The said
decision was a Constitution Bench decision of this Court which has stood the
test of time and is being followed repeatedly by this Court. (See: State of
W.B. v. Laisal Haque [(1989) 3 SCC 166)]; Kammari Brahmaiah v. Public
Prosecutor, High Court of A.P. [(1999) 2 SCC 52]; Dalbir Singh v. State of U.P.
[(2004) 5 SCC 334]).
So far appellant Nos. 1 and 2 are concerned, there is no evidence on record to
prove and justify that they had any role to play in kidnapping of the
prosecutrix, out of the lawful guardianship without their consent. However, we
cannot record the same finding so far as appellant No. 3 is concerned, for
there is concurrent statement of the prosecutrix on record to show that he was
one among others who took part in keeping the prosecutrix out of the lawful
guardianship without their consent, for they knew fully well as they were
carrying her, that she was a minor and under the age of eighteen years but
despite the fact they took her away out of the custody of the lawful guardian,
without their consent to a place away from home and kept her confined there for
39 long days.
accused No. 3 was in the auto rickshaw where she was put into and when the said
auto rickshaw was driving her away she was sedated by a lady in the presence of
appellant No. 3.
The aforesaid evidence is adduced by the prosecutrix herself and we see no
reason why she should unnecessarily implicate appellant No. 3 when no case of
enmity is made out in between the prosecutrix and the accused No. 3. She was
kept confined for 39 long days after 28 kidnapping her from the lawful
guardianship, and therefore, in our considered opinion the ingredients set out
in Section 363 IPC are made out as against accused No. 3 at least.
Therefore, while acquitting all the accused persons from the charge of offence
under Section 366A and 372 read with Section 511 IPC, we acquit the appellant
Nos. 1 and 2 from all charges. Whereas, we hold that the appellant No. 3 is
guilty of the offence under Section 363 IPC and accordingly we proceed to
convict him accordingly.
Having held thus, we have to pass an order of sentence against the said
accused-appellant No. 3. The incident is that of the year 1992 and 15 years
have gone by, therefore, interest of justice would be sub-served if appellant
No. 3 is sentenced to undergo rigorous imprisonment for a period of three
bond submitted by Appellant Nos. 1 and 2 stand discharged whereas the bail bond
of accused No. 3 stands cancelled and he shall immediately surrender so as to
undergo the remaining punishment.
We make it clear that
the period of detention of the said accused will be set off from the period of
punishment in accordance with law.