wo%^^!« A3?eBench.(^3lJ XS THB HOH'BIiS HISH COBEff Of SSDT.CW'BSB Iff S^SLPVS. eSIHIBAL AE'PB&I. BOi.V->/ /1997. (CRIMISSL APPEAE, ilHDER SECIIOH 374(2) G£ SHE COBE O? eBIBIHffi>,PSOCBDUEE,1973X »*i!s'*E^ES!Si ^•V^ ^-i^?:^<:^^3 ('SHKwardhaB Banlca, .;, . S/o Sbri 6ho©sbap&nka(Oriya) Aged about 18 ;years, R/Q Kbokhopara, Kailashpuri, P.S. Puraai Basti,- Bistt. aaipar(BIP). . —&PPEarART In Jail. -'S -VEBSHS- State of Hadhya Pradesh, Threugh Polic'e Sfca-fcj.en-In-Cbarge, Puraai Basti, Distt. Rai@ar(HP) —BSSPONDEHT. V ST' ~7 <''' r i {a..,seS ''tBSgai ;H'<.iK.'fc8!iig^M (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 637 of 1997 VE&SUS State of Madhya Pradesh Shri Majld A!l.. counsel for the appellant. Shri Vaibhav Goverdhan, P.L. for the State, (07.04.20£1) This appeal is directed against the judgment and order dated 18.01.1997 passed by Fourth Additjonal Sessfons Judge, Ralpur in Sessions Trial No. 331 of 1994 convicting the accused/appellant under Section 363 and 366 of IPC and sentendng him to undergo ngorous impnsonment for three years and pay fine of Rs.500 u/s 363 and rigorous imprisonment for five years and pay fine of Rs. 1,000 u./s 366 of IPC, plus default stipulations. Both the sentsnces were directed to run concurrently. 2. Brief facts of the case are prosecutrix (PW-5) aged about 17 years was taken by the appellant ana flrstiy took r»erto Mahasamund then Katamanji where th'e^ stayed for one night at railway platform and then to Borigaon !n the house of the uncle of the appellant. According to the pro.secutionshe remained with the appellant for about 4 days. On 06.05,1994 a mfssing report Ex.P-17 was lodged by Aasher Mal (PW-l), father of the prosecutrix and ultimately on 10.05.1994 she was recovered from the possession of the accused/appellant at vjliage Burdih, district Kalahandi, Orissa. Dehati Naiishi Ex.P-15 was registered on •<. -^ 1 "- ,3S E^:i^^^^^ -rU-teSt. -2."" 10.05.1995 itself. Case diary st was recorded on 11.05.1994 appeilant took her forcibly from knife and she was subjected to case dian/ statemenfof the father, FIR Ex. P-16 was offence under Section 363, 36©, After compietion of investig; 25.07.1994 against the whereas the Court below framed Sections 363, 366 and 376 ofIPC. satement of the prosecutrix she has alieged that the her house on the point of ?e by him. Based on the isecutrix anci report of her on 11.05.1994 for the 376 and 506 part II of IPC. Chsllan was filed on for the said offences charge against hlm under 3. So as to hold the,accused/apf has examined 13 witnesses in supf of the accused/appellant was also of the Code of Criminal Procedure charges levelled against him and p false implication in the case. 'port of its case. Statement recorded under section 313 in which he denied the leaded his innocence and 4. After hearing the parties the trial the accused/appellant of the offence but convicted and sentenced hlm for Sections 363 and 366 of IPC. Court has acquitted Section 376 of IPC the offence under 5. Contention of the leamed counsel for the appellant is that present is a case of love affair where the prosecutrix eloped w.Kh the appeltant of her own without offering any resistance whjch indicates that she was a consenting party. There js no concrete evidence in respect of the age of the prosecutrix and therefore the appetlant under no circumstance can be con^fcted under section 363 of IPC. Lastly it has been argued that even if the entire case is taken as it is the offence ifnder Section 366 of IPC js not made out aaainst the •^ i i!l!i'KS::!l:l;^US8 -3- appeflsnt because the ingredients of the said section are completeiy missing. 6. On the other han'd supporting the impugned judgment It ha.s been arguecl by. the learned State counsel that the conviction of the accused/appellant is strlctly in accordance with law and there is no infirmi.ty in the same. 7. Heard counsel for the parties and perused the matsriat available on record. including the judgment impugned. The Prpsecutrix (PW-5) in her evidence has stated that she does not know the appellant but thereafter she has stated that she knew the appellant who ls resident of Oriya colony. On 06.05.1995 at bout 3 p.m, the appettant took her from Dewar Bastl, Raipur to Changore Basti by gagging her mouth and making her sit on a bicycle. Thereafter he took her to Babulal Talkies then to the Court by rickshaw and from there took her to Mahasamund by bus. From Mahasamund the appellant took her to Katamanji where they stayed for.one night at railway platform and then she was taken to Borigaon in the hoyse of the maternai uncle of the appellant. According to her, there she was subjected to sexual intercourse by the appellant and at that time his uncle was abuslng him as to why he had brought the prosecutrix. On 10th instant the po!lcs reached there and on 11th she was brought b^ck to Ralpur. She has stated that at the relevant time she. was studying In 8th class and the appellant used to haras.s her. Accordlng to her, she was taken by the appellant from her house. At this stage this witness was declared ho$tile and 'cross-examined by the public prosecutor. In cross-examination, she has stated that she does not know the nleaning of rape.but thereafter she has stated that it is not correct that the appellant inserted his private part into her .^ .;' yt'ff^s prlvate part, She has denied the fact that she was having any love affair with the appetlant and she used to write iove letters (Ex. D-3 to D-7) to hlm. According to her, her date of birth is 15.03.1970, She has admitted that while she was being taken from her'residence, on the way, she saw number of persons and durtng that period her mouth was gagged by the appeliant. Accordsng to her, even when she was sitting on the bicycle, her mouth was gagged by the appellant and he was riding the bicycle by ussng onty one hand. She has stated that at Kalahandi, she made an attempt to come out from the clutches of the appellant but she failed. Father of the prosecutrix Aacher Mai (PW-1) has stated that the date of birth of the prosecutrix is 15,03.1977. On 06.05.1994 at about 4 p.m. his son Vinod came to hts shop and informed him that the prosecutrix is mlssing and when upon search he could not get her, the report was lodged at about 5 p.m. On the second day, he came to know that it was the appeltant who took his daughter and thereafter his daughter was recovered from the house of the appellant situated at Kalahandi. According to hjm, since !'ast two years the prosecutrix was not pursuing her study, He has admitted that Ex. D-l is the photograph of the prosecutrix and the appellant. iuresh Kumar (PW-2) is a witness of seizure Exs.P-4 & P-5 by'-Which undergarments of the appeltant was ssized. Dr. P. K. Banerjee (PW-3) is the radiologist who performed the ossification test of the prosecutrix has opined that at the relevant tim.e she was aged about: 14 to 16 years which may vary two years on either side. Mother of the prosecutrix Shanti Bai (PW-4) has made atmost similar statement as has been made by her husband Aacher Mal (PW-l). She has aiso admitted the fact that sjnce last two years her daughter was ^:.-tiS^^S^e^ '"•'^-.'.K^SSf' -5'- not pursulng her study and Ex, D-l js ths photograph ofthe prosecutrix and the appellant, She nas admitted that she is maklng her statement in the court as jnformed by her counse!. Smt. Sudha Thakur (PW-6) Is the schooS teacher who brought the admission register of the school (Ex. P-12), As per the reglster, the date of birth of the prosecutrix is 15.03.1977. This witness has ptroved the transfer certifjcate Ex.P-13 issued by the schooi showing the date of birth of the prosecutrix as 15.03.1977. However in cross-examinatton she has categorically deposed that she !s not aware as to who got the prosecutrix admitted in the school. According to her the date of birth of the prosecutrix was registered in the schoo! on the basis of 5th ciass transfer certificate and at the tlme of admission birth certificate is not reauired. The rickshaw pullar Chinta Ram (PW-7) has not stated anything against the appellant. According to this witness, the prosecutrix was recovered from the house of the appeliant. Vijay Kumar Bajaj (PW-8), brother of the prosecutrix has stated that at the reievant time the prosecutrix was about 16 years of age and she was recovered from the possession of the appellant vlde Ex. P-14. Netram Yadav (PW-9) is a seizure witness of bicycie Ex. P-1 has not stated anythlng against the appellant. Indra Bahadur Singh (PW-10), the Head Constable recovered the prosecutrix vide Ex.P-14 and also done part of investigation. The Constable Prakash Chandra Nagrachi (PW-11) took part in the tnvestigation. Dr. Smt, A. Bose (PW-12) who medically examined the prosecutrix vide Ex. P-2 has not found any intemal or externa) injury on her person and her hymen was otd torn. According to her, no 'definite opinion could be given about the commission of rape. Dr. Sanjay Pandey (PW-13) who medically examined the accused/appellant vide Ex.P-23 has sii'; '\ stated that the appellant was capabte of performing sexual intercourse. lt^:^^.;tl^gl@ 9. Minute examination of the evidence in particular that of prosecutrix makes it dear that on ths date of incident the prosecutrix eloped atong with the appellant. They first wsnt to Mahasamund then Katamany where they stayed for one night at railway piatform and then to Borigaon in the house of the uncle of the appeltant and from there she was recovered on 10.05.1994 by the police. Thus, from the conduct of the prosecutrix it can be easily said that she was a consenting party. As regards conviction under Section 363 of IPC, the prosecution has not coltected any materjal to show that on the date of incident the prosecutrix was below 18 years of age. As per the prosecutrix her date of birth is 15.03.1970 and if thls is consictered to be a typing mistake, as per the documentary evidence her date of birth is 15.03.1977 but there is no isgatly admissible evidence on record to confirm thls fact. Even as per the ossification test; at the relevant time, age of the prosecutrix has been assessed as 14-16 y6ars. According to the radiologist, there may be a variatlon of two years on elther side. The other corroborative piece of evidence in respect of her age is the school leaving certtficate of the prosecutrix but Sudha Thakur (PW-6), the schooi teacher has stated that she fs not aware as to who got her date of birtti recorded at the time of admission in the school >. / certincate is not required at the time of admission. iource of exact age of the prosecutrix is completely mlssing in this case. This apart, the prosecution has not been able to prove the fae£that the prosecutrix was taken by the appellant from her lawful guardianship which is one of the basic jngredients for convicting the accused under Section 363 of IPC. AS regards conviction under Section 366 oflPC, there is i»ff --?- no evidence on record to show that the prosecutrlx was abducted or kidnapped by the appeilant with intent that she may be compelled to marry with him against her will or she was forced or seduced to illicit intercourse. More so the prosecutrix appears to be a shaky witness and whotly unreliable because in some pjaces she has deposed that she was subjected to rape by the< appellant whereas in some p!aces she has denied the sasd fact and uttimately she was declared hostile. Thus, considering all the aspects of the case, thjs Court finds it difficult to uphold the convictton of the appellant as awarded by the Court below. Judgment impugned sentencina the 10. Accordingly, the appeal is aitowed. dated 18.01.1997 convictlng and accused/appellant is set aside. Appellant charge teveiled agamst him. Since the appellant is on bail, his bail bonds stand discharged. Sdi- Pritinker Diwaker Judge ^. /