CF00000627'06 IN THE HIGH COURT OF JUDICATURE AT JABALPUR CRIMINAL APPEAL NO. {‘3 L3DF 1999 CRIMINAL APPEAL UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE r 1 973 . APPELLANT: Puneét Ram son of Dayaram Verma, (IN JAIL) / aged about 25(&ears,Resident of / Village Kusmi, Police Station Palari, District — Raipur (M.P.) VERSUS RESPONDENT : State of Madhya Pradesh ' f, H16?! COURT OF ¢HHATTI$6ARH AT BlLAsPUR Single Bench : Hon'ble Mr. Justicg Prmnker Diwaker Criminal Appeal No. 1313 of 1999 APPELLANT Punee’r Ram son of Dayamm Verma Versus Sm're of Madhya Pmdesh RESPONDENT Shri Shivendu Pandya, caunse! for 'rhe appeuam. Shri Vaibhav A. $overd‘han, Pmel Lawyer for The 5mm. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL mocgouaa JUDGMENT (30.06. 2010) Present appeal arises cu? of fhe impugned judgment md or-der' dared 5.4.1999 passed Vby Firs? Addifional Sessions Judge, Baioda Bazar, Dis‘r’r. Raipur in Sessions Trial No. 312/1993 conviciing the accused/appellant under Sections 366 and 366 of fhe Indian Penai Code and semencing him To undergo rigorous imprisonmeni‘ for five years and 'ro pay fine of Rs.5,000/-, in defuuit of payment of fine 1'0 further undergo rigorous imprisonmenf for one year, on each count 2. Case of The prosecution in brief is fha'l’ on 6.4.1993 FIR. (EXP-1) was iodged by Jeevrakhan (PW—1) alieging fhaf on 3.4.1993 his daugh‘rer Phuieshri Bai (PW-17) and Romeen Bai (PW-11)- daughfer of one Ifwari (PW-7) is missing. In this report if has been aiieged by the complainant that extensive search was made to get the whereabouts of Phuleshri Bai and Romeen Bai but they could not be traced and information has been given to him by one Sohanlal (PW-8) that he had seen the accused/appellant in the company of Phuleshri Bai and Romeen Bai. It has also been mentioned in the FIR. that complainant has doubt in his mind fhm Phuleshri Bai and Romeen Bai have been aliured and taken by the accused/appellah’r. After investigation chailan was fiied by the paiice on 21.6.1996 for #he offences under $eciions 363 <3; 366 of fhe Indian Penal Code. 3. So as fa hold 1'0 accused/appeiian'r guiity, prosecution has examined as many as 17 witnesses in wppor't: af-f‘ifs case. I Siatemen’r‘of ihe accused/appeiianf “ids aiso recarded under’ Secfion 313 of The Code of Criminal Procedure in which he“ denied The charges levelled against him md pleaded his innocence and false implication in fhe case. 4. Affer hearing the parties the-trial Court has convicted and sentenced the accused/appellant for the offences as mentioned above. Hence this appeal. 5. Learned counsel for the appellant submits that even if the entire case of the prosecution is taken as it is, offence under Section 366 of the Indian Penal Code is not made out against the accused/appellant. He submits that there is no evidence on record to show that Phuleshri Bai (PW-17) and Romeen Bai were kidnapped or abducted or induced by the accused/appellant to compel them for marriage. It has also been argued that both Phuleshri Bai (PW-17) and Romeen Bai went alongwith the accused/appellant with their consent and/ ‘ also with the consent of their parents. / 6., On the other hand, supporting the impugned judgment it has been argued that prime facie the offence. under Section 366 of the Indian Penal Code is made out and therefore, the coviction of the accusedlappellant is in accordance with iaw. 7. Heard ¢ounsel for the parties mad perused the mafariai avaiiable on rmard ingluding judgment impugngd: 8. Jeevmkhan (PW~1) — Iodgér of the F.I.R. and fmher of Phuleshri Bai (PW-17) has stated That Phuleshri Boi is his daughfer' and withouf his consent the accused/appetianf Took her To Raipur and when she hemmed hack, she had informed him 'thot she had gone to Raipur m see 1'he stmue of ganjgri Mam He has alse sfaTed tha? his daughter had gone along with Romeen Bai. In The cross-examination this witness has stated fhai Phuleshr'i Bai (PW-17) and Romeen Bai (PW-11) had taken his prior permission to visit the tempie‘of Banjari Mata and even the fare was paid by him and only thereafter the accused/appeiiant took both Phuieshri Bai (PW-17) and Romeen Bai (PW—11). He has further stated that he lodged the report simply because he had the apprehension in his mind that her daughter had been lost in the fair. He has further stated that appellant had not taken his daugher after alluring her. Itwari (PW-7) - father of Romeen Bai (PW-11) has stated that the accused/appellant is brother of his son-in—law and on the date of incident he took his daughter and Phuleshri Bai after taking his consent. Romeen Bai (PW-11) - who was allegedly taken by the accused along with Phuleshri Bai (PW-17) has not supported the prosecution case and has been declared hostile. Similarly, Phuleshri Bai (PW—17) has also not supported: r/“ the prosecution case and has been declared hostile. She has F stated that of her own she went along with the accused and V Romeen Ba: (PW-11) was aiso with them. She has fumes sfmed that accused/appeuam is distantiy rekrred ‘m her and she wen? along with him offer obfaining prior permission of her mother- and fafhgr. Thg o1her impgrmnf witnesses nameiy Pmhlad Kumar (PW—5), Sohanlcd (PW—8), Ramnafh (PW-12) and Kewm Bai (PW—16) have no? sJppor'fed *he pmsecution case and have been declared hosme. 9. If the entire evidence is viewed minutely, there is absoiuteiy no evidence on record on which basis it can be said v that on the alieiged date of incident Phuieshri Bai (PW‘17) and Romeen Bai were kidnapped or abducted or induced by the accused/appeiiant. Thus, the conviction of the accused/ applicant under Section 366 of the Indian Penal Code is not sustainable in the eye of law. s 10. In the resilt, the appeal is allowed. Impugned judgment dated 5.4.1999 is set aside. Appellant is acquitted of the charges levelled against him. He be set at liberty forthwith if not in any other case. The fine amount, if any, deposited by the appellant be refunded to him. l ji Pritinker Diwaker y Judge Sd/- DI-