/W Wm n 1 CF0000061 608 L Single‘VBenc'n (Cr'tmina !) 5 T HGHE‘ TE‘‘ JPUR 97"» rA C..No. lCif: E ‘ 2) RM‘Im APPALUNDER- ‘SECT'ION 374 (‘ Jagsh Chndra Rai aas Chotu, ai g li h aged 20 years sen of Narayan Chan¢¢é Rai resident of Bhatkhande Sngeet MahaV1da1a {aj T1.krapar} P S City Kotwali laspur, Tahsll 9. V» \ / / Bi ‘a / md District Bil aspur, M.P W Vs ersu v T a Madha 'sk’i he Stte \ef‘ y Prade' .. . CONVCT: ET s 366 Lac/ R y / / Lfor fcMr ears. and flrte 500 i dfat dit Ry n eul adzonal on . IN HE ICOURI‘ OF JUDICAURWI ABAL )\35\ of 19 / v / , y§ Eliq IION SNENCE 3 " u/ f HIGH COURT OF CHHATTISGARH AT BILASPUR Hon’ble Mr Justice Prltlnker Dlwaker Crlmmal Appeal No. 481/1997 \\\ Jagdish Chandra Rai auas Chhotu \\" APPELLANT Versus RE:sP0NDENT State of Madhya Pradesh Srl Raw Bhagat counsel for the appellant Smt Smlta Ghal PL for the State l ' CRIMINAL APPEAL UNDER SECTION 374 (1! OF THE CODE OF CRIMINAL PROCEDURE i JUDGMENT 1 > (22 o3 2011) I This appeal Is durected agamst the Judgment and order dated 2721997 passed by Additional Sessmns Judge Bllaspur In Setssmns Trlal No 319/1995 conwctlng the accused/appellant for the offence pumshable under Section 366 IPC and sentencmg hlm to\ undergo rrgorous Imprisonment for four years and pay frne of Rs 500 In default of payment of fine to further undergo rigorous rmrimsonment for srx months 2. V Facts of the case in brief are that on 152.1995 FIR Ex. P-1 was lodged by the pro'secutrix (PW-1)-aged about 16 years alleging that for last one and a half years thereto the accused/appellant used to harass her saying that he loved her and wanted to marry her It is also alleged that when she refused to accept the offer of the acdused/appellant, he used to say that he would consume poison and would implicate her. On 14.5.1995 the accused/appellant is alleged to have visited the house of the prosecutrix and again asked ‘ her to accompany him as he wanted to marry her and if she did not do so, he would end his life in front of her house itself. When she ?efdsed to accompany him’saying that her parents had already hxed her marriage elsewhere, he told her that he would not let anyone marry her andwould propagate the matter among the members of her prospective matrimonial home lt is alleged that on that day at about 4 a m he again came to her on a motorcycle and took her on it up to the house from where he had picked up the same and after h @ *2.— parking it there he hired a rickshaw and teok her to the railway station and then by catching the train they went to Bhilai where she was kept in a house taken by him on rent by introducing himself and the prosecutrix to the Iandiord as husband and wife, and committed forcible sexual intercourse with her several times. Based on this FIR, offences under sections 363, 366 and 376 IPC were registered against the accused/appellant and after investigation the challan was fled by the police on 3O 6 1995 for the said offences and the charge was framed by the court below accordingly 3. V. So gas to hold the accused/appellant guilty, prosecution has examined 09 witnesses in support of its case. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4.‘ After hearing the parties, the trial Court has acquitted the accused/appellant of the charges under sections 363 and 376 but cOnvicted and sentenced him as mentioned above in paragraph No.1 of this judgment. “i 5.: Counsel for the accused/appellant submits that even if the entire case of the prosecution is taken as it is the offence under Section 366 IPC is not made out against the accused/appellant because there is no evidence on record to show that the prosecutrix was in any manner compelled by the accused/appellant to marry him or any force was used against her by him for taking her along with him. Moreover, according to the counsel for the appellant, the evidence shows that the prosecutrix accompanied the accused/appellant of her own without offering any protest thereto. 6. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the accused/appellant took the prosecutrix away on the assurance of marriage and as he did not keep his promise and left her in lurch by spoiling her entire life, there is no illegality or infirmity in the findings recorded by‘the Court below. #3“ 7. Prosecutrix (PW-1) has stated in her evidence that on the date of incident when she was sleeping in her house along with her maternal grand-mother, at about 11 p.m. accused/appellant came there, woke her up by putiing her hair and asked her to accompany him. On this, she told him that as her marriage was already fixed somewhere else, she would not go with him but the accused/appellant persistently asked her to get ready and come out of her house. According to her,‘on the date of incident her marriage was already fixed with one Mahesh of Navagarh to be solemnized on 17‘“ July. According to her, when after ignoring the offer of the V .s accused/appellant she had gone to sleep, he again came to her room and asked her to accompany him and on her refusal to do so he hao slapped ‘her also. This time again she refused to accompany the accused/appellant and went to sleep but 10—15 minutes thereafter, he again came to her and repeated the same thing to accompany him and then. she got ready and came out of her house perforce to go in his company. According to her, even after coming out of her house, she had asked the accused/appellant not to go with him on which he used to say that in that case he would end his life and put her to defamation in the society. 'l'hen after making her sit on his motorcycle he took her up to a plaCe known as Mannu Chowk and after returning the motorcycle to its owner he hired a rickshaw and took her to railway station where he told her that he would take her to Bhiiai and kept in his sister-in-law’s house. On his sister-in-law’s putting a question to him as to why he had brought her there, he told that he would marry her. After some time he took her to a rental house and on being asked about her by the land lord, he introduced her to be his wife. According to this witness, in the night the accused/appellant had removed her clothes and asked her to sleep with him but though she was not ready for that, he made her to do so and committed forcible ,sexual intercourse with her two-three times. ln the morning after getting fresh, she took the breakfast brought by the accused/appellant and then at about 11 a.m. went to the market with him where he had purchased a salwar suit and other house hold articles. After returning from the market the accused/appellant had .told her that after getting married they would \a -Q" live there itself. Thereafter whenthe accused/appellant fell asleep, the land lord came there, took him outside the house and asked him to speak truth whether he had brought prosecutrix by making her run away on which he told him to have married her. According to her, at that time one policeman was also there and he had also put the same question to the accused/appellant as by the land lord. Thereafter, in the evening the accused/appellant brought her to Bilaspur by train and took to ‘his house 'where she stayed in the night. In the next morning his family members informed her parents about her presence in their house and asked them to take her back. Thereafter, her mother came there and took her back with her. Meanwhile, her brother also reached there and said that he would not t‘ake her ‘back and cut her into pieces, on which the accused/appellant put a silver chain around her neck saying that he would. marry her. On seeing this, mother of the accused/appellant started pressing her neck and slapped her also saying that she had snatched away her son. According to her, when the members of the society had asked the accused/appellant whether he would marry her he showed his agreement for the same She has stated that even the brothers of the accused/appellant were ready for her marriage wrth the accused/appellant Thereafter the members of the socrety took her to godown of Sanrcharl Bazar asking the accused/appellant also to come there but even after waiting for three‘ heurs, he did not reach. Subsequently, she came to know that the accused/appellant had gone to lodge the report that one Bandhu Kachhi had come to his house with a rifle and threatened his family members. Thereafter, she, her mother, aunt and said Bandhu Kachhi also went to the police station and lodged the report against the accused/appellant. According to her, she then was sent for the medical examination and her cloths were seized by the police. From her cross examination, it is apparent that she had enough opportunity to escape from the clutches of the accused/appellant while being taken from her house to the railway station and then to Bhilai by train. Evidence also makes it clear that even at Bhilai she was all alone in her house for sufficient long time ..‘$‘ but instead of disclosing the incident to the perSons of neighbourhood, she chose to stay by keeping quiet. The prosecutrix herself has admitted that when she Iodged the report against the accused/appellant, one Bandhu was with her and it is at his instance that she had done so stating that she was subjected to forcible sexual intercourse by him. When a question was put to her by the Court about whether she was subjected to sexual intercourse by the accused/appellant, she replied the same stating that the report was lodged to that effect at the instance of local people but in fact she was pot subjected to sexual intercourse by the accused/appellant. She has further stated that her mother was keen to see her marriage with the accused/appellant and when the efforts for compromise had failedfthe decision to lodge the report was taken. According to the prosecutrix, another reason for lodging the report was that a prior report was lodged by the mother of the accused/appellant. She has admitted that had the report not been lodged by the mother of the accused/appellant, she would not have lodged the report against him. She has admitted that had Bandhu not taken her to the police station, she and other family memberswould not have gone to the police station to lodge the report. She has also admitted that said Bandhu creates nuisance in the society and his frequent visit to jail IS Common. Sakun Bai (PW—2) — the mother of the prosecutrix has stated in her evidence that marriage of the prosecutrix was fixed with a boy of Navagarh and when on the date of incident she had returned home after distributing the wedding cards, the prosecutrix was not there. According to this witness, marriage of the prosecutrix was to take place on 17‘“ July and on 16‘“ July the familymembers of the accused/appellant had asked her to take her daughter back and then'after being driven out by them, the prosecutrix had returned home. Dr. Shekhar Chaterjee (PW-3) is the witness who had taken x-ray of the prosecutrix and given his report Ex. P-2 has stated that at the relevant time she was about 17-18 years of age. Sub Inspector namely Ku. Maya Sharma (PW-4) is the witness who had taken the prosecutrix for medical examination and made seizure of _g_ cloths of the prosecutrix vide Ex. P-6. A.S.l -VG.R. Bhagat (PW-5) is the witness who had done part of the investigation. Jamuna Prasad Pandey (PW-6) is the witness to seizure of certain articles made under Ex. P-6 and Ex. P-7. H. Kerketta (PW-7) is the witness who had done part of the investigation. Dr. \Niiima Sharma (PW-8) is the witness who had medically examined the prosecutrix and given her report Ex. P-15 stating that her hymen was old torn, no injury was present on her person and that no definite opinion about rape on her could be given. Guddu alias Kirshna Kumar Kashyap (PW-9) — the brother of the prosecutrix has not supported the case of the prosecution and has been declared hostile. 8. Io comprehend the things properly, a reference to the basic ingredients of Section 366 IPC appears to be necessary, which reads as under: “366. Kidnapping, abducting or inducing woman to compel her marriage, etc.- Whoever kidnaps or abduCts and woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to many 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 imprisonment o either description for a term which may extend to ten years, and shall also be liable to fine" According to the dehnition given in Section 361 IPC kidnapping means: ' “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 other person of unsound mind, out-of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent'of such guardian, is said to kidnap such minor or person from lawful guardianship.” According to definition given in Section 362 abduction means: “Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person." A bare perusal of the material available on record goes to show that the accused/appellant had never compelled the prosecutrix by any deceitful means to accompany him for the purpose of marrying her n: @ L nor was she forced or seduced to illicit interqourse by him. On the contrary, it is revealed from the evidence of the witnesses that the prosecutrix accompanied the accused/appellant of her own and went first to the railway station and then to Bhilai by train and in spite of having sufficient opportunity during this long period, she did not make any effort to come out of his clutches even after coming across several persons on the way. More so, at one stage the prosecutrix says that she was subjected to sexual intercourse by the accused/appellant thrice but later she resiles from it and states that v7- no intercourse had taken place with her. Record also shows that the " . report was lodged by her at the instance of one Bandhu and other family members. More startlingly, the prosecutrix herself has stated thathéd mother‘of the accused/appellant not lodged the report, she also would not have done so against the accused/appeilant. As regards her age, Dr. Shekhar Chaterjee (PW-3) who had taken x-ray of the prosecutrix and given his report Ex. P-2 has categorically stated that at the relevant time she was about 17-18 years of age and if margin of two years applied thereto, she was undisputedly major on the date of incident. 9. To sum up, the evidence of the witness‘és particularly that of the prosecutrix is too untrustworthy to inspire the confidence of this Court. .The view taken by the Court below convicting the accused/appellant under Section 366 IPC being based on mis- appreciation of the evidence available on record needs substitution by way of correctional one. 10. Accordingly, the appeal succeeds. Judgment impugned is hereby set aside. Accused/appellant is acquitted of the charge levelled against him. He is on bail. His bail bonds stand discharged. J Sdl— Pritinker Diwaker Judge