Aggellants HIGH COURT OF CHHATTISGARH AT BILASPUR N SB: HON’BLE SHRI R.N. CHANDRAKAR. J Criminal AQQeal No. 297 of 2003 Resg’jondent The State of Chhattisgarh. ‘ v Teepo alias Poonam Kashap “u? POST FOR PRONOUNCEMENT OF JUDGMENT Sd/~ JUDGE $ -10-2009 ‘ / — l HIGH COURT OF CHHARTTISGARH AT BILASPUR S.B:— ‘ Hon’ble Shri Justice R.N. Chandrakar Criminal Appeal No.297l2003 Ieepo alias Poonam Kashyap, aged abOut 25 years, S/o Shri Late Gajanand, resident of Nayapara, Old Post Office, Jagdalpur, Distt. Bastar (CG) Appellant Versus Respondent The State of ChhattisgarhThroughz-‘Police Station — Aadim Jaati Kalyan, Jagalpur, Distt. Bastar (CG) ‘e‘f (Appéal under Section 374 (2) of Code of Criminal Procedure) $ Present: Shri Avinash K. Mishra, counsel for the appeilant. Shri Rakesh Jha, Dy. G.A. for the State. JUDGMENT (Delivered on this g *wday of October, 2009) This appeal is directed against the judgment 9f conviction and order of sentence dated 25.01.2003 passed by the learned Special Judge, Jagdalpur (CG) [constituted under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities] Act, 1989 (hereinafter referred to as the ‘Act‘) in Sessions Trial No.353/2002, whereby the appellant has been convicted under Sections 363 and 366 r/w Section r/w Section 109 of IPC and sentenced to undergo R.I. for three years and to pay fine of Rs.1,000/—, in default of payment of fine to undergo further R.I. for 6 months respectively . Both the sentences are directed to run concurrently. \I (2) The case of the prosecution, in brief, is that on 26.02.2002 in the evening the prosecutrix Kamlar(PW—6) accompanied Narsingh on his bicycle for wondering. He took the prosecutrix to Kumharpara Chowk and told that he was asked by:the appellant to bring and keep her at Bakawand. He brought her to Bakawand and kept her'in thehouse of his relative and awaited the appellant. On the next day, Narsingh left her alone on the road of Bakawand and went away. Bjalmati (PW-4), the mother of the prosecutrix lodged a report about missing of her daughter in the Police Station Bodhghat, on the basis of which, the Police registered the report of missing person bearing No.08/2002 (not p exhibited) ‘3; 26.02.2002. On the next day, Asharam Mourya (PW-5) and age i Jagdish (not examined) went to search and found her at Bakawand. They brought Kamla to her h‘ouse where she narrated about the incident to her s mother. Thereafter, information regarding return of Kamla was given‘in the P.S. Bodhghat, whereupon F.l.R.(Ex.P—3) was registered on 12-3-2002. (3) After closing investigation, charge—sheet was filed in the competent court ‘ who in turn committed the case to the court of Sessions which was transferred to the court of Special Judge, who framed charge against the ‘— accused/appellant under Sections 363 and 366 r/w Section 109 of IPC. After recording the evidence of the witnesses, the statement of the accused/appellant was recorded under Section 313 of Cr.P.C in which he denied the circumstances appearing against him and pleaded innocence and false implication. The learned Special Judge, after due trial, convicted and sentenced the accused/appellant as mentioned in para-1 of the judgment. Aggrie‘ved thereagainst, the appellant preferred the present appeal. (4) Learned counselfor the appellant submits that the findings of the trial Coud are against the settled principles of law and material available on record. t The trial court seriously erred in convicting the appellant for offences punishable under Sections 363 and 366 r/w Section 109 of the IPC. The trial Court seriously erred in holding that the prosecution proved that the prosecutrix is below the age of 18 years. it is submitted that there is no legal and cogent evidence on the point of age. it is further submitted that the trial Court seriously erred in not considering the fact that the prosecutrix left her house at her own will without the knowledge of her guardian and later on she accompaniied the alleged co-accused Narsingh and enjoyed the fare (Mela). He also submitted that at no point of time the appellant met her till she returned home. t The trial Court further erred in not considering that there is no ingredienti of taking or/and enticing away the proseCutrix in the case and as such there is no ingredient to bring the case within the definition of “abduction”. f—lence, no offence u/S. 363 and/or 366 read with Section 109 of the IPC is made out. The trial Codrt seriously erred in acting on hear-say evidence with respect to the statement of the alleged co—accused in convicting the appellant. lt is further submitted that the alleged evidence is neither admissible nor can form a basis for conviction of the appellant. Lastly he submits that considering all the facts and circumstances of the case, the impugned judgment be set aside and the appellant be acquitted of the charges. (5) Per contra, learned Panel Lawyer for the Stateargued in support of the impugned judgment. (6) Having heard learned counsel for the parties, l have perused the record ._.- of the Special Court as also the impugned judgment. ‘ (7) The prosecution in order to prove the guilt against the accused examined six witnesses. (8) PW/6 Kamla, the prosecutrix stated in her deposition that on the date of incident Narsingh (co-accused) asked her to go for wondering and took her to Kumh’arpara on a bi-cycle where the appellant met them. The appellant forcibly caused her to sit in a taxi, Narsingh took her to Bakawand and they reached Bakawand at about 7.00 pm where she was kept in the house of relative of ‘- Narsingh and stayed there for whole night. On the next day, she was taken to 4t é CQX the market by Narsingh who frequently used to contact the appellant by telephone; Thereafter, Narsingh left her alone in the‘market and went away where Jagdish and Asharam (PW/5) met her. Thereafter, she came to her l ‘ house alohg with them. 'She narrated the incident to her uncle. There are 1 ‘ contradictijons, omissions‘and improvements in the statement of the prosecutrix in View ofl her statement given to the Police. ln her cross examination she denied the suggestion that she was in love with the appellant but in her police statementfshe stated that she was in love with the appellant. On perusal of her police statement, it is clear that she never met the‘a‘ccused/appellant at any point of time but it was only Narsingh who took her to Bakawand. . as i Thus, looking to the contradictions, omissions and improvements on material ’A ‘a ' _ V point in the statement of the prosecutrix, her deposition cannot be held reliable. (9) PW/4 Balmati, the mother of the prosecutrixstated in her deposition that on 26-2-2002 when she returned from duty, her daughter was not found in the house. On this, she enquired her neighbours about her daughter and came to know that Narsingh had taken her daughter on a biucycle. Thereafter, she sent Asharam (PW/5) and Jagdish to search her daughter who found her in the market of Bakawand. She further stated that the prosecutrix told her that she was taken away by Narsingh. On this, she enquired Narsingh who told her that the appellant had asked him to bring the prosecutrix to Bakawand. lt was also stated out to her by Narsingh that he was threatened to kill, if the prosecutrix was not brought to Bakawand. On 27—2-2002 at about 4.00 p.m. ‘ the prosecutrix was brought to her house by Asharam and Jagdish. She further stated that it was not stated out to her by the prosecutrix whether she had met the appellant or not. She admitted to lodge a missing report about her daughter on 26-2—2002 and after getting back her daughter, she intimated about the same to Police Station, Bodhghat, on the basis of which the Police 1 recorded her statement. In her cross examination, she admitted that the appellant was acquainted with her family. She further stated that she did not " i i wa n wa rk. t A a .. did t no ut the inidet. He only knew th Narnh had taken away the prosutrix. e denied almost all he eadig quetions put to him b the know whether the appellant and her daughter were in love. She further admitted that on enquiry Narsingh stated out that he took the prosecutrix to Bakawand as the appellant had asked him to do so. She further admitted that ‘_ she did not enquire the appellant about the matter. There is contradiction and omison th statemet of thi witness in view of'her police tateet. On perusal o er deposition this wies appear to be hear-say itns as th story a narted by the -accus Narsingh. 10) P/5 sharam, who along with Jaish (not examined) went to search th proseutrix, h not rroborate the statements of th rosecrix and h moth. u his f witness was declared htile. He categoilly stated that the prosecutrx s found aloe in Band maet In para 5 he stated tha he no kw abo cn at sig ec H t ln s y prosecution 1) S far s the en une ctions 363 is concerned, it is nessary to prove that the age of the proecutrix was below 18 years at the time o i f ca n 1 o a offce dr Se ec s f ncident as provided in Section 361 o the IPC. In the present se, either ere n documentar nor medical evidence avilble n record, ct th th is ay y aa o exep e oral evidence of Balmati (PW/4), mother of the prosecutrix. In para 1O of the ‘- impugned judgment, the trial Court wrongly held that the prosecutrix was below 18 years of age relying upon the oral evidence of Balmati (PW/4) which is not admissible in the evidence. 12) On perusal of the record, it is clear that the ingredients of Section 366 of the IPC are not proved by the prosecution. There is no evidence on record to the effect that the prosecutrix was kidnapped or abducted by the appellant or by the co-accused Narsingh with any criminal intention as provided in Section 366 of the IPC which reads as under: T‘ “ 366. Kidnapping, abducting or inducing woman to compel her marriage, eta—Whoever kidnaps or abducts any woman with intent that she may be compelled, or si In e n s smn f h tns s wes e ws lra coed W A gd e C as cod e put er er T os rca . 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 iikely that she will be forced or seduced to illicit intercourse, shall be punished with 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" " 13) Thus, considering all the facts and circumstances of the case, it appears that there is only evidence that the prosecutrix went with the co—accused to visit akawand‘f‘air on her own will. lt is also clear that the prosecution failed to establish the age‘of the prosecutrix below 18 years and agy criminal intention of i the appellant; So far as the offence u/S. 109 of the IPC is concerned, as the prosecution miserably failed to estabsh the offence u/S. 363, 366 of the IPC against the appellant, therefore, the question for abetmentxdoes not arise. i 14) In view of the aforesaid discusson, the appeal succeeds and is allowed. The impugned judgment of the trial Court is set aside and he is acquitted of the charges. His bail bonds stand discharged. The fine amount, if deposited, shall be refunded to the appellant forthwith. Sdl- > R.N.Chandrakar Judge g,io.o$ *\ i Raju . v B li