z- m.“ mwwmmmvu m - w ‘ u,-., H . Present: ‘ Shri Abhay Tiwari, Shri M.P.S. Bhatia, vocate for the appellant. .L. for the State. (13t Dhirendra. Mishra, J This'» appeal is d rected against the judgment of tence dated 22.4.2006 passed in S.T.No. 257/05 whereby l arn'ed‘ III Additional Sessions Judge,’ ‘Ambikapur, Surguja- h conviction and order of convicted the appellant under Sections 366, 344, 346 of the IPC and sentenced him to undergo 7 years’ R.I. 85 a fine of Rs. 500/—, 1 year’s RI. 85 pay a fine of Rs.100/—, 1 ear’s‘RJ. 85 pay a fine of Rs.100/— respectively and in defa 1t of payment of flne to undergo d o h n a p . . ama—qyswww .. 2 HIGH COURT OF C é 5 E 'S’ :E CRIMINAL ‘ E “ Appellant S lim @ Sanjay S/o Ashik Shaikh " ' salman aged —22 years, R/o. Ukai v P t RS. Sanna, Distt—Jashpur Nagér, C G. ’~Rés'p6ndent ' S ate of C.G. XI-HC—22 i'''v w'W“mwww" additional VS.I. fOr 1 mont , 10 days and 10 days, respectively. A11 the sentences have bee directed to run concurrently. 2. Case of the prosecu 'on, 1n brlef 1s that Mohd Suleman Khan (PW 2) lodged a r port m Pollce Stat1on — Kusmx on 2.3.2004 at about 6.40 a . ment1on1ng therem that at about 12.00 mid/night on 1.3.2 04 he was asleep in his house with . ihis‘family,‘ he heard kn Udoor 'and when the per that they shall set their h use ablaze, the door was opened by his Wife Zahida. They t ok the prosecutrix, daughter of the » complainant,» at gunpoint n their martial jeep. They were eight in number-including the resent appellant, Taslim-brother—in- law of the appellant and empo—brother of the appellant. It is also mentioned in the re ort that before knocking the door, The mmi”nmim 'mvmmwwwmva'v 'm at his door,rthey did not open the knocking at the door threatened houses of all the neighbo rers were bolted from outside. complainant could not identify other co—accused persons because of darkness. Du ing investigation the vehicle involved in the offence was seized n 2nd March 2004 itself Vide seizure memo of EXP/8. the information of father of the rprosecutrix, she was reco ered from Delhi Vide recovery memo of EXP/6. The prosecu ix was sent for medical examination to Community Health Ce ter, Shankargarh where Dr. Smt. J. Lakda (PW-7) examined h and gave her report of EX.P/ 14. wr . o s ww s O XIvHC-22 ‘a t. I Lm'-wr wm. wmww 3. After completing investigation charge sheet was flled in the Court of: Judicial Magistrate First Class; Ambikapur. During ‘trial the prosec tion examined seven Witnesses. ‘Thereaft'er, statement of tw‘wmmwmmwm " WWW ’ mm»7 e accused :was recorded under Section‘ 313 of the C .P.C. in which he‘ denied the circumstances appearing gainst him :in the 'prosecution case ‘ and pleaded innoCence an false implication. 4,.- Learned - trial Cou after hearing counsel for the ~co victed and i sentenced the > respective r . parties accused/appellant as ment oned above 5. Learned counsel for the appellant submits that in fact negotiation of marriage o the prosecutrix With co-accused Taslim was going on and the Madarsa the parties had agreed for the marriage and accor ingly, father of the prosecutrix had put his signature in the re ister. On the date of incident also the prosecutrix accompani d the accused persons voluntarily, Visited several places and hereafter she joined a job at Delhi and at no point of time s e made any effort to return to heri parental home or lodge a eport in the police station. Thus, conduct of the prosecut clearly shows that she was a consenting party and was 0t in fact abducted. 6. On the other han Shri Bhatia, learned counsel appearing for the State respondent supported impugned i i r , XI—HC—22 k J ‘hhhm'wwmwwv judgment of the trial Cour‘. and submitted that there is a clear allegation that accused prersons went to‘the house of the complainant at 12.00 in t e mid night, before knocking door of the complainant they bol ed doors of'the neighbourers as a precautionary measure so hat they should not come to rescue the complainant. Therea er, the complainant was forced to open the 'door under th threat and the prosecutrix»was abducted on the‘gunpoint. The allegation against the present ‘appe’lla‘nti'ha'shbeen clearl established from statement of the ' prosecutrix Who has stat that she was abducted from her house by the appellant nd seven others, she was taken V forcibly in a jeep and kept confinement under threat at Delhi and thereafter she could rescued only with the help of the police as she communicat d about her abduction and addres through a co—worker. i(mim“tm w«wmmwut _ 'av 7. I have heard learned counsel for the parties and perused the material available o record including the impugned judgment. 8. PW—lprosecutrix ha stated that on the date of incident it was 12.00 mid night the heard knock at their door, they did not open the door, ho ver, when the accused persons threatened that they will et the house on fire, the door was opened by her mother. Th reafter, the accused persons on the threat of gunpoint asked a out her father and when she V_Vnefnt!—é 53 M ‘ s ; - XI-HCv22 ";’‘“*;m4. ‘ unymWM’ with a glass of water for driver of the jeep, accused Taslim on the threat of life asked her to accompany hlm to hls house and dragged her from her hous= and took 1n a Jeep per force They appellant in. Villagé; Keva1 Delhl 1n the house of appellant ' , pushed her‘ father away and thereafter took her t0 the house of She was kept 1n confinement 1n She narrated the 1nc1dent to one boy workmg w1th her nn Delhi, who inforrned her parents about her confinement However, she has admitted that present appellant d1d not commit rape With her. 9‘. PW-2 Suleman Khar ' \ daughter at about 12.00 ir learned that her daughter about the same to the pol' rescued from the confine ent and ’report was lodged. PW—6 Abul Khan who is neighbo r of the complainant has also stated that on’thezdate of inciden at 12.00 in the night he heard the shouts of parents of the pr secutrix. However, when- he tried to r come Out of his house, he ound his house bolted from outside and ’door .of his house was opened by parents of the prOSecutrix. When he ca e out of his house, he saw the jeep leaving the place. has also supported version of the prOsecutrix and stated that accused persons abducted his the night on gunpoint and after he is confined in Delhi, he informed e and thereafter her daughter was 10. So far as argument f learned counsel for the appellant that the prosecutrix and ot er family members did not raise an y."fl" , . T.'W ‘W0“,‘ +t.ww"w_‘_m_v » ~ 1u.v. XI‘HC-22 man ma%a alarm While prosecutrix wa same stands belied by the 'has categorically stated tl1j parents “of the proseeutrix. also the ‘p'ros‘ecu’tr'ix is also the prosecutrix that she did not try she was permitted to work as a » to flee from Delhi where ancerned, considering the fact that of a remote place, she was taken to and conflned in' the house of the lprobable to expect that she would police independently. However, as :unity of communicating about her .s, she did so and only after her communication she was rescued with the help of the police. e judgment in the matter of Jinish‘ iar reported in 2003 L.T.(SC) 1, appellant argued that where the rd shows that prosecutrix was a 1sed persons cannot be convicted 6 of the IPC unless the prosecution ; below the age of 18 ;n/z 11w - So far as conduct of domestic help in Koti, is cl -the prOsecutrix is resident Delhi under the gunpoint appellant, it seem to be in have lodged a report to the soon as she had an oppor confinement to her paren1 ¥ v t r. 'wamwxmmqr. NM. - mWwmm‘Wmm'WWmWm-rav'- ~ m s being abducted, is concerned, the statement of PW‘—6 Abul Khan who at he heard the shouts raised by The version of the complainant as corroborated by his' statement that the aecused persons had bollted the doors of‘neighbourers from outside. ' 1‘2. Placing reliance on tl' L‘al Sah Vs. State of Bil learned counsel for the evidence available on recc consenting party', the acc1 under Sections 366 and 37 is able to prove that she wa: @ XI-HC-22 'mh+«m«-~pmv iv . n th aove cit ae, th prose‘cutrix wa examned as ’ —l nd n’le px Court on the si of evidence vilal n ha a, ld a ecuri was a nseting arty ho as bove 1 er o a o the date of icide an thefore set ide convicion under Sections 366 nd 36 of e IP. "mw i Vnmmvw ;. wmv . r, t et ca, it a been proved beyond g; r b ht th secutri‘ wa abducted by the appelan nd s assoiaes on e dte f ii d also een proved tate' abuctg her Wa e rom whee cld e rd ol h l ‘14 ‘ Howeve in he prsen se hs easonable dout ta e prox s ' lt a hi ct th a o ncdent an it has b tha‘f din , she s taken to Dlhi f r she ou b escue ny wit the help of te olic hen he s how mmunicate bout her confinen to her pen . Terefoe, e case in and is distingushle o fac fr he case ite y learne ounsel f th pelan an te s is f no ep to te appellant. or e aplt d h a e o hl h i . hus, on the as 15 T bi f afoesaid iscuso, it is establhe hat the pel t was invlved th commission o the bov, ffence and t tria Cour not committed any illt n n i a sn t l b i t. o r dsin b isd t apl n o in e f ae o h l t has - egaliy or infirmity i co cting nd entecing he appelant y the mpugned judgmen . 16. earned consel or pellant furter submitted that taking into onsieration fs an circumstances of the , 13 I e b ed cs e s i PW a the Hob Ae bas aabe i tt cse he tht the prostx con p W w a 8 yas f ge n nnt d re, as t a 7 th C w h pe w s o e cod a emt art hr th h iab n ts o t cd b d c L u f t e ap h cd t e act d XI-HC-22 y ‘1 Wm’m“m-ww Mm» / r case as also age of the app ' . sentence. 17. :I'n‘ the result,”the ap peal partly Succeeds. Conviction of the appellant under' Sections 366, 344 and 346 is maintained. Jail Sentence of seven ye " _ years. 'Fin’e sentenc'e im} ' Court'shallre‘main as it is. g ellant, he may be awarded lesser jail jm;wu 'r ‘m‘imm‘rnv. mnww ars’ R.I. is reduced to R.I. fer five )osed‘on the appellant by the-trial i sw- DmNDRA MISHRA r r. Judge