HEGH C§URT GF CHHATTESGARH AT EILASPUR SB : HGN’BLE MR. JUSTICE PRITINKER DIWAKER CR.A.NG. 1263i 1994 APPELLANT Santosh Kumal‘ VCI‘SuS RESPONDENT State of M. P. Shn‘ H.S.Ah1uwa}ia, counsai for the appenaxlt. Shxi Vaibhav Goverdhan, P.L. for th€ State. CRA. UNDER SECTION 374 ‘2! OF THE CODE OF CRIMINAL PROCEDURE Juasmm'r (23.04.2010) This appeal is directed against the judgnent dated. 28.09.1994 passedv by the First Additional Sessio'nrs Jmige, e Bilaspur in S.T. No. 216/ 1992 acquitting the appellant for the oEence punishable under Section 376 of the IPC’but convicting him under Section 366 an 363 of the IPC and sentencing him to undergo RI for five years and three years respectively. 2. Brief faots of the case are that on the basis of information given by Go pal Prasad {PAM-3) father of the prosecutiix on 21.1.1992 entry was made in the rojnamcha sanha (EXP/3} and based on that FIR {EX.P[3A) was registered. on 28.1.1992. It has been alleged by Gopal Prasad that on 16. 1. 1992 his daughter had gone to school but when she did not return he enquired about her and when she could not be traced, the report was lodged. On 29.1.92 the prosecunix was recoveredfrom the honse of one Purta >Ram{P.W.—11) of village Rak Darripa‘ra vide Ex.P/ 1. After investigation challan was filed on 10.3. .1992 against the accused/appellant for the ohences under Sections 36§,366 81; 376 of the IPC and accordingly the appellant was prosecuted for the said oEences. o 3. In support of its case, the prosecution has examined 12 witnesses. Statement of the accused] appeilant was also recorded s ‘ r I. under Section 313 of the Coda of Criminal Procedum in which he (lenied the charges levelied against him and pleaded his innocencc and faise implication in the case. This apart, one defence wimess namely Tikaram has also been: examined by him in supporf of his C356. 4. Afzer heanhg the parties) the trial Couxt has acquiiied the accused/respondente for the offence as mentioxleel above. Hence the presentappeal. o. Heard counsel fer the yariies and perusee the material available on record including the judgment impugned. 6. Contention of counsel for the apyelk‘ant is that fmm the statement of the prosecutrix (P.W.—6) it is apparent that on the date of incident she went along with accused} appeliant of her own as she was in love with him. He submits that the‘conduc of the prosecutrix is as such which makes it clear that she was a consenting party and at no point of time accused/appellant has either allured her or she has been taken from the custody of her lawful guaraianship. He submits that relying upon the same set of evidence the Court below has acquitted the accusedi appellant for the offence under Section 376 of the IPC and therefore though on the date of incident the prosecutrix was 16 years 6 months 13 days, the Court below ought to have acquitted the accused] appellant for the oEence under Sections 363 6r. 366 of the XPC. i—le submits that the prosecutrix has roamed along with the agapeilant to many places and even she had gone to Luthra Sharif to meet him. Placing ieliance on a decision of the Supreme Court v in the matter of S.Varadany'an Vs. State of Madras'reported in AIR 1965 SC 942, he submits that taking or enticing away a i minor out of the keeping of a lawful guardian is an essential ingredient of the otl'ence of kidnapping. o 7. Gn the other hand; counsel for the respondent/State supports the impugned judgment and submits that the date of birth of the prosecutrix is 23.6.76 and the same is duly proved by Yadunath Singh {PAM—2) vide EXP/2 and on the basis of this t record, on The data of incident hcr ag€ comes to 16 years 6 months and 13 days. He submits mat once the prosecutrix is below 18 years of age, conviction of the appellant under Sections 363 653366 of the IPC is fully justifled. He submits that the prosecutn‘x was under continuous threat by the accused] appellant and that is why she could not escape n‘om his clutches nor she could lodge the prompt report. 8. According to the statement of the prosecutrix (PAM—6) at the relevant time, she was in Class Xl‘h and on the date of incident she had gone to school as her marriage was to take place on 16. 1.92, she went along with him to Bilaspur by bus and from there to Kota and then to Birsinghpur Pali where she stayed in the house of one Ram Kumar Sahu for about 11 days and there she was subjected to lorc1b1e sexual mtercourse by the accusediappellant and she was threatened by him. She has further stated that at Birsmghpur she came to know that she was being searched by the villagers and then the appellant brought her to Bilaspur and from there they went to Janjgir. In cross examination she has stated that she'was having an‘air with the accused] appellant and even her father was aware about it. She has also stated that she was aware of the fact that the appellant was already married but yet she had developed love with him. She has also stated that she used to send love letters to the appellant with the help of her sister and her father was not happy with her for which quite often her father used to beat her. She has stated that as her father was fixing her marriage at some other place she eloped with the accused] appellant. She has also l ? stated that on the date of incident, on the pretext of stomach pain she left the school and then eloped with the accused] appellant. 9. ‘ From the above statement of the prosecutrix it is thus very apparent that on the date of incident though she was not major but was in a position to understand everything and yet she decided ‘to live with the accused] appellant. lt is apparent that for this entire act the prosecutrix was a consenting party. As per the birth cerilficate the date of birth of the nrosecutnx 1s 23 6 95 and on ‘ the date of moident her age comes to about 16 years 6 months and 13 days but her conduct shows that she was in a position to exercise her discmtion. 10. ’i‘he only question that arises for considexation before ibis Court is whether on the date of' incident s i.e. 21.9.92 the prosecutn‘x was minor in respect of the oifences punishable under Sections 363 &.366 of the IPC. In the present case there appears to be su$cient force in the argument of the counsel for the appellant that on the date of incident the prosecutn'x had already attained the age of discretion and was about to attain the age of majority. 11. To have the things clear, Sections 363 6r. 366 of the Indian Penai Code need reproduction for ready reference which reads as under: ‘363. Punishment for kidnapping-Whoever kidnaps any person nom (India) or from lawful guardianship shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable_ to 13m.” " “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 lmowing 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 illicity 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 k for a term which may extend to ten years, and shall i\ also be liable to tine...” f1 In the case in hand the prosecution has not adduced any u evidence to show that the prosecutrix was kid‘nappe‘d or abducted I by the accused/appellant from the lawful guardianship or compelled to many against her will or forced or seduced to illicit intercourse. Here is a case where the pmsecutn‘x has categorically - h a stated that she was in love with the accused/appellant and had made physical relations with him also. As in the Court statement s , 4:77,,Juvx.¢;uy_. Amrww.» the pmsecuirix has not repeated her entire case diary statement, this omission on her pan creates doubt in the mind of the Court and it appeam that While giving evidence in the Comt she has given somewhat diEerent st01y. 12. Thus after going throughvthe material available on recoxd this Court has no hesitan'on to hold that there are valious contradictions and omissions in the statement of the pmsecutn‘x- recorde nder Section 161 o he Cr.P.C. and that recorde before the‘Coult belowv The conduct of the prosecutrix shows that she went along with the accused/appellant of her own, livd with him for number of days and had attained the age of discretion. hat apart, pmsecu'on has utterly ’failed to prove its case eyond ’ reasonable doubt and in these circumstances the benefi of dout must go to he accused/appellan. Wat 1's more astoishing’to note s tt even the prosecutn'x has not een him in ming her statement and this oscillation on herx part renders her entir testimony untrusworthy an unht for judicial reliancehto hold the accused/ pellnt guilty under Sections 363 &. 366 I. 13. n onclusion the appe is allowed. Impugned judgmen convicting and sentencng the accused/appellant as entioned above s set aside. He is quitted of the charges levelled agt him. Amused/apellant is repored to be on bail. His bail bonds stand discharged; i Fit!!- ‘~ l . \i Pritinker Dlw'airer Judge Nmi v 7,7 r v \ d u f t d e T n b t b t t h n i ha b ak e t d apa PC I c al t i m i ac ains p t f