l\lB)l‘\ ,A 2€ ‘a .. “I 4‘. (tar wvwzuvvxiaJ v ““ q « WWIIIIHIHIIIIIIIHHHIII 58031 y /,.. AA‘VN .M\ 1 w rim fy "gle 55nd) ( k y \n‘ K J //7/ ‘ " CREMINAL APPEAL No.> 2 f OP l994. 1 " w ‘ ~ / f f 2f f Balmuku‘nd aged 30 years, son of x Shrl Shrl Bevr‘LaAth Resldeh‘t of ¥ Village Ranga Rakbarl Police e Statlon Barboda Blstrtgt-RAIGARHWP) / AFPELLANT : RESPONDENT ¥ : CONVICI ION ‘ __..__..._.g.?- I U/s 366 I PMC R I for 3 years & y‘ 1 ,flne of Rs.5QO/- 1n lleu of flne , ’ R i for 6 months. v? eK V " cue-H-..un...noco-.~u.‘oo...-....-.c..o.... cc.u.oeoo.vun. \ VERSUS 71 The State of Madhya Pradesh. u n s ‘ "2 J g WPEAL UmhR SECFICN 374 OF H': CQEE GB CRIMINAL PROCEDURE{ unmwmw rrwrrr ,,r~ rmu #Mfw x -3- gnaw ”‘3“ ‘a e PUB HIGH COURT OF CHHATTISGARH AT BILAS (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 552 of 1994 Post for pronouncement of the judgment on 23.7.2010 ‘ 3 , _ Sd/i Prltinker Diwaker V Judge Balmukund APPELLANT VERSUS State of Madhya Pradesh RESPONDENT HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 552 of 1994 APPELLANT Balmukund VERSUS RESPONDENT State of Madhya Pradesh Shri R. R. Sinha counsel forthe appellant. Shri Vaibhav Goverdhan PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. \ JUDGMENT (23.07.2010) This appeal is directed against the judgment and order dated 05..1994 passed by Additional Sessions Judge, Raigarh, in Sessions Trial No. 213/1993 convicting the accused/appellant under Section 366 IPC and sentencing him to undergo rigorous imprisonment for three years and pay fine of Rs. 500, in default of payment of fine to further undergo rigorous imprisonment for six months. 2. Case of the prosecution'jn. briefis that on 21.07.1993 FIR (Ex. P-1) was lodged by Ramu Kanwar (PW-1) — the father of the prosecutrix aged about 15 years alleging that on 11.07.1993 she had left his house saying that she was going to the house of her brother—in—Iaw at Raigarh for studies and when she did not return home even on second day, he made a search and ultimately on 20.07.1993 he was informed by‘one Rajni Bai (PW-3) of Gharghora that on 11.07.1993 the accused/appellant had taken away his daughter by alluring her. Thereafter when he had gone to the house of the accused/appellant and on an enquiry made to him, he expres‘sed his anger .// \ towards him. After investigation the challan was filed and the \: accused/appellant was prosecuted under sections 363 and 366—A IPC. The l l ’Court below-framed charge against him under sections 366 and 363 IPC. ‘ 3. So as to hold the accused/appellant guilty, prosecution has examined as many as 09 witnesses in support of its case. Statement of the l accused/appellant was also recorded..under section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and / 05 l _2._ pleaded his innocence and false implication in the case. This apart, Shobhit Ram (DW-1) has also been examined by the defence in support of its case. 4. After hearing the parties the trial Court has convicted and senten‘ced the accused/appellant as mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the accused/appellant submits that present appears to be a case of consent where the prosecutrix lived in the company of the accused/appellant for about 10 days without making any protest there against. He submits that relation between the accused/appellant and the prosecutrix are of brother and sister and in this view of the matter the basic ingredients of section 366 IPC are not attracted to the case in hand / because the prosecution has utterly failed to establish that the accused/appellant had taken away the prosecutrix in the garb of marrying her. 7. On the other hand supporting the judgment impugned counsel for the respondent/state submits that at the time of commission of the offence ’ the prosecutrix was aged 15 years 4 days and thus the ingredients of section 366 IPC are very'much‘attracted to the case in hand and being so the conviction of the accused/appellant awarded by the Court below is strictly in accordance with law. 8. The prosecutrix (PW-2) has stated in her evidence that she had passed her eighth standard examination in the year 1993. She has stated that 2-3 months there before she was going to her brother—in—law by bus and when the bus had stopped at Gharghora, she went to the shop of one Rajni tailor (PW—3), the accused/appellant came there and asked her to ‘' take to Raigarh. Though she had refused for the same; he took her by i >alluring to his house and kept .herthere forabout 7—8 dayss According to her the accused/appellant was asking her tomarry him. Having received i this information, her parents visited the house of the accused/appellant but he did not permit her to accompany them and rather subjected them to beating. Thereafter her custody was handed over to them by the police. f __Z_ In cross-examination, this witness has stated that in relation her mother and the mother of the accused/appenant are cousins and occasionally they visited to each other. According to her, she knows to play harmonium (a musical instrument) whereas the accused/appellant used to play tambourine. She has stated that the accused/appellant who was already married and having a daughter also, had never tried to take her with him but if there was some work she used to visited him as a guest. Later she states that prior to the date of incident she had never visited to him. She has stated that since due to the failure of bus there was no other means for her to go to Raigarh, the accused/appellant took her to his house but even on the second day he did not take her thereto. She has stated that accused/appellant did not permit her to go out alone and if occasion arose he himself used to accompany her. She was not even allowed to meet the people of the said village and whenever she used to ask him to leave her to her parents, he did not accede thereto. She has stated that though the accused/appellant had not applied force to keep her with him yet the people of the village were keeping strict watch on her movement. Ramo Kanwar.(PW-1) —— the father of the prosecutrix has stateathat on the date of incident the prosecutrix had left the house saying that she‘was going to the house of her brother-in-law at Raigarh and when she did not return in the evening, a search for her was made by him and his wife and then they came to know that she had not reached the house of her brother—in-law at Raigarh. Thereafter. while making search for his daughter at many places he met Rajni Bai (PW-3) who informed him that the prosecutrix was in the company of the accused/appellant. Then he went to the house of the accused/appellant and made an enquiry to him about his daughter, on which he refused to send her with him and started quarreling with him. Thereafter, he went to the police station and lodged the report and it is because of the intervention of the police she was handed over to his , custody. ln respect of her age, this witness has produced the mark-sheet of class Vlll Ex. P-3A which shows that her date of birth is, 15.7.1978 and 1 ”thus on the date of incident her age was 15 years and 04 days. Rajni Bai (PW-3) has stated in her evidence that on the date of incident the prosecutrix had come to her tailoring shop and called the accused/appellant saying that he is her brother who would drop her at Raigarh. However, at this stage this witness has turned hostile. Laxman : _L\- Ram (PW-4) is the witness to Panchnama (EX. P-6). Raj Khan (PW-5) is witness of seizure of mark sheet of the prosecutrix vide Ex. P-2. Sankirtan Behra (PW-6) is the Patwari who had prepared the spot map. Balwant Singh Chhawra (PW-7) is the Naib Tehsiidr who has stated that prosecutrix had refused to give her consent for medicai examination. SR. Rana (PW-9) is the investigating officer who has supported the case of the prosecution. 9. From the evidence avaiiable on record particularly that of the prosecutrix who at the relevant time was aged 15 years and O4 days it is clear that the accused/applicant took her to his house and kept here there for 7—8 days and during this period he did not permit her to got out alone. Record also shows that he had also instructed the people of his village to keep a close watch on her movement. The record also shows that when after getting the information parents of the prosecutrix went to the house of f the accused/appellant, he did not permit the prosecutrix to accompany them and on their insistence therefor he misbehaved with them and subjected them to beating also. Thus the allegation made against the appellant if seen in the light of the evidence available on record, it can safely be said that he has committed an offence under Section 366 IPC and that being so the findings of the Court below convicting and sentencing him as mentioned above are just and proper; Admittedly, as on the date of incident the prosecutrix was minor, the stand of consent taken by the counsel for the appellant has no value in the eye of law. 10. Consequently, the appeal being without substance is liable to be dismissed and it is accordingly dismissed. The accused/appellant is on bail. Let he be sent to jail immediately for serving, out the remainaing part of the sentence imposed on him by thie trial Court. l. Sd/— Pritinker Diwaker Judge " ”