i ^6 is <:ya COURT Qf CHHATTIofeARH, %^> s T; "u APPELLANT fAccused) Kaju aiias Kajer.dra Agrowai, ogsc; auour 24 years, S/o Sh"i Sanshiia!, R/o Shiv Nagar, Police Station Azad Chowk, Raipur (AA.P.) (now C.5,5 OI:c;pl-)isjr\::KlT/- ,C20—'^/?i'lvUC;^ l -/ " fProSsscutcr l»^•^••-uflfalt^-tf TI J^r E The Stcte of Madhya Pi-cdesh (now Chhattisqarh), Throuqh Polica Station Azad Chowk, Raipur (M.P.) ("ow C.6.) fADDeal under Section 374 of tl"e Code of Cri,'"iinot Proce.dur'e. 1973?/ ?^i^*^ Present: A'ir- Vivek Chopra, counse! for the appeUont. Wss Sanqeeta Mishi-a. Panel Lawyer for the re'resoonc'sn' ingle Bench: Honbl®A(,r. T.! QRALW&SftEW (10-2-2009) 1. Th's appeal is directad agoinst the Judgment of co"viction & order of sentence datad 28-6-90 passed by the 2" Additional Sessions Judge, Raipuf in Ssssions Tria! No.10/89, u.'her'eby lea"ned Additional Sessions Judge cfte" hoiding t'ne accused/appeSiant guilty for commission of offencs uncte.r' Sectior, 363 of the I.P.C., sentenced him to underqo R.I. •: or two years S. pay fine of Rs.1,000/-, in defauit of payrrient of fine to fur'lfie" undergo ft.I. for three rnonths. 2. Judgi'nent of conyiction !S chalienged on 'i+ie grourd that without any cli.nching & reiiabte evidence the Court below has cor.victed & senteriGed the appsiiant. 3. Case of the prosecution, in brief, is that Pramiln Bai (PW-2) belou; 18 years on the dcte of incident i.s. 14-9-88. She left her house and went swiay with the accused- F.I.R. wns iodged vide Ex.P-4 by Sa'ikr'cm yW-3), fcitna" of Prairiila Bai. Pr'amiio 3ai wcs reeovered on 1&-9-88 from the house of Raghunath Ram vide Ex.P-1. i-1er Pragati Patr-o, reiating to ':"&, ^. - c l;al^ 3 dc'hs of bifth was seized vjde Ex.P-5, l-1er petticoat wiiis seized vide Ex.P- 3. Prcmila Bai vms sent for rriedicai exan'iincTion and aiso for radiologicol te-;t. Her scbool r'ecords wer-e seized vide Ex.p-20. Accordina to the school registsr, her dQ+e of bi»th is 5-&-72. buring the course of her stoy with -i'he occ.used./appeiiQi'it, the occu-'sed hss cc'iTimitted foi-cefu! sexuai intercsur'SR on her. Artictes fi'ere seized ond sent for chemical cnclysis. 4. Af~er conpletion of irivestigntion, charge shaet was fiied befor-e the Judiciol Anaaistrate Fi"st Ciass, Raipui*, who in tufn, committed ths case 'm the Court of Ssssions Judae, Raiour, frorTi uvhere isarnsd 2 Additiona! Sessjons Judge, Saipi.!", "eceived ths cose oh transfer for triol. 5. In o"de" to ®s"abiish the guilt of the appella?it, the prosecution has examlned as rnany a.s twi'elve wi'hies.'ses. Staternent of the appeliont wo.s r&caydsd ijndei- Section 313 of the Cr.P.C. m which he denied the circums'hances cppear'ing agoinst hiw ond has Taksn the defence that althoug" both ~he fawilies are r'sady fo" the marr-iage of Pramiia Bai wrrh the accused, but Salikraw, fcthe" of Pr'amiic Bai, demandsd iilegal mo^ey f"om t"e accused whic^ the accused has not paid and on the basis of such dispute, he was faSse'y iwpllcateci in the cfims in question. 6. I hcive hea"d lec"ned counsel for the partles and perused the iTipugned Sgii^steSft^By judament as also tiie record of the tr'ia! Court. W -7 ',^i 7. Learned counsel for the cppeMant submits that the occused was charged with the cffence punishable undar Sec+ions 363 & 376 of the I.P.C., but r;s was acq'ji'l't&d of the charge under Section 376 of the I.P.C. on the ground of, iove offsir & consent. howevei". he has been convicted &. sentenced under' Section 363 of the I.P.C. Leai-ned ccunsel furthsr submits that presentiy the accused/appellQnt & Pramila Bai o.re. resid'mg as husbffi'id <s wife hcvinc. five children. The accused had not en-!'iced Prainiio Bai or kidnapped or abducted he" from the guardianship of her father A. •'nother. Prarr.ila Bai herseif hos ieft her porentcl shelte", therefofe, +h®appellant has not corprriitted anv offer.se under Section 363 of the I.P.C. .v A-- //' On t;hz other hand, iear'ned counseS appearing on bsha'f of the S'tots/ resporsdent suppor'ted the Judgtrient ancl submitted that ~rtie appellont has committed the offence punishcble under Secticn 363 of +he I.P.C. Ths appeilant had kidnapped Pramiia Bai •••I'ho was below the cgs of 18 years onc! subsequent marriage wili not cbsolye the appeiiant from the chcrge level'ed aoainst him. 9. In order to appreciate the contentions of the parties and connect ths accused with the crime in qusstion, I hcye examinsd the matsrial aveilable on recQrd. According to the case of the prosecution, Prawiia Bai (PVi/-2), who was agsd about more than 16 yea"s on the alleged date of offence, has deposed that when she u'as abn®present in her house, the accused ca"'<® to her house and to!d that he u'ant to marry her and took her forceful'y, shs accowpanied the sccused fro>n Raipur to Raigarh uia Saraipali, they recched Roigorh at 7 p.in. and stayed in Shanti Lodgs wher-a the acct:sed comrrsitted sexuai intercourse on her. Thereofter, they we.nt to Bawclwar ancl CQTie to Bilaspur". They atayed in the house of matei'no.1 uncie of the accused where the Poiice canne and recovered her. 10. Raghunath (PW-1), has deposed that the accused & Prarniia Bai came 'l'o his house and 'astiy Pramila 8ai was recovered vide Ex.P-1. Saiikram (PW-3), father of Pramila Bai, has stated that on the fateful day he has not seen the aDoellant in his word and afterwards bis sister was not found in his house, thsn he iodged the report vide Ex.P-4 and fino.Ny, P."amila Bc.i was recovered at Biiaspur. Savitr-i Bai (PW-4), mother' of Pran'.ila Bci, hcs stated thait v>'hen she canie fr-ow riyer, she came to know that the accused has kidnapped her daughter. Shanti Bai (PW-5) hos deposec that 01 the date of incident, she has seen Pran'.ila Bai &. the accused talking with eo.ch o'rtier near Kankaiipar'a. Pramila Bai was exain'ned by the doctors. 11. Adirfittediy on the date of incident, Pramila Bai was belou; the age of 18 years. After the incident, Salikram, father of Pr'csmila Bc>i has lodged the F.I.R. vide Ex.P-4 in which he has specificaiiy informed t.he Polics that the appeiiant was not present in his ward, PramiSa Bai wos not prssent in his house, he came to know from the motiier of Shankar that Pro-Tiiia Bai was --- —--^_. ».»lll^AAll going toiivards the vegetable market at about 11 a.m. and ano'the" hdy has a!so ssen the accussd who was going towards BQdaipara ciong i.'i'ith bag. Contents of the F.I.R. show that Pramiia Bai left her house, she met the appellant and they went to Raigarh A different places. Prainila Bai was aggd about rnore than 16 years, she u'as obie tii understand good & ahe herseif ieft her perentai sheltsr, siccoinpanted the appellant and to Raigai-'h. This shows that the appellant hos not enticed or cbducted kidnapped Pramila Bai, but she hersaif left her parental house i!iful Lsavirig the house willfully and ccconnpanying the .'ippellont is not offe'nce. of abduction or kidnaD. The Court below has rot considered F.I-ft. and the stotements of the witnesses which cs.re. aufficisnt d"aw5ng infsrence that Pr'amib Bai herself left her pa-entai shei'her accompcnied tha cppeiiant. Conyiction &. sentences of the csppellant Section 363 of the I.P.C. is not sustainabis. cr y^e 13. For the foregoing reasons, the aDDeal is aliowed. •/ .3.roi 'ictjon & sen*&nc&s af ths aDDellant under Sectio;-! 363 of the I.P.C. sre, set csioe and tha appeHant 13 acquitted of the so.id charge. Sd/- T.P. Sharma Judge •SF"