H!GH COURT OF CHHATTISGARH AT BILASPUR [SBLHon'ble Mr.Printinker Diwaker ,J.l Cr.AppealNo. 133/1991 APPELLANT (in jail) RESPQNDENT Parmeshwar, aged about 22 years, Son of Durlabh Saura, Village Darrabhata, Police Station Saraipali, Tahsil Saraipali, District Raipur. VERSUS State of Madhya Pradesh (now Chhattisgarh) Mr. Sunil Sahu for the appellant. Mr.Vaibhav A Goverdhan, PL for respondenVState APPEAL UNDER SECTION 374 OFTHE CODE OF CRIMINAL PROCEDURE ORAL JUDGMENT (04.03.2010) This appeal is directed against the judgment and order dated 05.01.1991 passed by Additional Sessions Judge, Mahasamund in Sessions Trial No. 124/1989 convicting the accused/appellant for the offences punishable under Sections 363 and 366 ofthe I.P.C. and sentencing him to undergo rigorous imprisonment for 4 yearson each count. 2. Case of the prosecution in brief is that on 6.4.1988 F.I.R. Ex.P.2 was lodged by Bodhanlal (P.W.1) alleging that his minor daughter, prosecutrix P.W.7, aged about 18 years has been kidnapped by the accused/appellant. It is also alleged that from the intervening night of 3rd - 4 April, 1988 his daughter was missing and upon enquiry he came to know that his daughter had also taken away some ornaments and clothing along with her. Further it is alleged that the accused/appellant was having affair with his.daughter, and therefore, she was kidnappecf by him. / 3." On the basis of abov&^F.I.R. lodgpd by Bodhanlal (P.W.1), the police has registered the case under Sections 363 and 366ofthe I.P.C. againstthe appellant. Subsequently, the prosecutri^ 8.4.1988. hler statement was recorded (P.W.7) came back to her house on under Section 161 of thd Code of Criminal Procedure on 10.04.1988, th^ matter was investigatedi and the challan was filed against the appellant aipd other co-accused persons namely ria.'l'Esss6> T^ Murli (uncle of the appellant), Lalita (sister-in-law of the appellant) and Teka (mother of the appellant) for the offences underSections 363, 366, 376/34 and368ofthel.P.C. 4. On 25.07.1989 the charges were framed againstthe appellantforthe offences under Sections 363, 366 and 376 of the I.P.C. whereas against the other accused persons charges were framed for the offences under Section 363/109 and 368 ofthe I.P.C. 5. So as to hold the accused/appellant guilty, prosecution has examined 10 witnesses in support of its case whereas two defence witnesses have also been examined. Statement of the accused/appellant was also recorded under Section 313 ofthe Code of Criminal Procedure (for short 'the Code') in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 7. After hearing the parties the trial Court has convicted andsentenced the accused/appellant for the offences as mentioned above. However, the accused has been acquitted ofthe offence under Section 376 ofthe I.P.C. By the same judgment, the learned trial Court has acquitted the other co- accused persons. 8. Heard counsel for the parties and perused the material available on record including the judgment impugned. 9. Counsel for the appellant submits that the prosecutrix (P.W.7) who,on the date of incident had attained the age of discretion and was about to attain the age of majority, had accompanied the accused/appellant at her own sweet will as they were in love with each other. He submits that had the prpsecutrix not been a volunteer while first going to village Bhatgaon on a Matador and then to Raipur by bus along with the appellant, she could have raised hue ^hd cry and disclosed the act of the accused/appellant to the co- passengers. He further submits that there is no concrete proof in respect of the age of prosecutrix anct the on •accused/appellant is Ex.P.1, which produced by Bodhanlal (P.W.1), fatheri ly piece of evidence against the s a school certificate which was of the prosecutrix at the time of his examination in the Court. He also subnjiits that as per this certiflcate the date of birth of theprosecutrix is 8.7.1970 an|d thus her age on the datejof incident ,.;'comes to about 17 years 8 months anc^ 26 days. He further submits that on st'IV "":E"S^. y^.\ ^. ^f^ 4... ^ ^ %ilSSS" i fi 'WB1" SS IS'-S8I the date of incident, the age of the prosecution was as such where she was in a position to exercise her discretion and was about to attain the age of majority. Placing reliance on a decision of the Supreme Court in the matter of S. Varadaraian v. State of Madras reDorted in AIR 1965 SC 942, counsel for the appellant submits tha't taking or enticing away a minor out of the keeping of a lawful guardianship is an essential ingredient of the offence of kidnapping. 10. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the appellant's act in removing the minor prosecutrix from her lawful guardianship makes him liable for conviction under Section 363 and 366 of the I.P.C. and thus the finding recorded by the Court below being fully justified does not call for any disturbance in appeal. 11. According to the statement of the prosecutrix (P.W.7), aged about18 years, on 4.4.1988 when shewas going to pond for taking bath, on way, the accused/appellant met her and gave her a letter in which it was mentioned that in the night theywould elope clandestinely. It is further mentioned in the said letter that the accused had asked her to collect certain gold ornaments from her house. She has further stated that at about 2.00 p.m. in the night she went to the house of the accused/appellant along with some gold ornaments. She has deposed that in the house of the appellant, she met the other co-accused persons and then she handed over those ornaments to the co-accused Lalita and then one vehicle i.e. Matador was brought by the co- accused Murli and thereafter she and the appellant went to village Bhatgaon and from there they boarded a bus and went to Raipur where she stayed in the house of a friend of the appellant for about 4 days and she was subjected to.sexual intercourse. She has further alleged that on fourth day herfather came to search them and then the accused/appellant had dropp.ed her near the bus-staptl from where she went to Saraipali police station and there in the night she metwith her father. She has also stated that thereafter she was medically examined. In tter cross-^xamination, an attennpt was made by 'the prosecutrix to deny the fact tljiat she had never met with the appellanVaccused. However, she had admitted the fact that love letters Ex.D-1 to D-14 were written by her. S|he has also made an attecnpt before the Court to state that she was threat^ned by the appellant but on reading ~ the entire statement. makes it clear thelt the said statement has been made ^,,,:!"»-^^ .•^;'c'!,. ' ^. ^•r^.^ • ^ r ..•^a*.l stt!'S8Si'"'~'ft g , 'wy // s ^ Vfsyff -M " just to exaggerate her version in the case. She has further admitted that when she was being taken in the Matador and also in bus, she had never raised any alarm nor had she made any complaint to any of the co- passenger. 12. Bodhanlal (P.W.1), father of the prosecutrix, has stated that on 3.4.1988, the prosecutrix had slept in his house. However, in the morning he found his daughter missing. He has stated that upon enquiry his wife had informed him that the prosecutrix was missing and has also taken away certain ornaments along with her. It was deposed that he had searched his daughter in the village and had also enquired about the accused/appellant and then he came to know that the accused was also not in his house, and therefore, he lodged the report against him. In respect of age of the prosecutrix, this witness has stated that the date of birth of the prosecutrix is 8.7.1970 and has also exhibited the same as Ex.P.1, which is a mark sheet of the prosecutrix showing her date of birth as 8.7.1970. In cross- examination, he has admitted the fact that he does not remember the date of birth of his other children. However, he has stated that date of birth of her other children has been recorded by him in the register at his home. He admitted that no such register has been given to the police nor he has informed about the date of birth of his children to the police. He further admitted that the name of the prosecutrix was recorded in the school after 5 years of her age and the date of birth was recorded by the Headmaster. But for this evidence in respect of age of the prosecutrix, there is no other evidence on record. 13. If the date of birth of the prosecutrix is taken as 8.7.1970, on the date of incident she was aged 17 yearsS months and 26 days old. Admittedly, the Headmaster of the school who recorded the date of birth of the prosecutrix has not been examined by the prosecution nor the Kotwar register has been produced by the prosecution. It appears from the evidence that date of birth of the prosecutrix has been recorded in the school register J on the basis of the informatiorr'given by Bohanlal (P.W.1). From the record, it is also: clear that the prosecutrix was ^dwsed for ossification test but she htad refused the same vide Ex.P.11, dat^d 19.05.1988. Thus, accprding to the case of the prosecution, at the relev^nt time, the prosecutrix was aged |the prosecutrix, this Court|is of the ^vailable on record as eveh mother abput 18 years. -In respect of the age of .optnion that there is no cogent evidence "S ••* ti ^•-' ""'i^ ;;^ -y of the prosecutrix has not been examined and Headmaster of School has also not been examined and there is no evidence on record to show that as to on what basis the date of birth of the prosecutrix was mentioned in the School Register. From the evidence, it is also clear that the prosecutrix was in love with the appellant and 6f her own sweet will she had accompanied the appellant to first village Bhatgaon and then to Raipur where she stayed with the appellant in the house of Jeevan (P.W.3). 14. The only question that arises for consideration before this Court is whether on the date of incident i.e. 4.4.1988, the prosecutrix was minor in respect of offence punishable under Sections 363 and 366 of the I.P.C. From the evidence of Bodhanlal (P.W.1), the date of birth of the prosecutrix is 8.7.1970 Ex.P.1 and if this is taken into consideration, the age of the prosecutrix on the date of incident comes to be 17 years 8 months and 26 days. Admittedly, the Headmaster of the| School or any other witness who recorded the said date of birth has not been examined nor there is any other evidence to show that as to on what basis the date of birth of the prosecutrix has been recorded in Ex.P.1. That apart, even the mother ofthe prosecutrix has not been examined nor any other evidence is available on record to establish the fact that on the date of incident the prosecutrix was minor. The evidence led by the prosecution is not sufficient to hold that on the date of the incident the prosecutrix was minor. There appears to be sufficient force in the argument of the counsel for the appellant that on the date of incident the prosecutrix had attained the age of the discretion andwas about to attain the age pf majority. 15. To have the things clear, Sections 363 and 366 of the I.P.C. need reproduction for ready reference which reads as under: "363. Punishment for kidnapping.- Whoever kidnaps any person from [tndia] 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 finB.;" "366. Kidnapping, abckicting or|inducing woman to compel her marriage, etc. -Whoever kidhaps orabductsany woman with intent that she may be conjipelled.or knowing it to be likely that she will be compelled, fo marry any person against her will, or in order that she may (se forced or seduced to illicit intercourse, or knowing it to be lil{ely 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, andshall also be liable to fine..." ate* fi In the case in hand, the prosecution has not adduced any evidence to show that the prosecutrix was kidnapped or abducted by the accused/appellant from her lawful guardianship or compelled to live with the appellant for more than 4 days or even forced or'seduced to illicit intercourse. Moreover, it is a case where the prosecutrix has admitted the fact that she wrote as many as 14 letters to the accused. She has also stated that even on the date of incident she clandestinely eloped witb the appellant to Bhatgaon and then to Raipur and during their stay at Raipur in the house of Jeevan (P.W.3), they had physical relations. 16. Thus, after going through the material available on record, this Court has no hesitation to hold that there are various contradictions and orriissions in the statement of the prosecution witnesses recorded under Section 161 of the Code and that of recorded before the Court below. That apart, the prosecution has utterly failed to prove its case beyond reasonable doubt by adducing proper evidence in respect of age of the prosecutrix and in these circumstances the benefit of doubt must go to the accused/appellant and in this view of the matter, it would not be safe for this Court to convict the appellant on the basis of the evidence adduced by the prosecution. 17. In conclusion, the appeal is allowed. Impugned judgment convicting and sentencing the accused/appellant as mentioned in paragraph 1 is set aside. He is acquitted of the charges levelled against him. The accused/appellant is reported to be on bail. His bail bonds stand discharged. -Sd7- Pritinker Diwakar Judge