. cimin Appea N3$0" of 96. Eal l o: 19 § Varé§, P1asid§us S/o n:at ged b 9 yer /o Nak Panapn P. Kanaa Distt i (M ). a aoat 2 aS. R bar 2 V. S e f M / ‘ Stat o adhya Pradesh CRIMINAL APPEAL UNDER SECTION 37 ‘2) OF THE '4 CGDE OF CRIMINAL PROCEDU& 1973.- IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR &ria1, S bel, Rigarf y RES mmENT : @ HIGH COuRT OF CHF§ATTI$GARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminai Appeai No. 330 of 1996 Plaskiiyus APPELLANT VERSU$ RE$P0NDENT State of Madhya Pradesh Shri Shaitendra Sharma, counsel for the appenant. Shri Vaibhav Goverdhan, P.L. far the State. CRIMINAL APPgAl-r UNDgR $§CTION $74 (2) 9F TH§ CODE OF CRIMINAL PROCEDURe, JupGMENI (31.03.2011) This appeal is directed against the judgment and order dated 23.01.1996 passed by the Additiona! Seesions Judge, Jashpur Nagar, District - Raigarh iriSessions Trial No. 248 of 1‘995’ convicting the accused/appeliant under Section 366 of 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 simple imprisonment for two months, 2‘ Brief facts of the case are that on the basis of undated written report Ex.P—1 lodged by the prosecutrix Flora (PW—1) aged about 23 years, un-exhibited FIR was registered on 06.U5.1995 against the appellant Plasidiyus and acquitted accused Rajesh Toppo and Kashmir under Sections 363, 366, 342 and 376 of IPC. It is alleged that on 04.t)5.1995 at about 8 p.m. the accused persons forcibly taken the prosecutrix to the house of the appellant, she was locked. from inside and 'was subjected to sexual intercourse by the appellant against her wish, It is alleged that when she raised cry, she was threatened by the appellant to kill her. While she was being subjected to rape by the appellant, the other two co—accused persons were standing outside the house. On the second day Al; Le. 05.05.1995 upon receiving information at about 10 a.m,' her parents came to take her but the accused persons also beat them and caused to flee away. She has stated thag her parents again came‘aiong with other family memberS’and then rescued her from accused persons. After completion of investigation Challan was filed on 04.06.1995 against the three accused persons for the offence under Sections 363, 366, 342 and 376 of IPC whereas the Court below framed charge against them under Sections 366, 376 and 376/34 of IPC. 3. So as to hold the accused persons guilty, prosecution has examined 11 witnesses in support of its case. statements 'of the accused persons were also recorded under section 313 of the Code of Criminal Procedure in which they denied the 1 charges levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties the trialrCourt has acquitted the accused Rajesh Toppo and Kashmir of all the offences levelled against them whereas the present appellant has also been acquitted of the offence under section 376 of IPC but convicted and sentenced for the offence under section 366 of IPC. 5. Contention of the leamed counsel for the appellant is that the appellant and the prosecutrix were in love and wanted to marry but the parents of the prosecutrixywere against them and that is why a false report has been lodged against the appellant at the instance of the parents of the prosecutrix. He submits that against the wishes of the prosecutrix and the appellant, her marriage was fixed with third person namely Xebier and that is why the prosecutrix had come to the house of appellant of her own. He further @ @ #3— submits that a number of iove !etters were exchanged between the appenant and the prosecutrix and from the conduct of the prosecutrix it is apparent that she wag. a consenting party. Lastiy it has been argued that even :fthe entire case is taken as it is the offence under Section 366 of IPC is not made out against the appeiiant because the ingredients of the said section are compieteiy missing, 6. On the other hand supporting the impugned judgment it has been argued by the learned State counse! that the conviction of the accused/appeliant is strictly in accordance with iaw d there is no infirmity in the same. 7. Heard counsei for the parties and perused the material- avaiiabie on record inciuding the judgment impugned, V“ 8L r The Prosecutrix (PW-1), aged about 23 years in he evidence has stated that on the date of incident when she was returning with one Wipin Ekka from-the Church, the appeliant I xi and the two acquitted accused persons caught hold her near / the mango tree. a On being protested by Wipin Ekka, the appellant threatened her to kili and then she ran away to her house. Thereafter she was taken to Pandripani in the house of the appellant and she was iocked in a room along with the appellant whereas the remaining two acquitted accused were out side the room. In the night she was twice subjected to sexual intercourse by the appellant. On the next morning the other two acquitted accused persons had opened the door. At about 9-10 a'.m. her parentscame there but they were beaten I by the accused persons and at about 3-4 pm. they again came to the house of the appellant along with other family members and she was taken by them. in cross-examination she has stated that she does not know her date of birth and she cannot tell whether'hera‘age is 24 years or not. She has an r @ , u — admitted the fact that she had written a number of ietters to the appeuant vide Exs. D-2 to D-5 and the appellant also used to write letters to her. She has further admitted the fact that the distance between the place from where she‘was taken by the accused persons and the place where she was ‘ subjected to rape by‘the appellant is about one and a half - kilometers and her house situates on the way. She has further admitted the fact that there are number of houses near the/house of the appellant and she could not raise any cry as she was threatened by the appellant. She has admitted that on'05.l)5.19§5, eince morning to 4-5 p.m. she - was not tied up by the accused persons and she was free. $he has stated that her marriage was fixed with one Xebier about two years back. She has further stated that her skirt and blouse were left in the house of the appellant and shehacl s come {out wearing a ‘Sari of his sister. Sine has admitted that she was offered food by the sister of the appellant, Amrit Kumar Kha‘Lku (PW-2), the brother of the prosecutrix has stated that his parents had brought the prosecutrix from the house of the appellant and he was informed by the prosecutrix that she was subjected to sexual intercourse by the appellant. Son Rai (PW—3) is a seizure witness of Ex.P-2 'has not stated anything against the appellant. Harbhajan Ram (PW-4) is the Police Constable and seizure witness of Slides Ex.P—2. K. S. Dhruv (PW—5), the Investigating Officer“ has supported the prosecution case. Patrashi (PW-6),. the aunt of the prosecutrix has stated that she found the prosecutrix at Pandripani along with the appellant when the ‘proSecutrix‘ was being searched by her and other family members. Puspa (PW-7); the sister-in-law v of the prosecutrix has stated that on the date of incident the prosecutrix was brought to home from Pandripani but she J could not tell as to why she was taken by the appellant! e ’5‘— Sawina (PW-8), mother of the presecutrix has stated that when she came to know that the prosecutnx was In the house of the appenant she went there and asked the prosecutnx whether she would stay there or come along With her to which the prosecutrix showed her desire to accompany her. $hakelal Sahu (PW—9H5 the Patwari who had prepared the spot map Ex.P—10. Dr. Smt. R. Toppo (PW-10) who had medically examined the prosecutrix has found no sign of injury on her person and in her opinion the prosecutrix was habitual to sexual intercourse Kishore Toppo (PW-11) who is a seizure witness has not supported the prosecution case and turned hostile 9. Minute examination of the evidence inparticular that of prosecutrix makes it clear that the prosecutrix and the- ’ appellant were in love and they used to exchange love letters. Evidence also shows that though the prosecutrix was taken by appellant and other acquitted accused persons to the house of the appellant but she never made any protest. She was taken about one and half kilometers away to the house of the appellant and the house of the prosecutrix comes on the way but she never raised any protest. She admits that she stayed in the house of the appellant for the entire night without offering any protest and she was free. The friend of the prosecutrix Wipin Ekka who is said to have accompanied the prosecutrix at theetime when the prosecutrix was being taken by the accused persons has not been examined nor there is any mention about her in the written report. There is no evidence on record to show that the prosecutrix was abducted or kidnapped by the appellant with intent that she may be compelled to marry With him against her will or she was forced or seduced to illicit intercourse. [More so the Conduct of the prosec‘utrix reflects that she was a consenting 10. Accordingly, the appeal ls allowed. Judgment impugned dated 23.01 .1996 ,5— convicting and sentencing the accused/appellant is set aside, Appellant is acquitted of the charge levelled against him. Since the appellant is on bail, his. bail bonds stand discharged. L \1 \ x Sd/« Pritinker Diwaker i w Judge party to accompany the appeliant. The entire evidence as adduced by the prosecutian in particular the statement of the prosecutrix does not inspire full confidence of this Court2to uphold the conviction of the accused/appellant under section 366 of IPC and that being so benefit of doubt must go in favour of the accused/appeliant.