a.^: CF0000066693 <'< IN THC HIGH COURT OF MADHYA PRAQESH _:__JABAI^UR Cri,App,eal No .AV3 /96 APPELLANT ? Accused In Jail MohSmmad Akram son of. Rashul Mushalman^ aged 21 years, resident of Tinkaniay presently r^siding at Charcha, Baikunthpur Distt Sarguja PA.P.) Versus ,-4'"-...J-^';3LZ1_ a^POND^T : - .. ., .Sta'te of Mauhya Pradesh through Police Station:Baikunthpur District Sarguja (M.P'.) • CRIMINAL APPEAL UNDSR SECTlON 374^21 QF_THE_CODE_,^ CRIj'TLNAL paOCEQURE AF-t HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 613 of 1996 APPELLANT RESPONDENT VERSUS Mohammad Akram State of Madhya.Pradesh Smt. Hamida Siddiqui counsel for the appellant. Smt. Smita Ghai PL for the respondent/State. CRIIVIINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (28.02.2011) This appeal is directed against the judgment and order dated 25.3.1996 passed by Additiona! Sessions Judge, Baikunthpur, District Sarguja in Sessions Trial No. 182/1992 convicting the accused/appellant under Sections 363 and 366 IPC and sentencing him to undergo rigorous imprisonment for three years and pay fine of Rs. 1000 on each count plus default stipulations. 2. Case of the prosecution in brief is that on 24.11.1991 FIR Ex. P-2 was lodged by Gurudev Singh (PW-2) - the father of the prosecutrix alleging that his daughter was missing since the nightof 22.11.1991 and he had an apprehension in his mind that it was the accused/appellant who had taken her away. It is alleged that the prosecutrix was recovered from the company of the accused/appellant at Ramanujganj on 24.11.1991 vide recovery memo Ex. P-1. Thereafter, her statement was recorded by the police and after investigation thechallan was filed on 23.12.1991 for the offences under sections 363 and 366 IPC. 3. So as to hold the accused persons guilty, prosecution has examined 07 witnesses in support of its case. Statements of the accused persons were also recorded under section 313 ofthe Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 1 "^^^ \:^y ^;^^-' 4. After hearing the parties the trial Court has acquitted the co- accused of the charges levelled against him but convicted and sentenced 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 appellant submits that present appears to be a case of consent and as the prosecutrix was having an affair with the accused/appellant, she left her house at her own and went in his company. She submits that evidence in respect of the age of the prosecutrix is not conclusive and therefore, it cannot be held that on the date of incident she was minor. Lastly she submits that the prosecutrix and the accused/appellant have got married elsewhere and are enjoying happy married life. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits thatas the minor prosecutrix was abducted by the accused/appellant, his conviction recorded by the Court below isstrictly in accordance with law. 8. Prosecutrix (PW-1) has stated in her evidence that on the date of incident at about 4 a.m. the accused/appellant had abducted her from her house and took her first to Baikunthpur and then to Ambikapur. According to her, while they were on the way to Baikunthpur, co-accused Salim had met them at village Sardi. She has stated that while going to Girdi from Ambikapur, they were intercepted by the police of Ramanujganj police station. According to this witness, the accused/appellant had allured her away as he wanted to marry her. She has stated that as her mother had seen the accused/appellant in her house in the preceding night of the incident, she had scolded her. This witness has however denied any affair between her and the accused/appellant. She has stated that on the way to school, the accused/appellant used to meet and misbehave with her and that prior to the date of incident he had given two letters to her which were later burnt by her. According to this witness, she had not disclosed to her parents about the accused/appellant misbehaving with her. Paragraph 7 of her ^^,. .a. 1 "^.''^-^ — "3 deposition carries a lot of contradictions and omissions if compared to her statement recorded under Section 161 ofthe Code of Criminal Procedure. She has admitted that in the morning when she was lighting the fire place, accused/appellant did not say anything to her. She showed her ignorance as to by what means the accused/appellant had taken her away. This witness then states that from Churcha to Baikunthpur they had gone by bus and from home to bus stand on foot. She is stated not to have raised any alarm while leaving home for the bus stand. She had also not disdosed to anyone either in the bus stand or to the passengers of the bus that the accused/appellant was alluring her away. Gurudev Singh (PW-2) - the father of the prosecutrix has stated in his evidence that on the date of incident at about 5 a.m. his wife had informed him that the prosecutrix was not at home. Thereafter when he was going to the house of his brother-in-law namely Prakat Singh in search of the prosecutrix, brother of the accused/appellant met him on the way and informed that the accused/appellant had left the home with money. According to him, when the prosecutrix was not traced even after a considerable search, report Ex. P-2 was lodged. According to this witness, at the relevant time the prosecutrix was aged about16 years as her date of birth is 11.2.1977. According to him, mark sheet of the prosecutrix was seized by the police vide Ex. P-3. According to this witness, the prosecutrix had told him that the accused/appellant had allured her away. Jogender Kour (PW-3) - the mother of the prosecutrix has stated almost the same thing as has been stated by her husband Gu.rdev Singh (PW-2). She has stated that the prosecutrix had told her that when she was going to light the fire place, accused/appellant had taken her away. She has also stated that prior to the incident she had once scolded the accused/appellant as he was peeping inside her house. Prakat Singh (PW-4) - the maternal uncle of the prosecutrix has stated that he was informed by the father of the prosecutrix that the accused/appellant had taken his daughter (prosecutrix) away. Balram Bhagat (PW-5) is the witness who had seized the mark sheet of the prosecutrix vide Ex. P-5. Raja Mohammad (PW-6) is the -^-. witness who had recorded the FIR. R.D. Pandey (PW-7) is the investigating officer who has supported the case ofthe prosecution. 9. Though according to the evidence of the prosecutrix (PW-1), her mother and father (PW-2 and P-3) prosecutrix, at the relevant time, was about 15-16 years of age, there is no conclusive evidence available on record as to what was her exact age at the relevant time. Mark sheet of the prosecutrix reflects her date of birth as 11.2.1977 but the same has not been proved by the school teacher, head master, village Kotwar or any other witness. The prosecutrix was not even subjected to ossification test. The prosecution has thus failed to prove as to on what basis the date of birth was recorded in the mark sheet ofthe prosecutrix as 11.2.1977. Source of exact age of the prosecutrix is completely missing in this case. Even otherwise, conduct of the prosecutrix in eloping with the accused/appellant and remaining in his company for two days without raising any hue and cry though had full opportunity to do so by disclosing the same to the people all along her way. In these circumstances, conviction of the appellant under Section 363 IPC does not hold the ground. Similarly, the prosecution has not proved the fact that the accused/appellant had abducted the prosecutrix with intent to compel her to marry against her will or to compel her to have illicit sexual intercourse. On the contrary, the prosecutrix has specifically stated that while alluring her away the appellant had not intimidated her. This apart, the accused/appellant has filed an affidavit that the prosecutrix has already been married somewhere else and is leading a happy married life, and so also he. 10. Having thus undertaken an arduous exercise of scrutinizing the facts of the case in hand in the light of the evidence adduced by the prosecution, this Court does not find it proper to endorse the view taken by the Court below. Appreciation of evidence has not been done wholeheartedly. The findings of the Court below holding the accused/appellant guilty as stated above are unjust and therefore, need dislodgement. 4 aSpnf ja^eMiQ ja^upuj -/PS •peBjeqosjp pue^s peqsjujnj os spuoq |ieg •|jeq uo si iue||9ddv 'iujq isuieBe p9||9A8| seBjeqo 941 p peHinboe si ^ueiieddv •spjse les Aqejeq sj lueLuBpnf peuBnduui •p8MO||e si leedde eyi 'ijnsej eqi u| • 1.1. ~-s- "^,