aiB:^ ^' ^ '~:::^:^"^"r^r ^:;:^ ^^^:-^^'v^^^^^ifi^^^^ ..'.:. ^Fnf fff^m!tv^W ''''^S^^^ii^S^^SW^ff^SS. ®reooSos^"w"@8issw'BiiHiys'SSSBSH '^-'^^ ^^'^: /'^^^s^-^ •€• (^, ^^ f • l<^^- XN 'EHS HISH COORT OF BAOffiA P&ABEffl. JABAU'QIR. GriniiiaalAppeal No/^SToi 199^. -r ^ti^1 ^ ., .ua»«a-» APPEI.LAHI *** . l^° BAYAL8RAM SOD oi RAHIPAL, Aged ab^at 21 years, Rsgtdeot ef Villgge'Parei»adita, PoUce Station ArjBBl., Tatasll Dbamtari, Qistriet &AIPOB, (M.P.). s.€\^ I..,. ^•^^1 l?lt:^&4. ;,.«.. /-i.J^ocr Itft »**•»*•*<*** VersBS RSS'OSDEH'F *** THS SI^EE OP MAfflYA PaADESH, y~ AE'PEAI.. 8HDER SEGTIOB -574 (2) QF mE C0@£ OB' C&IMINAL ^ pa©GEG0BB. (Agaisst the fi.odj.ogs aud' jadgeaeDt o.E HI6H COURT OF CHHATT[SfiARH AT BILASPUR Single Bench : Hon'ble Mr. Justice Pritinker biwaker Crfminal ADpeat No. 1525 of 1994 APPELLANT RESPONDENT bayaluram, son of Rahipal Versus State of Madhya Pradesh (now Chhattisgarh) Shri M.D. Dhote, counsel for the appellant. Shri Praveen Das, Dy. ©ovt'.Advoccrte for the State. CRIMINAL APPEAL UN&ER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. JUD6EMENT (04.01.2011) This appeal is directed against the impugned judgment and order dated 21.11.1994 passed by Additional Sessions Judge, Dhomtari, in Sessions Trial No. 183/1993 convicting the accused/appellant for the offences punishable under Sections 363 ond 366 IPC and sentencing him to undergo rigorous imprisonment for two years and poy fine of Rs. 500 separatety for each offence plus defoult stipulations. 2. Case of the prosecution in brief is thcrt- on 27.2.1993 one Dheluram Sahu (PW-2) lodged a writt-en report to the effect that his daughter (PW-1) was missing since 20.2.1993. Based on this written report-, on 12.3.1993 F.I.R. (Ex.P-19) was registered against the accused/appettont under Sections 363 and 366 of the" Indian Penal Code. Further case of the prosecution is that subsequently the accused/appellant and the prosecutrix presented themselves before the Arjuni police station and thereafter, their medicai examination was done. After completion of the investtgoction chaltan was filed on 9.4.1993 by 'U^ ?,.^ Sl 'l the police under Sections 363, 366 and 376 of the Indioin Penal Code and accordinglyhewas prosecuted fop these offences. 3. So as to hold the accused/appellant guilty, prosecution has examined 12 witnesse^ in support of its case. Statement of the accused/appellant wae also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. Apart from this, witne^ namely Anand Kumor (DW-1) has abo been examined by the defence in support' of itscase. 4. After hearing the parties the triat Court' has acquitted the accused/appellant of the offence under Section 376 of the Indian Penal Code but has convicted him for the offences under Sections 363 d 366 of the Indian Penal Code. 5. Heard counsel for the pari-ies and perused the moterial available on record including the judgment impugned. 6. Counset for the appetlant submits that the [yosecutrix (PW-1) went along with the accused/appellant of her own without offering any resistance. He furt-her submits that along with the accused/appelloint initially the prosecutrix went from village Parevadeeh to Dhamtari where they stayed for the whole night and then they went to Bhilai ond then to Raipur by bus. It is alleged that after performing marriage crt' Raipur they went to Bhopat and ^toyed there fof-obout 2-3 days. Thereafter, they came back to village Balod from Bhopal where also they stayed about 2 -3 days and then they went to Dhamtari and hcd made themselves available before the Arjuni potice Station. He also subrriits that the conduct of the prosecutrix is os such from which it ean i>e easily inferred that she was a conseilttHa Rffl^Kf and went along with the accused/appeltant of her own. He submits that the ingredients of Sect-ion 366 are not ottracted to the case in hand, because there is no evidence to show that the prosecutrix was abducted or induced in ony manner by the accused/appellant for mcrricge. hle aibmits thorl' from the evidence it is clear thot prosecutrix was not taken from the lawful guardianship of anyone and therefore also, even the offence under Section 363 of the IPC is not made out. In respect of the age of the prosecutrix, it has been argued by counsel for the appettont that' there is no corarete evidence to thiseffeet cnd merely on the basis of mark-sheet Ex.P-8 of the prosecutrix, it ccmnot besaid thaton the dcri-e of commission of offence she was tess than 18 yeare of age. Counsel for the appellant submits that taking or enticing awoy a minor out of the keeping of a lawful guardianship is on essential ingredient of the offence of kidnapping. hfe placed his reliance on the judgment of the Supreme Court- in the mcrtter of S. Varadarajan v. State of Madras reported in AIR 1965 SC 942. 7. On the other hand counsel for the respondent/State support's the judgment im|aigrKd ond submits thot the appetjant's act in removing the minor prosecutrix from her lawfut guardianship makes him liable for convictibn under Section 363 and 366 IPO and thus the findings recorded by the Court' below being fullyjustified do not call for any disturbcnce in appeal. He submits that on the basis of mark sheet (Ex.P-8) of the prosecutrix, prosecution hcis proved her age as 17 years, 2 months and 18 doys. •;;fe 8. According to the statement of the prosecutrix (PW-1) aged about 18 years, at the relevant time, she was residin9 at village Parevadeeh. On the date of incident when she was in her house along with her mother, fother, younger brother and sister, occused/appellcnt came to her house by saying that they will go to Bhopal and, thereafter she scrt on the carrier of the cycle and had gone to Dhomtari bus stand and there the couple stayed for a night. She hoe alleged that she was aibjected to physicat relation by the accused/appelloint. She has further stort'ed that on the next morning she along with the accused/appellant went to Bhilai by bus ond attended the '©cyatriYagya'. She has alteged thot in the night she was again subject-ed to physical retort'ion by the accused/appellant and on the next date she had gone to Raipur and there accused/appellant called his father, mother ond matemal uncle ond took her to 'Arya Mandir' for performance of the marriage. She has atleged thot she was not willing to marry with the accused but she was compelled to marry with him and, thereafter, she md the accused/appellont had gone to Bhopal where they stayed for about 2-3 days cmd thereafter they came back to Balod, stayed there for about 2-3 doys. During all this period they were roaming from one place to another. She has furt'her stated that from Balod they have gone to Dhamtari and, thereafter, they presented themsetves before the Arjuni police station where her mother and fat-her were called and she was '~-^ medically exomined. In the cross-examination, the prosecutrix has admitted the fact that when she was going to different place, she did not raise ony atarm though she met number of persons in various ploces. She has further stated the foct that her mapriagewas performed against her wishes, was informed to ^_:^.;i^a£.i;aiL;^ii:;:.,.: UOlUldo ^JO U3At6 +OU SDl) xu+noasojd ai,|+ psuiuioxs AjiDoipsut pDi| oi|m (9-Md) !M4»d!^l"MSV ('+uis) •uq -s^p gi puo sij+uoui ^ 'SJDaA /l SDM 9l|S +U3pj3UI ^O 3+Dp 31)4. UO '+38JJ03 aq o+ ua>p+ sj ijiJiq J.o a+Dp siq4. ^i 'jaAaMO|-| "QZ6l'TI"0£ SDM xu^psscud aij+ j.o i|+Jiq ^o a+Dp +39^03 9q+ +oq^pau!D+>ia3SD aq 4.ouuo3 4.1 uoi+naasoud 3i|+ Aq paonppo a3U3p|A3 31)4. ^o sisoq at|+ yo •s+uaAd uaij Aq u3Ai6 uo!4JDUUo^ui ^o sjsoq ai|4. uo A|8J3iu 3pDUi ajam sau+ua 344. puo uiiij Aq apDUi uasq +ou poi^ +uaiun3op 31)4. ui saij+ua 4Dt|+ +3DJ. aq+ pauiuipD soij ssau+im sji|4. 'uoi+Duiuioxa-ssoja 31)4. ui "SZ61'IT"0£ so xuynaasojd ai|+ j.o i|4*i!q J.o syap 31)4. 6uiMoi|s ua+siSag UOISSIUIpV |OOl|3S 31)4, j.0 +3&J4X3 8l|4. Sl l|3!l|M 6~d'x3 P3+!<1!l<x9 osp SDI| SH •xiti+noasojd ai|+ J.o (9-d'x3) +aai|s »|jouiai|4. paAojd S0t| SS3U4.1M Sjt|4. pUO |OOl|3S AjDUIUd 344. j.O J3+SDUfpD8H '(9-M<f) unuDui)>|y pauiuioxs SDI| uoi+n3as<ud 'xuyvsasojd a^ ^o aGo 3t|+ j.o 4.3adsaj ui "Q/6T •JD3^ 3l|4- u! luoq SOM xi^nossojd ai|+ 4Dt|+ ps+o+s soq ai| 4Di|+ 4.3DJ. aij+ +daoxa aauapiAa aiqissiiupD A||D6a| 3M6 04. p»|!Dj. SDI) ai| xu+naasojd ai(+ ^o 360 ai|+ j.o +3adsaj ui +nq +UD||addD/pasn33D ai|4. +suiD6D uoi+oSsiiD apoiu i|6noi|4. SDI) xu+naasojd ai(+ j.o usq^j. - (g-Md) n4DS uiDjn|ai|q •6 •+UD||3ddo/pasn33D 3i|+ f.0 4.3npuoa ai|+ +noqb auo^uo paiujoj.ui. SDlj JOU UUD|D AUD 3SIDJ 4.ou pip xu+nassojd 'X+iun+joddo +uai3!^rB 6uiu^ a+idsap +044. spaAaj osp wawavo^S •4.UD||3ddD/p3sn3W 3t|+ i|4.im aui!+ poo6 +Uads pDl| pUD S33D|d Q +noqo •a-i jaij+ouo o+ aoD|d auo uioj^ 4.U8M 4.UDj|addo/pasn33D 3l|+ Ij+IM 6UO|D 3l|S UMO jaij j.o 4Di|+ 4.uajioddD si 4.1 xu^oasojd ai|+ ^o 4.U9UU34JO+S aii+ UKUJ •awos 8i|+ JQ^ uosoaj AUD ||34. 4.0UUD3 3l|S '+U8U3-P4S AjOlp 9l|+ ui pauoi+uoui uaaq +ou soq suros ai|+ ^i +nq papjosaj Suiaq SDM +uauia4.D+s jai| USIJM 33i|od 344. -^^scs--' ..',•' regarding her subjection to forcible sexual intercourse as she was accustomed to sexual intercourse. According to this witness, age of the prosecutrix was 18 years. This witness had also referred the prosecutrix for radiological test but there is no legally admissible document to this effect. •» 10. The only question that arises for considerotion before this Court is whether on the dote of incident i.e. 20.2.1993, the prosecutrix was minorin respect of the offences punishcdsle under Sections 363 <& 366 IPC. From the evidence as adduced by the prosecution, though the age of the pr<»ecutrixcomes to 17 years, 2 months, 18 days but there is no concrete evidence to this effect. From the overall conduct and the behaviour of the prosecutrix it is apparent that on the date of incident the prosecutrix had already attained the age of discretion and was about to crttain the age of majority. From the evidence it is also ctecir that the prosecutrix was not taken from tawful guardianship of anyone, she accompanied the appellant of her own without making cmy protest, spent number of doys with him in several ptaces. In the case in hand the prosecution hos not adduced any evidence to show that the prosecutrix was kidnapped or abdacted by accused/appellant from hep lawful guardicnship or compelled to mariy against her will or forced or seduced to itlicit intercdurse. 11. Thus after going through the materiat available on record this Court has no hesitation to hold that there are various contradictions and omissions in the st-atement of the pFOsecutrix recorded under Section 161 of the Gode of Critninal •^' 1s?^^^^C-im^%W'^! • ^i" 1J t -§ t 1 1 -c c •»- -oii 1 ^ 1 & -o 1 JS o ^ 1 1 £ ^-i •8 -o 's mI § u .0 11 m m =^ u g: I H" 1 1 '§ m h ?•». ktf.lI • n u ?.. ^ .M TK i' '» yi s ^ •S h-i i •o •g s w"a •s " ? &1 <M 1 § ^ '^ •A ';'i ••{ ! - ''