‘ ‘ \ ‘ 1 SXNGLE BENCH: HON’3LE SHRE R. L. JHANWAR, J. @ HIGH COURT OF CHHATTISGARH: BILA$PUR Criminal Appeal No. 1152/ 1999 APPELLANT Munna Desp Versus ‘ RE$PONDENT State of MP. (NOW C.G.) JUDGMENT Post on 3, September, 2009‘] Sd/- \ R.L. Jhanwar Judge 3L/9/2009 b. HIGE-E CGUR‘T OF CHHATTESGARH: EELASPU‘E? SIIE7‘GLE EENCH: HGN§ELE SHRI RAJESHWAR 11% JHANWAR J. 1 Criminal Ayyeai No. 1 152} 1§99 \ A§¥eiiant Munna D661), S/ o Kagdo Degp, ag€d abcut 24 years, \ Resident of Near Shiv Mandir, Inside 0f the Rijvi \ ‘ Advocate, Moudhapara, Distt, Raipur (M.P.) {now 0G.) l > Versus State of M.P. through S.O, Khamfaray, Distt. Raipur Res a &eat \ 1 Apyeal u/S 3’?4 of the Cnde of Criminal Pirocedure ?xe‘sen‘t:— Smt. ‘Indira Tripathi, counsel for the appellant. 1 Shn' D.K. Gwalre, Govt. Advocate for the State. J U D G M E N T (DeHvered on gLQ,’ 2009) 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 8m Apm'l 1999 passed by the learned 4th Additional Sessions Judge; Raipur in ST. No.1]97, whereby the ileamed Additional Sessions Judge has convicted the appellant for icomnzittjng the offence punishable under Section 366 read with Section 34 of the IPC and sentenced him to undergo R‘I. for 10 years and to pay a hne of Rs.2000/ -, in default of payment of iine to further undergo RI. for 6 months. 2. case of the prosecution, in brief, is that the prosecutn'x on 10.10.1996 in the early morning at 7 O’clock went to college, but did not return. Then search was started by her brother and father, but did not succeed, then her father lodged missing report which was taken on roznamcha sanha, EXP—5. After that, investigation took place and prosecutrix was found with accused Shivprakash and seizure was made. According to prosecutn'x, when she went to college and was returning, near Naharpara, accused Shivprakash and Munna Deep saw her and told her to go with them but she refused and went for tuition. When she was returning from tuition to her house again both the accused persons asked her to come with them. She again refused. Then Shivprakah threatened her on the point of knife and also told her that he will km hay fatha mild mother also, whereupon, she went Wi‘ih them. Thev took hor to Arya Samaz Maudir and to tho Court fo ‘ ‘agidavit and ag$1 came back to Arya Samaz Mandir, whom accused S§hivpraka$h manied with the prosocutn'x in the prasence of priest and Witnesses. After that, Shivprakash took her for photograph and then took her to the house of».one Mani where he wanted to commit sexual t intercourse with her. She refused and on 11.10.1996, he took her to 0!}ne lodge and on 12.10.1996 took her to Bhilai by bus and on 1:3 10 1996 to Dongargarh Temple and from there they came back to Raipur and stayed m the house of Munna Deep, where the police caught them FIR was lodged Investigatlon took place Seizures were made and after completion of investigation charge sheet was tiled. 3. Charge sheet was filed by P S Khamtarai 1n the Court of Jud1c1al Maaistrate 1“ Class Raipur who 1n due course, committed the case to the Court of Sessmns, Raipur. Leamed Sess1ons Judge made over the case to the learned 4th Additional Sessions Judge, Raipur for trial. . The learned 4th Additional Sessions Judge, Raipur‘framed charge under Section 366 read with Section 34 of the IPC against the appellant and read over and explained to the appellant, who abjured the guilt and pleaded that he has been falsely implicated in the case. . The learned 4th Additional Sessions Judge after evaluating the evidence available on record and after hearing learned counsel for respective parties, convicted the appellant under Section 366 read with Section 34 of the IPC and sentenced him, as above. . Accused Shivprakash was declared absconding by the trial Court. . I have heard learned counsel for both the parties at length and perused the record of the trial Court. . It is evident from the judgment that the learned trial Court relying on the statements of the prosecutrix (P.W.4), Ramkumar Bani (P.W.7) her father, Murti Bani (P.W.5) 6r. Deepak Bani (P.W.6) her brother, Mukundrarn Trivedi (PM/'2), lndrakumar Khatn' (P.W.9) and LO Mukesh Khare (P.W.10) held the accused/appellant guilty for the offence punishable u,’ S 366 of the IPC and convicted him, as above. r . 9. 1t is evidant from the statement of Ku. Jyeti Ba11i (P.W.4) tha‘; sha went to college on 10.10.1996 and While returning, she saw accused $hivprakash and appellant Muuna Deep. They told her to come with ' 1 tkiem, but she refused alld went for tuition. While retmning from ’éuition, again both the accused pelsons met her and told her to come mith them she refused Shivprakash threatened her on tLe pomt of knife Then under tlneat she Went wnih them They took he: to Arynt Samaz Mandy“ and told her act accordmg to them Then they Went to Court and to photo stutho also for photography and came back to Arya ‘y §amaz Ma'ndir, where, agaihst her will, she was married with l l Shivprakash. Then Shivpraksh took her in the house of Mani, Where ‘ Sh‘tvpraltsh tried to commit sexual intercourse. She objected. On the . E next date Shivpraksh took her in a lodge and next day took her to Bhilaii and again on next day to Dongargarh Temple and on 13. 10. 1996 they returned to Raipur. In cross—examination she stated that she knew Shivpraksh before the date of incident as he used to visit her colony. She also stated in the cross—examination that she put her cycle in the cycle stand situated near to colony and the manager of that cycle stand also knew her. 10. It is evident from her statement that she was well known to accused Shivprakash and when she went to college and was returning back they met. her and asked her to come with them. If she was not willing to go, she should have become alert and would have told her tuition teacher also as she stated. She went for tuition and on returning she was taken by appellant and Shiprakash to Arya Samza Mandir and from there to Court for ahidavit. Anidavit, Ex. D—l 82. D—2 are on record. It is well known to all that in the Court premises there are so many people coming and going. So many advocates are also present there. If she would have shouted certainly she would have got help from these people. But she did not cry and again when she came back to Arya Samaz Mandir, there also she kept mum and told nothing to priest or anybody. According to her statement appellant Munna Deep was also there but what he did is not stated by prosecutrix. According to Dr. Kamalnarayan Arya (D.W.1), Acharya of Arya Samaza Mandir on 10.10.1996 he has issued marriage certificate, Ex P—7 of prosecutrix. He also accepted his sign on the certificate. He stated that in their Temple generally a marriage takes time about 2 to 3 hrs. and also stated that they always ask from bride and groom (Var 85 Vadhu) about / t;a 0. theirwill. Ha has stated ‘that “W W Tm? $§ $ 1??? W T ag€g3§§ %W%WWW&WE?E¥TW%W—% %W%mm %w%wag§€r§r?f&mm@wm% WwWHW$WWWHTW§ IWW wwwag$m1m WH§W§ l" Healaoemted ‘ that appellant Munna D€€p has sxgdea. on the csrmicqte as a snbmal guest He a1 o statsd thaL 3 parsons weia alSo thsm w1th bnde and 1 groom ACCGrdinU to Ishwar Chand Tlwan (D W 2) Advocate and Notary af&iav1t EX D 2 8a D 3 were prepared in hls presence and that ’ was read over to Sh1vprakash and Jyotl Bam and they accepted that. \ 1 11 ." -Viultl Bam (P W 5) mother of prosecutmx 1n her statemeat stated ‘that pmsecutnx told her that $h1vprakS‘1 took her forcefully and also narrated the entlre story Qamkumar Barn (PW 7) her fathm also Stated that when h1s daughter not returned to house he reported the 'matter On 14 10 1996 hls daughter was recovered and then he Went :to pohce statlon and saw her. 1 l2. According to Ramkumar Bani (P.W.7) 85 Deepak Bani (P.W.6), police person told them that they recovered Jyoti Bani in the house of Munna Deep, but seizure memo EX 13—4 does not indicate so In the seizure memo place of recovery 1s not mentioned only 1t mentioned that the sne found With Shivpraksh S/o Shoklingam aged 2o years then they recovered her It 1s apparent from the selzure memo that the name of appellant is not mentioned therein. So on this point both the above witnesses are not reliable. When the prosecutrix was putting her bicycle at cycle stand situated nearby her colony, she could have run, but. she did not do so. According to Gropal Sahu (RW. 1) manager of that cycle stand, she came and put cycle and told that her brother will come and will take At that time she also took the help of that person she was Well known to her. 13. Thus, in View of the above discussions, it. is clear that the prosecutrix is a consenting party. She went with the appellant and a Shivprakash on her own freewill. She was not taken forcefully by the appellant. For the reason stated above, it is held that the statement 0t prosecutrix does not appear to be straightforward, reliable and trustworthy and does not inspire confidence. Therefore, no reliance can be placed on her statement on the point that she was taken by the appellant against her Will/m/ K ‘ l @ l4. In the msult, the finding of the learnad Sessicsns Judge convicting the appellant under Section 366 of the IPC cannot be suStained and is iliable to be set aside and this appeal desexves to be allowed. The laccuSed/appellant is entitled to acquittal. Accordingly the appeal is lallowed and the impugned judgment and order dated 8th Apn'l 1999 ipassed by the learned 4th Additional Sessions Judge, Raipur is set laside. The accusedi appellant is acquitted of the charge framed against ihim. SdL R.L. Jhanwar Judge lf'