1 //?M. IN THE HIGH COmT OF CHHATTISGARH AT BILASPIK. Crtol.aal ^peai No. U/^/2Q01* APPELI*AHT (IN JAIL) Ramnarayan s/o Panoham, aged about 28 years» r/o Vlllage tTatasea^ar^ P^S» Baitomtl^pur^ Distt^ K©ria,C^G^ VE R S US. RESPONDEITT : Tfae State of ca^hattisgarh through P»S^ BaJLImntMpur, DJLstt. Koria, C<»G» CRIMINM. APPBM. maOEEL SEGFION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. •^ (® HI&H COURT OF CHHATHS@ARH AT BILASPUR Cr. Ap&eaS No.438/2001 Ramnarayan Vs. State of Chhattisgarh Post for Orders : 2L^ .07.2006 Sd/- DUip Raosaheb Deshmukh Judge ). ^) ^. HI@H COURT OF CHHATTISeARH AT BILASPUR Criminal Apssed No. 438/2001 RAMNARAYAN Vs. STATE OF CHHATriS@ARH Bcnch: Hon'ble Shn Djlip ftaosaheb Deshmukh, J. " 'Shri A.KPrasad, learned counsei for the appeiiGnt, Shri Ashish Shukla, ^ovt, Adyocate/AdditionaI Pubiic Prosecutor for the State. JUDSMENT (Deiivered on'U-07-2006) This appeai Is directed against the Judgment dated 25-04-2001 passed by Shri T.P.Sharma, 1st Additionai Sessions Judge, Baikunthpur, &istrict-Korea in Sessions Triai No,19/1999 whereby the appellant was convicted under Section-363 of fne IP,C, and was sentenced to undergo rigorous imprisonment for 3 years, 2, Sriefly stated the prosecution story is that on 01-06-1995 Shashikab PW-1 aged about 14 years had gone to piuck mangoes in the outskirts of the Viilage-Jatasamer aiong with Kailaso Bai, The appeilant CGme there wlth Bhola and threatened the prosecutrix with G Tangia^Q 90 with Bhoia, Knowing fuil weil that the prosecutrix would be subjected to llilclt Intercourse by Bhoia, the appelbnt is aileged to have assisted Bhoia in kidnapping the prosecutrix by taking her upto Chatidand Forest with Bhola. Frightened, Kaiiaso Bai returned home and narrated the incident to &arbari P¥/-2,father of the prosecutrix. After finding the prosecutrix in Viiiage-Jato.samer, report WGS iodged by Darbari PWa-2 at (3 ^<4 Police Station-Baikunthpur after 22 days on 22-06-1995. School ieaving certificate ExP-6 showing date of birth of the prosecutrix to be 01-03- 1981 was recovered from Sendlai PW-3. The appeEEant was prosecuted along with Bhola and one Titak Ram for the offences under Sections-363, 366, 376, 506-B read with Section-34 of IPC. It was alieaed by the prosecution that Bhoia committed rape on the prosecutrix during her stay with him at Viliage-Jatasamer. It was further alleged by the prosecution that one Tiiak Ram had threatened the prosecutrix dursng her stoy with BhoSa. 3. Aii three Gccused persons were shown as absconding at the time of flling of the challan. Appeltant RamnarayanG WQS arrested on 08-10-1999 and faced the triGl while co-accused Bholc and Tibk remained absconding. Para-5 of the impugned Judgment shows that accused Tiiak had expired. Appellant Ramnarayan was charged under Section-363 & 366 of the IPC. The appeliant abjured the 9uiit, The prosecution examined as many as 9 witnesses, The appeliant examined Lalia Ram DW-1 and Bandhan &V</-2 in his defence. ftelying upon the evidence ied by the prosecution, learned trial Judge convicted and sentenced the oppeilant as aforesaid in para-1 (supra), 4. Shri A,!<Prasad/ iearned counsel for the appelbnt has assailed the conviction of the appellant under Section-363 of IPC on the ground that Koiiaso Bai was neither cited nor examined by the prosecution as a wltness due to which an adverse inference should have been drawn a9ainst the prosecution, No positive proof reiating to 090 of the prosecutrix was furnished by the prosecution, In the absence of ossification test for proof of age of the prosecutrix, it couid not be ruled out that the prosecutrix was aged 18 years or more on the date of occurrence. PGra-5 of the testimony of Shivbalak PW-7 was also referred to whlle ar9uing that the appeilant was faEseEy implicated by the father of the prosecutrix due to previous animosEt^. Lastly, it was contended that the delay In lodging the FJ.R. was not satisfactoriiy exptained. On the other hand, Shri AshEsh Shukla, ieamed (&ovt. Advocate for the State argued in support of the impugned judgment. <2^ 5, Having heard rivai submissions, I have perused the record, The ^ testimony of the prosecutrix clearly 900$ to show that she had gone to <^/ eat mangoes with Kailaso Bai at 12 Noon, Thus/Kailaso Bai was present ^^when the appeilant is aileaed to hcxve kidnapped the prosecutrix under threats with a Tangla. Accordina to barbari PW-2, Kcxiiaso Bai had informed him immediateiy on her return that Bhola and the appellant ftamnarayan had assaulted the prosecutrix and taken her with them. In this view of the matter, Kallaso Bai was a materiai v^itness who was neither cited nor ewmined by the prosecution which justifles an adverse inference ogainst the prosecution. 6, If the testimony of Darbon PW-2 and the prosecutrix Shashikaia PW-1 is to be belieyed, &arbari PW-2 had knowtedge on 01-06-1995 itseif that his daughter had been -taken awoy by Bhola with the assistance of the appeliant-Ramnarayan who had threatened his daughter with a Tangfa Shivbalak PW-7 has in para-5 of h Is testlmony admitted that quarrei was golng on between father of the appeliant and Darbari PW-2 and criminai prosecutions were also filed against the father of the appeliant Ramnaroyan in whlch he v^as acquifted, If this was the reiationshlp, OarbQri PW-2 wouid not have wdted for 22 days for lodgin9 the FJ<R< against the appeilant-Ramnarayan and as a natural human conduct, barbari PW-2 wouid nave promptly lod9ed the FJ<R. It therefore cannot be ruled out that after finding the prosecutrix in Vilioge-Jatasamer with Bhoia, whlle iodglng report on 22-06-1995, the appeiiant Ramnarayan was implicatea6 faiseiy. The testimony of defence witnesses LalEa Kam bW-1 and Bandhan DV/-2 relating to GnimosiW between father of the prosecutrix o^id the appeltant aiso creates a strong suspicion regarding complicity of the appellant Ramnarayan in the offence of kidnapping aiieged to have been committed by Bhola. 7. The testimony of Shashikala PW-1 does not show that the appelbnt Ramnarayan had threatened to assault her with a Tangia. Her testimony aiso does not show that the appeEEant Ramnarayan had assaulted her En any manner. In para-11 of her testimony, the prosecutrix admitted that the appeiEant-Ramnarayan was not wi1li her when she v^ent with Bhoia towards Viiiage-PandripanE-Make^rbandha, Her testimony that the oppe!!ant- Ramnarayan returned from Chatidand forest therefore does not inspire confidence. 8. From the above discussion, the foilowing points emerge:- (a) There is no satisfactory expianation GS to why Darbari PW-2 did not iodge FJ.R. against the appeliant immediately on iearnin9 about the occurrence from kailaso Bai. (b) An adverse inference is drawn against the prosecution for not citing and examining a materia! witness i.e. Kailaso Bai. (c) The testimony of Shiybaiak PW-7, Lalla Ram DW-i <& Bandhan &W-2 does hot ru!e out the possibility that the appeitant Kamnorayana was faisely impiicated in the offence aileged to haye been committed by Bhob. 9, Having thus considered the evidence led by the prosecution in its entirety, it Is ciear that the prosecution has failed to establish the 9uiit of the appeilant Ramnarayan under Section-363 of IPC beyond doubt. The possibility that he has been faiseiy implicated cannot be ruled out, 10, In the resuit, this appeal is allowed. Conviction of the appeiiant Ramnarayana under Section-363 of IPC cxnd the sentence awarded thereunder by the iearned trial Judge are set aside. The appellant is acquitted after givin9 him the benefit of doubt, kecord of Sessions Trial No.19/1999 be sent expeditiousiy to the triai Court for conducting triai against Bhola who Es reported to have been arrested on 07-12-2005. The triai Court wiil conslder to exercise its discretion to examine KaiEasa Bai as a Court witness, if not examined by the prosecution. Sd/- Dilip Raosaheb Deshmukh Judge