@ HIGH COURT OF CHHATTISGARH AT BILASPUR LSB: Hon’ble Mr.Printinker Diwaker ,JJ Cr. Appeal No. 53312000 Jitendra Kumar Satnami. APPELLANT (in gain VER$US State of Madhya Pradesh (now Chhattisgarh) RESPONDENT Mrv Deepak Jain for the appeHant. Mr._Praveen Das, Dy. GA. with Shri N.K.Meht‘a, PL for respondent/State V? APPEAL_UNDER SECTION 374 OF THE CODE OF CREWHNAL PROCEDURE a a ORAL JUDGMENT (03.03201 0) With the consent of thegparties, the matter is heard finaliy at motion stage. 2.‘ This appea! rs directed aaamst the wdgment and order dated 05 02 2000 passed by the 2”“ Additionai Sessrons Judge Baloda Bazar Drstnct Ralpur in Sessrone‘ vCase No. 260/1999 convrctmg the acoused/appeltant for the offence ptmishablé under Section 363 of the T.P.C. and sentencing him to undergo rigorous imprisonment for 3 years and pay fine of Rs.1.000/—, in default of fine amount to further undergo simple imprisonment for six months. ‘ 3. Caseof the prosecution in brief is that on 12.01.1999 FJR. Ex.P.16 was iodged by Shanti Devi P.W.2, mother of the prosecutrix P.W.1, atteging that since 28.09.1998 her daughter was-missing. To this effect a missing report was aiso iodged on 02.10.1998. It is alleged that her daughter had eloped with the accused/appettant. However, subsequent to lodging of F.t.R. Ex.P.16, the prosecutrix P.W.1 was recovered from Butanagar, Jammu Tavi on 08.04.1999 from the possession of accused/appetlant. On the basis of 9this report (EX.P.16), the offence under sections 363, 366 and 3?6 of the l.P.C. was registered against the appeitant. Ff: @ 5. ; So as to hold the accusediappeliant guiity, prosecution has examined 8 W§itnesse5 in support of its case. Statement of the accused/appeiiant was recorded under Section 313 of the Code of the Criminal Procedure in which he (Etenied the allegations made against him and pleaded his innocenee and false implication in the case. l l 6. i After hearing the parties the trial Comt has convicted and sentenced the eccused/appellant for the offence as mentioned above. l l l l 7_ i recd‘rd including the judgment impugned. l 8. §u90unsel for the appeliant submits that both the appellant and prosecutr.x were havmg iove affair and as their family members were rot agreeing for their marriage, both of them went away on the intervening night of 2i8.0§.1998 ancL29.09.1998 and got married at Vaishno Devi Mandir, Jarrimu. He submits that both the appellant and the prosecutrix are living a happy married life being blessed with two children. Heard counsel for the parties and perused the material available on 9. 3 Appeiiant who is also present in Court states that he is living happily with the prosecutrix. lt has aiso been argued by the counsel forthe appellant that both the prosecutrix P.W.1and her mother Shanti Devi P.W.2 have turned hostile in the Court and not supported the proeecution case, and therefore, under no circumstanées, the appellant can be convicted fonthe offence under section 363 of the l.P.C. He also submits that the appellant has already remained in jail for more than 2‘ months, and therefore, no useful purpose would be served in sending him to jaii and disturbing his marital life after about 11 years. ’lO. On the other hand, counsel for the State supporting the judgment impugned, it has been argued that the judgment is strictly in accordance with law and there is no infirmity or illegaiity in the same. , 11. Smt. Shanti Devi P.W.2, the iodger of FIR. has been declared hostile but even then she has denied the fact that it is the accused who removed her daughter from her lawful guardianship She has categorically denied even the contents of the F l R and the statement made before the oolice Similar ts the posmon With the prosecutrix~P.W.1 who too has categoricaily F ——$ state‘d that she was having affair with the accused and she went to Jammu- Kashmir along with him at her own free wiii.‘ 12. ‘ Considering the totaiity of the fact, in particuiar that Shanti Devi P.W.2 andithe prosecutrix P.W.1, both have not supported the prosecution case and have been declared hostiie, the fact that the appetiant has already remained in jail for more than 2 months and also the fact that the prosecutrix and the accused/appellant have got married and are enjoying a happy marrlied life being blessed with two children, i am inclined to allow the appeal. 13.’ Consequently. the appeal i3,ailowed. Judgment convicting the accused/appellant for the offence punishable under Section 363 of the l P C and sentencmg to undergo rigoroue Imprisonment for 3 years and pay fine of RstOOOI- and in default of fine amount to further undergo simple imprisonment for Six months is set aSide The appellant be set at liberty forthWIth if not wanted in any other case Sdl- Pritinker Diwakelfi if; Judge i is MW