FE ,‘l\19)l MmY§§ IRAI$M KL JaBMUIi {ggw ww gmw {\(\ R / / Damemwar g Damura'u 12,6 ab yfi‘a Gunuxa F. u. kw$0ara :Iancnalguur Humid ) / kurud ;w .hamban digut Faipur / WORJE Tilk hléii GQR 3 I / Gr, & E3. Lfl’ / a AHELLAM‘ {£GU3ED Vie rats ‘ x’ . Etata ai‘ mP.fch‘raugn me 35wztion Cwicer at}. Mxud diam“ Raipux, 2, WAT» Age-am up 3M {a} w exuw‘i. Rsapand'ant r,’ E- ‘\ ‘: z HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 44 of 1995. APPELLANT Dameshwar alias Damuram VERSUS RESPONDENT State of Madhya Praesh. d Shri Sourabh Dangi counsel for appellant. Shri Pankaj Shrivastava PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (1 5.02.201 0) This appeal is directed against the judgment dated 29.12.1994 passed by Additional Sessions Judge, Dhamtari, in Sessions Trial N6. 239/1 992 convicting the accused/appellant for the offences punishable under Sections 363 and 366 IPC and‘v‘sentencing him to undergo rigorous imprisonment for two years and pay fine of Rs. 300 separately for each offence plus default stipulations. 2. Case of the prosecution in brief is that on 29.3.1992 one Ganesh Ram Sahu (PW—3) lodged a report to the effect that his niece (PW—2) was missing since 25.3.1992. Subsequently, on 30.3.1992 one Manish Tiwari (PW-10) gave information to said Ganesh Ram Sahu to the effect that the prosecutrix was in the house of one Shanti Bai at Raipur along With the present appellant. Based on this information, prosecutrix was recovered from the house of said Shanti Bai and thereafter at the instance of"Ganesh Ram Sahu FIR (Ex. P-3) was registered on 31.3.1992 for the offences punishable under sections 363 and 366 IPC. After; completion of w investigation challan was tiled by the police under sections 363, 366 and 376 IPC. However, on 19.12.1992 charges were framed against the appellant under sections 36.3 and 366 IPC only. i 3. So as to hold the accused/appeHant guilty, prosecution has examined 12 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the charges Ieveiied against him and pieaded his innocence and faise implication in the caSe. 4. After hearing the parties the trial Court has convicted and sentenced the accused / appellant for the offences as mentioned above. @ Heard counsel for the parties and perused the material available on record including the judgment impugned. 5. 6. Counsel for the appellant submits that the prosecutrix who on the date of incident had attained the age of discretion and was about to attain the age of majority had accompanied the accused/appellant at her own sweet-will as they were in love with each other. He submits that had the prosecutrix not been a volunteer‘while going to Raipur by sitting on the bicycle of accused she could have raised hue and cry and disclosed the act of the accused/appellant to the passers by. He submits that the prosecution did not bother even to examine the parents’ of the prosecutrix to ascertain the correct age of the prosecutrix and this being the factual aspect of the case, appellant’s conviction under section 363 and 366 IPC cannot be sustained in the eye of law. Placing reliance on a decision of the Supreme Courtlin the matter of S. Varadaraian v. State of Madras reported in AIR 1965 SC 942 , counsel for the appellant submits that taking or enticing away a minor out of the keeping of a lawful guardianship is an essential ingredient of the offence of kidnapping. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the appellaht’s act in removing the minor prosecutrix from her lawful guardianship makes him liable for conviction under section 363 and 366 IPC and thus the findings recorded by the Court below being fully justified do not call for any disturbance in appeal. @ ._$‘_ 8. According to the statement of pro$ecutrix (PW-2) aged about 18 years, at the relevant time} she was appearing in the 10‘“ board examination. On the date of incident she had left the house on bicycie to write her maths paper and on the way to school accused/appellant met and asked her to accompany him. When the prosecutrix refused to accompany him, he told him to end his life by consuming poison. Thereafter, she accompanied the accused/appellant to Raipur where they both stayed in the house of one Shanti Bai for 4-5 days and during their stay there she was subjected to physical relationship by him. Meanwhile, it is alleged that accused/appellant came in contact with one Manish Tiwari (PW-10) and sent him to his parents’ house to inform them that he would marry the prosecutrix. lt is alleged that some police people and her uncle Ganesh Ram Sahu came to the house of said Shanti Bai at Raipur and took her along with them. ln the cross examination, this witness has stated that while leaving the house to appear in the examination, she had taken out Rs. 360 from the pocket of her uncle Ganesh Ram Sahu. On being confronted with the case diary statement, she has denied that she wrote any love letter to the accused/appellant. Ganesh Ram Sahu (PW-3) has stated in his evidence that after receiving the information from someone to the effect that the prosecutrix had not returned home, . he made a search for her and ultimately she was found in the house of Shanti Bai at Raipur where accused/appellant was also there. Hiralal (PW-4) - the witness of Panchnama (EXP-4) and seizure of cycle (EXP-5) has stated that the prosecutrix was found in the house of one Shanti Bai at Raipur. Mangal Ram (PW-5) is the Patwari who had prepared the map (EXP-6). In respect of age of the prosecutrix, prosecution has examined the village Kotwar namely Bharatram (PW-6) who has stated in his statement that date of birth of the prosecutrix as entered in the Kotwari register (EXP-8) Fs 28.3.1974. if this date of birth of the prosecutrix is taken to be correct, on the date of incident she was 17 years 11 months and 27 days old. This witness has however stated that ,on what basis and by whom this 1' entry was made in the Kotwari register, he cannot say. B.R. Sonwani V \ entry was made in the register on the basis of transfer certificate. Thus according to the case of the prosecution, at the reievant time, the prosecutrix was aged about 18 years. Dr. (Smt.) Asha Tripathi (PW-9) who had medicaiiy examined the prosecutrix has not given the age of the prosecutrix, there is no cogent evidence available on record as even the parents of the prosecutrix have not been examined by the prosecution. Manish Tiwari (PW-10) has stated in relation with the accused/appellant, she told him that it was he who had forcibly brought her there. Shanti Bai (PW-1 1) has stated in her evidence that accused and the prosecutrix stayed in her house. This witness has however not stated anything substantial. Sub Inspector — Anil Sharmal(PW-12) who had conducted the investigation has supported the case of the prosecution. 9. The only question that arises for consideration before this Court is whether on the date of incident i.e. 25.3.1992, the prosecutrix was minor in respect of the offences punishable under Sections 363 and 366 IPC. From the evidence of village Kotwar namely Bharat Ram (PW-6) and B.R. Sonwani (PW-8), age of the prosecutrix on the date of incident comes to be 17 years 11 months and 27 days. Admittedly, the parents’ of the prosecutrix have not been examined by the prosecution and the evidence of these two witnesses { Bharat Ram (PW-6) and B.R. Sonwani (PW—8)} does not appear to be fully reliable. There appears to be sufficient force in the argument of the counsel for the appellant that on the date of incident the prosecutrix had already attained the age of discretion and was about to attain the age of majority. 10. To have the things clear, Sections 363 and 366 of the indian Penal Code need reproduction for ready reference which reads'as unden “363. Punishment for kidnapping.- Whoever kidnaps anyfperson from [India] o'r from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” “366. Kidnapping, abducting or inducing woman to compel her marriage, etc. — Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced .or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine...” ln the case in hand the prosecution has not adduced any evidence to show that the prosecutrix was kidnapped or abducted by the accused/appellant from her lawful guardianship or compelled to marry against her will or forced or seduced to illicit intercourse. Even the parents’ of the prosecutrix have not been examined by the prosecution. Moreover, it is a case where the prosecutrix has v categorically stated in her case diary statement that she was in love with the accused/appellant and had made physical relations with him also. She has also stated that even on the date of incident she eloped with the appellant to Raipurrand during their stay in the house of Shanti Bai also they had physical relations. As in the Court statement the prosecutrix has not repeated her entire case diary statement, this omission on her part creates doubt in the mind of the Court and it appears that while giving evidence in the Court she has given somewhat different story. 11. Thus after going through the material available on record this Court has no hesitation to hold that there are various contradictions and omissions in the statement of the prosecutrix recorded under Section 161 of the Cr.P.C. and that recorded before the Court below. That apart, prosecution has utterly failed to prove its case beyond reasonable doubt by not examining even the parents of the prosecutrix and in these circumstances the benefit of doubt must go to the accused/appellant. What is more astonishing to note is that even the prosecutrix had not been firm in making her statement and this oscillation on her part renders her entire testimony untrustworthy and unfit for judicial reliance to hold the accused/appellant guilty under sections 363 and 366 IPC. 12. in conclusion, the appeal is allowed. impugned judgment convicting and sentencing the accused/appellants as mentioned above is set aside. He is acquitted of the charges levelled against him. Accused/appellant is reported to be on bail. His bail bonds stand discharged. Sd/— Pritinker Diwaker Judge