HICrH COURT OF CHHATTISGARH: BnASPUR CMMINAL JU» ALN0. 729/2001 Saryay Kcrkctta Vs State of Chliattisgarh JUDOMBIIT s Post for Sd//- V.K.Shrivastava Judge .ai.a2.-.l-.£',!;.].;i,s,a«is,fe.a.ji(»s;—,-K -1 HI6H COURTOFCHHATnSGARHsBItASPUR Crimtaal Aopeal No. 729/2001 AppeUaiit Vs. Respondent Sanjay Kcrketta S/o. Jwakun Kerketta, aged 24 years, r/o. vfflagc Jagarpur, (Kharidand) Thana aad Tahsil B^icha, Dist, Jashpur, State of ClLhattisgarh, Through the District M^istrate, Jashpur (CG). ShriYogesh Paadey, Counsel for the appeUant. Shri M.P.S. Bhatia wifh. Shri Sanjeev Kumar Agrawal, Panel Lawyer for fhe State. JUDQMBNT Date&^ Pebtnwcy, 2006 PRESENT: HON'BLE SHRI JUSTICB WJAYKUMAR SHRIVASTAVA This is aa appeal directed against the impugned judgmentofconvictionaad sentence dated 09/07/2001 passedby the 2nd Additiohal Sessions Judge, Jashpur m S.T. No. 190/2000 by which fhe appeUaut has been held guilty under Seetions 363, 366 and 376 (2) (f) ofllie I.P.C. and sentenced to undei^o R.I. for5 (fivc) years ahd fo pay a finc of Rs.1,000/- (Onc fhousand) in dcfault ofpaynicnt offinc to undcrgo additioaal R.I. for 3 (tlucc) nionfhs, R.I, for 5(fivc) ycars andto pay a fincofRs,1000/-(Onc thousand), ui default ofpayinent offineto undergo additional R.I. for 3 (thiee) nioiifhs, R.I. forl0(ten) yearsand to pay a fineof Rs.10,000/- (Ten thousaad), ia default of paynient of fine to jindergo additional R.I. for 1 (one) year, respectively. )i t ! S 2) The appeUaat is a tenaut of fafher of the prosecutrix. On 05/07/2000, he came to tiie house ofprosecutrix aud iavited her aiid her fafher for takuig some sweets, so, bofh ofthein went to his house. In his house, the ^ppellant asked Thadiyush Ekka, fhe father of the prosecutrix tp^ wait tUl he coines backAoni tailor- shop. He took the prosecutrix, a girl of ten years, along wifh him. When neifher of fhem retumed back, a search was made to know -'/. fheir whereabouts, but ftiey could not t)e traced out Thereadter, fafher of the prosecutrbc lodged a report with fhe PoUce oa fhe same day at iiiidiiigUt regardirig inissiiig of his daughter. On fhe next day, in. fhe Bioraing, Police nabbed the appeUant aad prosecutrix, picpared recoveiy Panchnania, sent the prosecutrix aud appeUant for laedical.examination, recordcd fhe statements of prosecutrix aad witaesses, aad after due investigation, canie to fhe conclusion that, tbe appeUant bas coinmitted offence purdshable uiider Sections 363, 366 and 376 offhe I.P.C., led a charge-sheet tri ttie Court of ChiefJludicial Magistrate, Jashpur, who conuiiitted fhe case for trial to the Court of Session. AppeUaat denied fhe gtult, and pleaded defence fhat, fhe fafher ofthc prosecutrix, with intent to get fhe preinises vacated from. Irun, has concocted fhis false case agaiast hita. 3) Leamed torial Court, after appreciatiug the evidence on record, caoie to fhe conclusion fh.at, the appeUant kidnapped fhe prosecutrix, who was aged about 12 years, frovaL fhe custody ofher lavyful guardiau wifh intent to cominit iUicit intercourse aad he cominitted rape on her. The leanttd tnal Court bas couvicted aud sentenced the appeUant as aforesaid. l ] . | 4) Hcard lcamcd counscl for bofh fhc partics aad perused the records offhe trial Court. 5) Kanti Ekka (PW/ 1) aad Thadiyush Ekka (PW/S), who are inother and fatherofthe prosecutrix (PW/4) respectively, have stated fhat, at fhe time of incident, fhe age of prosecutrix was aear about ten years, Makariyush Tikkai (PW/7) bas deposed that, he TnaiTi+ams sc.boolicpstecofthestudents,and according to entxy of that register, the date ofbirtti ofprosecutrix is 16/12/1989. Dr. SmtVmodim .Bakfala (PW/11), after exammiag the x-ray report, has opiaed that, the age ofprosecutrix was between 9 to 10 years. 6) Leamed trial Court, after due appreciation of aU the evidence, came to the conclusion that, on the date ofincident, the age of prosecutrix was 12 years. Neitlier tlus flndlng lias been chaUenged by ttie appellant In tus arguinents nor he lias brouglit aiiy inaterial or cvidcncc to coatradict thc sacac. 7) Thc ofifencc of rapc has bccn dcfincd undcr Scction 375 ofthe I.P.C. The relevaat portion of the saine reads as below ; ~ '375. Rape - A mcm.is said to conanit rape zvho: excepi in ihe case hereinafter excepted, has sexual interoaurse wiih a woman under taTcunistccruses faWrtg under any of the six following desaiptions:- Firsi - xxxxxxx Semndly - xxxxxxxxx Thirdly — xxxxxxxxx Pourffidy - xxxxxxx. Fifthly—xxxxxxxx. Sixthly— With or toithaut her consent, ivhen she is under svcteenjfeci.rs ofage. ; ^: Bxplanation: Penetration is suffident to constitute fhe sexual intercourse necessary 'to the offence ofrape". 8) From. fhe aforesaid provision, it is inaaifest that, to prove fhe offence of rape, penetration of peius in. vagiaa. is iaevitable. The prosecutrix, in her evidence, has stated fhat, the appeUant reiaoved her underwear, fhreatened her and asked her to -'/: take his penis iu herhaad aud forcibly put his peais ia her haad. She did not say a suigle word that appeUant penetrated his penis in her v^iiia or even atteinpted. Therefore, when the prosecutrix did not teU. anyfhiug regardiag coiniuittuig iatercourse by the appeUaat, then only on the basis of medical report, fhat too, only because of som.e injuries on the private part, it could not be held that, the injuries caused to her vagiaa were fhe result of sexual intercourse. Prosecutnx herselfdeposed that, she received iajuries on her private part with bushes and brake Uver of the cycle. Of course, fhe prosecutrbc said that immoral act has beeu done by the appellant, but fhat does not ineaa ia the afpresaid factual inatrix that the appeUaat has conunitted any sexual iatercourse with her. Here, it is pertinent to note that, giving penis in. fhe haads of a woinaa itself is aa imnioral act. Therefore, takiug into consideration aU these facts, I am offhe opimon fhat, fhe findiag arrived at by the learaed trial Court regardiug cominission of rape on the prosecutrix is inis-conceived aud cannot besustauied. 9) AppeUaat reinoved the underwear of fhe prosecutrbe aad put his penis ia her haud by force and neifher fhe said evidence has been rebutted nor fhere is aay inatenal to _disbelieve tfae same, 5 • fhcrcforc, ccrtainly it can bc hcld fhat, thc appcUant, did it to outrage inodesty of fh^ prosecutrix by using crunitial force on her. 10) For ofFence under Section 366 of fhe I.P.C., tlie ingredjeiits reqiiired to be proved aie that fhe woinan sllould be kiduapped with intention or knowledge fhat she wUlbe coiupelled to many auy person agaiast her will or she inay be fbrced or seduced to iUicit iutErcourse.<f. 11) AppeUaat took .the' prosecutdx, a minor girl of 12 years, aud kept her wifh tiJTn for the whok night. Neither he attempted to commlt mtercourse nor he tried to matiy. There is nottung on record fi-om which it can.be irtferred that the mtention of appeUant waa to many with tfae gu-1 or to coiumit iUicit tntercourse witb her. ff &is intentlon would have been to coTnmit iatercourse, then Iiawlng- sufficient time, appeUant would not have aiisscd it,. Thcrcfon:, in such a sccnario, it caruiot bc hcld fhat, tfac appcUant, ia ordcr to coininit iUicit intercQursc or to inany thc prosecutrix, kjdnapped lier. 12) Froin the evidence of the prosecutrix (PW/4) aad her motherKatitiEkka(PW/l) aadfatherTfaadiyush Ekka (PW/5), itis olear fhat, on the invitatk>n of the appeUant to take sweats, the •prosecutrix arul her fa.fh.er had gone with. fhe appeUaat. 13) The prosecutrix (FW/4) has deposed fhat, the appeUaat took her to the house of Sil Kumar, Kaadra, Bendar and Noorbhatt searchiag Uquor aad when could not get the same, took hcr to forest aud for fhe whote night appeUant kept herithere aad fh.ereafter he took her to the house of Kanda, where she slept, where fhe Pplice caine aad caught the prosecuteix and appeBant togettier. ( , :-*?r 14) PW/2, Sil Kuinar, to support thc cvidcncc of proaecutrix, deposed fhat, fhe appeUant wifh fhe coinpany of prosecutrix, had conie to lus house and faad asked for liquor, which he denied, fhereafter, appeUaiit, along with prosecutrix, weiit fi-om. there, Thadiyush Ekka (P.W./5) deposed ftiat, when the appeUant and prosecutrix did uot coine back, he along with Aml KaJTir, searchjed tbe a^pellant anfl prosecutrix, but coilld aot find any of them. Thereafter, he lodged a report in Police Station, and on the next day, in the early m.omm.g, Police brought the prosecutrix. Auil Kajur (PW/3) deposed fhat, he, along with Thadiyush Ekka, searched the appellaat aad prosecutrix ia fhe night, but they could not be traGed out. Kanti Ekka (PW/1) ia her statement faas also deposed that, a search was inade to know the wliereabouts of tfae appellant aad prosecutrix, but in the rught, fhcy could aot bc traccd out. Pratapchand Toppo (PW/6)and S.R. Dhrit Laharc (P.W.12) havc inadc it clcar that, fhc prosccutrix and appeUaiit were found on fhe next day in. the early niomjmg, the prosecutrix was recovered froiti the custody of the appeUant. Nothing substatttial has been brought to disbelieve the aforesaid evidence. 15) Froin the endence 011 record, itis inanifestthat, fhe appeUaat took the prosecutrix, a iniaQr girl of 12 years, anrl kept her with hita for the whole night, It is also ctear that, imtMlty.the prosecutrix was taken by fhe appellant with the kncwledge of her lawful guardian., byt ftie lawful guardiau did not give the appeUant for keeping his daughter for the whole night, away froin thein. Alfhougli out of (he prosecutrix laipwledge aad ffaey dld not retum wlttim a reasonable tune consent to was ui his •Wi-!te"?"A!»a ^;: thcrcforc, a scarch was inadc. It clcarly unvcils fbat, fhc lawful guardian did not 'yve conaent to the appeUaat for tahiug his daughter fi'om his lawful custody aiid; fha.t too; for fhe \vhole night. TUerefore, it was proved fhat, fhe appellalit took fb.e prosecutnx, a miaor gu-1 of 12 years, out of tfae keepiag of her lawful guardian :without his consen.t. 16) No other ptiiats or issues have been raised in. arguments advaaced by lcariied counsel for both fhe parties. 17) Froia the aforesaid discussions, it is evident that, the leamed trial Court by holdiag the appeUant guilty for committmg offence imder Sections 366 and 376 offhe I.P.C., has comuutted error. Leamed trial Court should bave held fhe appeUant guilty for coinmlttiag offence_under Sections 363 and 354 ofthe I.P.C. 18) Accordiagly, tfie appeal is parfly allowed aad fhe conviction aad scntencc passcd by ftic lcanicd trial Coilrt against (hc appcUant for cojiunitting offcncc undcr Scctions 366 aud 376 QftheI.P.C. is set aside aad the appetlant is acqiiitted offhe said charges. Convictioii under Section 363 offtie I.P.C. and sentence a\varded for coiiuiutting the offence punishable under fhe saM sectlon are inaiutained. The appellaiit is furtfaer held guiUy for coiiUnittiD.g offeace Tinder Section 354 of fbe I.P.C. and is sentenced to undergo R.I, for 1 (one) year and to pay a fine of Rs. 1,000/- (Rs.One thousand) aad in default of payiueut of fine to undergo additional R.I, for 3 (fhrce) months with a direction fhat fhe substautive sentences of imprisoimient awarded under Sections 363 aud 354 offtie I.P.C. shall run concurrently. 19) Outofthefinerecovered,asumofRs.2,pOO/-(Rs.Two fliousaad) be pald to the pi'osecutrix in accordance wifh tbe ^ provisions ofScction 357 offhcCr.P.C. Rcstoffhc ordcr/dircction i~- pasaed by fhe leamed trial Court are inauitained, Sd//- V.K.Shrivastava Judge Raju