iS»"r*t; my ••:: •;';t->, '^^'^'s' APPELLANT HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 241 OF 1999 Gend Lal, S/o Ramlal aged about 25 years, Resident of ViUage, Luagaon., Thana Saraagad, Distt. Raigarh (M.P.). VERSUS RESPONDENT State of M.P. through S.O. Sarangad, Distt. Ra^arb (M.P.). APREAL UNDBRSECTION 374 OF Cr. P.C. Present:-. Mrs. Indira Tripathi, Ad'/ocate for the appellant. Mr. Rajendra Tripathi, P.L. forthe State/respondent. ORAL- JODGEMENT (Passedon 18/8/2009) 1. This CEtminal appeal is directed agauist liie judgment of conviGtion aud order of sentence dated 22/1/99 passed by learued Second Additional Sessions Judge, Raigarh ia Sessions Trial No. 1/97 whereby and where ^ under leamed Additioaal Sessions Judge after holdiag the appeUant guUty piinishable under Sections 363 aud 366 of the Indian Peaal Code and sentenced r^orous imprisonnient for 1 year and fme of Rs.500/-ia default of fine rigorous imprisoiunent for 2 Bioufhs aad rigorous imprisoninent for 2 years aad fine of Rs. 500/- iu default of Jine r^orous imprisoumeat for 2 months. 2. The judginent of conviction and order of sentence is challenged on the ;round that wifhout any evideace oftakiag away offhe prosecutrix from. guardiaaship of her parents appeUaiit by court below has convicted aad sentenced as aforeinentioned and thereby conunitted illegalily. 3. Prosecution case ia brief is fhat prosecutnx PW7 below the age of 18 years was livuig with her parents at village Linigaon PoUce Station Saraugarh District Raigarh with her parents, On 20/9/96 at about 8.30 Kf> .»'» P.M. prosecutrix went to see video witfa her fauuly ofher persons iacludiag the accused were present to see video from fhe video place accused took her witfa Tiini, father of fhe prosecutnx searched her tUl 1/10/96 aad finally he made a written report on same day. On the basis ofwritten report P-l First Iiiformation Report was lodged vide P- 1A. and one certificate of ttie school P-2A was recovered Srosi fhe father ofthe prosecutrix vide P-2. SIie was sent for medical examination and examiried by the Doctor. Slule were taken same was recovered vide Ex. P-11. AppeUaat was also exauuned by the doctor. Stateinent of the witaesses were recorded under Section 161 of the Code of Cruninal Procedure, 1973 (ia short the code) and after completion of the iavestigation charge sheet was filed before fhe Judicial Magistrate Pirst Class Saraagarh who ia tum committed the case to the Sessions Raigarh leamed Additional Se^ions Judge received the case on transfer. In order to prove the giult of appellant prosecution examined as weU as 9 witaesses examinatiou ofthe accused recorded under Section 313 of fhe Code where be denied the circiunstaaces appearing agaiust him and has taken the specific defence tbat he was having love affairs wiffa the prosecutrix aad prosecutrix herself has left her house aad came to hiia where she is residiug as his wife. After affording an opporturuly of the heariag to the parties leamed Second Additional Sessions Judge, has convicted aad sentenced the appeUant aforenientioned but acquitted the appeUaat of the charge of Section 376 ofthe Indian Penal Code on fhe ground ofconsent; Leamed counsel for the parties are heard judgment impugned and reconls ofcourts below perused, !:-..-'^ -J' ;s8r I— i??r 8. 9. Learaed counsel for the appeUant argued that PW7 prosecutrix whom prosecution has declared hostile has speci&caUy deposed fhat on the date of evidence .she herself went to viUage Litugaon aad accused/appeUaat has not taken hcr, ia her cross exainiuation Para-3 she has specificaUy deposed ftiat she alone has left her house and went to the house of ftie appellant. AppeUaat is her husbaad aad she is residiag with the appellaut she has also deposed fhat after infonniag her inofher she went to the house of the appeUaut. PW1 Jagdish father of the prosecutaix has deposed that her daughter had gone to see fhe video but she did not retum, he made a inquiry then he canie to know that her daughter is present in the house of the-appeUaut then he has lodged the report. PW2 mofher of the prosecutrix Ambikabai has also deposed same thiug ia her cross examination she has speci&calty / adinitted fhat after watching fhe video her daughter went to the house offhe accused. In fhe present case coiaplaiaaat whose age has been ascertara by ttie trial Court as 16 years aud 14 days who was able to understaud wrong and r^ht, good aad bad, herselfhas left ber parental house aud went to the house of appeUaut who is her husbaad aud stffl she is residing with fhe accused/appeUaut. Ottier witnesses have deposed fhat prosecutrix did not retum after watching fhe video aad fhey came to kaow that she had gone to the house of fhe Gtend Lal to attract fhe penal provisions of Sections 363 & 366. The prosecution is required to prove the fact that the accused has taken away the prosecutrix fiom fhe lawful guardianship.. - In fhe present case piosecution has failed to adduce aay evidence to show fhat fhe present accused has taken the prosecutrix fi'oni the •'-/ ss .sa lawful guardiaaship of her guardian iateralia fhe cvidence of the prosecution reveals fhat prosecutrix aged about niore thaa 16 years herselfhas left parental shelter and went to fhe house ofthe accused at Limgaon from. her parental house. Leamed Second Additional Sessions Judge has not considered the inaterial evidence of fhe prosecutnx and fhereby arrived at a wrong conclusion that appeUaat has taken the prosecutrix. In absence of'any evidence of kidnappiag and abduction conviction of the appellant under Sections 363 and 366 of fhe Indian Penal Code is not sustainable. ConsequenUy, appeal deserves to be aUowed aad it is hereby aUowed and conviction aad sentence of appeUant uader Sections 363 and 366 of the Indian Penal Code is hereby set aside, he be set at liberty at once. - T.P. Sharma Judge '%..'"»< ,...-«1» y?