IHBffl!H CFOOOOOei990" 1 n-?. ^37 m. iySlri- /-? 't^ft ••N—I -^^r.. te •iiLfl S L ^^ iil.1 IIil TBS BIGH COVBS CS' JBDICAIUBB Al JABAIiPUa C3. APPEA.I-NO. ^c.^ QF 1999 1. Pandi alias Santosh son of Bad)aesl%aa Satnaai, aged 19 years, residgnt of Sarora Pattl No.1, P^S.Siaga,Blstrict BaJ.pur,M.P. ' '• 2. J'ohan son of St(yamlal Satnami, aged '4-5 years, resident of vJLllage Kathiya,.P.S<Bemetara, Sistriet Surg,MP. ^ 7S. THB STATE GF MA?3HrA PBA&ESH ••/ .. APPBLIiANIS (a J-AIL) BBS£Q®®I A >A- - ^. ^ CBIMINAI, APPML UNB.SR SEeiIOS 374(2') GF BBS CBIHINAL mocmffas COBSs / \ ',9 t:3:- E: HLGHCOURT OF CHHATTISGARH AT BILASPUR > Appellants.: (tn Jail) RESPONDENT CRtMINAL APPEAL N0. 203 OF 1999 . 1. Fandi atias Santosh Son of Radheshyam Satnami.aged 19 years, resident of Sarora Patti Np.1, ,, P.S. Simga, District Raipur (M.P). 2. . Johan, son ofShyamlal Satnami aged 45 years, resident of village Kathiya, P.S. Bemetara, District Durg M.P. -Vs.- TheState of Madhya Pradesh. fCriminal ApDeal under Section 374<<2) of the Criminal Procedure Codel Appearance: Shri Gautam Khetrapal, counsel forthe appellants. Shri Arun Sao, Govt. Advocate for the State. ORALJUDGMENT (18.05.2007) Sunit KumarSinha. J.: Heard. (2) This appeal is directed against the judgment of conviction and order of sentence dated 15 January, 1999 passed by the First Additional Sessions Judge, Baloda Bazar, District Raipur in S.T. No.325/1997, whereby, the said Court after holding the accused/ appellants guilty for commission of offence under Sections 363 and 366 of I.P.C. sentenced eachofthe accused to undergo R.l. for 3 years and ...^' V. '^ .p- to pay a fine 6f Rs.1,000/-, in default of payment of fine to further undergo R.l. for 6 months and to undergo R.l. for 3 years and to pay a fine of Rs.1,000/-, in default of payment of fine to further undergo R.l. for 6 months, respectively. In addition to that, accused- appellant Fandi @ Santosh has also been convicted underSection 376 (1) of I.P.C. and sentenced to undergo R.l. foF'7 years and to pay a fine of Rs.5,000/-, in default of paymerrt of fine to further undergo R.l. for one year. It was further directed that all the sentences would run concurrentty. (3) At the very outeet , tearned counsel for the appetlants submits that appellant No.1 Fandi @ Santosh has been release^ from jail on 17-01-2003 on account of getting special remission, therefore, he is not pressing his appeal and the same be dismissed as not pressed. / Consequently, the appeal of appellant No.1 Fandi @ Santosh is dismissed as not pressed. (4) The judgment is being delwered on the appeal of appellant No.2, namely, Johan. (5) Brief facts are that, another co-accused Shyamlal abducted the prosecutrix, namely, Ku. Durgeshwari Bai (PW-7) who was below 18 years of age with an intention to compel her to marry with co-accused Fandi @ Santosh, appellant No.1 herein. The allegation isthat accused Shyamlal took the prosecutrix on his bicycle to the house of appellant No.2 Johan i.e. from village Sarora Patti No.1 to village Kathiya, where she was kept forfour days. Further allegation is that in betwee'n this period, the girl was subjected to forceful sexual intereourse by appellant \ No.1 Fandi @ Santosh. •Wli* |KiE.a:,aifc.. <-. (6) The conwction of appellant No.2 Johan is based on the ground that the prosecutrix was kept in his house for four days and since he has not resisted such act of the other co-accused persons, he was also responsible for commission of ofl'ence punishable under Sections 363 and366ofl.P.C. '') (7) Learned counsel for the appellants argues that after going through the entire case of the prosecution, it nowherecomes that when co-accused Shyamlal took the prosecufrix to the house of appellant No.2 Johan in village Kathiya and put her there for 4 days, this appeltantwas present in the house, therefore, no offence under Sectiori 363 or 366 of I.P.C. would be madeout. (8) On the other hand, leamed counsel for the State opposes this argument. He supports the judgment of the trial Court. (9) I have heard learned counsel for the parties and have also perused the record of the Sessions case. (10) Sections 363 and 366 of l .P.C. are quoted as under "363. Punishment for kidnapping - whoever kidnaps any person from India or from lawful guardianship, shall be punished w'th 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 witl be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit '.. --? 4- intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished w'th fmprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing ttiat it is likely that she will be, forced or seduced to illicit intereourse with another person shall also be punishable as aforesaid." (11) If we examine the evidence of the prosecutrix in light of the above provisions of the I.P.C., it would appear that the prosecutrix and other witnesses have not stated that during the course of stay of the prosecutrix in the house of appeltant No.2 Johan, he was present in his / house or in any manner received the custody of the prosecutrix or participated or added to kidnapping or abducting the prosecutrix or the prosecutrix was kept in his house under his knowledge. P.W.-7 Durgeshwari Bai deposes that she knows all the accused persons. On the fateful day, when she has gone out of her house to answer the call of nature, co-accused Shyamtal took her on his bicycle to the house of appellant No.2 Johan at village Kathiya. After two days, Fandi @ Santosh came there, who stayed with her for two days and on both the days he committed sexual intercourse against her witl. Thereafter, somehow she managed to escape from the house ofthis appetlant. She has not deposed a single word regarding presence of this appellant during her stay in his house. (12) In light of the above evidenceand also in light of the evidence of other witnesses, it does not appear on record that appellant No.2 Johan ^•5 aSpnf equis jBiun^ nuns -/PS •uiiq isuieBe peiuejj se6jei|o ei|( )o peninboe si s|-| •epise ies eje iiueutes |B|LueA4s o/S 'ueyor Z'ON }ue||edde tsuieBe ynoo |eu} eL|t Aq pepjeMB souetuss pue uogoiAuoo SL|I •psmo||e si ueqop Z'ON tue||edde ^o |eedde eq} 'iinsej 04} u| (gi.) •0'd'IP99£Pue £9£suoi}oe9 jepun eiqeysiund eoueyo ^o uoissiiutuoo 01 Buippe Aqsjei|i 'eBeujBiu jo^ jsq Buiiiediuoo ui psiedioBjed 34 Bujddeupiii JSL| jaye jo |J|B eiltjo 6uiddeupp|^o UOISSILULUOO ui jsyii®psiedpitjed peq JSUUBLU Aue ui