/_‘//¥I{t’nlugnoutu[ i » <_i“ CFOOOOO584 J 7,,, , I TE HIGH COURT,OF MADHXA PRADESH Am JABALPUR N H WW Wmwwg Criminal Appeal No._‘;1331__/1995 1w : Shyam Sundargg/0,Jethram, age about 27 years, r/6JBankivMogra, District ‘Bnaspur (W Appellant ’Versus The State of Madhya Pradesh. Respondent *W caIMImLAPPEAL UNDER SEcTION 371+(if) OF THE mm E (Rn/Emu. PROCEDURE l ’: ’ /, 1 , w’ , J‘ ¢ : K K V O @ HIGH COURT OF CHHATTISGARH AT BlLASPlE , (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1714 of 1995 APPELLANT Shyam Sunder VERSUS RESPONDENT State of Madhya Pradesh Shrl Suresh Verma counsel for the appellant Shn Prawn Das Dy GA for respondent/State CRIMINAL APPEAL UNDER SECTION 374 12! OF THE CODE O CRIMINAL PROCEDURE J U D G M E N T (22 .07.2010) (i: This appeal Is directed against the judgment and order dated / 2.11.1995 passed by Additional Sessions Judge Bilaspur in SeSSIons Trial No 173/95 conVIctIng the accused/appellant under Section 363 IPC and sentencmg him to undergo rigorous imprisonment for three years ‘ 2.- Case of the prosecution in brief is that on 26 11 1994 FIR (Ex P 1) was lodged by one Bhagirathi (PW 2) alleging that on that day his V daughter aged about 13 years had gone to school but when she did not U‘ come back he made an inquiry from her friends namely Sindhu and Vindu who had told him that the accused/appellant had taken her on his bicycle on the pretext of dropping her at home. Thereafter, he went to the house of the accused/appellant but he was not there and the door was locked Then he went to the room where the accused/appellant used to give training of tailoring where he denied the fact about the prosecutrix being taken by him After investigation chal/an was filed on 21 12 1994 under Sections 363 and 366 IPC and the Court below framed the charge against him I under Sections 363 and 368 IPC g ‘ 3. so as to hold the accused/appellant guilty, the prosecution has examined as many as 05 Witnesses in support of its case Statement ofthe ”accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and r pleaded his innocence and faISe implication in the case. t 2 4. After hearing the parties the tria! Court has acquitted the accused/appellant of the charge levelled against him under Section 368 IPC but convicted and sentenced him as mention above. 5. Heard counsel for the parties and perused the material availablé on record including the judgment impugned. 6. Counsel for the accused/appellant submits that the appellant took the prosecutrix bonafidely and on the way he took a brief halt in his house ' to have his meals and while he was taking his meals the prosecutrix went to sleep and when she was sleeping, the accused/appellant went to his workplace after closing the door from outside. He submits that accused/appellant was known to the victim as he was working as tailor and her mother also used to have the training of the same. He submits that the appellant did not do anything wrong with the prosecutrix. 7. On the other hand coUnsel for the respondent/State supports the judgment impugned and submits that the accused/appellant not only took the minor victim with him but on an enquiry made by her father Bhagirthi (PW-2), he evaded the same and did not give the correct factual position to him and ultimately with the help of police she was recovered‘from his ‘house. He submits that at the relevant time the victim was aged about 14 years and the relevant school certificate Ex. P-2 has been duly proved by the prosecution. According to the State counsel, as the victim in this case was minor, ingredients of Section 363 IPC are attracted to the present case and it dOes not make any difference that he did not do anything wrong with her. He submits‘that the accused/appellant failed to give answer properly to the questions put to him in his statement recorded under Section 31 3 of the Code of Criminal Procedure. '8. Victim (PW-1) aged about 14 years at the relevant time has stated that on the date of incident’her-school was over at 9.30 a.m. and while she along with her friends namely Sindhu and Vindu was sitting near the bus stand, acCused/appellant came there on bicycle and asked her to drop at home. When she refused for that, the accused/appellant insisted her time and again for the same and then she acceded to his offer and sat‘on his bicycle. While being taken home-wards, the accused/appellant took her to 3 his house on the pretext of having meals. When the accused/appellant was ed i 3 pr?” -3, taklng meals she went to sleep as she was feeling giddmess Thereafter the accused/appeHant left the house after closmg the door from outSIde the evening at about 5 p.m. his father and the accused who was In the ustody of the police came there and then the door was opened and she was taken to the police station._ln cross examination also this witness has ' stated the same thing as in the examination~in-chief and clarified the manner in which she was taken away by the accused/appellant. Bhagirathi (PW—2) — the‘ father of the prosecutrix has stated that on the date of neldent when his daughter did not return from the school he waited till 1 30 p m and then made an enquiry from her friends Sindhu and Vindu who had Informed him that she was taken by the accused/appellant on his cycle Then he went to the house of the accused/appellant but as it was locked he got back At about 4 p m in the evening he again Vi5ited him and when asked the whereabouts of the Victim, he denied the fact of the prosecutrix being brought by him. When this witness told him that he would elicit the factual position through the friends of his daughter, the accused/appellant got perplexed and then told him that the Victim was kept by him in his house ln cross examination also this Witness maintained rmness With what has been stated in the examination in chief Sitaram (PW 3) Head Master of the school has produced the certificate Ex P 2 showmg the date of birth of the prosecutrix as 15 7 1980 This Witness has also produced the admissmn‘register Ext P-3. lf this date of birth of the Victim is taken into consideration her age on the date of incident comes to ’14 years and O4 months Ghanshyam (PW 4) is the Witness Who had repared the recovery memo Ex P—4 of the Victim supported the case of accused/appellant was locked from outside and after opening the same thei Victim was recovered there—from He has stated that the Victim could not recognize her father as she was in a semi conSCious condition lnvestigating officer namely S S Pandey (PW-5) has supported the case of the prosecution. 9. Thus the aforesaid factual discussmn clearly goes to show that the victim Who was minor on the date of inCident was taken away by the accused/appellant While she was returning from school and kept in his house and after locking the door from outSIde he went to his workplace e the prosecution This Witness has stated that the house of the// ak‘ $; I c i bi fi p i