IN THE HIOi COUKT OP JUDICATaRE Ar BILASPCTR (C.S.) Criminal ^Beai N». ">J3 /2003. _A.PPELE>ANI '^jouA Versus s Bihari Alias', Bhim Prasgd Sani S/a.Sri Chinta Ram S®ni, Ageel - A®ut-30ye-ara, S/e. Viliag®. Mekama Juncti6n, Ward No.5, Pelice Sta'tion-Mskamg, Distfc-Patna sftvfV Sta-tae ©fC.G.Ibrough poxlce Sta- tion Basna, Dis'tt- Mahas:anund(C.G.) ^RESPONDENI APPEX, UNDER SECTION 374TD OP CRPC. CONVICTION ^--' SEHEBHee < Under seetieii 363'af IPC. 7........-"• -ff... ..i.locate R.I. f©r^3--y¥ars.and fine ®fRs. 500/-i.B- default ©f fine of S-lfenfeh further - R.I. •'''' -^^r,—s••TTnia_juu__uua.Bompnt_dflt:ed '>n^Q&Z2QQ_3 _-_ ril- ll' IWti' ;i^n.?t<saS^¥?a<'?a.J<EWE' SS-^!¥Ihi'B!ilW9^^t!S@^!tmS<feWu!lWI;ilUBnr*lini li t*lUluwT1 li l.1 lllll»Kite4«swSb).Miilu,aH»Uiifii3*Btd^^infc «^^ ';?\ '^ri^r: '^Baif^^' ^ n HIGHGOrURTOFGMHATnSGARMATBILASPUR Hon'ble IVIr. JustiCe Pritinker Diwaker Criminal Appeal No. 713/2003 APPELLANT Bihari Alias BhimPrasadSoni Versus RESPONDENT StafeofChhaftisgarh Shri VaibhavA. Goverdhan.counsel for the appellant. Shri Pravin Das, Dy. G.A. forthe State. GRIMINAL APPEALUNDER SEGTION 374(1) OFTHECODEOP CR11V11NAL PROCEDURE JHDGWIENT (11.03.2011) i Thisappeal is direCted against the judgment and order dated 20/06/2003 passed by Additional Sessions Judge Mahasamund ih SessionsTrialNo. 461/02 conviGting the accused/appellant for the offertces puhishable under Secfions 363 I.P.C. and sentencin^ hinn tb uhdergo rigorouS imprisonment for tHree years and pay fihe @ Rs.SOO/-, ih default of payment offine to further undergo rigorous imprisonment forthree months. ; 2. Facts ofthe casein brief are thaton 03/09/02, F.I.R.(Ex.P-l') was lodged by Jugeshar (PW-2) the father ofthe prosecutrix allegii-fg thEiton 01/03/02 hisdaughteraged about 16 years at the relevant time who was working as labourer was missing.It isalleged fhat acci.ised/appellant who v'as wbrkihg as a masoh and co-accused Narayan took fhe prosecutrix and hersister on bicyGle and wnen she did not return, the report was lodged by him. On the basis of this F.I.R. offences under Sections 363 and 366 I.P.C. were registei-ed against the appellant and the co-aCcused. It is alleged that on 11/09/02 the prosecutrix was brougtit baek by the aceused/appellant and her case diary statement(Ex.D-1)was reeorded on 13/09/02in whichshe has stated that she wastaken by the accused/appellant and fhe co-accusedon the pretextof beirtg photographed in a Studio at Basna. It is ailleged that theresifter the aGCUsed/appellant took her to various places and subjected' her t6 physicgil relations. After :;» ,r ^w ^: W~-!tlT'Ttln't—il;it'l!:Yi,;!t1;i-IBii ,it:. ;y fe^ investigation, challanwas filed on 08.11.02 for the offences under Sections 363,366,376 and 506/34 I.P.C. 4. Sb as to hold the accusetl persons guilty, prosecution has examined as many as 12 withesses in support of its case. Statements of the accused persons were also recorded under Section 313 of the Code of Criminal Procedure. in which they deriied the ctiarges levelled against them and pleadedtheir innoGenGe and false implication ihtheGase. 5. After hearing the parties, the trial Court has acquitted the co- accused bf the charges levelled against him. It also acquitted the accused/appellantof the charges under Sections 366, 376 & 506/34 I.P.C. butconvicted &nd sentenced himas mentioned above. 6. Counsel forthe accused/appellant submits that the proseGutrix was a consenting party because though she visited various places along with the acGused/appellant, she lived with him forabout 10-11 days but she did not raised any hueand cry. He submits that as per ttiecase ofthe proseGution, ageof the prosecutrixwas ISyearsand 21 days and therefore she had attaihed fhe age of exercising her discretion. In support of his argument, he placed reliance 6n the decision ofthe Supreme Court in the matter ofS. Varadarafan Vs. Stafeof<WadrasreportecfmA/R'/965SC942andsubmitsfhatthe accused/appellant is entitled for acquittal. He submits that tne prosecutrix and her sisterwent on 01/09/02 whereas the report has been lodged on 03/09/02 and this inordinate delay has not been properly explained by the prosecution. According to him, thougtt the prosecutrix was recovered on 11/09/02 she made the allegation against the accused/appellant on 13/09/02 and this delay in doing so has also not been explained. On the other hand, counsel forthe respondenVState supports the judgment impugned and submits that undisputedly the prosecutrixwas below 18 years of age at the relevant time ancl therefore herconsent if any becomes immaterial. 7. ProsecutriX (PW-1) has stated in her evidence that fthe accused/appellant was working as a mason whereas she Was working as labourer along with him. She has stated fhat on the date 6f incident the accused/appellant herein ahd the co-accused carne , .^A;.-^ ^S:IW. -^?" Ihl 'U'llilJiilli:iltf " ' lml' s~i \; —3~ to her house and asked her sister Loochna (PW-9) toaceompany them to the studioto which her mother had initially refused but fhen the accused/appellahttold her that after getting the photography done hewould drop her back at home. According to her, after the photography was over, the co-accused dropped her sister at home but she was taken by the accused/appellant in Marshall Jeep to Tamri, then to Saraipali, then toSarangarh and then to Raigarh ahd then after catching the train they went to village Mokma (Bihar). During this period, according to this witnessshe was subjected to sexual intercourse bythe accused/appellant after putting her under threat. This witness has stated that acceding to her request, the accused/appellant had dropped her at home only on the condition that no report would be lodged against him. In cross examination, this witness has admitted that while visiting several places along with the accused/appellant she Mad met many people but did not disclose the incident fo anyone. AGCording to her, she refurnecl home after about 13 days and during all this period shestayed in the houseof the accused/appellant where hissisteroffered her food and that while having sex She never protested to the same. There appear to be material contradictions and omissions in her court statement and the case diary statement. Jugeshar (PW-2) - the father of fhe prosecutrix has stated in his evidence that he was informed by His wife that the accused/appellant and the co-accused had taken the prosecutrix and her sisterfor being photographed and when she did not return, a search was made for her. Thiswitness has however not stated anything in respect of the age of the prosecutrix. Sitaram (PW-3) is the village Kotwar fromwhom the Kotwari register Ex. P- 4C was seized in which dateof birth ofthe prosecutrix is mentioned as 11.8.1986. He is also the witnessof arrest memo Ex. P-8 and Supurdginama of the prosecutrix to her father Ex. P-9. Mangluram Yadu (PW-4) - the headmaster of the school has stated in his evidence that as per the school record Ex. P-10 date of birth of the prosecutrix is 11.8.1986. Entry in the school recordis said to have been madeon the basis ofKotwari register. Dr. A.S. Ratre (PW-5) is the witness who had medically examined the accused/appellaritand given his repori: Ex. P-13 hasstatedthat the aGCused/appellantwas ^y.'- ^« -tf- capable of performing sexual intercourse. Shankar LalSao (PW-6) is the proprietor of the photo studio. Paras Ram (PW-7) has not made any specific allegation against the accused/appellant. Dr. Jaishree Sahu (PW-8) is the witness who had medically examined the prosecutrix and given her report Ex. P-21 has stated in her evidence that there was no external or internal injury on the person of the prosecutrix and that she was a fully grown up girl. Loochana (PW-9) - the sister of the prosecutrix has stated in her evidence that she and the prosecutrix were taken by the accused persons and they had left the house without informing her mofher: Bhola Prasad (PW- 10) is the witness to the seizure of the school register made under Ex. P-23. G.S. Gangwal (PW-11) is the investigating officer who has supported the caseofthe prosecution. U.P.S. Bhadoriya (PW-12) is the witness who had recorded the FIR. 8. From the evidence available on record, itis apparent that on the date of incident the prosecutrix was more than 16 years but less than 18 years of age and thus for the offence under Section 363 she was minor. However, the prosecution has not adduced any evidence to show that the prosecutrix was kidnapped or abducted by the accused/appellant from the lawful guardianship. Thus in view of the decision of the Supreme Court in the matter of S. Vardarajan (supra) it can be said without hesitation that at the relevant time the prosecutrix had attained the age ofexercising her discretion. Here is the case where the prosecutrix and her sister initially went in the company of the accused persons to have the photographs and from where her sister was dropped back home whereas she accompanied the appellant to various places and stayed for a considerable period of 13 days without offering any resistance thereto. Even as per the statement ofthe ladydoctor the prosecutrix was a fulty grown up girl. 9. In these circumstances and the judgment of the Supreme Court as cited above, this Court is of the considered opinion that the Court below has not appreciated the evidence of the witnesses in its proper perspective and committed an error in convicting the accused/appellant under Section 363 IPC. Accordingly, the appeal is hereby allowed. Judgment impugned isset aside. Accused/appellant -r is acquitted ofthe charge levelled against him. He is on bail. His bail bonds stand discharged. ^-——— II Sd/- '•\ pritinker Diwaker Judge w ,.: -r-~ •:ititKir'!'^'