HIGH COURT OF CHHATTISGARH AT BILASPURa Cr. App. No. 302/ 1990 SB: Hon’ble shri Justice KL. Jhanwar APPELLANT Naim Versus RESPONDENT The State of M. P. (Now CG) JUDGMENT Post for judgment on 9.08.2009 Sd/— R.L. Jhanwar Judg? 7 413.2009 i. HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. App. No. 302] 1990 SB: HON’BLE SHRI JUSTICE R.L. JHANWAR APPELLANT Naim alias Nem Jogi alhs Ranjit Jogi alias Lekhram Maxar alias Hakim Jogi son of Hakim, caste Musalman, Fakeer, aged about 26 years, occupau'on begging resident of Madun', Police Station Gusaiganj, District Sultanpur, U.P. At present in Bilaspur Jail. Versus ~ / The State of M. P. (Now 0G.) Shn' H.S.Ahluwa]ia, counsel for the appellant. Shri Pmdeep Singh, Panel Lawyer for the State. JUDGMENT (Delivered onL], 08.2009) R.L.Jhanwar, J. This Criminal Appeal is directed against the judment of conviction and order of sentence dated 13.3.1990, passed by the 5th Additional _ Sessions Judge, Bilaspur in S.T.No. 162/89, whereby, the leamed 5th Additional Sessions Judge has acquitted the appellant tinder Section 376 of the IPC and sentenced him under Section 366 of the IPC for 2 years R.I. The pmsecution story in brief is that the prosecutxix, aged about 16 years, was living with her mother at Baradwar, (presently Within district Janjgir—Champa). She was sunering from stomach pam. On being suggested by Gori Bai, she took medicine mm the appellant, but she could not get‘relief. On the date of incident, the appellant came and told the prosecutrix that he is going to his Village. He poured something on her head and she Without RESPONDENT Appearance: 2 Cr. App. 302/ 1990 und¢rs£anding anything, followed the appellant. The appellant took her to his village Maduri— Duluhupur, Thana Gosaiganj near ‘Sultanpur (UP) and. kept her under conElement for about 4 months. On the date of incident, when mother of the prosecufn‘x came back to her home, she found that the prosecutrix was missing. She searched her, but she could not succeed. After a long interval, she received informan'on that the prosecunix was in the custody of appellant at village Maduli—Duluhupur, 'l‘hana Gosaiganj‘ near Sultanpur (UP). After getting information, she commed through his sOn—in-law. She lodged FIR Ex.P/ 1 at Police Station- Baradwar. Police investigated the matter and pmsecutn’x as recovered from the appellant’s house. She was medically examined. Statements of Witnesses have been recorded under Section 161 Cr.P.C. ’ After completion of the investigation, charge sheet was nled before the Judicial Magistrate First Class, Sakti for the oh‘ence under Sections 366 and 376 of the IPC against the appellant. In due course, the case was committed to the Court of Sessions, Bilaspur, from where the learned Sessions Judge, made over the case to the 5‘11 Additional Sessions Judge, Bilaspur for trial. The learned 5th Additional Sessions Judge, Bilaspur frame charges under Sections 366 and 376 of the IPC and read over and explained to the appellant, who abjured the guilt and pleaded that he is innocent and has been falsely implicated in the case. The learned 5‘11 Additional Sessions Judgeaiter evaluating the evidence available on record and hearing the counsel for respective parties convicted and sentenced the appellant as above I have heard learned counsel for the parn'es at length and have perused the record of the trial Court So far as age of the prosecutnx is concerned Kotwan register Ex P] 5 was proved by Nanheram( PW 6) He deposed that EX.P]5, at page 20 Sr.No.1OO 1s written by him m his own handwriting and that was recorded on the information given by 5/, w w d . 3 Cr. App. 302/ 1990 father of the prosacuu‘ix. Acconiing to that register, date of birth of the prosecutrix (Laxim bai) is 27.12.1972. Thus, age of the pmsecutrix was 16 years and 3 months on the date of incident. Prosecution has examined as many as 11 witnesses. According to Sadhmati.( PW- 1) Laza‘m bai(PW-8) is her daughter. When her daughter returned back, she told her that “Wemmmk‘gmaéffémma’smmr Goxibai(PW—2) and Zunzibai(PW-3) have not supported the prosecution stoxy. Accoxding to Budharu (PW—5), Sadhmati(PW- 1) after tracing the address of the appellant, send him to search the prosecutrix sand he Went with Police to the village of the appellant at Maduri~ Duluhupur, Sultanur(UP), Where they found the prosecutrix— Laxim bai, but the appellant was not there. Thereafter, they came back with Laxim bai to Baradwar. In cross-examination he stated that hrst of all, he went alone then after searching the pmsecutrix again Went with the Police but, the appellant was not found at both the times. Laxmin bai(PW-8) deposed that after Holi festival the appellant came to her house and told her that he is going to his and poured something on her head, she followed the appellant and went with him to his village, Where she stayed for a long time. She deposed that the appellant has not done anything wrong with her. There is no evidence to establish that the appellant enticed the prosecutrix or took her. On the other hand, the prosecutn‘x in her statement has clearly stated that the appellant came and told her that he is going to his village. She did not say that he compelled or forced her to follow him. However, she gave a story ‘ that the appellant poured something on her headwand she followed him. I am of the view that in absence of scientihc or medical evidence such story should not be believed. From her whole Vgwra ‘c‘ 4W 4 Cr. App. 302/ 1990 statement, it is clear that she passed a ldng way hm Bamdwar to Sultanpur. She completed that journey by Bus and feet. She in her statement even stated that she met Zuzibai(PW-3), but she did not complained any thing to her. Nowhele, in her evidence, she says a single word that she made any complaint to any one on her way. P‘mm' the evidence, it is clear that the appellant neither compelled her to many nor attempted to commit illicit intercourse with her. The prosecutn'x lived in the house of the appellant for about thxee months, but neither she tried to escape nor the appellant made any attempt to many or to commit illicit intercourse with her. On the other hand, it is clear nom the evidence that the appellant was living along with his parents, wife and children. The matter has also been reported after a long gap of three months and for such delay, no san'sfactory explanation has been oh'ered by the prosecution. Prosecutrix was recovered h‘om the house‘of the appellant and not from custody of the appellant. From above ‘ material, it is clear that beyond doubt, it cannot be believed that the appellant kidnapped the pmsecunix with an intention to commit illicit intercourse With her or forced or seduced to illicit intercourse with another person. Therefore, I am of the view that the learned trial Court without considering such serious infirmity has recorded the finding of conviction and passed the sentence accordingly. In the result, the appeal is allowed. The conviction and sentence awarded by the trial Court under Section 3,66~of the IPC against the appellant are set aside. Appellant is acquitted of the charge under Section 366 of the IPC. He shall be set at liberty, forthwith, if not required in any other case. sunita V Sd/— R.L. Jhanwar Judge l