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2011 DIGILAW 99 (CHH)

Bihari Alias Bhim Prasad Soni v. State of C. G.

2011-03-11

PRITINKER DIWAKER

body2011
JUDGMENT Pritinker Diwaker, J. 1. This appeal is directed against the judgment and order dated 20/06/2003 2003 passed by Additional Sessions Judge Mahasamund in Sessions Trial No. 461/02 convicting the accused/Appellant for the offences punishable under Sections 363 I.P.C. and sentencing him to undergo rigorous imprisonment for three years and pay fine of Rs. 500/-, in default of payment of fine to further undergo rigorous imprisonment for three months. 2. Facts of the case in brief are that on 03/09/02, F.I.R. (Ex.P-1) was lodged by Jugeshar (PW-2) the father of the prosecutor alleging that on 01/ 09/02 his daughter aged about 16 years at the relevant time who was working as laborer was missing. It is alleged that accused/Appellant who was working as a mason and co-accused Narayan took the prosecutor and her sister on bicycle and when 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 registered against the Appellant and the co-accused. It is alleged that on 11/09/02 the prosecutor was brought back by the accused/Appellant and her case diary statement (Ex.D-1) was recorded on 13/09/02 in which she has stated that she was taken by the accused/Appellant and the co-accused on the pretext of being photographed in a Studio at Basna. It is alleged that thereafter the accused/ Appellant took her to various places and subjected her to physical relations. After investigation, challan was filed on 08.11.02 for the offences under Sections 363, 366, 376 and 506/34 I.P.C. 3. So as to hold the accused persons guilty, prosecution has examined as many as 12 witnesses 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 denied the charges leveled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties, the trial Court has acquitted the co-accused of the charges leveled against him. It also acquitted the accused/Appellant of the charges under Sections 366, 376 & 506/34 I.P.C. but convicted and sentenced him as mentioned above. 5. Counsel for the accused/Appellant submits that the prosecutor was a consenting party because though she visited various places along with the accused/Appellant, she lived with him for about 10-11 days but she did not raised any hue and cry. 5. Counsel for the accused/Appellant submits that the prosecutor was a consenting party because though she visited various places along with the accused/Appellant, she lived with him for about 10-11 days but she did not raised any hue and cry. He submits that as per the case of the prosecution, age of the prosecutor was 16 years and 21 days and therefore she had attained the age of exercising her discretion. In support of his argument, he placed reliance on the decision of the Supreme Court in the matter of S. Varadarajan v. State of Madras AIR 1965 SC 942, and submits that the accused/Appellant is entitled for acquittal. He submits that the prosecutor and her sister went 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, though the prosecutor 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 for the Respondent/State supports the judgment impugned and submits that undisputedly the prosecutor was below 18 years of age at the relevant time and therefore her consent if any becomes immaterial. 6. Prosecutrix (PW-1) has stated in her evidence that the accused/ Appellant was working as a mason whereas she was working as laborer along with him. She has stated that on the date of incident the accused/Appellant herein and the co-accused came to her house and asked her sister Loochna (PW-9) to accompany them to the studio to which her mother had initially refused but then the accused/Appellant told her that after getting the photography done he would 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 to Sarangarh and then to Raigarh and then after catching the train they went to village Mokma (Bihar). During this period, according to this witness she was subjected to sexual intercourse by the 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. During this period, according to this witness she was subjected to sexual intercourse by the 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 had met many people but did not disclose the incident to anyone. According to her, she returned home after about 13 days and during all this period she stayed in the house of the accused/Appellant where his sister offered 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 the prcsecutrix has stated in his evidence that he was informed by his wife that the accused/Appellant and the co-accused had taken the prosecutor and her sister for being photographed and when she did not return, a search was made for her. This witness has however not stated anything in respect of the age of the prosecutor. Sitaram (PW-3) is the village Kotwar from whom the Kotwari register Ex. P-4C was seized in which date of birth of the prosecutor is mentioned as 11.8.1986. He is also the witness of arrest memo Ex. P-8 and Supurdginama of the prosecutor 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 prosecutor is 11.8.1986. Entry in the school record is said to have been made on the basis of Kotwari register. Dr. A.S. Ratre (PW-5) is the witness who had medically examined the accused/ Appellant and given his report Ex. P-13 has stated that the accused/Appellant was capable of performing sexual intercourse. Shankar Lal Sao (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 prosecutor 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 prosecutor and that she was a fully grown up girl. 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 prosecutor 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 prosecutor and that she was a fully grown up girl. Loochana (PW-9) - the sister of the prosecutor has stated in her evidence that she and the prosecutor were taken by the accused persons and they had left the house without informing her mother. 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 case of the prosecution. U.P.S. Bhadoriya (PW-12) is the witness who had recorded the FIR. 7. From the evidence available on record, it is apparent that on the date of incident the prosecutor 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 prosecutor 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 AIR 1965 SC 942, (supra) it can be said without hesitation that at the relevant time the prosecutor had attained the age of exercising her discretion. Here is the case where the prosecutor 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 of the lady doctor the prosecutor was a fully grown up girl. 8. 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 Indian Penal Code. Accordingly, the appeal is hereby allowed. Judgment impugned is set aside. Accused/Appellant is acquitted of the charge leveled against him. He is on bail. His bail bonds stand discharged.