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2012 DIGILAW 118 (CHH)

RAJKUMAR SONI v. STATE OF C. G.

2012-04-23

RADHE SHYAM SHARMA

body2012
JUDGMENT 1. This appeal is directed against judgment dated 21-1-2004 passed by 4th Additional Sessions Judge, Bilaspur in Sessions Trial No.155/2003. By the impugned judgment, accused/appellant Rajkumar Soni has been convicted and sentenced in the following manner with a direction to run the sentences concurrently: Conviction Sentence Under Section 363 IPC Rigorous imprisonment for 7 years and to pay fine of Rs. 1,000/-, in default, to further undergo R.I. for 6 months Under Section 366 IPC Rigorous imprisonment for 7 years and to pay fine of Rs. 1,000/-, in default, to further undergo R.I. for 6 months 2. Case of the prosecution, in brief, is as under:- On 30-4-2002, the appellant forcibly took prosecutrix Kumari Sarita Dewangan (PW-1) to Pithampur (Indore) and kept her there at the house of his friend. The appellant committed sexual intercourse with her there without her consent. The appellant kept her there for about 8 months. Smt. Gita (PW-2), mother of the prosecutrix lodged First Information Report (Ex.P-9) in Police Station City Kotwali, Bilaspur, where offence under Sections 363, 366 and 376 IPC was registered against the appellant. The prosecutrix wrote a letter from Pithampur to her mother Smt. Gita (PW-2). After receiving information, police went to Pithampur along with Toran Kumar Dewangan (PW-3), Jugut Dewangan and Ramnath Dewangan. The prosecutrix was recovered from the possession of the appellant at the rented house of Indrajeet Choudhary (PW-7) situated at Village Dhannad, Police Station Pithampur. Recovery Panchnama (Ex.P-1) was prepared and the prosecutrix was taken back to Bilaspur. She was sent to District Hospital Bilaspur for medical examination. Dr. C.M.Tiwari (PW-8) examined the prosecutrix and gave his report (Ex.P-3). Dr. S.Chatterjee (PW-11) examined the prosecutrix regarding determination of her age and gave his report (Ex.P-20), in which, he found that age of the prosecutrix, on the date of examination, was 18 years. The appellant was sent to Chhattisgarh Institute of Medical Sciences, Bilaspur for medical examination vide Ex.P-10. Dr. R.K.Gupta (PW-12) examined the appellant and gave his report (Ex.P-22). During investigation, spot-map (Ex.P-4) was prepared. An inland letter was seized vide Ex.P-6. School Transfer Certificate was seized vide Ex.P-7. Underwear of the prosecutrix and her vaginal slide were sent to Forensic Science Laboratory, Raipur for chemical examination vide Ex.P-16. Report (Ex.P-18) was received therefrom vide Ex.P-17. In Ex.P-18, article A, i.e., slide and article B, i.e., underwear were not found containing spermatozoa. An inland letter was seized vide Ex.P-6. School Transfer Certificate was seized vide Ex.P-7. Underwear of the prosecutrix and her vaginal slide were sent to Forensic Science Laboratory, Raipur for chemical examination vide Ex.P-16. Report (Ex.P-18) was received therefrom vide Ex.P-17. In Ex.P-18, article A, i.e., slide and article B, i.e., underwear were not found containing spermatozoa. Evidence of witnesses were recorded under Section 161 Cr.P.C. After completion of the investigation, charge-sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Bilaspur, who, in turn, committed the case to the Court of Session at Bilaspur, from where it was received on transfer.by the learned 4th Additional Sessions Judge, Bilaspur, who conducted the trial and acquitted the appellant of the charge under Section 376 IPC and convicted and sentenced him as mentioned above. 3. Shri Malay Kumar Bhaduri, learned counsel for the appellant argued that the age of prosecutrix Kumari Sarita Dewangan (PW-1) was, on the date of incident, above 18 years. He further argued that the conclusion reached by the trial Court is perverse. The prosecutrix left her home willingly. She lived with the appellant for about 7-8 months. She had several opportunities to run away but she did not do so. It appears that the prosecutrix was a consenting party. On the date of incident, the prosecutrix was above 18 years and she left her parental home willingly. Therefore, the appellant cannot be convicted under Sections 363 and 366 IPC. The appellant is entitled for acquittal. 4. Shri Sandeep Yadav learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge do not warrant any interference by this Court. 5. Having heard rival contentions of the parties, I have perused the record of Sessions Trial No. 155/2003. 6. Now, I shall examine whether on the date of incident, the age of the prosecutrix was below 18 years? 7. Prosecutrix Kumari Sarita Dewangan (PW-1) deposed that her birth had taken place in June, 1985. She studied upto class 8. Smt. Gita (PW-2), mother of the prosecutrix deposed that the prosecutrix studied in Shanichari Padav School upto class 6 and thereafter studied in Maharani Laxmibai School upto class 8. The prosecutrix is her third child. 8. 7. Prosecutrix Kumari Sarita Dewangan (PW-1) deposed that her birth had taken place in June, 1985. She studied upto class 8. Smt. Gita (PW-2), mother of the prosecutrix deposed that the prosecutrix studied in Shanichari Padav School upto class 6 and thereafter studied in Maharani Laxmibai School upto class 8. The prosecutrix is her third child. 8. Shraddha Siddh Bhatti (PW-4) deposed that she was posted as Assistant Teacher in Shanichari Padav School from 1970 and at present (on the date of her deposition) she was posted as an officiating Headmistress in the same school. She further deposed that the name of Kumari Sarita Dewangan (the prosecutrix), daughter of Ramu Dewangan is recorded at Serial No.7203 in Dakhil Kharij (Admission and Discharge) Register. According to the Dakhil Kharij Register, the date of birth of the prosecutrix is 9-6-1985. She studied in the school since 5-7-1991 to 1-5-1996. 9. Ex.P-8C is a photo copy of Admission and Discharge Register for the year 1991 in which the name of Kumari Sarita Dewangan (the prosecutrix), daughter of Ramu Dewangan is recorded at Serial No.7203. According to Ex.P-8C, the date of birth of the prosecutrix is 9-6-1985. 10. The date of incident is 30-4-2002 and the date of birth of the prosecutrix is 9-6-1985. Therefore, on the basis of Ex.P-8C, on the date of incident, the prosecutrix was below 18 years. Smt. Gita (PW-2) deposed in cross-examination in paragraph 14 that she had got dates of birth of her children, namely, Toran, Sharad and Kumari Sarita (the prosecutrix) recorded by increasing 1 year of their actual dates of birth. 11. Ex.P-8C, which is a photo copy of Admission and Discharge Register for the year 1991, is a public document and admissible in evidence, but looking to the evidence of Smt. Gita (PW -2), 9-6-1985, being the date of birth of the prosecutnx, becomes doubtful. Dr. S. Chatterjee (PW-11) deposed that the age of the prosecutrix was nearabout 18 years. 12. Looking to the evidence of the above prosecution witnesses, the prosecution has not been able to prove with conclusive evidence that the prosecutrix was, on the date of incident, below 18 years. 13. As regards charges under Sections 363 and 366 IPC, in order to prove kidnapping, the prosecution was required to prove that the accused had taken or enticed the prosecutrix out of the keeping of her lawful guardian. 13. As regards charges under Sections 363 and 366 IPC, in order to prove kidnapping, the prosecution was required to prove that the accused had taken or enticed the prosecutrix out of the keeping of her lawful guardian. The object behind Section 361 IPC, which defines kidnapping, is to protect the minor children from being seduced for improper purposes and to protect their rights. 14. In Thakorlal D. Vadgama Vs. State of Gujarat AIR 1973 SC 2313 the Hon'ble Supreme Court observed thus:- "Section 361 uses the expression 'whoever takes or entices any minor'. The word 'takes' no doubt, means physical taking but not necessarily by use of force or fraud. The word 'entice' seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time in achieving its ultimate purposes of successful inducement. The two words read together suggest that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence of kidnapping. But if the guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian's custody or keeping and going to the guilty party then prima facie it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him. If he had at an earlier stage solicited or induced her in any manner to leave her father's protection by conveying or indicating an encouraging suggestion that he would give her shelter, then the mere circumstance that his act was not the immediate cal se of her leaving her parental home or guardian's custody would constitute no valid defence and would not absolve him." 15. Kumari Sarita Dewangan (PW-1) deposed that 3 years prior to her deposition the appellant had told her that he loved her and had asked her to marry with him at some outside place leaving their houses. She further deposed that at that time, she was 17 years old. The appellant had told her that as soon as she will attain the age of 18 years, they will marry. She further deposed that at that time, she was 17 years old. The appellant had told her that as soon as she will attain the age of 18 years, they will marry. The appellant had threatened her that if she did not accept his proposal, he will commit suicide. Therefore, she left her house and went along with the appellant. 16. Kumari Sarita Dewangan (PW-1) further deposed that the appellant had kept her at Pithampur (Indore) at the house of his friend, where the appellant committed sexual intercourse with her without her consent. The appellant had kept her there for about 8 months. 17. Kumari Sarita Dewangan (PW-1) deposed in cross-examination in paragraph 10 that it is true that she had written love-letters to the appellant. It is also true that she had written all the love-letters to the appellant within three years. She further deposed that she had written many letters to the appellant. Letters (Ex.D-1 to D-6) were written by her to the appellant. She had written letters to the appellant even after returning from Pithampur. 18. Kumari Sarita Dewangan (PW-1) deposed in cross-examination in paragraph 14 that when she was living with the appellant at Pithampur, the appellant went to work in a company since 9 A.M. to 6 P.M. He came to house to take lunch in the afternoon at 1 P.M. and stayed at the house for about 5-10 Minutes. 19. Kumari Sarita Dewangan (PW-1) further deposed in cross-examination in paragraph 15 that it is true that she lived with the appellant in a rented house situated in a Ghani Basti (dense locality) and houses of other persons were situated there. It is wrong to say that she had telephoned at her house from Pithampur. During the period of 8 months of her living with the appellant at Pithampur, she had accompanied the appellant to the market 1-2 times. The appellant asked her not to go out of the house therefore, she did not go out of the house. 20. Kumari Sarita Dewangan (PW-1) further deposed in cross-examination in paragraph 17 that she went along with the appellant from Bilaspur to Indore by a train. After stepping down from the train at Indore, they had gone to Pithampur by a bus. They had sat in the bus near Indore Railway Station itself. 21. 20. Kumari Sarita Dewangan (PW-1) further deposed in cross-examination in paragraph 17 that she went along with the appellant from Bilaspur to Indore by a train. After stepping down from the train at Indore, they had gone to Pithampur by a bus. They had sat in the bus near Indore Railway Station itself. 21. Kumari Sarita Dewangan (PW-1) further deposed in cross-examination in paragraph 18 that it is true that when the appellant went to work in the company and she lived in the house alone, at that period also, she did not tell anybody that the appellant had taken her there by abducting her from her parental house. 22. Kumari Sarita Dewangan (PW-1) further deposed in cross-examination in paragraph 19 that it is true that they used to give love-letters to each other and they used to meet to each other in restaurants and coffee houses. It is true that the appellant had put a proposal of marriage before her and in response thereto she had asked him for giving her time to think about the same. 23. Indrajeet Choudhary (PW-7) deposed that the appellant and the prosecutrix were living at his house on rent. The appellant was working in an auto design factory. He further deposed that they had lived at his house for about 5 months. During these 5 months, no quarrel took place between, them. It never appeared that the appellant kept the prosecutrix at the house confining her. 24. In Shyam and another Vs. State of Maharashtra 1995 Cri.L.J. 3974, the Hon'ble Supreme Court observed thus:- "In her statement in court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so-called "taking", it does not seem that the prosecutrix was truthful in that regard. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so-called "taking", it does not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by "taking" her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touch 18 years of age, but still she was in the age of discretion, sensible and aware of the intention of the accused-Shyam, that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam-the appellant on her own and in that sense there was no 'taking' out of the guardianship of her mother." 25. Looking to the evidence of prosecutrix Kumari Sarita Dewangan (PW-1) and from perusal of letters (Ex.D-1 to D-6), it appears that the prosecutrix left her parental house willingly. On the date of incident, the age of the prosecutrix was about 18 years. The evidence on record indicates that the prosecutrix willingly went away with the appellant. It appears that the prosecutrix did not complain to anybody while she was going with the appellant. It indicates that she had gone with the appellant willingly. On the date of incident, the age of the prosecutrix was about 18 years. The evidence on record indicates that the prosecutrix willingly went away with the appellant. It appears that the prosecutrix did not complain to anybody while she was going with the appellant. It indicates that she had gone with the appellant willingly. In absence of any threat, coercion or inducement having been established by the prosecution, I think it not possible to rely on the prosecution case to come to the conclusion that the appellant is guilty of the charges framed against him. The Prosecutrix had sufficient opportunities not only to run away from Bilaspur but also from the house at Pithampur where she was kept by the appellant. 26. The conduct of prosecutrix Kumari Sarita Dewangan (PW-1) clearly shows that she was a consenting party and she left her parental house willingly. 27. For the foregoing reasons, the conviction and sentence awarded by the learned trial Judge to the appellant under Sections 363 and 366 IPC are not sustainable and the appellant deserves to be acquitted. 28. In the result, the appeal succeeds and is allowed. The impugned judgment of conviction and sentence passed by the trial Court is set aside. The appellant is acquitted of the charges framed against him. He is on bail. His bail bonds are cancelled and sureties stand discharged. Appeal Allowed.