Research › Search › Judgment

Chhattisgarh High Court · body

2012 DIGILAW 290 (CHH)

SAMUEL BADA v. STATE OF M. P.

2012-11-01

PRITINKER DIWAKER

body2012
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 01.05.1998 passed by Additional Sessions Judge, Baikunthpur District Sarguja in Sessions Trial No. 348/1997 convicting the accused/appellant under Section 363 IPC and sentencing him to undergo RI for three years and pay fine of Rs. 1000/-, in default of payment of fine to further undergo RI for one year. 2. Case of the prosecution in brief is that on 20.10.1997 written report - Ex. P-1 was lodged by Chonhus Ekka (PW-2) - father of the prosecutrix (PW1) alleging that on 7.10.1997 his daughter (prosecutrix) had left her house without informing anyone and on enquiry being made it was revealed that accused/appellant who lived in the same village was also missing. During search, on 20.10.1997 the prosecutrix returned home and on being asked she informed that as her marriage was fixed in village Khala against her wishes, she eloped with the accused/appellant and stayed in the house of one Aman. It is further alleged that prosecutrix informed his father that she was in love with the accused/ appellant but he did not make any physical relations with her. Based on this written report, FIR Ex. P-2 was registered against the accused/appellant for the offences punishable under Sections 363 and 366 IPC. After completion of investigation, charge sheet was filed by the police on 10.11.1997 under the same sections. Court below, thereafter also framed the charge for the offences as mentioned in the FIR and the charge sheet. 3. In support of its case, prosecution has examined 09 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in. which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the Court below acquitted the accused/appellant of the charge under Section 366 IPC but convicted and sentenced him as mentioned in paragraph No.1 of this judgment. 5. Counsel for the accused/appellant submits that even if the entire case of the prosecution is taken as it is, accused/appellant cannot be convicted under Section 363 IPC because there is no legally admissible evidence in respect of the age of the prosecutrix. He further submits that the prosecutrix herself has admitted that she was in love with the accused/appellant and she accompanied him at her own. He further submits that the prosecutrix herself has admitted that she was in love with the accused/appellant and she accompanied him at her own. All this, according to the counsel for the accused/appellant, shows that the prosecutrix was a consenting party and therefore, conviction of the accused/appellant under Section 363 IPC is not sustainable in the eye of law. 6. On the other hand counsel for the respondent/State supports the judgment impugned. 7. Prosecutrix (PW -1) has stated that she knew the accused/appellant who happened to be her brother. According to her, accused/appellant took her to Chirmiri on the assurance of marriage and kept in the house of his maternal aunt. Accused/appellant is also stated to have threatened to kill her in case she declined to accompany him. This witness has first stated that she was kept in Chirmiri for about 3-4 months and then has stated that she was kept there for two months. She has stated that when the report was lodged by her parents, accused/appellant had brought her to police station Baikunthpur and that after returning home she informed her mother and father that accused/appellant had allured her away. According to her, at the relevant time she was aged about 13 years. This witness has further stated that she was taken to Chirmiri in a jeep and number of persons were sitting in it. In cross-examination she has stated that during her stay at Chirmri, one day the appellant had physical relations with her but this fact was not disclosed to her parents. On being confronted with her case diary statement Ex. D-1, this witness has stated that she did not make any statement that the appellant did not have physical relations with her. Chonhus Ekka (PW-2) - father of the prosecutrix has stated that the accused/appellant took her daughter to Chirmiri and that she came to police station two days after he lodged the report. After returning home, according to this witness, the prosecutrix told him that she was taken by the accused/appellant to Chirmiri per force and whenever she tried to get back he used to lock her up. According to this witness, police had seized the progress report of the prosecutrix from him vide seizure memo - Ex. P-4. He has stated that prosecutrix and the accused/appellant used to go to the Church together and he did not feel offended to this. According to this witness, police had seized the progress report of the prosecutrix from him vide seizure memo - Ex. P-4. He has stated that prosecutrix and the accused/appellant used to go to the Church together and he did not feel offended to this. There appear to be material contradictions in the Court statement of this witness if compared to his case diary statement and the FIR. He has further stated that the prosecutrix never told him that the accused/appellant made physical relations with her. Prosecutrix however had informed this witness that as her menstrual cycle started, accused/appellant did not make physical relations with her. He has further stated that he could not tell his date of birth nor that of his wife because he was uneducated. According to him, earlier he was aware of the date of birth of the prosecutrix but subsequently he forgot the same. Shalen Bai (PW-3) - mother of the prosecutrix has stated that when she came to know that the accused/appellant took away her daughter, the report was lodged. According to her, she was not in a position to tell her own date of birth nor that of her daughter. She has further stated that the prosecutrix had informed her that as her period had started, the accused/appellant could not make physical relations with her. Monika (PW-4) has not supported the case of the prosecution and has been declared hostile. P.S. Rathia (PW-5) - principal of the school has proved the mark sheet of the prosecutrix Ex. P-3 and school admission register Ex. P-6. According to this witness, in these documents date of birth of the prosecutrix was recorded as 15.5.1985. However, in cross examination this witness has admitted that the entry in the admission register was not made by him as at that time he was not posted there. He has further stated that the said entry might have been made on the basis of mark sheet of class V and that no information was obtained at the time of admission in class VI. He has stated that in the case of admission from one school to the other transfer certificate was required but he did not bring any such document with him. Marcel Tirki (PW-6) is the witness to seizure of mark-sheet of the prosecutrix made under Ex. P-4. He has stated that in the case of admission from one school to the other transfer certificate was required but he did not bring any such document with him. Marcel Tirki (PW-6) is the witness to seizure of mark-sheet of the prosecutrix made under Ex. P-4. Amam Ali (PW-7) has not supported the case of the prosecution and has been declared hostile. M.M. Tiwari (PW -8) is the investigating officer who has duly supported the case of the prosecution. M.S. Chandel (PW-9) is the witness to seizure of school admission register made under Ex. P-6. 8. Close examination of the evidence available on record makes it clear that on 7.10.1997 the prosecutrix left for Chirmiri in the company of the accused/appellant at her own freewill and lived there in the house of maternal aunt of the accused/appellant till 20.10.1997. Thus conduct of the prosecutrix shows that she was a consenting party to the act of the accused/appellant. Moreover, there are material contradictions in the Court statement of this witness if compared to the FIR because in the FIR she has stated that as her marriage was fixed elsewhere against her wishes, she eloped with the accused/appellant with whom she was in love, though all these things have been denied by her in the statement made before the Court. So far as age of the prosecutrix is concerned, evidence of her parents is not clinching and they have admitted that they did not remember the date of birth of their daughter. Ex.P-3 is the mark-sheet of the prosecutrix and Ex. P-6 is the admission register which has been proved by P.S. Rathia (PW-5) but he has categorically stated that he did not make the entry in the register as at that time he was not posted in that school. Thus as the source of entry made in the school register has not been proved by the prosecution as required under the law, the evidence on record with respect to age cannot be treated as conclusive in nature. Such being the situation, accused/appellant, according to the considered opinion of this Court, is entitled for benefit of doubt. 9. In view of the aforesaid factual discussion made in the light of the evidence of the witnesses, this Court thinks that the approach of the Court below is not based on due appreciation of the evidence of the witnesses. Such being the situation, accused/appellant, according to the considered opinion of this Court, is entitled for benefit of doubt. 9. In view of the aforesaid factual discussion made in the light of the evidence of the witnesses, this Court thinks that the approach of the Court below is not based on due appreciation of the evidence of the witnesses. Findings recorded in the judgment impugned are thus liable to be set aside and they are set aside as such. Accused/appellant is acquitted of the charge levelled against him. He is on bail. Bail bonds executed by him stand discharged. 10. Appeal allowed. Appeal Allowed.