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2013 DIGILAW 1392 (MP)

Amarjeet Dohar @ Dharmendra v. State of M. P.

2013-11-14

G.S.SOLANKI

body2013
JUDGMENT : G.S. Solanki, J. 1. This appeal has been preferred by the appellant being aggrieved by judgment dated 5.2.2010 passed by First Additional Sessions Judge, Satna in S.T. No. 65/2008 whereby the appellant has been convicted under Sections 363, 366, 376 of the IPC and sentenced to R.I. for 3 years with fine of ` 500/-, R.I. for 7 years with fine of ` 500/- and R.I. for 7 years with fine of ` 500/- respectively with default stipulations. The facts, in short, giving rise to this appeal are that on 10.12.2007, Brijmohan Kewat (PW-1) had lodged a missing report of his daughter/prosecutrix to the effect that in the morning she had gone to answer the call of nature but she did not come back to home. He was suspecting that the appellant has abducted his daughter because he used to make telephone calls to her. Initially missing report was registered at Raznamcha Sanha No. 781 at P.S. Kolgavan, District Satna, thereafter during enquiry, on 16.12.2007 the prosecutrix was brought to the Police Station and her statement was recorded. She alleged that the appellant had kidnapped her, took her to Ramvan, Maihar and Kalhora and committed rape on her. On the basis of aforesaid statement, offence under Sections 363, 366, 376 of the IPC was registered against the appellant. The appellant was arrested and charge sheeted before JMFC, Satna, who in turn, committed the case to the Courts of Sessions. 2. Learned First Additional Sessions Judge, Satna framed the charges under Sections 363, 366, 376 of the IPC against the appellant. 3. The appellant abjured the guilt and pleaded false implication. 4. On appraisal of evidence on record, the learned First Additional Sessions Judge convicted and sentenced the appellant as mentioned hereinabove, hence this appeal. 5. I have perused the record of the trial Court with the assistance of Shri Umesh Pandey, learned Public Prosecutor. It reveals that the trial Court after appreciation of evidence on record itself arrived at the conclusion in Para-22 of the judgment that at the time of incident the prosecutrix was 17 years of age and despite recording the aforesaid finding, the trial Court recorded conviction of the appellant under Section 366 of the IPC. 6. It reveals that the trial Court after appreciation of evidence on record itself arrived at the conclusion in Para-22 of the judgment that at the time of incident the prosecutrix was 17 years of age and despite recording the aforesaid finding, the trial Court recorded conviction of the appellant under Section 366 of the IPC. 6. So far as offence under Sections 363, 376 of the IPC are concerned, certainly it has come on record that the prosecutrix had gone with the appellant, they travelled more than one places but she did not make any complaint to anyone. She was more than 16 years of age. If any sexual activity was performed, same must be with the consent of the prosecutrix. It has also come on record that Brijmohan (PW-1), father of the prosecutrix admitted in his cross-examination that his marriage was solemnized before 25 years and his wife gave birth to the prosecutrix after 5-6 years of their marriage. There is an X-Ray report on record, although it was not exhibited before the trial Court, but it is a well established principle of law that if any document has been produced by the prosecution, which is favour of the accused person, same may be considered and read over in evidence without any formal exhibition, therefore, the X-Ray report is also considered. As per the report of Radiologist, the age of the prosecutrix was between 19-21 years. If this report of Radiologist and aforesaid admission of Brijmohan (PW-1) is considered together, it appears that the age of the prosecutrix must be about 20 years at the time of incident, which is more than 18 years. The trial Court has failed to consider the aforesaid aspect of the case and committed illegality in recording the conviction of the appellant under Section 363, 366, 376 of the IPC, same is liable to be set aside. Consequently, the appeal is allowed. The conviction of the appellant recorded by the trial Court under Sections 363, 366, 376 of the IPC is hereby set aside. The appellant is acquitted to the aforesaid charges. He is in jail, he be released immediately, in case not required in any other offence. Record of the trial Court be sent back immediately along with a copy of this judgment for information and necessary action. The appellant is acquitted to the aforesaid charges. He is in jail, he be released immediately, in case not required in any other offence. Record of the trial Court be sent back immediately along with a copy of this judgment for information and necessary action. Since none has appeared on behalf of the appellant, office is directed to send a letter along with a copy of this judgment to Central Jail, Satna for information and necessary action.