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2013 DIGILAW 398 (MP)

Radhoo Lal v. State of M. P.

2013-03-21

M.A.SIDDIQUI

body2013
Judgment: Heard finally. Appellant Raddulal has been convicted R.I. for 5 years and fine of Rs.500/- on each count for offence punishable under Section 363 and 366 of I.P.C. by Second Additional Session Judge, Mandla in S.T. No.74/97 on 12.11.1997. 2. The facts of the case in nut shell are that on 8.3.1997 at around 11:00 a.m. when Balwant Singh and his wife had gone to Udaypur they had left their younger daughter and prosecutrix at home. When they returned back prosecutrix was not at home. So the parents of prosecutrix lodged a missing persons complaint on 10.3.1997 at Police Station Bijabadi and case No. 1/97 was registered. During investigation the prosecutrix was found in the custody of the appellant and appellant was arrested and charges u/s 363/366 and 376 of I.P.C. was framed against the appellant. Appellant and prosecutrix was sent for medical examination. After due investigation challan was filed before JMFC, Niwas which was committed to the court of Second Additional Session Judge, Mandla on 17.7.1997 and charges u/s 363, 366 and 376 of I.P.C. was framed against the appellant. 3. Appellant pleaded not guilty and in his defence he stated that he has bean falsely implicated. 4. To substantiate his case prosecution examined prosecutrix (PW1), Balwant Singh (PW2), Sukko Bai (PW3), Dr.Shobha Dubey (PW4), L.S.Kashyap (PW5), Dr.N.A. Ansari (PW6), who conducted ossification test, I.K.Upadhyay (PW7),ASI who conducted the investigation and Dr.D.K.Shrivastava who conducted medical examination of the appellant. 5. On the basis of the evidence adduced by the prosecution appellant was acquitted from the charge of 376 of I.P.C. But he was convicted u/s 363 and 366 of I.P.C. 6. Learned counsel for the appellant further submitted that on the evidence of prosecutrix the appellant was acquitted from the charges of 376 but have been convicted u/s/363 and 366 so he ought to have been acquitted. It is further submitted that as per the statement of prosecutrix she was educated up to sixth standard and her father Balwant Singh has also stated that prosecutrix was educated upto fourth class. Though I.K.Upadhyay (PW7) stated that he has seized the marksheet Exhibit P-22 but father of the prosecutrix Balwant Singh has kept mum on this aspect. As per the Statement of Dr. N.A.Ansari, he found that as per X-ray report (exhibit P-14 to P-17) the age of the girl was between 14-15 years. Though I.K.Upadhyay (PW7) stated that he has seized the marksheet Exhibit P-22 but father of the prosecutrix Balwant Singh has kept mum on this aspect. As per the Statement of Dr. N.A.Ansari, he found that as per X-ray report (exhibit P-14 to P-17) the age of the girl was between 14-15 years. Learned counsel for the appellant submitted that actual age by ossification test cannot be determined as there is a margin of 2-3 years and as per the margin she is likely to be of 18 years. 7. To substantiate his contention learned counsel for the appellant has placed reliance on Rajesh alias Kameshwar Soni Vs. Sate of M.P. Passed in Criminal Appeal No.23/1991 reported in 2010(2)Acquittal 38 wherein it has been held that: “Conviction under by the trial court while acquitting him of offences under Section 376 and 366 IPC. prosecutrix had remained with the accused from 4.3.89 to 30.3.89 and was taken to various places. Several love letters showed that she was a consenting party. Prosecution brought on record the date of birth from school admission but that date of birth was recorded on the basis of transfer certificate. No body from school which issued transfer certificate was examined as to on what basis or on whose information date of birth of prosecutrix was recorded. In absence of any primary evidence of fact that prosecutrix was below 18 years of age, conviction of kidnapping could not be sustained.” 8. It is further submitted by the counsel for the appellant that as per the statement of Balwant Singh father of the prosecutrix his eldest son is 22 years of age and he was born in the year 1977 then there is another son and the prosecutrix is the third child and her age is around 18 years. So the fact that prosecutrix was minor and below the age of 18 years has not been proved beyond reasonable doubt by prosecution. 9. learned Counsel for the appellant further submitted that as per the statement of prosecutrix she went with some Muuni Bai to the forest where she met the appellant and she went with the appellant willingly. As prosecutrix who was a major accompanied the appellant willingly so appellant has not committed any kidnap or abduction of the prosecutrix. 10. 9. learned Counsel for the appellant further submitted that as per the statement of prosecutrix she went with some Muuni Bai to the forest where she met the appellant and she went with the appellant willingly. As prosecutrix who was a major accompanied the appellant willingly so appellant has not committed any kidnap or abduction of the prosecutrix. 10. In view of the facts and circumstances of the case the conviction of the appellant u/s 363 an 366 of I.P.C is hereby set aside, appellant is acquitted of the charges levelled against him. Consequently, appeal is allowed.