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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Inder Singh Uboweja, J.
Ashok Kumar – Appellant
Vs.
State of C.G. – Respondent
Criminal Appeal No. 100 of 2002
Decided On : 04-09-2015
Indian Penal Code - Sections 363, 366 and 376 - judgment of conviction – Claim of compensation - As per case of prosecution was minor on the date of incident and it is alleged that the appellant under inducement of her marriage took her away from the custody of legal guardianship of her father to village - When was not found in the house, her father along with the help of villagers started searching and on search he found his daughter accompanied by the appellant. He brought his daughter back to his house, but he did not report the matter to Police Station. It is further alleged that the appellant again abducted her from her house and took away her to ravaged and committed rape on her – Held, Prosecution evidence clearly shows that was found to be of sufficient understanding, she was found to have accompanied the accused of her own will. She did not put any resistance nor she raised cries when she was being eloped, it cannot be said that accused enticed or committed rape on her - Entire evidence on record itself shows that she was found to be willingly and a consenting party, where the prosecution has failed prove that was below of age at the relevant time. It is held that offence under Section 363 was not made out. Singh who has examined has stated that she did not find any injury over the body of - She opined that no definite opinion can be given about recent intercourse. She proved her examination report as - As per medical report, it is also proved that was raped by someone - Taking into consideration all the facts and circumstances of the case and on minute scrutiny of the entire evidence, it is clear that prosecution has failed to prove the fact that the was below 18 years of age on the date of incident. Prosecution has also failed to prove that the appellant has committed kidnapping or abducting of minor girl in order to compel her to marry and thereafter committed rape on her and thereby the appellant committed offence under Sections 363, 366 and 376 of the IPC. In the result, the appeal filed by the appellant is allowed As regards the complicity of appellant in crime in question, conviction is substantially based on the evidence of prosecution adduced oral as well as documentary evidence to prove the age of - So far as oral evidence is concerned has stated that her birth month and year is has stated in his deposition that date of birth of but they have not stated on what basis they have stated so - Neither they have brought on record to show that age of was on date of incident nor filed any document with respect to the age of to support of the prosecution case- Appeal Allowed
Inder Singh Uboweja, J.
1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 04.01.2002 passed by the District & Sessions Judge, Surguja at Ambikapur in Sessions Trial No. 443/2000, whereby and whereunder after holding the appellant guilty for abducting, compelling the prosecutrix to marry and for committing rape on prosecutrix (PW-5), the trial Court has convicted the appellant under Sections 363, 366 and 376 of the IPC in the following manner:-
Conviction
Sentence
U/s. 363 of the IPC
3 years RI and fine of Rs. 2,000/-, in default of payment of fine, additional RI for six months.
U/s. 366 of the IPC
3 years RI and fine of Rs. 2,000/-, in default of payment of fine, additional RI for six months.
U/s. 376 of the IPC
7 years RI and fine of Rs. 5,000/-, in default of payment of fine, additional RI for six months.
All the sentences were directed to run concurrently.
Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted and sentenced the appellant as aforementioned and thereby committed illegality.
2. As per case of prosecution, prosecutrix (PW-5) was minor on the date of incident and it is alleged that the appellant under inducement of her marriage took her away from the custody of legal guardianship of her father Ramashankar (PW/6) to village Salka. When the prosecutrix was not found in the house, her father Ramashankar (PW-6) along with the help of villagers started searching the prosecutrix and on search he found his daughter accompanied by the appellant. He brought his daughter back to his house, but he did not report the matter to Police Station. It is further alleged that the appellant again abducted her on 20.08.2000 from her house and took away her to Kasabel, ravaged and committed rape on her. Father of prosecutrix Ramashankar (PW-6) lodged the report on 20.08.2000 in police station, Sitapur. Initially police registered the offence under Sections 363 and 366of the IPC and during investigation offence under Section 376 of the IPC was added.
3. After completion of investigation, charge-sheet was filed against the accused and he was charge-sheeted under Sections 363, 366 and 376 of the IPC.
4. In order to bring home the guilt of the appellant, the prosecution has examined as many as eight witnesses in support of its case. The appellant was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question.
5. After affording opportunity of hearing to the parties, learned District & Sessions Judge, convicted and sentenced the appellant in the aforesaid manner.
6. I have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court.
7. Learned counsel appearing for the appellant vehemently argued that it was not established by the prosecution that the prosecutrix was below 18 years of age at the time of incident and also failed to prove that the appellant has committed kidnapping or abducting of minor girl and after that he committed rape on her. Therefore, the finding of the age of the prosecutrix was perverse and also looking to the conduct of the prosecutrix, medical report, FSL report, no such offence under Sections 363, 366 and 376 of the IPC is made out against the appellant.
8. Per contra, learned State counsel opposing the criminal appeal supports the impugned judgment.
9. In order to appreciate the arguments advanced on behalf of the parties, I have to examine the evidence adduced on behalf of the prosecution.
10. As regards the complicity of appellant in crime in question, conviction is substantially based on the evidence of prosecutrix. The prosecution adduced oral as well as docum
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