The High Court dismissed the State's appeal against the acquittal of Omkar Prasad and others accused of abduction and rape under IPC sections 363, 366, and 376, upholding the Sessions Court's finding of voluntary consent based on medical evidence and witness testimony.
The appeal was dismissed and the acquittal of the respondents was upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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BY NOTtFI&AT!ON N0.996QfD-2870fl<XfB/C.G./05 ASSPECIHED INSCHEDULE' i & H OF THE COURt FEES ACT 1870.
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INTHE HIGH COURT OF JUDICATUREAT BILASPUR (C.G.|
CR. M. P. NO^X^t) / 2008
I) » ACQUITTAL APPEAL No. ^ f SQOS
APPUCANT/ APPELLANT
State of Chbattisgarh, Through tlie District Magistrate District Rajnandgaon (C.G.)
VERSUS
NON-APPLICANTS RESPONDENTS
Omkar Pra$ad,
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P.S. Bakarkatta,
District Rajnandgaon (C:G.)
Shiv Kumar Sharma @ Shivram Pra.sad Sharma., S/o Nanuk Prasad, , :' . Aged about 64 years,
R/o Viliage - Bakarkatta,
P.S. Bakarkatta,
District Rajnandgaon (C.G.)
APPLICATION FOR GRANT OF LEAVE TO APPEAL UNDER SECTION 378(31 AND MEMORANDUM OF AP^EAL^ UNDER SECTION 378T1) OiLTHBjCODJE:9F CRIMINAL PRPCEDURE,_1973
HIGBieOURTOB'eHHATnSQARH.aiLASPUR
DB: HOK'BLE Ih-. SHRI JU8TICE I. M. QIIBIWSt HOWBLE SHRI JUSTICE G. MINHA.reDI»a,JJ
ACQtnTTAL APPBAL Na. 156/3010
APPELLANT:
State of OhIiatttegMh
Vs.
"^ fe
Omkar Prasad and aaofher
SSSPOHDKSnS:
MBMO OF APBBAL UNDBR I^CnOM 378tll <»• THB GOOE 0? CMMINAL PROCBDURE 1973
Appearaace:
Mr. Vinay Harit, Depuly Advocate General, forfh&State. Mr. Shwendu, Paudya, counselfor tfie respondents.
OitM. JUDGMBHT
<03.02.2012)
PBRDr. I.M. QUDDUSI, J,
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Rrasad. During iavestigatfon the stateinents ofprosecBti-ix and other witaesses wra-e recoided. The poUce regMtered offence agaiaist fhe aecused for fbe offence punishable uadersections 363, 366, 376 aad 506 Part-II IPCon.fhebasis ofstatementof piosecutrix that accused Omkar Prasad alhired. her fhat fae would keep her &s his wife aad conunittBd fca'cible aexual iatercourse with her. The site inap offhe mcidentwas prepared aad the prosecutnx was sent to a lady doctor for niedical examiuatioa. Afier coinpletmg the iavestigatBan.,, the cihatge sheet was filed iafheCourtofJudicialMagistrateEa-stClass, Khairagarh fiToni whcre the miatterwas coiiunlttcd to fhe Court of Sesskins, Rajnandgaon.
So as to hold fhe accused/respendeats guilty, prosecution I»s >examined21 witaesses. The aeeused denicd chaa^es teveled. against ttieni aad pteaded their iuaocence.
4.
The learaed Sessions Court having re to tibe faets situatioa, evidence on recoxd and after ffae tearaed coiuisel for the parties acqultted the of the aforesaid chat^es.
6.
The prosceutnxwascxaxamedasP.W.l. She has stated ia faer evidence that 7-8 aionfhs piior to the iacident, she atong-wifh his sister had goae t& worlc in a brick Triln aad when they were
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returamg, fhe accuscd met hcr on the way and aslaed hcr to meet hini m the noon. Thereafler her sister Pbutesbwari scolded her why you met wifh tiim. On fhe acxt day at 10.00 a.ia. when she had gone to burial groiuid to ease, the accused met her fhere aad told her let us ftee*. furfh.er tAl her that he wOl keep her as his wifc aad she was afl-aid of his fhreateaiag, but she did not tell fhis thing to any oae in her house. On fliat day, in fhe itjght at about 9.00 p.m., she had gone to Bajar Chowk where fhe aecused again aaet her and toM; fhat he wtU keep her Hke his wife and let us Bee. Thereafter, accused tookher to Khair^aAby bus. Then she was taken to Rajnandgaon and fix>m Rajnandgaa to Balod where fhey stayed iu fhe house of auat (Moust) of accused Omkar Rra^d. Thcn accused brought her to viBage Jawhi where she was kept for two days. Thereafter, shewas brought to Umradahwhere she was kept in his uncle's house fbr 15 days. Afler cdebiatiBg Hoti festival, she was brought back to viU^e Jaiahi whcre coaccused Shivram fafher of accused advfaed the prQsecutrix to teU her age as 20 years, ofherwise tss son Omkar would go to JaU. Thercafter, co-accused Shlvram took her to aa advocate where her signatures were obtained. Thereafter, co-accused Stuvram took her to fhe temple of goddess Jhalmala where he got her married wifh Iiis son Omkar atri teept both fhe prosecutrixandlussoninarentedhouseatBdod,wherofbe accused treated her as tus wife aad committed fercible scxual intercourse wifh her. She has further stated that wtule she was stayiugwifh the accused in Balod, her fafher came there alon^wifh police and then she was brought to the polica station Bakarkatta aad she was medicaUy exanuned.
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The prosecutrix in her eross-exaxttmatioa haa adautted that building work was going on iu thcir vffl^e uBder fhe supervision of her father aad she aad accused Oiakar both were working and eaming there aad hcr father used to get aiinoyed on obsemag chit-chat belween fhe acc'used aad prosecutrix. She has furftier admitted that e-s»a aftec complctmg the buildingwork, a daia workwas zuulcrtakenby fhe Govenuaentwhere also the accused and prosectttrixwere workiag. She has also adaiitted that she dM aot coiapiaia against fhe accused bcfore Patel, Kotwar and policc atation Bakarkatta, regarding takmg away and Areateiung by fhe aecused and even when she was takeu finm Khairagarh to Rajiiaadgaa aad Rajaaadgaon to Balod by Bus, she had neifher Goiuplained aor had Eascd any hue aad ciy agaiast Oaitear in fhe bus before the ofhcr passeagers. She has admitted fhat shc staycd in fhe house of aa auat (Mctwsi)!virho belongs to her coima'unl<y and furfher flie owaer ia whose house fhey stayed iu Bakxi, is also not fhe relative of aecuscd and he was relalive of prcasecutrix. She has also. adatitted fhat fhe paraoa in whose house she stayed for 15 days alo'og-wifh accused ia viUagc Umaidah, was also not the relath» of accused but he belongs to her coauauirfty aad her relatnrc. She has also adnutted tliat when she w^ stayiag ia viUages Balod, Jarahi etc., fhe aecused did aot reBBaia in fhe house and was doiag work fbr Bvelthood. She has also adinitted fhat when he was not ia fhe house, she aloue used to stay in the liouse and never coaa.plaiacd to the aeighborcrs or surrounding people about her being tateeu amiay by fhe accused. She has gone to RaJDaadgaon Court wheae fhe^
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advocsttEasbsd. coispfKte detaQs aSbowt.Ja.eT ay, educationete., before readiag over the coatents ofEx.P-4& P-5 aad aigning fhose doeuments by her. She has farfeer clearty admitted that when she appeared in Rajnaadgaoa court for signing affidavit aad consent papers, she has iiot coinplaiaed aaytla^iia fhe presence of advocate aud ofhers that co-accused SIii'wram had fhreatened her aad biought her there.
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Froin the evMence of it reveals tihat ia prosecutrix, exaraination-ia-ehief shc has stated fbat fee accused has taken h.er away and ccHiuaaitted ibrcibte sexual intercourse aad hcr signatures were obtamcd before an advoeate in. the Rajnandgaon Court but oa fhe contraiy she has adnritted ia her cross exaiaiaatioa fhat she voluntan^ acooiapaaied ttie accused OaaJkar Prasad aud ddd aot ratee any hue and ery ^aiust -Bie respondeats, 'mas-sxagc was perfonaed ia a teinplc aud she has signed flie documents in the presence ofadvocaite after readiag over tfae contents to hcr, TIius the perusal ofttie evMence of prosecutrixshows that she is eonsentiag party aad bas voluntaaly accompaaied fhe accused.
In S. VtuwdGBq/an V. Sttrte «ifJllindrasy ABE 1965 .S.C. 943 HonTale fhe Supreine Coitrt held fhat "taldn^' or ''enticmg away" a minor out ofthclsBepingofalawfid.guaidMaAipisan essential ingEedient of fhe offencc of Iddnapping, Even 'whcj'e ffae nunor girl is imder the conteol or guawiiiMisliip of hte fafher, she stiffl contuiuca to be ia fhe lawfiil guaniteiship of the former. But when tbe girl (who fhough a miaor had attaiued fhe age of discretion and fa oa tbe verge of attEummg majortty) herselftalks to the accused to meet her at a certaia place, and goes wifh faim. and fhe accused takes her to van&us
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places aad ultimatety theie is no suggcstion fhat this was donc by force or blandishinent or anyfhiag like fhat on fhe part of fhe accused but it is clear flMin flie cuidcuee fhat fhe iasistence of inarriage caine 6'oai both sides, the accused by comptying wifh her wishes Gan by no streteh of iiaagiaation be saul fc> have "taken" faer out offhe kceping ofher lawfcl gaardiaashq), fhat te the father. It Iias been furfher held fhat fhe faet ofher accorapaaying fhe accused aU along is quite caasteteirt wifh her own desire, Under these circuaastauees no inference can be drawn that tlie accused is guilty oftaldng away fhe girl out of fhe keeping of hcr father. Tliere is a dastincdoa between ''takia^' aad aUowiag a minor to accoinpaay a pcrson. The two expressions are aot synonyinous fhough it caunot bc laid dowa fhat ia no conceivable cuciiiastances caa fhe two be regarded as •snesatinsg the saiae ttung for the piu-poscs of Section 361 IPC where fhe mmor leavcs her fa&er's piotection fcnowiag asd havin^g capacity to kaow fhe fiill iinportofwbat she is doiag, voluntarily joins the accused person, flie accused csanwt tee said to have taken her away firom the keepiag of her lawful guardiau.
At fhis stage, leanied State Counsel sutnnits that accordiug to ffae opiniou of Dr. Leela Ramteke (Ex.P-22), the ^c of proseeutrix was ia between 13 to 15 years. Wc are of ttie opinion that variattoa of 3 ycars is possible, fherefcre, aren if it is presuiaed that fhe prosecutrbt was 16 yeare, ao oSesLee CXOCL be said to have bcen committed as she had attaincd thc age of discretion and was on the vei^e of attainiag laajority and 1bus she was a coasenting party,
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and we do not find any good grouad waifaatmg aiaterieiEacc ia
the said jud^neat The appeal fails and is dismissed.
Sd/-
I.M.Quddusi Judge
SdfG. Minhajuddin Judge
/Rao/
3 issues framed by the court
Whether the medical evidence recording recent sexual intercourse merely proves that it happened or that it was given without consent.
Whether the facts show that the minor voluntarily accompanied the accused rather than being taken away by force.
Whether the acquittal by the Sessions Court is a fit case for interference in appeal against the State.
Colour shows how this judgement treated each authority
S. Vijayaakbar V. State of Andhra PradeshExplained¶66
S. Vijayaakbar V. State of Andhra Pradesh AIR 1965 SC 943 · Who else cites this
5 provisions across 2 enactments
State of Chhattisgarh
Omkar Prasad
Shiv Kumar Sharma
I.M. Quddusi
G. Minhajuddin
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
