Criminal appeal by a convicted appellant against acquittal on lesser charges. The High Court acquitted the appellant of kidnapping charges due to lack of proof regarding the prosecutrix's age and contradictory evidence suggesting consent.
The conviction and sentence under Section 363 of the IPC were set aside, and the appellant was acquitted.
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.
1 Cr.A. No. 199 of 1999
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 199 of 1999
---- Appellant
Versus
| • The State of M.P. (Now |
C.G.) through the District Magistrate, Raipur (C.G.) ---- Respondent/State |
|---|---|
| For Appellant : |
Smt. Indira Tripathi, Advocate |
| For Respondent/State : | Shri Vimlesh Bajpai, Government Advocate |
Hon’ble Shri Justice Gautam Chourdiya, J
Judgment on Board
16.09.2020
sentenced as under:-
| Conviction | Sentence |
|---|---|
| Under Section 363 of Indian Penal Code (for short 'IPC') |
R.I. for two years and pay a fine of Rs.2,000/-, in default of payment to further undergo additional R.I. for six months |
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information was received by PW-16 Laxmi Prasad Dubey, Head Constable that the missing girl (prosecutrix) aged about 15 years had returned to her home, on which he reached village Charouda. After inquiry from the prosecutrix (PW-6), her father Santram, her mother Ramkunwar and Suphud Ram by PW-16, it was revealed that on 26.08.1997, appellant Manoj Kumar had kidnapped the prosecutrix on the enticement of marrying her and keeping her as wife from the lawful guardianship of her father and went to his maternal uncle at village Kodwa. On the way, the appellant committed forcible sexual intercourse with the prosecutrix while going to Kodwa village and kept her in the house of his maternal uncle. It was also revealed that on the date of incident i.e. 26.08.1997 at about 06:30 pm the prosecutrix went to answer the call of nature and did not return home and at that time her neighbour Manoj Kumar also went missing. After inquiry of Roznamchasahna No. 985 and Missing Report No. 11/97, F.I.R. (Ex.-P/11) was registered under Sections 363, 366 and 376 of IPC in Police Station Dharsiva by PW-13 U.K. Chandrawanshi, Sub-Inspector against appellant Manoj Kumar.
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Santram (PW-12) were recorded by the police and the accused was arrested on 28.08.1997.
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prosecutrix (PW-6) is core issue in the matter. In the present case, the only document which may throw some light on the point of age is Ex.-P/8C i.e. admission register of the school of the prosecutrix in which her date of birth is mentioned as 11.12.1982. As per this document, age of the prosecutrix can be assessed as 14 years and 08 months and 15 days on the date of incident. She submitted that on which basis, the said entry was made in Ex.P/8C regarding date of birth of prosecutrix, was not proved by the prosecution. No other document is collected or presented during trial. Though the prosecutrix is educated upto 5th standard but in her entire deposition, she has not said anything regarding the date, month or year of her birth. PW-12 Santram, father of the prosecutrix, has also not said anything specific regarding the age of the prosecutrix. Police also failed to collect the entries of village Kotwar which are registered in the birth and death register officially maintained by the Kotwar. She also submitted that only on the basis of admission register (Ex.-P/8C), it may not be held that the prosecutrix was minor at the time of incident, therefore, the prosecution has not proved its case that at the time of incident the prosecutrix was minor, i.e., below the age of 18 years.
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support of above contention, reliance has been placed on the decision of this Court in the matter of Shivcharan alias Jarha Vs. State of M.P., 2012 (4)
C.G.L.J. 140 .
14.First this Court considers the age of the prosecutrix (PW-6). As per evidence of PW-12 Santram (father of the prosecutrix), he stated in para-3 of his deposition that on the date of incident when her daughter had gone to answer the call of nature, she did not return home and then he went in search of the prosecutrix. Thereafter, he lodged the missing report of the prosecutrix in Police Station Dharsiva. PW-12 also stated that when he was in the police station at about 05:00 pm, the mother of the appellant came in police station and told that the maternal uncle of the appellant has brought the appellant and the prosecutrix to home, then PW-12 reached the home. PW-12 stated that when he asked the prosecutrix where she had gone, the prosecutrix stated that when she had gone to answer the call of nature, appellant Manoj caught hold of her hand and told that he would marry her and on the point of knife, he took the prosecutrix to village Kodwa and on the way at raita-naala he committed rape upon the prosecutrix, thereafter maternal uncle of the appellant has brought both the appellant and prosecutrix to village. PW-12 further admitted in paras 8 & 10 that he has no knowledge as to in which year his marriage was solemnized, he has three children and the prosecutrix is the eldest one. However, he does not know as to in which year his children were born. PW-12 also stated that he did inform the police of his age i.e. 25-26 years while recording his case diary
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statement (Ex.-D/3) but it was recorded as 36 years in Ex.-D/3. Looking to the entire evidence of PW-12, he is unable to explain the actual date or year of his marriage, nor the date, month or year of birth of his children and also he deviated from his case diary statement (Ex.-D/3).
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advised the police for sending the prosecutrix for radiologist examination.
18.PW-4 Sewakram is the grand-father ( naana ) of the appellant and is resident of village Kodwa. PW-4 stated that the appellant brought the prosecutrix and she appeared to be of marriageable age. PW-4 further stated that he asked the appellant why he brought that girl/prosecutrix and he (PW-4) scolded the appellant and the girl. PW-4 further stated in para-3 that the girl said that she was in love with the appellant and if he did not accept her, she would consume poison and she came with him of her own will. PW-4 further stated that the prosecutrix was about 19-20 years of age. PW-5 Khediya Bai is the wife of PW-4 and she has supported the version of PW-4.
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stated anything about her age and mother & father not examined. Doctor opined that she was habitual to sexual intercourse. ” Therefore, this Court found that conviction of the appellant awarded by the trial Court was not proper, set aside the judgment impugned and acquitted the appellant of the charges under Sections 363, 366 and 376 of IPC levelled against him.
21.Considering the facts and circumstances of the case, no kotwaripanji or birth certificate was produced and proved by the prosecution, nor any particular date of birth of the prosecutrix was stated by the father of prosecutrix and the prosecutrix, nor any source of date of birth mentioned in the admission register (Ex.-P/8C). PW-9 Ganguram, Head Master, produced the admission register of the school. In admission register there is entry of the name of the prosecutrix at serial No. 86, according to which, her date of birth is 11.12.1982 and the prosecutrix was admitted in the concerned Institution. However, this witness (PW-9) has not stated as to on what basis the entry regarding date of birth of the prosecutrix was mentioned in the said register (Ex.-P/8C). Thus, Ex.-P/8C admission register has no evidentiary value and is of no help to the prosecution and cannot be said to be a reliable piece of evidence to determine the age of the prosecutrix. Even the prosecution did not attempt for ossification test of the prosecutrix and no reason for this has been given. In view of the above, it is clear that the prosecution utterly failed to prove that on the date of incident, the prosecutrix was below the age of 18 years, by adducing cogent and reliable evidence as required under the law.
22.So far as conviction under Section 363 of IPC is concerned, on the same set of evidence, the trial Court has acquitted the appellant of the charges under Sections 366 & 376 of IPC. The prosecutrix (PW-6) in the case diary statement (Ex.-D/1) has stated that she was having love affair with the appellant prior to six months from the date of incident and both were secretly talking with each other. She further stated that she kept the photograph of
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the appellant in her purse which was seen by her mother and she (prosecutrix) informed about the same to the appellant. She further stated in her case diary statement that on 26.08.1997 appellant Manoj asked her to meet outside the village in the evening, then at about 06:00 pm on the pretext of attending the call of nature, she went there and the appellant met her near the canal. Thereafter, both had gone by foot to the house of maternal uncle of the appellant at village Kodwa. She stated that while they going to village Kodwa, on the way outside village Kowdwa near the culvert, the appellant had committed sexual intercourse with her. But, the prosecutrix (PW-6) stated different story in her court evidence. She stated that on the date of incident when in the evening she went to answer the call of nature, the appellant came there, caught hold of her from behind and on the point of knife he took her on foot to the house of his maternal uncle. She stated that before reaching village Kodwa near the canal, he committed sexual intercourse with her. PW-6 further stated in para-25 that the appellant while committing sexual intercourse with her, she sustained injuries on back and hip. As per report (Ex.-P/16) of PW-14 Dr. Suniti Mangrulkar who examined the prosecutrix (PW-6), no any external injury was found on the body of the prosecutrix, nor sign of any external injury on genitalia was found. There are major contradictions or omissions in the court evidence and the case diary statement (Ex.-D/1) of the prosecutrix. Thus, the conduct of the prosecutrix (PW-6) clearly show that she was a consenting party and she left her parental house willingly. Even the prosecution has not adduced any evidence to show that the prosecutrix was kidnapped or abducted by the appellant from the lawful guardianship, therefore, no offence under Section 363 of IPC is made out against the appellant.
10 Cr.A. No. 199 of 1999
under Section 363 of IPC.
Sd/-
(Gautam Chourdiya) Judge
vatti
2 issues framed by the court
Whether the prosecution proved that the prosecutrix was below the age of 18 years at the time of the incident.
Whether the evidence established abduction or kidnapping of the prosecutrix by the appellant.
Colour shows how this judgement treated each authority
Shivcharan alias Jarha Vs State of M.P.Followed¶50
Shivcharan alias Jarha Vs State of M.P., 2012 (4) C.G.L.J. 140
5 provisions across 4 enactments
Manoj Kumar S/o Tulsiram Kannoje
The State of M.P.
Gautam Chourdiya
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
