Partly allowed

Vijay Panika v. State of Chhattisgarh

Chhattisgarh HC8 Oct 2021CRA/835/2002

Case brief

AI extract

What is this about?

An appeal against conviction and sentencing for offences including kidnapping, causing hurt, and criminal intimidation. The High Court acquitted the appellant of kidnapping and abduction charges due to the victim's consent but upheld conviction for assault and intimidation, resulting in a discharge of bail.

What did the court decide?

Appellant acquitted of offences under Sections 365 and 325 of IPC; conviction under Sections 452, 323 and 506(2) of IPC affirmed; appeal partly allowed.

Vijay Panika Vs State of Chhattisgarh — Criminal Trial and Appeal | Chhattisgarh HC (2021)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Order Reserved on 17/09/2021

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Order Delivered on 08/10/2021

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CRA No. 835 of 2002

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Vijay Panika S/o Mangal Das Panika aged about 30 years, R/o Village - Panikapara, Patna, P.S. Patna, District- Korea. C.G.

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---- Appellant

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Versus

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State of Chhattisgarh .

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---- Respondent

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For Appellant : Ms. Renu Kochar, Adv. For State/Respondent : Ms. Ishwari Ghritlahre, PL.

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Hon'ble Smt. Justice Rajani Dubey

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C A V Order

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Date : 08/10/2021

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The present appeal arises out of the impugned judgment of conviction and order of sentence dated 11.07.2002 passed by the learned Additional Sessions Judge, Baikunthpur, District-Korea, in S.T. No. 61/2002 whereby, the learned Additional Sessions Judge has convicted and sentenced the appellant as under :-

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S. No.	Conviction	Sentence
1.	U/s 452 of IPC	R.I. for 2 years and fine of Rs. 250/-.
2.	U/s 323 of IPC	R.I. for 3 months.
3.	U/s 365 of IPC	R.I. for 4 years and fine of Rs. 250/-.
4.	U/s 325 of IPC	R.I. for 2 years and fine of Rs. 250/-.
5.	U/s 506(2) of IPC	R.I. for 1 years and fine of Rs. 250/-. In default of payment additional R.I. for 1 month. All sentences run concurrently.

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Brief facts of the case are that on 01.12.2001 at about 6:30 pm, complainant Rekha (PW-1) lodged an FIR (Ex.-P/1) to the effect that when she was in the house of her sister-in-laws Savita and Laxmi, at that time Vijay came in a scooter, parked and entered the house and asked about Savita @ Setu. At this, Rekha asked him as to what to do than he took out a pistol and threatened her that if she will not tell him

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about Setu, he will kill her child. On hearing the quarrel, Setu came out and the accused caught her hand and dragged her out and after locking the door ran away in his scooter. Rekha gave the information and called her husband and villagers. Thereafter, they followed the appellant. Setu was brought back by the villagers and who informed that she had jumped from the scooter near village Chhindiya and sustained injuries.

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After lodging FIR vide Ex.-P/1 spot map vide Ex.-P/2 and Ex.-P/3 were prepared. Scooter was seized vide seizure memo Ex.-P/5, Dr. A.K. Sharma (PW-5) examined the victim vide Ex.-P/6 and X-ray report of Savita was prepared vide Ex.-P/7. Pistol seized vide seizure memo Ex.P/10 and accused was arrested vide Ex.-P/11. After completion of investigation charge-sheet was filed and charges were framed against the appellant by the learned trial Court under Sections 452, 323, 365, 325 and 506(2) of IPC.

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So as to hold the accused/appellant guilty, the prosecution has examined as many as 11 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case.

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Upon consideration of oral and documentary evidence the trial Court held that the prosecution has established the guilt of the accused under Sections 452, 323, 365, 325 and 506 (2) of IPC and sentenced him as mentioned above. Hence, this appeal.

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Learned counsel for the appellant submits that the impugned judgment of conviction and sentence is contrary to law and facts available on record. He next submits that the learned trial court has not properly assessed the materials and evidence on record. He also submits that the statements of all the prosecution witnesses are full of contradictions, omissions and improvements hence no implicit reliance could be placed on such kind of testimony. He further submits that the conduct and behaviour of prosecutrix clearly indicates that she was a consenting party and while moving from the place to another place in a public place she did not raise any alarm or cry to attract the public. She also did not seek for her rescue. He also submits that the learned trial Court have held in para 23 of the judgment that she was a consenting party and erred in convicting the appellant for the alleged offence. Learned trial Court has failed to consider that the prosecutrix was a

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consenting party and as a matter of fact appellant and prosecutrix were in love and she left the house of her own will. He lastly submits that in this case the prosecution has failed to prove the necessary ingredients of Section 452, 323, 365, 325 and 506(2) of IPC. Therefore, the impugned judgment and conviction is liable to be set aside.

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On the other hand State counsel supporting the impugned judgment of conviction and order of sentence submitted that the trial Court has not committed any error of law and is strictly in accordance with law and no interference is called for.

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Heard counsel for both the parties and perused the material available on record including the impugned judgment.

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Savita @ Setu (PW-2) has stated in her cross-examination as under;

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eSa vjksih dks 4&5 lky ls tkurh gw¡A

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iz'u & vkjksih ls vki 'kkjhfjd laca/k gks x;s Fks ftlls vki xHkZorh gks xbZ Fkh \

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mRrj & vkjksih }kjk tcjtLrh djus ls eSa xHkZorh gqbZ FkhA

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iz'u & vkjksih ls vki tcju 'kkjhfjd laca/k gq;s bl ckr dks vkius fdlh ls dgk \

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mRrj & vfHkys[k ij lfork ds }kjk fy[kh xbZ izn'kZ ih&4 dh fjiksVZ miyC/k gSA eSaus vkjksih ls tcju 'kkjhfjd laca/k LFkkfir fd;k bl ckcr~ fdlh ls eSa blfy;s ugha dgk fd lekt eq>s gh nks"kh BgjkrhA

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iz'u & vki dc igyh ckj vkjksih ls tcju 'kkjhfjd laca/k dc LFkkfir gqvk \

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mRrj & igyh fjiksVZ fy[kk;h Fkh mlds iwoZ gqvk FkkA o fjiksVZ ds le; eSa xHkZorh FkhA

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igyh ckj esjk vkjksih ls tcju 'kkjhfjd laca/k gksus ij eSa ml le; firk ds lkFk jgrh FkhA ml le; esjs HkkHkh] HkkbZ oxSjg lHkh lkFk esa jgrs FksA

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iz'u & vki xHkZ /kkj.k ds i'pkr~ vius ?kj okyksa ds crk;s cxSj vkjksih ds lkFk xbZ Fkh \

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mRrj & vkjksih us eq>s xHkZ lekfIr ckcr~ dgk FkkA o eSaus bl ckcr~ ?kj okyksa ds fy;s ,d i= NksM+k Fkk o ?kj okyksa dks dksbZ tkudkjh ekSf[kd :i ls ugha nh FkhA

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iz'u & iSlksa dh O;oLFkk Hkh vkius gh dh Fkh \

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mRrj & esjs uke ls iSlk tek Fkk o eq>ls vkjksih us psd ij nl[r djk;s FksA ;g nl[r nks psd esa djok;s FksA

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;g ckr lgh gS fd ml le; esjs uke ls lk<+s rhu yk[k :i;s {ks=h; xzkeh.k cSad ds 'kk[kk] iVuk esa tek FksA rFkk blesa ls Ms<+ yk[k :i;s fudkys x;sA

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iz'u & vki lweks xkM+h ls vkjksih ds lkFk iVuk] eusUnzx<+ gksrs gq, tcyiqj rd igyh ckj x;s Fks \

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mRrj & vkjksih us eq>ls xHkZikr dks dgk Fkk fdUrq og eq>s vU;= ys x;kA

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Thereafter, she has stated that ;

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;g ckr lgh gS fd tcyiqj esa tkdj ge yksx ykWt esa :ds FksA ;g ckr lgh gS fd eSaus tcyiqj esa tkdj MkW- fe- ehjk la?kh ls tkap djokbZ FkhA lk{kh us Lor% dgk fd eq>s bl MkWDVj ds ikl vkjksih us esjh rfc;r [kjkc gksus ds dkj.k o xHkZikr djkus ds

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dkj.k ys x;k FkkA ;g ckr lgh gS fd MkW- la?kh us eq>s MkW- lDlsuk ds ikl lksuks xzkQh ds fy;s Hkstk FkkA

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iz'u & ogka ij vkius Loa; dks Jhefr nkl crk;k Fkk \

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mRrj & eSa ,slh ijhfLFkfr esa D;k djrhA

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iz'u & vkius tcyiqj tkdj vkjksih ds lkFk fookg djus gsrq odhy lkgc ls laidZ LFkkfir fd;k o fy[kk i<+h laikfnr dh Fkh \

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mRrj & bl gsrq vkjksih us eq>s tcju ys x;k Fkk rFkk eSa vdsyh iM+ xbZ FkhA

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iz'u & ogka ij bl ckcr~ ifCyd uksVjh us nLrkost laikfnr djk;s Fks \

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mRrj & vkjksih us eq>ls dgk fd vxj rqeus bu dkxtksa ij nl[r ugha dh rks eSa xHkZ laikfnr ugha djkÅaxkA bl dkj.k eSa bu dkxtksa ij gLrk{kj dj fn;s FksA

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iz'u & vki yksx bu dkxtksa dks ysdj tcyiqj fLFkr xk;=h ifjokj ds VªLV esa x;s o 'kknh iath;u gsrq 101@& tek fd;s Fks \

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mRrj & bl gsrq vkjksih ds fe= ,oa mldh iRuh esjs HkS;k&HkkHkh cus Fks ge mlds ifjokj esa x;s Fks ij ;g lc tcju gqvkA

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iz'u & vki tcyiqj rd xbZ ogka ij ykWt esa :dh] tcyiqj ds odhy lkgc ls feyh xk;=h ifjokj esa xbZ o ifCyd uksVjh ds ikl xbZ] vki us dgha ij D;k crk;k fd vkids lkFk tcju gks jgk gS \

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mRrj & th ugha] D;ksafd eSa tcyiqj esa vdsyh Fkh vkSj bu yksxksa ds chp esa FkhA

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She has also stated that ;

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gekjs }kjk iath;u djkus ds i'pkr~ xk;=h ifjokj okyksa us 19 rkjh[k dks izek.ki= nsus dks dgk FkkA ;g ckr lgh gS fd blh vof/k esa ge yksx mlh xkM+h ls ipe<+h rd ?kqeus pys x;sA ipe<+h esa tkdj ykWt esa :ds FksA ;g ckr lgh gS fd ipe<+h esa 18 rkjh[k ds jkf= esa esjs ifjokj ds yksx] iVuk ds dqN yksx vkSj iqfyl okys ykWt esa igqap x;s FksA

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iz'u & vkids ipe<+h esa iqfyl okyksa dks c;ku nsus ls euk dj fn;k vkf[kj D;ksa \

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mRrj & eSa xHkZorh gksus ds dkj.k foo'k Fkh rks D;k djrhA

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iz'u & vkius vkjksih ds lkFk vfVZdy&A&1 ls ysdj A&5 o cgqr lkjs ,sls QksVksxzkQ f[kapok;s ftlesa izselaca/k iznf'kZr gksrk gS \

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mRrj & tc vkjksih eq>s ys x;k Fkk rks eSa fnu Hkj jksrs rks ugha jgrh vkSj bu tSls QksVksxzkQ f[kaps gSaA

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10 . Learned trial Court has found in para 23 that prosecutrix and appellant had physical relations, they went to Jabalpur and Pachmadhi. Prosecutrix withdrew Rs. 1.50 lakhs from her bank account. Trial Court has also found that prosecutrix was pregnant before the said incident and she filed a report against the appellant. Defence of the appellant was that prosecutrix was in love with the appellant. Complainant Rekha Verma (PW-1) has stated that appellant threatened her with the pistol thereafter the accused twisted her hand, pushed and locked her inside the house, due to which she sustained injury on his wrist.

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Dr. A.K. Sharma (PW-5) has examined the complainant Rekha and found swelling on left wrist joint and gave his report vide Ex.-P/6. He opined that the injuries were simple in nature and may be caused by

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hard or blunt object. Dr. A.K. Sharma has also examined Savita @ Setu (PW-4) and found fracture on left clavicle bone.

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Laxmi Verma (PW-10) has stated in her statement that Vijay caught hold the prosecutrix and dragged her out. She opened the back door and went to call her brother. She has stated in her crossexamination as under :

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;g ckr lgh gS fd lsrq bl okjnkr ds 3&4 ekg iwoZ vkjksih ds lkFk Hkkx xbZ Fkh vkSj 6&7 fnu ds ckn lsrq okil vk;h FkhA

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7- eq>s ;g tkudkjh ugha gS fd fot; dk lsrq ls izse laca/k FkkA eq>s ;g Hkh tkudkjh ugha gS fd lsrq xHkZ /kkj.k dj pqdh FkhA ;g lgh gS fd bl okjnkr ds 6 fnu ds ckn lsrq dh vU; O;fDr ds lkFk 'kknh gksuk FkkA

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It is clear from the statement of the prosecution witnesses that prosecutrix was in love and had physical relation with appellant before the incident and she went along with appellant of her own will. Prosecutrix is aged about 20 years and it is also clear from the evidence of the prosecutrix that she jumped from the said scooter due to which she sustained fracture. Looking to the conduct of prosecutrix, this case cannot be said to be of kidnapping. The offence of kidnapping is dealt with in Section 359 and the Section 359 provides as under ;

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359 . Kidnapping is of two kinds: kidnapping from¹ [India], and Kidnapping from lawful guardianship.

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360 . Kidnapping from India . - Whoever conveys any person beyond the limits of¹ [India] without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from 1[India].

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361 . Kidnapping from lawful guardianship . - Whoever takes or entices any minor under² [sixteen], years of age if a male, or under³ [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

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1 The words “British India” have successively been subs. by the A.O. 1948, the A.O. 1950 and Act 3 of 1951, sec. 3 and Sch. (w.e.f 1-4-1951), to read as above.

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2 Subs. by Act 42 of 1949, sec. 2, for “fourteen”.

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3 Subs. by Act 42 of 1949, sec. 2, for “sixteen”.

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362 . Abduction . - Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.

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365 . Kidnapping or abducting with intent secretly and wrongfully to confine person . - Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extent to seven years, and shall also be liable to fine.

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In the present case it is clear that prosecutrix was a consenting party, she went along with appellant of her own will and on the date of incident she jumped from the scooter, therefore she sustained fracture. Statement of the prosecutrix is not sufÏcient to fasten the liability on the appellant, therefore, the offence under Section 365 and 325 of IPC is not established and he is acquitted of the charges punishable under the said Sections. However, complainant Rekha Verma (PW-1) has stated against the appellant that he entered his house, twisted his wrist and threatened her and as per the report of the doctor Rekha Verma (PW-1) has sustained injury on her wrist joint, therefore, the offence punishable under Section 452, 323 and 506 (2) of IPC is proved against the appellant.

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In the light of the above discussion conviction of the appellant under Section 365 and 325 of IPC is not sustainable and he is acquitted of the charges punishable under the said Sections. But conviction of the appellant imposed by the trial Court under Sections 452, 323 and 506(2) of IPC is hereby afÏrmed. The appellant has remained in jail for more than 6 months during the trial. The incident is said to have taken place in the year 2001 and after 20 years it would not be proper to sent him back to jail again therefore the appellant is sentenced to the period already undergone by him, fine amount will remain intact. Appellant is reported to be on bail. His bail bonds stand discharged.

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Accordingly, the appeal is partly allowed.

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Sd/- (Rajani Dubey) JUDGE

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H.L. Sahu

Vijay Panika v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Vijay Panika v. State of Chhattisgarh

Case brief

What is this about?

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