Allowed

Santosh v. State of Chhattisgarh

Chhattisgarh HC4 Mar 2024CRA/377/2011

Case brief

AI extract

What is this about?

Appeal against conviction under Section 366 IPC for taking a girl on a promise of marriage. The High Court found from the prosecutrix's own testimony that she was in an affair and voluntarily went with the appellant, so consent negatived kidnapping/abduction for marriage; conviction set aside and appellant acquitted.

What did the court decide?

Conviction and sentence dated 03.05.2011 set aside; appellant acquitted of Section 366 IPC charge; bail bonds operative six months.

Santosh Vs State of Chhattisgarh — Criminal Trial and Appeal | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No.377 of 2011

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Santosh, S/o Shri Sharan Deo Khairwar, Aged about 22 years, R/o Village Aamgaon (Damarpara), Police Station Charcha, District Korea (C.G.).

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---- Appellant

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Versus

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State of Chhattisgarh, through Station House Officer, Police Station Charcha, District Korea (C.G.).

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---- Respondent

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----------------------------------------------------------------------------------------------- For Appellant : Mr. Anil Gulati, Advocate For Respondent-State : Mr. Vivek Sharma, Panel Lawyer

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Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board

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05.03.2024

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1. The appellant has filed the instant appeal under Section 374 (2) of the Code of Criminal Procedure, 1973, (henceforth ‘the Cr.P.C.') questioning the judgment of conviction and order of sentence dated 03.05.2011 passed in Sessions Trial No.05/2011 by which the learned First Additional Sessions Judge, Manendragarh, Place Baikunthpur, District Korea (C.G.) has convicted and sentenced the appellant as under:

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Conviction	Sentence	In Default of Payment of Fine
Under Section	366 Rigorous Imprisonment	Additional RI for
of the IPC	for five years and fine amount of Rs.1,000/-	02 months

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2. Case of the prosecution, in short, is that the prosecutrix (PW-01) resides along with her parents at Village Aamgaon Damarpara. The appellant resides in the same village and used to talk to the prosecutrix frequently. On 21.12.2010 at about 07:00 PM, the prosecutrix has left her house to call for nature at that time the appellant coaxed her by saying that he will marry with the prosecutrix and on account of such assurance, the prosecutrix went to the house of the appellant where the he committed sexual intercourse with the prosecutrix. On 23.12.2010, family member of the prosecutrix took her in their house from the house of the appellant. The prosecutrix narrated the above incident to her parents. Then she went to the police station and lodged the FIR (Ex. P/1) against the appellant for the offences punishable under Sections 363, 366 & 376 of the IPC.

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3. During investigation, the prosecutrix was examined by the doctor, mark-sheet (unexhibited) and undergarments were confiscated from the prosecutrix and the undergarments were examined by the doctor. Statements of witnesses were recorded. Slides of the prosecutrix’s vaginal discharge were seized. The appellant was arrested and his undergarments were seized and the same was examined. A spot map (Ex. P/5) was prepared. The seized material has been sent to the laboratory at Raipur for chemical

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testing. After investigation, the charge-sheet was presented. Statement of the prosecutrix under Section 164 Cr.P.C. was recorded.

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4. After completion of investigation, charge-sheet was filed against the appellant for the offence under Sections 363, 366 & 376 of the IPC followed by framing of charge by the trial Court accordingly.

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5. In order to establish the charge against the appellant, the prosecution has examined as many as 09 witnesses. Statement of the appellant was also recorded under Section 313 Cr.P.C., in which he denied the charge levelled against him and stated that he is innocent and has been falsely implicated in the case.

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6. After appreciation of evidence available on record, learned trial Court has convicted and sentenced the appellant under Section 366 of the IPC as mentioned in paragraph one of this appeal and acquitted the appellant under Sections 363 and 376 of the IPC. Hence, this appeal by the appellant.

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7. Learned counsel appearing for the appellant submits that the learned trial Court has wrongly been convicted the appellant without any sufficient and clinching evidence available on record against the appellant. He further submits that the learned trial Court failed to appreciate that the prosecutrix appears to be a consenting party. The prosecutrix (PW-1) herself stated in her

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cross-examination that she was affair with the appellant and that’s why she had gone with the appellant. She further stated that she had told the police that she was in affair with the appellant, hence, she went with the appellant. He also submits that in her cross examination, the prosecutrix herself stated that she was still ready to live with the appellant but her family members did not want that the prosecutrix to live with the appellant. Considering the entire statement of the proseuctrix, it appears that she was a consenting party.

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8. Dr. Kalawati Patel (PW-2) who examined the prosecutrix stated that there was no injury of any kind on the prosecutrix external or internal organs. Her hymen was torn and the prosecutrix was accustomed to physical relations.

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9. On the other hand, learned counsel for the State opposes the submissions of learned counsel for the appellant and submits that there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment of the Court below needs no interference.

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10. I have heard learned counsel appearing for the parties, and perused the record with utmost circumspection.

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11. In order to consider the consent of the prosecutrix, I have to examine the evidence available on record produced by the

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prosecution. The prosecutrix (PW-1) herself stated in her crossexamination that she was affair with the appellant and that’s why she had gone with the appellant. She further stated that she had told the police that she was in affair with the appellant, hence, she went with the appellant. The prosecutrix herself stated that she was still ready to live with the appellant but her family members did not want that the prosecutrix to live with the appellant. Looking to the statement of the proseuctrix, it appears that she was a consenting party.

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12. In order to consider the medical report of the prosecutrix, I have to examine the evidence available on record produced by the prosecution. Dr. Kalawati Patel (PW-2) who examined the prosecutrix stated that there was no injury of any kind on the prosecutrix external or internal organs. Her hymen was torn and the prosecutrix was accustomed to physical relations. The doctor has advised to conduct radiologist test, but the same was not conducted.

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13. The prosecutrix has admitted in her statement under Section 164 of the Cr.P.C. that she was residing with her parents and studied at Class-VIII. The prosecutrix knew the appellant very well. The prosecutrix and the appellant interacted with each other. On the date of the incident, when the prosecutrix was going to call for nature, she met the appellant on the way and the appellant said to

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the prosecutrix that he would marry her. Then, whenever he lured her, he took her to his home and committed sexual intercourse with the prosecutrix, twice. On 23.12.2010, father, mother and uncle ( mama ) of the prosecutrix went to the house of the appellant and brought the prosecutrix at their home. The proseuctrix had narrated her parents about the said incident that on the pretext of marriage, the appellant had taken his house and committed sexual intercourse with her.

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In her cross-examination, the prosecutrix (PW-1) herself stated in her cross-examination that she is not aware about her date of birth and she further stated that she was affair with the appellant and that’s why she had gone with the appellant. She also stated that she had told the police that she was in affair with the appellant, hence, she went with the appellant. The prosecutrix herself stated that she was still ready to live with the appellant but her family members did not want that the prosecutrix to live with the appellant.

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14. Thus, considering the entire facts and circumstances of the case particularly the conduct of the prosecutrix, I am of the opinion that the prosecutrix was a consenting party. The prosecution failed to prove that the appellant had kidnapped or abducted to force her for marriage. The prosecution evidence clearly shows that the prosecutrix had voluntarily gone to live with the appellant due to

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affair. Therefore, in the above facts and circumstances of the case, offence under Section 366 of the IPC would not be made out against the appellant.

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15. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 03.05.2011 is hereby set aside. Appellant stands acquitted from the charge levelled against him.

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16. It is reported that the appellant is on bail. His bail bonds shall remain operative for a period of six months in light of Section 437-A of the Cr.P.C.

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17. Records of the trial Court (TCR) be sent back along with a copy of this order forthwith for information and necessary compliance.

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Sd/- Sd/-

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(Arvind Kumar Verma) Judge

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Vasant

Santosh v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Santosh v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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