Samresh Sarkar Vs State of Chhattisgarh

The appeal arise out of the judgment of conviction and sentence dated 23.04.2003 passed by Learned Special Judge, Ambikapur, District – Ambikapur (C.G.) in Sessions Trial No. 73/2002 whereby the appellant has been convicted and sentenced in the following manner:-

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CONVICTION	SENTENCE	PUNISHMENT IN DEFAULT OF PAYMENT OF FINE
Under Section 376 of I.P.C	7 years R.I. and fine of Rs. 5,000/-	10 months additional R.I.

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Under Section 506 of I.P.C	Fine of Rs. 5,00/-	1 month additional R.I.
Under Section 342 of I.P.C	6 months R.I. and fine of Rs. 1,000/-	2 months additional R.I.

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Brief facts of the case are that on 24.05.2002 a written complaint has been lodged by the prosecutrix PW-1, to the police station A.J.K (Harijan Aadiwasi Atyachar Niwaran) Ambikapur District – Sarguja alleging in it that she is aged about 16 years and residing with her parents, after the Chherta festival when she had gone to the house of the Rajesh Bangali, they pressurized her to get married with the present appellant or else she would face the dire consequences. At that time she returned back to her house. In the next morning the present applicant has taken her to Ramanujganj in the house of his brotherin-law where she was being kept at Ramanujganj for about ten days. From Ramanujganj she was being taken to Sargawa, Ambikapur and regularly made physical relation with her, he kept her for about 3-4 months and on 20.05.2002 she came back to her house and lodged the report. Based on her written complaint Ex.P-1, the FIR Ex-P2 was registered against the appellant for the offences under Section

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363, 366, 376 (2)(g) of IPC and 3(1)(xii) of Scheduled casts and Scheduled Tribes (Prevention of Atrocities)Act, 1989 (hereinafter called as SC/ST Act). The prosecutrix was sent for her medical examination to Government Hospital, Ambikapur where PW-6 Dr. Smt. Shakutala Xalxo have examined her and gave report Ex.P-11. While examining the prosecutrix, doctor has not noticed any external injuries on her body, found her habitual to sexual intercourse and no definite opinion regarding recent intercourse is given by the doctor. Two slides of her vaginal swab were prepared and handed over to the police for its FSL examination. She was also referred for radiology department for her age determination. The prosecutrix was radiologically examined by PW-5 Dr. M.K. Jain who gave his report Ex.P-10 and according to him the radiological age is 19 years. The appellant was arrested on 03.06.2002 and he too was sent for medical examination to Government Hospital Ambikapur where he has been examined by Dr. P.K. Jain who after medically examined the appellant, gave his report Ex.P-5 and found him to capable to perform sexual intercourse. The Statement of the witnesses

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under Section 161 of Cr.P.C have been recorded and after completion of usual investigation charge-sheet was filed before the learned trial Court for the offences under Sections 363, 366, 376 (2) (g) of IPC and 3(1) (xii) of SC/ST Act against the present appellant as well as two other co-accused persons.

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The learned trial Court has framed charges against the co-accused Rajesh Rai and Kalpana Rai for the offences under Section 506 and 366/34 of IPC whereas the charges against the present appellant for the offences under Section 506, 366 and 376 read with Section 3(2)(v) of the SC/ST Act. The accused persons abjured their guilt and claimed trial. The appellant also denied the charge and claimed trial. 4. In order to establish the charges against the accused person the prosecution has examined as many as 7 witnesses. The statements of the accused persons under Section 313 of Cr.P.C. have also been recorded in which they denied the circumstances appears against them, plead innocence and the coaccused Rajesh and Kalpana have submitted that they have been falsely implicated in the offence and the prosecutrix and the appellant were in love affair and

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have got married with each other they have not facilitated them. The father of the prosecutrix have borrowed Rs. 500/- and when they asked for its return, false report has been lodged by the prosecutrix whereas the appellant has submitted that the prosecutrix was in love affaire with him, they used to visit their respective houses, she performed marriage with him on her own will and he has not committed any wrong against her will.

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After appreciation of the oral as well as documentary evidence produced by the prosecution, the learned trial Court acquitted the co-accused persons from the offence of Section 366/34 of IPC however the co-accused persons have been convicted for the offence under Section 506 of IPC and sentenced them with the fine of Rs. 500-500 to each of them. However the appellant has been acquitted from the offences under Section 363 of IPC and 3(2)(v) of SC/ST Act but has convicted for the offence under Section 506 and 342, 376 of IPC and sentenced him as mentioned in para 1 of this judgment. Hence, this appeal.

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Learned counsel for the appellant would submits

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that the appellant is innocent and has been falsely implicated in the offence, no offence is made out against the appellant as alleged. The prosecution has failed to establish their case beyond reasonable doubt. The prosecutrix herself had gone to the house of the appellant who was in love affair with him. She has not made any complaint about any threatening given by the appellant to her and have not raised any alarm while she was subjected to sexual intercourse against her will. She was residing with the family members of the appellant. Her parents were came to meet her but she has not made any complaint or any hue and cry that she was being forcefully taken or wrongfully confined in the house. He would further submit that the parents of the prosecutrix have also not taken any action when they met with her. Although they have stated that they have lodged the report to the police but no evidence to that effect on record that they actually lodged the report to the police. The conduct of the prosecutrix itself speaks about the consent and she being the consenting party in making physical relation with the appellant stayed with him for a

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considerable period. As she was falling in love with him, no offence of rape is made out. He would further submit that there is no wrongful confinment by the appellant as she herself residing in his house on her own will. There is no restriction on her movement and further she was allowed to visit her parents whenever her parents came to meet her in his house. There are material, omission and contradictions in the evidence of prosecution witnesses which makes the evidence of the prosecutrix doubtful. As per the radiological age of the prosecutrix which has been proved by the doctors, she was aged about 19 years and fully grown-up girl. In view of the evidence came on record no offences are made out as alleged and therefore he is entitled for his acquittal.

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On the other hand learned counsel for the State opposes the argument advanced by the learned counsel for the appellant and submitted that the prosecution has proved its case beyond reasonable doubt. The prosecutrix have consistently stated in her deposition about the manner in which she was pressurized by the appellant, kept her in house and committed sexual intercourse with her. He would

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further submit that the appellant is already married and despite that he kept the prosecutrix as his wife and shown as he performed marriage with her so that he could obtain her consent for making sexual intercourse with her which amounts to consent obtained by misconception of fact. The evidence of the prosecutrix is supported by the evidence of her father and even if her evidence is not corroborated by other evidence, in the present case the evidence of the prosecutrix alone is sufficient to hold guilty of the appellant for the alleged offences and the learned trial Court is rightly appreciated evidence and convicted the appellant which needs no interference.

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I have heard learned counsel for the parties and perused the records.

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The Prosecutrix PW-1 has stated in her deposition that a day before the date of incident the wife of accused Rajesh had came to her house asked her to accompanied with her for help in the kitchen as some guest had come in their house. When she went to her house the appellant Samresh was also there. They requested her to go with Samresh in his house to help

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him in Pooja but she refused, then they have threatened her for dire consequences and in the evening she returned back to her house. In the next morning she had gone to house of the Samresh, after some time Samresh has taken a vehicle in which he has taken her. On the way when she asked to where they are going he did not answered and after some distance they left the vehicle and went by bus to the village of his sister. In the house of his sister, he kept her for about 10 days. In the meantime, he made physical relation with her in all ten days and he assured her the he will marry with her. Thereafter, Samresh has taken her to Ramanujganj and performed Court marriage. She requested him to left her in her house but Samresh has detained her for about four months and after four months she get out of the clutches of the appellant and return to her house and thereafter she has lodged the report. In cross examination she has stated that the co-accused persons use to come to her house. The co-accused Kalpana has called her and she refused to go with her, have been disclosed in her police statement Ex.P-1 and Ex.D-1 but if it is not there she could not tell the

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reason. The papers of their marriage was got prepared by Samresh she could know what was her age mentioned in her document, she admitted her signature over the document of her marriage. She further admitted that she signed the documents at Ambikapur, she denied the execution of letter Ex.D-3, and she also denied that she has love affair with appellant Samresh. She further stated that in Ex.D-3, B to B part have not been written by her . She stated that at Ambikapur, she signed the document despite having objection. She admitted that at Ambikapur, the advocate who prepared her affidavit, have verified about any pressure or allurement, then she said that she is executing the affidavit voluntarily. She admitted the photograph Ex.D-4 and stated that the same was photographed at Ambikapur. Although she denied that she voluntarily executed the document and got her photographed snapped after wearing Saree and applying vermilion on her head but she admitted that she applied vermilion, wore saree and ornaments and got her photographs snapped.

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She further stated in her deposition that on being asked by Kalpana she had gone to the house of

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Samresh. She admitted that the alleged threat given by Rajesh and Kalpana as also Samresh that if she would not come and would not married with Samresh, then she would face the dire consequence, have not been inform to her parents. In the evening at about 4 p.m she returned back from the house of Kalpana and in the next morning she alone went to the house of the Samresh without informing to her parents. She could not identify the persons present in the house of the Samresh and thereafter she stayed in the house of Samresh for about four months. She introduced with the family members of the Samresh, in the house of Samresh and his wife and children were also there. She admitted in her deposition that after staying for about 10 days at Ramanujganj, she came to Ambikapur and her parents were usually came to the house of the Samresh to bring her back. At some time she met them and some time not. She denied that she informed her parents that she had got married with the Samresh and will not returned back. Samresh has kept her for about four months at Ambikapur and thereafter taken her to Katak by train. They stayed at Katak for about 10-15 days. The prosecutrix have not raised any

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objection before the photographer that she was being forcefully taken by the appellant. At the time of preparation of the document with relates to marriage, she has not raised any alarm or any complaint there also, even she has not disclosed to the sister of the appellant that Samresh has kidnapped her.

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She further stated that after about four months she came out from his house. On the date when she left her house, the door of her house was opened and therefore she came out from her house. She admitted that whenever her parents came there to meet her she used to talk with them but the appellant did not permit her to go with them. Her parents have lodged the police report that the appellant had detained her but the police have not take any action against him. She has not disclosed about the incident to her parents that the appellant has made physical relation with her. Even at Ramanujganj she has not disclosed about the incident to the sister and brother-in-law of the appellant.

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PW-4 who is the father of the prosecutrix have stated in his deposition that on the date of incident

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when he returned back to his house after the meeting, he could not found his daughter in his house and even after her search when he could not found her, has lodged the missing report. After 8-9 days of lodging of the missing report he came to know that Samresh has came to his village Sargava, he informed the police. After about 4-5 months his daughter returned back to his house and disclosed him that the appellant has kidnapped her then he lodged the report to the police . In cross examination he has stated that he informed the police that his daughter was with the appellant Samresh. The police persons went to the house of the Samresh and had a talk with her. He did not know as to what conversation they had with his daughter but they have not brought back his daughter. He further stated that after lodging of the report to the police, he also went to his house alongwith the persons of the vicinity and tried to convince his daughter to return back. His daughter wants to returned back but Samresh has detained her. They have not made any complaint to the higher police authority that his daughter was kidnapped and detained by the appellant and the police persons did not do anything.

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The PW-6. Dr. Smt. Shakuntala Xalxo has medically examined her and no any injuries have been found on her body and opined that no definite opinion can be given regarding recent sexual intercourse.

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From the evidence produced by the prosecution it is quite vivid that the prosecutrix herself had gone to the house of the Samresh from where she had gone to Ramanujganj and from there Ambikapur by train but not have made any complaint to any of the person that she was being kidnapped by the appellant or being forcefully taken by him. She stayed there in the house of his sister for about ten days where she made physical relation with him but she has not made any complaint to his sister or his brother-in-law or any other person of the nearby places where they stayed for considerable period. Furthermore, when the parents of the prosecutrix use to come to meet her in the house when she was residing alongwith the appellant in his house, she has not disclosed that she was being kidnapped by the appellant. Her parents have not made any complaint to the police or higher authorities that their daughter is being detained and confined by the appellant and is not permitted her to

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go with them. Although the parents of the prosecutrix have stated in their deposition that they have made a complained to the police but there is no document available on record that they have made any complaint to the police. It is also not come on record that the prosecutrix was confined in a room and have not permitted her to go any where and the door of the room was permanently closed. As per the evidence of the prosecutrix she used to met with the wife of the appellant, she was permitted to met her parents, she came to Ambikapur and signed the document of their marriage, she went to photo studio and got snapped her photographs alongwith the appellant, she traveled with the appellant from one place to another and stayed with him for about four months, but in all these periods and places, neither she has raised any alarm nor made any complaint to any of the persons who met her even no any complaint has been made by her to any of the person that she was subjected to forceful sexual intercourse by the appellant. The doctor has not found any injury on the her body, no any sign of her protest have been found on her body.

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From the evidence produced by the prosecution it

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appears that she was the consenting party in going with the appellant performing marriage with him and in making physical relation with him as the learned trial Court found in its judgment that the prosecution could not established that the prosecution was less then 18 years of age at the time of incident, this Court is of the view that she was the consenting party and engaged in making consensual physical relation with the appellant.

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The learned trial Court has framed charge of Section 506, 366, 376 376 r/w 3(2)(v) of SC/ST Act. The learned trial Court has acquitted the appellant from the charge of section 366 of IPC and 3(2)(v) of SC/ST Act and in place of Section 366 of IPC the appellant is convicted under Section 342 of IPC. There is no charge framed by the learned trial Court for the offence of Section 342 of IPC.

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While considering the offence of under Section 366 the learned trial Court has acquitted the appellant from section 366 of IPC and in place thereof he has been convicted for the offence of Section 342 of IPC.

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The offence of Section 366 of IPC relates with

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kidnapping, abducting or inducing woman to

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compel her marriage etc which reads as under :-

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Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.

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Section 342 of IPC relates with the punishment for

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wrongful confinement and wrongful confinement is define in Section 340 of IPC which reads as under:-

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340 Wrongful confinement – Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said”wrongfully to confine” that person.

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342 Punishment for wrongful confinement- Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

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Section 366 and 342 of IPC are separate offences and without framing of charge, the appellant can not be convicted for the offence of Section 342 of IPC true it is the trial Court can convict the appellant for the lesser offence but Section 342 is having different ingredients and separate offence which can not be

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said to be lesser offence of Section 366 and for the offence of Section 342 of IPC the learned trial Court ought to have frame seprate charge but he has been convicted for the offence of Section 342 of IPC without framing the charge or without trial of that offence and therefore, in the considered opinion of this Court, the conviction under Section 342 of IPC can not be said to be justified and the appellant is entitled for his acquittal for the offence of Section 342 of IPC also.

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So far as the conviction under Section 506 of IPC is concerned, there are ingredient and evidence available on record in the deposition of the prosecutrix and her father that the appellant has threatened her and intimidated her therefore the conviction under Section 506 of IPC of the appellant is upheld.

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In the result the appeal is partly allowed. The impugned judgment of conviction and sentence with respect to the offence of section 342 and Section 376 of IPC is set-aside however the judgment of conviction and sentence with respect to offence of Section 506 of IPC is maintained.

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