Chattisgarh High Court
Vijay Panika vs State Of Chhattisgarh on 8 October, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on 17/09/2021
Order Delivered on 08/10/2021
CRA No. 835 of 2002
Vijay Panika S/o Mangal Das Panika aged about 30 years, R/o
Village - Panikapara, Patna, P.S. Patna, District- Korea. C.G.
---- Appellant
Versus
State of Chhattisgarh.
---- Respondent
For Appellant : Ms. Renu Kochar, Adv.
For State/Respondent : Ms. Ishwari Ghritlahre, PL.
Hon'ble Smt. Justice Rajani Dubey
C A V Order
Date : 08/10/2021
1. 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 :-
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/-.
R.I. for 1 years and fine of Rs. 250/-. In
5. U/s 506(2) of IPC default of payment additional R.I. for 1
month. All sentences run concurrently.
2. 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
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.
3. 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.
4. 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.
5. 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.
6. 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
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.
7. 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.
8. Heard counsel for both the parties and perused the material
available on record including the impugned judgment.
9. Savita @ Setu (PW-2) has stated in her cross-examination as
under;
16. eSa vjksih dks 4&5 lky ls tkurh gw¡A
iz'u & vkjksih ls vki 'kkjhfjd laca/k gks x;s Fks ftlls vki xHkZorh gks xbZ Fkh \
mRrj & vkjksih }kjk tcjtLrh djus ls eSa xHkZorh gqbZ FkhA
iz'u & vkjksih ls vki tcju 'kkjhfjd laca/k gq;s bl ckr dks vkius fdlh ls dgk \
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
iz'u & vki dc igyh ckj vkjksih ls tcju 'kkjhfjd laca/k dc LFkkfir gqvk \
mRrj & igyh fjiksVZ fy[kk;h Fkh mlds iwoZ gqvk FkkA o fjiksVZ ds le; eSa xHkZorh FkhA
17. 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
iz'u & vki xHkZ /kkj.k ds i'pkr~ vius ?kj okyksa ds crk;s cxSj vkjksih ds lkFk xbZ Fkh \
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
iz'u & iSlksa dh O;oLFkk Hkh vkius gh dh Fkh \
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
18. ;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
iz'u & vki lweks xkM+h ls vkjksih ds lkFk iVuk] eusUnzx<+ gksrs gq, tcyiqj rd igyh
ckj x;s Fks \
mRrj & vkjksih us eq>ls xHkZikr dks dgk Fkk fdUrq og eq>s vU;= ys x;kA
Thereafter, she has stated that ;
19. ;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
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
iz'u & ogka ij vkius Loa; dks Jhefr nkl crk;k Fkk \
mRrj & eSa ,slh ijhfLFkfr esa D;k djrhA
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 \
mRrj & bl gsrq vkjksih us eq>s tcju ys x;k Fkk rFkk eSa vdsyh iM+ xbZ FkhA
iz'u & ogka ij bl ckcr~ ifCyd uksVjh us nLrkost laikfnr djk;s Fks \
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
iz'u & vki yksx bu dkxtksa dks ysdj tcyiqj fLFkr xk;=h ifjokj ds VªLV esa x;s o
'kknh iath;u gsrq [email protected]& tek fd;s Fks \
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
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 \
mRrj & th ugha] D;ksafd eSa tcyiqj esa vdsyh Fkh vkSj bu yksxksa ds chp esa FkhA
She has also stated that ;
20. 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
iz'u & vkids ipe<+h esa iqfyl okyksa dks c;ku nsus ls euk dj fn;k vkf[kj D;ksa \
mRrj & eSa xHkZorh gksus ds dkj.k foo'k Fkh rks D;k djrhA
21. 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 \
mRrj & tc vkjksih eq>s ys x;k Fkk rks eSa fnu Hkj jksrs rks ugha jgrh vkSj bu tSls
QksVksxzkQ f[kaps gSaA
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.
11. 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
hard or blunt object. Dr. A.K. Sharma has also examined Savita @ Setu
(PW-4) and found fracture on left clavicle bone.
12. 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 cross-
examination as under :
6. ;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
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
13. 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 ;
359. Kidnapping is of two kinds: kidnapping from 1[India],
and Kidnapping from lawful guardianship.
360. Kidnapping from India. - Whoever conveys any
person beyond the limits of 1[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
[India].
361. Kidnapping from lawful guardianship. - Whoever
takes or entices any minor under 2[sixteen], years of age if a
male, or under 3[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.
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.
2 Subs. by Act 42 of 1949, sec. 2, for "fourteen".
3 Subs. by Act 42 of 1949, sec. 2, for "sixteen".
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.
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.
14. 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 sufficient 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.
15. 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 affirmed. 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.
16. Accordingly, the appeal is partly allowed.
Sd/-
(Rajani Dubey)
JUDGE
H.L. Sahu
