Tekram vs The State Of Madhya Pradesh
2022 Latest Caselaw 4276 Chatt

                                                                     NAFR

            HIGH COURT OF CHHATTISGARH, BILASPUR

                            CRA No. 2199 of 2000

   • Tekram, S/o Chhanulal, aged about 25 years, R/o Village -

     Hardi, Police Station - Deori, District - Durg, M.P. (Now CG)


                                                             ---- Appellant

                                  Versus

   • State of Madhya Pradesh (Now CG)

                                                           ---- Respondent

For Appellant : Shri Pragalbha Sharma, Advocate For Respondent/State : Smt. M. Asha, PL

Hon'ble Shri Justice Deepak Kumar Tiwari Order on board

07.07.2022

1. The appellant has preferred this Appeal against the

judgment of conviction and order of sentence dated

24.08.2000, passed by the Additional Sessions Judge,

Balod, District - Durg, in ST No.282/99 whereby the

learned Additional Sessions Judge has convicted and

sentenced the appellant as under:-

  Sr. No.           Conviction                        Sentence

     1.     Section 363 of IPC             R.I. for seven years

     2.     Section 366 of IPC             R.I. for seven years
 3.   Section 376(1) of IPC        R.I. for seven years and fine of
                                  Rs.3,000/- in default R.I. for six
                                  months

(Substantive sentences to run concurrently)

2. Prosecution case in brief is that on 15.02.1999, the

prosecutrix left her house for going to school by bus

situated at village - Tatenga. On the way, the appellant

met the prosecutrix and taken her to Dongargaon,

therefrom Dongargarh on false pretext of marriage and

thereafter to Jabalpur, where he committed forcible sexual

intercourse with the prosecutrix against her consent. After

four days, when her maternal uncle Vedprakash (PW-1)

reached at Jabalpur, the prosecutrix narrated him about the

incident and thereafter the FIR was lodged against the

appellant at Police Station - Deori vide Ex-P/1, under

Section 363, 366 and 376 of the IPC. During investigation,

the prosecutrix was examined and was found to be

pregnant of eight to ten weeks vide Ex-P/2. The appellant

was also medically examined and found to be capable for

performing sexual intercourse vide Ex-P/10. Prosecutrix'

school marksheet Ex-P/6 and certificate from the school

Ex-P/8 was obtained, in which her date of birth was

recorded as 19.09.1982.

3. Statement of witnesses were recorded. After completion of investigation charge-sheet was filed. The appellant abjured

guilt and his statement was recorded under Section 313 of

the Cr.P.C. wherein he has stated that he was falsely

implicated and in his defence one witness Usha Bai (DW-

1) has been examined. The prosecution has examined as

many as 9 witnesses. After completion of trial, vide

impugned judgment, the appellant was convicted for

commission of the offences as mentioned above.

4. Learned counsel for the appellant submits that as the

offence was committed prior to year 2013 and the date of

incident is 15.02.1999, therefore, the offence under

Section 376(1) of the IPC would not be made out as the

prosecutrix was a consenting party and found to be more

than 16 years of age. The prosecutrix at her own will left

her matrimonial house after doing certain preparations like

keeping her clothes etc and instead of going to school, she

voluntarily left with the appellant at various places and not

protested anywhere and it is only when her maternal uncle

reached at Jabalpur, she has lodged the FIR against the

appellant. It is next argued that the impugned judgment is

bad in law and the trial Court has not properly appreciated

the evidence, therefore, the appeal may be allowed and the

judgment of conviction and order of sentence be set aside.

5. Per contra, learned counsel for the State supported the impugned judgment and submitted that on the basis of

proper appreciation of the evidence, the learned Court

below has rightly convicted the appellant.

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

the material available on record.

7. Prosecutrix (PW-3) in her statement deposed that she is

aged about 16-17 years and the prosecution has examined

B.S. Dewangan (PW-5) who has produced the birth

certificate vide Ex-P/8 from the school record in which date

of birth of the prosecutrix was recorded as 19.09.1982. In

cross-examination this witness has clearly admitted that

prosecutrix has not taken direct admission in his school in

Class-I and he could not state that wherefrom she had

brought the Transfer Certificate. He had never been a

Teacher of Primary School. Dr. Smt. P. Baghel (PW-2) in

her cross-examination stated that the age of the prosecutrix

is about 17-18 years. Though she referred the prosecutrix

for ossification test before the Radiologist for determining

the exact age, but no such report was filed herein. There is

no other reliable evidence about the date of birth of the

prosecutrix and the mother and father of the prosecutrix

were not examined by the prosecution.

8. Prosecutrix (PW-3) in Para-12 of her cross-examination has clearly admitted that she left her parental house for going to

the school after keeping the other clothes with her,

thereafter, the appellant met her in the bus and asked her

to accompany him as he wanted to marry with her, though

the prosecutrix stated that appellant threatened to kill her

and not allowed her to go to school. Thereafter the

appellant had taken her to various places though she did

not protest anywhere.

9. In the case at hand, the conduct of the prosecutrix shows

that she is a consenting party and at her own will she

accompanied with the appellant. Further, the appellant has

also examined defence witness Usha Bai (DW-1) who has

produced certain love letters vide Ex-D/4 to Ex-D/8 and

only this witness has been examined on behalf of the

defence whose deposition could not be discarded because

the witness was examined from defence side, the

evidentiary value is the same. It is settled law that a

criminal case could not be decided on the basis of surmises

and conjectures. The reason assigned by the learned trial

Court that the prosecutrix had gone to school in the bus so

she kept the clothes with her is not acceptable. This

conduct itself shows her intention to run away with the

appellant.

10. In S. Varadarajan v. State of Madras, {AIR 1965 SC 942} the Hon'ble Supreme Court held that taking or enticing

away the minor or keeping her away from lawful

guardianship is an essential ingredient of kidnapping.

Though, in the present case, the prosecutrix after making

preparation voluntarily left her parental house and

accompanied the appellant at her own free will and

travelled to so many places, therefore, such offence has

also not made out.

11. Lastly, in view of what has been discussed in the preceding

paragraphs, when the age of the prosecutrix on the date of

the incident was more than 16 years and from the

evidence, it can be inferred that she voluntarily abandoned

her house after some preparation and ran away with the

appellant and visited several places and no resistance or

protest was made and had sexual intercourse with the

appellant, no offence stands made out against the

appellant.

12. Considering the entire role attributed to the prosecutrix, this

Court is of the view that the prosecution has failed to prove

that the appellant has committed sexual intercourse against

her will.

13. From the aforesaid analysis, this Court comes to conclusion

that the prosecution has failed to prove its case beyond reasonable doubt .

14. In view of the above, the appeal is allowed. The conviction

and sentence imposed on the appellant under Sections

363, 366 and 376(1) of the I.P.C. are set aside and he is

acquitted of the said charges. He is on bail. His bail bond

shall remain in operation for a period of 6 months from

today in view of the provisions contained under Section

437-A of the CrPC. He shall appear before the higher

Court, as and when directed.

Sd/-

(Deepak Kumar Tiwari) Judge

Yasmin