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Nishar Mohammd vs State Of C.G. 29 Cra/2493/1998 … on 12 October, 2018

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.638 of 2001

Judgment Reserved on : 23.7.2018

Judgment Delivered on : 12.10.2018

Nishar Mohammad, S/o Mohammad, aged about 24 years, R/o Pathragudo,
Jagdalpur, District Bastar, Chhattisgarh
—- Appellant

versus

State of Chhattisgarh through District Magistrate, Jagdalpur, District Bastar,
Chhattisgarh
— Respondent

——————————————————————————————————

For Appellant : Shri Keshav Dewangan, Advocate
For Respondent/State : Shri Satish Gupta, Government Advocate

——————————————————————————————————

Hon’ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal is directed against the judgment dated 16.7.2001

passed by the 3rd Additional Sessions Judge, Bastar at Jagdalpur

in Sessions Trial No.462 of 2000 convicting and sentencing the

Appellant as under:

Conviction Sentence

Under Section 366 of the Rigorous Imprisonment for 3 years,
Indian Penal Code and fine of Rs.500/- with default
stipulation

2. Facts of the case, in brief, are that the prosecutrix (PW4), aged

about 15 years, daughter of Angad (PW1), on the fateful day, was a

student of 7th Standard of Maharani Laxmibai Girls School,
2

Jagdalpur. Allegedly, on 29.4.1999 at about 9:00 a.m., the

Appellant abducted her from her legal guardianship. When she did

not return her home, her father Angad (PW1) made a search for

her. Ultimately, on 14.5.1999, he made a written report (Ex.P3) on

the basis of which First Information Report (Ex.P1) was registered.

On 17.5.1999, the prosecutrix went to the police station where her

statement was recorded. Statements of other witnesses were also

recorded under Section 161 of the Code of Criminal Procedure.

Regarding her age, one certificate was seized from Headmistress

Gita Yadu (PW7). According to the entry of dakhil-kharij panji

(admission-transfer register), date of birth of the prosecutrix is

27.9.1984. On completion of the investigation, a charge-sheet was

filed against the Appellant for offence punishable under Sections

363 and 366 of the Indian Penal Code. Charge was framed

against him under Section 366 of the Indian Penal Code.

3. To rope in the Appellant, the prosecution examined as many as 7

witnesses. Statement of the Appellant was also recorded under

Section 313 of the Code of Criminal Procedure in which he denied

the guilt and pleaded innocence. No witness has been examined

in his defence.

4. After trial, the Trial Court convicted and sentenced the Appellant as

mentioned in the first paragraph of this judgment. Hence, this

appeal.

5. Learned Counsel appearing for the Appellant argued that the

incident took place on 29.4.1999, but the FIR (Ex.P1) was lodged

on 14.5.1999, i.e., after about 15 days of the incident and the delay
3

has not been properly explained. As per the statement of Angad

(PW1), his daughter (the prosecutrix) returned on 30.4.1999 and

he had lodged the report on 30.4.1999 itself. But, there is no

report dated 30.4.1999 available on record. From the statement of

the prosecutrix (PW4), it is also clear that she herself had left her

house at her own will. There is nothing on record on the basis of

which it could be accepted that the Appellant had allured the

prosecutrix that he will marry her and on the allurement he took her

away. Therefore, no offence under Section 363 or 366 of the

Indian Penal Code is made out.

6. On the contrary, Learned Counsel appearing for the State

supported the impugned judgment of conviction and sentence.

7. I have heard Learned Counsel appearing for the parties and

perused the record minutely.

8. With regard to the age of the prosecutrix, Gita Yadu (PW7),

Headmistress of Primary School, Jagdalpur has stated that as per

the entry of the dakhil-kharij register, the date of birth of the

prosecutrix is 27.9.1984. During cross-examination, this witness

has also stated that at the time of admission of the prosecutrix in

the school, her date of birth was recorded in the concerned register

as stated by the informant. In her Court statement, the prosecutrix

(PW4) has stated that her date of birth is 23.9.1984. Her father

Angad (PW1) and her mother Jayanti (PW2) have stated that at

the time of incident, age of the prosecutrix was 15 years. Angad

(PW1) has also stated that birth of the prosecutrix was of

September, 1984. The statements of the prosecutrix (PW4), her
4

father Angad (PW1), her mother Jayanti (PW2) have not been

challenged during their cross-examination. Thus, it is clear from

the evidence on record that at the time of incident, the prosecutrix

was certainly below 18 years.

9. With regard to the incident, Angad (PW1) has stated that on the

date of incident, his daughter (the prosecutrix) had gone to the

school, but she did not return home. On making search for her,

Babbu (PW3) told him that the Appellant had taken the prosecutrix

away with him. But, Babbu (PW3) has not supported the above

statement of Angad (PW1) and has been declared hostile. Angad

(PW1), in his cross-examination, in paragraph 5, has stated that

his report was recorded in the police station on 30.4.1999 and the

prosecutrix had also reached to the police station on 30.4.1999

itself and the police had returned the prosecutrix to him on

supurdnama on 30.4.1999 itself. He has further stated that since

the Appellant was taking round of his house, he had again lodged a

report on 14.5.1999. In her cross-examination, in paragraph 6, the

prosecutrix (PW4) has also admitted the fact that on the next day

of the incident, her father Angad, searching for her, had come to

Dharampura and he had taken her back on his bicycle. Thereafter,

her father refused to keep her with him and he returned home.

Therefore, she went to the house of the Appellant.

10. Assistant Sub-Inspector Diwakar Upadhyay (PW5) is the witness

who recorded the FIR (Ex.P1) on 14.5.1999 on the basis of the

written report (Ex.P3). He has categorically admitted the fact that

neither on 29.4.1999 nor on 30.4.1999, father of the prosecutrix

lodged any report in the police station. He lodged the report in the
5

police station on 14.5.1999. The prosecutrix (PW4) has deposed

that on the date of incident, the Appellant met with her on the

ground when she was going to the school. He told her that he will

marry her and on her refusal to go with him, he forcibly took her

away on his bicycle. She sat on the carrier of his bicycle.

Thereafter, the Appellant forcibly caught her hands and began to

frighten her. He took her to Village Chhipawand on his bicycle.

Thereafter, he took her to Bijapur in a bus and kept here there at

the house of his relatives for about 2-3 days. She has admitted the

fact that all the above facts were stated by her before the Court for

the first time. In her cross-examination, she has also admitted that

Ex.D2 and D3 are the joint photographs of her and the Appellant.

She has also admitted the fact that when the Appellant was taking

her away forcibly, she did not shout. He took her to Village

Chhipawand where she stayed for a night. She did not raise any

alarm either at Village Chhipawand or during her travel in the bus.

She has further admitted that she stayed along with the Appellant

at Dharampura also. There also, she did not raise any alarm.

11. On minute examination of the above evidence, it is clear that the

prosecutrix (PW4) has stated in her Court statement that the

Appellant, by alluring her that he will marry her and by showing her

a knife, took her away on his bicycle. He threatened her also.

Thereafter, he took her to the house of his Bua (sister-in-law) at

Village Chhipawand. Thereafter, he took her to Bijapur in a bus.

She also stayed at the house of the Appellant at Dharampura. But,

all these facts are not mentioned in her statement recorded under

Section 161 of the Code of Criminal Procedure. All these facts are

stated by her for the first time before the Court. From the
6

statement of the prosecutrix (PW4), it is also clear that during her

journey in the company of the Appellant to various aforesaid

mentioned places, she never raised any alarm against the

Appellant while she had ample opportunity to do so and come out

of his clutches. From the statements of the prosecutrix (PW4) and

her father Angad (PW1), it is also clear that on 30.4.1999, her

father had taken her from Dharampura to the police station and

when he refused to take her to his house, she went along with the

Appellant to Bijapur where she stayed for about 2-3 days. During

that stay, she did not make any complaint against the Appellant to

anyone. Thus, it seems that the prosecutrix had gone along with

the Appellant at her own will. The Appellant had taken her away

forcefully is not established. From the statement and admission of

the prosecutrix, it is also clear that she herself left her house at her

own will. There is nothing on record on the basis of which it could

be accepted that the Appellant had taken/abducted her away on

allurement that he will marry her. In these circumstances, though

the prosecutrix was below 18 years of age on the date of incident,

she herself had gone along with the Appellant at her own will. She

herself had left her house and the Appellant had not allured her

that he will marry her. Therefore, no offence under Section 363 or

366 of the Indian Penal Code is made out against the Appellant.

12. Consequently, the appeal is allowed. The impugned judgment of

conviction and sentence is set aside. The Appellant is acquitted of

the charge framed against him.

13. It is reported that the Appellant is on bail. His bail bonds shall

continue for a further period of six months from today in terms of
7

the provisions contained in Section 437A of the Code of Criminal

Procedure.

14. Record of the Court below be sent back along with a copy of this

judgment forthwith for information and necessary compliance.

Sd/-

(Arvind Singh Chandel)
JUDGE
Gopal

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