Vijay Panika vs State Of Chhattisgarh

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/-.

5.

U/s 506(2) of IPC

R.I. for 1 years and fine of Rs. 250/-. In default of payment additional R.I. for 1 month. All sentences run concurrently

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.

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.

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.

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.

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.

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.

Heard counsel for both the parties and perused the material available on record including the impugned judgment.

Savita @ Setu (PW-2) has stated in her cross-examination as under;

Thereafter, she has stated that ;

She has also stated that;

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.

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.

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 :

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 ;

Kidnapping is of two kinds: kidnapping from [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.][India], and Kidnapping from lawful guardianship.

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 [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.][India].

Kidnapping from lawful guardianship. - Whoever takes or entices any minor under [Subs. by Act 42 of 1949, sec. 2, for "fourteen".][sixteen], years of age if a male, or under [Subs. by Act 42 of 1949, sec. 2, for "sixteen".][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.

Abduction. - Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.

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.

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.

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.

Accordingly, the appeal is partly allowed.