MASORAM Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) The accused/appellant herein along with some other persons is said to have come to the village of the prosecutrix about two months prior to the date of incident i.e. on 26.03.2014 for collecting tamarind seeds, and that during their stay in the village the prosecutrix developed an affair with him. On account of their affair, the accused/appellant took the prosecutrix to his village saying that as he was not having children from his wife, he would marry her. On the pretext of marriage, the accused/appellant first took her to village Palanar and then to village Salepal from where she was recovered about 3 months thereafter i.e. on 25.05.2014 vide Ex.P-20. After the prosecutrix went missing, on a report Ex.P-5 being lodged by her father PW-4 namely Jugdhar and offence under Section 363 IPC was registered against him. However, on recovery of the prosecutrix, the offence under Sections 366 and 376 IPC were added in the charge sheet filed on 12.07.2014 after the investigation was over. The charges framed against the accused/appellant were under Sections 363, 366, 376 (2) (n) IPC and Section 6 of POCSO Act, 2012.

(2.) Having heard the parties and seen the material on record including the evidence of the prosecutrix, the accused/appellant came to be acquitted of the charge under Sections 376 (2) (n) IPC and Section 6 of the POCSO Act but at the same time he was held guilty under Sections 363 and 366 IPC vide judgment impugned dated 16.10.2014 passed by Additional Sessions Judge (FTC), Bastar at Jagdalpur in Sessions Trial No.34/2014. Hence this appeal.

(3.) Counsel for the accused/appellant submits that if the over all conduct of the prosecutrix is seen in its proper perspective, it is explicitly clear that she had been a consenting party to the act of the accused/appellant having developed an intimacy with him when he had come to her village for collecting tamarind seeds. He further submits that the evidence of none else but that of the prosecutrix herself shows that she succumbed to the assurance of appellant to accompany him when he assured her of marrying because of having no children from his wife. Nowhere, according to the counsel for the accused/appellant, the prosecutrix appears to have offered any resistance while being taken away by the accused/appellant. Lastly, he submits that looking to the evidence of the prosecutrix that the accused/appellant did not commit any wrong to her, he was acquitted of the charge under Sections 376 (2) (n) IPC and Section 6 of the POCSO Act, and therefore, the same treatment should be extended to him as the conviction under other sections is also based on the same set of facts and evidence.