MANOJ KUMAR MINJ Vs. STATE OF M.P.

JUDGEMENT

(1.) AS these two appeals arise out of the same judgment and order dated 12.2.1996 passed by Additional Sessions Judge, Jashpur Nagar, in Sessions Trial No. 242/1995 convicting accused/appellant -Manoj Kumar Minj under Sections 458, 324, 366 and 376 IPC and sentencing him to undergo R1 for 3 years with fine of Rs. 300/ - u/s. 458 and 324 IPC separately, and R1 for 4 years with fine of Rs. 400 u/s. 366 and 376 IPC separately whereas convicting accused/ appellant Thadiyus Tirki under Section 458 IPC and sentencing him to undergo R.I. for 3 years with fine of Rs. 300/ -, plus default stipulations, they are disposed of by this common judgment. Facts of the case in brief are that on 12.6.1995 at 7.15 a.m. FIR Ex. P -3 was lodged by Kamla Bai (PW -2) - mother of the prosecutrix alleging that on 11.6.1995 at 12 midnight, accused/appellant Manoj along with three other persons entered her house, caught hold of her elder daughter Rekha (PW -3), assaulted her with knife and thereafter kidnapped her younger daughter (prosecutrix PW -1). Based on this FIR, offences under Sections 307, 452, 363, 366, 376 and 34 IPC were registered against the accused Manoj and three others. Injured Rekha (PW -3) was medically examined on 12.6.1995 vide Ex. P -20 by Dr. Vijaya Sharma (PW -12) who found as many as five injuries on her body. Rekha (PW -3) remained in hospital from 12.6.1995 to 19.6.1995. Prosecutrix (PW -1) was recovered on 15.6.1995 vide Ex. P -5 from Jalpaigudi, West Bengal and medically examined on the same day vide Ex. P -28 by Dr. (Smt.) J. Minj (PW -14). After completion of investigation, charge sheet was filed on 21.8.1995 against five accused persons namely Prakash, Thadiyus Tirki, Sunil Tirki, Vijay Prakash and Manoj, under Sections 307, 363, 366, 343, 376, 450 and 34 IPC.

(2.) IN support of its case, prosecution has examined 19 witnesses. Statements of the accused persons were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. After hearing the parties, the Court below has acquitted accused Sunil and Vinay Prakash of all the charges levelled against them. Accused Manoj and Prakash have also been acquitted of the charge u/s. 307 but convicted u/s. 324 and 366 IPC. Accused Thadiyus Tirki has been acquitted of all the charges levelled against him except one u/s. 458 IPC and likewise the accused/ appellant Manoj has been convicted and sentenced as mentioned in paragraph No. 1 of this judgment.

(3.) SHRI Vivek Ranjan Tiwari, counsel for accused/appellant Manoj submits that he (accused Manoj) was having affair with the prosecutrix (PW -1) and she accompanied him up to Jalpaigudi (WB) without making any protest. According to him, as the finding has been given by the Court below that prosecutrix was aged about 16 years at the relevant time, accused/appellant Manoj cannot be convicted under Section 376 IPC. He submits that there is no evidence to show that the prosecutrix was kidnapped or abducted with intent to compel her to marry the accused/appellant against her will or to seduce her in any manner to have illicit intercourse with him and in these circumstances he cannot be convicted under Section 366 IPC also. Similarly, according to Shri Tiwari, even for the offence u/s. 458 IPC, accused Manoj and Thadiyus Tirki cannot be convicted because the prosecutrix was having affair with accused Manoj and that they had entered her house with her consent. He however submits that accused/appellant can at the most be convicted under Section 354 IPC for which he has already remained in jail for six months and therefore his sentence may be reduced to the period already undergone by him. Shri Naha Roy, counsel for accused Thadiyus Tirki submits that the only allegation against this accused is that he accompanied accused Manoj while entering the house of the prosecutrix and as accused Manoj was having affair with her, it cannot be said that they entered her house against her wishes or with an intention to commit any offence. Thus, according to Shri Naha Roy, offence under Section 458 IPC is not made out against accused Thadiyus Tirki. He submits that in the FIR also name of this accused has not been mentioned and no identification has been conducted and therefore also it will not be safe for this Court to convict him for any offence.