DAYARAM Vs. STATE OF M.P.

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of conviction and order of sentence dated 13-1-1999 passed by the 2nd Additional Sessions Judge, Sessions Division, Jagdalpur in Sessions Trial No. 224/1995 whereby and whereunder learned trial Court after holding the appellant guilty for commission of offence under Sections 363, 366 and 376 of Indian Penal Code (in brevity 'IPC') for kidnapping the prosecutrix P.W. 1 (name not mentioned) from lawful guardianship, inducing her to compel for illicit intercourse and for committing rape against her will and consent, sentenced to undergo for each count R.I. for 7 years and also to pay a fine of Rs. 1,000/-, in default of payment of tine to further undergo additional R.I. for 6 months for each count with a direction to run all the substantive jail sentences concurrently. Conviction is impugned on the ground that without there being an iota of evidence, learned Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality.

(2.) The case of the prosecution in brief is that on 7-6-1995 at about 9.45 am, P.W. 2 Mukund Ram, father of the prosecutrix reached to the police station, Frezarpur and lodged FIR Ex. P-6 which was registered as Crime No. 203/95 against the appellant stating that the appellant by false promise to marry kidnapped minor prosecutrix P.W. 1 on 24-5-1995 in the evening at about 6.00 am. She was recovered from the appellant on 7-6-1995 at about 4.00 am from Junaguda, Bastar by the Investigating Officer P.W. 5 KM Tiwari who prepared recovery memo Ex. P-2 and gave the prosecutrix to her father on Supurdnama. Before this, P.W. 2 Mukundram lodged missing person report in Rojnamcha Sanha No. 6/95. As per missing report, on 23-5-1995, the prosecutrix told her father that she is going to foreign then P.W. 2 her father gave her Rs. 100/- and further inquire as to with whom she would accompany then she informed that she would go along with the appellant resident of Junaguda. On 24-5-1995 in morning 8.00 am, her daughter left her house and thereafter the appellant made a search but not received any information regarding her daughter. Then he lodged a missing person report written by the police at Rojnamcha Sanha. He also gave description of her daughter in the Rojnamcha Sanha. After recovery, FIR was lodged by P.W. 2. During investigation, undergarments of the prosecutrix were seized through seizure memo Ex. P-1. Police also seized mark sheet Ex. P-3 of the prosecutrix of Class 3 vide Ex. P-4 in which her date of birth was written as 28-12-1983. Police also seized underwear of appellant and made his arrest. After obtaining necessary permission, the prosecutrix was sent for medical examination. P.W. 6 Dr. A. Chandra examined her and gave her report Ex. P-8 in which she opined that there was no external or internal injury present over the body of the prosecutrix, no definite opinion may be given regarding recent intercourse with the prosecutrix. She also prepared slides from vaginal swab and handed over to the concerned constable. She also-examined clothes of the prosecutrix and referred the same to chemical analyst as she noticed dirty stains on it. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure (in brevity 'Code'). After completion of investigation, charge sheet was filed on 1-7-1995 before the Chief Judicial Magistrate, Jagdalpur who in turn committed the case to the court of Session, Jagdalpur. Learned Additional Sessions Judge received the case on transfer for trial. During trial charges were framed against the appellant under Sections 363, 366 and 376 of the IPC. The appellant denied the charges and prayed for trial.

(3.) In order to prove guilt of the appellant, the prosecution examined six witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure (in brevity 'Code') in which he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question.