BRIJ PAL ALIAS BAIJU Vs. STATE

JUDGEMENT

(1.) By this appeal the Appellant lays challenge to the judgment dated 6 th October, 1999 convicting him for offence punishable under Sections 366/376 IPC and order on sentence dated 8 th October, 1999 awarding the sentence of Rigorous Imprisonment for a period of seven years and a fine of 2,000/- and in default of payment of fine to further undergo Rigorous Imprisonment for a period of six months for offence punishable under Section 376 IPC; three years Rigorous Imprisonment and a fine of 1,000/- and in default of payment of fine to further undergo Rigorous Imprisonment for a period of three months for offence punishable under Section 366 IPC.

(2.) Briefly the prosecution case is that PW 2 Smt. Kamal Sharma, mother of the prosecutrix lodged a missing report of her daughter vide DD No. 54B Ex. PW 2/B on 31 st March, 1998. Thereafter on 2 nd April, 1998 the Complainant lodged a complaint Ex PW2/A against the Appellant stating that he used to reside in their neighbourhood at Mahavir Enclave and is a native of village Hamirpur, District Farukabad. He had induced and taken away her daughter with him and thus an FIR was registered on the said complaint. PW2 in her testimony before court has further stated that she had gone to the village of the Appellant after 3-4 days alongwith 2-3 relatives and brought back her daughter from there. On coming to know that the Complainant had come in search of her daughter, the Appellant had run away from his house at that time. She produced the prosecutrix on 4 th April, 1998 whereafter the statements of prosecuterix were recorded including one under Section 164 Cr.P.C. and her medical examination was got conducted. Subsequently, the Appellant was arrested on 5 th July, 1998 from his native village. During investigation the school leaving certificate of the prosecutrix was seized Ex.PW3/A which bore her date of birth as 22 nd May, 1986. After completion of investigation, a charge-sheet was filed. After recording the statements of witnesses and examining the accused under section 313 Cr.P.C. the Ld. Trial Court convicted and sentenced him as aforeasaid.

(3.) Learned counsel for the Appellant contends that as per the history given in the MLC by the prosecutrix herself has stated that she had eloped with the Appellant on 30 th March, 1998 in a bus of her own free will. The date of birth of the prosecutrix, as per the school leaving certificate was rejected by the learned Trial Court as it was not based on any contemporaneous record. The age of the prosecutrix according to the school leaving certificate as on the date of incident was around 12 years whereas at the time of incident, the Prosecutrix was more than 16 years of age. Despite the advice of the doctor in the MLC Ex.PW7/A the prosecutrix did not get the ossification test conducted and thus an adverse inference should be drawn against the prosecution. The defence has proved the marriage certificate and since the parties have married of their own free will and the prosecutrix was more than 16 years only an offence under Section 376 (1) IPC is made out. Thus, the sentence awarded by the learned Trial Court could not have been more than 2 years imprisonment. The testimony of the mother of the prosecutrix cannot be relied upon as in her cross examination she has exaggerated by stating that the Appellant came to their house along with 2-3 persons and gave a call and after she opened the door he put a knife on her and took away her daughter. This was neither stated in the complaint nor anything on similar lines has been deposed by the prosecutrix. It is contended that the consent of the prosecutrix is evident from the fact that though she was admittedly taken in bus yet she did not raise any hue and cry. The consent is further evident from the history given by her in the MLC. It is thus prayed that the Appellant be acquitted of the charges framed or in the alternative the sentence be reduced as stated above.