PUSHPA DEVI Vs. STATE

JUDGEMENT

(1.) THE instant appeal has been filed by the appellants, namely, Pushpa Devi (A -1), Sheela (A -2), Geeta (A -3), Sharda (A -4), Rajesh (A -5) and Sanjay (A -6) to challenge the legality and correctness of a judgment dated 27.04.2006 in Sessions Case No.15/05 arising out of FIR No.133/00 registered at police station Nabi Karim whereby they were held guilty for committing offences punishable under Sections 363/366 IPC. By an order of the same date, they were sentenced to undergo RI for one year with fine Rs. 500/ - each under Section 363 IPC and RI for two years with fine Rs. 1,000/ - each under Section 366 IPC. It is relevant to note that accused Manoj was also convicted under Section 376 IPC and was sentenced to undergo RI for seven years with fine Rs. 2,000/ -. It appears that Manoj has not challenged the impugned judgment.

(2.) ALLEGATIONS against the appellants as reflected in the chargesheet were that on 14.05.2000, they all kidnapped 'X'(assumed name) from the lawful guardianship of her parents with an intention to compel her to marry Manoj against her will. She was subsequently married with Manoj against her wishes and was sexually assaulted by him. On 16.05.2000 Asha, 'X's mother, lodged missing person report and suspected Manoj to have kidnapped her. During investigation, the prosecutrix and Manoj were apprehended. 'X' was medically examined and she recorded her statement under Section 164 Cr.P.C. Statements of witnesses conversant with facts were recorded. After completion of investigation, a charge -sheet was filed against all the accused persons in the court. The prosecution examined fourteen witnesses to substantiate its case. In 313 statements, the accused denied their involvement in the crime and pleaded false implication. The trial resulted in their conviction as aforesaid.

(3.) I have heard the learned counsel for the parties and have examined the file. It has come on record that 'X' was in constant touch with Manoj before the incident. In her Court statement, she admitted that she was in love with Manoj but was not interested to marry him after running away from the house. She admitted that letters collectively exhibited Ex.PW1/DB were written by her. It also included one letter written by her in her blood. She admitted that photo (Ex.PW1/DA) was handed over to Manoj by her. She further admitted that physical relations with Manoj were with her consent and she accompanied the accused with intention to perform marriage with him. Apparently, it is a case of elopement with consent. Since the proecutrix was below 16 years of age as her date of birth recorded in MCD records was 15.05.1985 (Ex.PW13/A, Ex.PW13/B, Ex.PW13/C), her consent to have accompanied the accused Manoj and to have physical relations with him was considered immaterial. The appellants were acquainted with 'X' and her family before the incident. The appellants have been implicated as there was some property dispute with 'X's parents. In her missing person report , 'X's mother did not suspect involvement of any of the appellants. 'X' in her Court statement did not state as to how and under what circumstances the appellants played effective role to kidnap her out of lawful guardianship of her parents and to marry her with Manoj against her wishes. She never raised any alarm/hue and cry at any stage about her alleged kidnapping. She has not attributed any specific/definite overt act to any of the appellants. She has levelled vague, general allegations against all of them. Since 'X' was already in love with Manoj and had written number of love letters to him, these appellants had no say in the episode. There was no necessity for them to kidnap the prosecutrix as she herself wanted to marry Manoj. She remained with Manoj for about six days and at no stage she raised any objection about her alleged forcible kidnapping. In MLC (Ex.PW3/A) no external visible injuries were found on her body to infer commission of forcible rape. Nothing has come on record to show if any of these appellants was present at the time of alleged marriage of Manoj with 'X'. The prosecutrix has given wavering statements and in the cross -examination admitted that she of her own had accompanied the accused with the intention to perform marriage. None of the accused persons was armed with any weapon to create fear in her mind. She of her own had reached Chowk Multani Dhanda. Before that she had sufficient time and opportunity to report to her parents. She left the home without informing her parents to reach Chowk Multani Dhanda at 1:30 p.m.