SHAMBHU Vs. STATE OF M. P

JUDGEMENT

(1.) BEFORE the Court of Session, the accused on 21.6.91 pleaded not guilty to the charges. In his examination under section 313 Cr. P .C. he admitted that Leelabai had accompanied him. He had sold her silver anklet (CHAIN FOR FEET) to Rakhabchand (P.W.3) and that he had sexual intercourse with Leelabai with her consent. About charge of kidnapping, the accused stated that Leelabai had told him that she was 18 years of age. In answer to the last question he stated that Leelabai had taken him as her husband because Leelabai's husband had told her that she could go away along -with the accused. Later, parents -in -law of Leelabai quarrelled at the house of the accused and demanded Rs.2,000/ -. On failure to pay this amount, this false case had been hoisted against him. He examined Thawar (D. W. 1) to prove that Leelabai's father - in -law had demanded Rs.2,000/and alleged illicit relations between Leelabai and the accused.

(2.) HELD : Though Leelabai (P.W.4) in her statement attempted to make out a case of abduction also against the accused by saying that accused had threatened her if she did not accompany him, he would kill her and throw her in the well, in her case diary statement EX. D1 she had omitted to make any such statement, [her case diary statement is exhibited as EX. Dl in the statement of the Investigating Officer Neelkanthrao Mane (P.W.10) there is no reference to prove of this statement]. Even otherwise the case was one of kidnapping and not abduction.The Court below has also held that the accused had sexual intercourse with the prosecutrix with her consent and no case of rape was made out. There does not appear to be any specific charge of abduction and it is one of only kidnapping. The case would have to be examined in that light. Kidnapping is defined in section 361 IPC. To the extent material in this Case would consist in taking or enticing a female under 18 years of age without the consent of her guardian. The first point, therefore, to be examined is whether on the date of the incident Leelabai is satisfactorily established to be under 18 years of age. The point is discussed by the Additional Sessions Judge in Paras 12,13 and 19 of his judgment. The relevant evidence on the point is that of Dr. K.S. Chauhan (P.W.2) and the documentary evidence i.e. progress report of Leelabai in Primary School Jhinjarda where she studied between 2.7.79 and 2.7.84 which shows 9.7.73 as the date of birth of Leelabai.

(3.) THE burden to prove every essential ingredient of evidence against the accused was on prosecution. The evidence as to age has been set out above. This evidence does not satisfactorily establish that on the date' of incident i.e. 3 days before 31.12.90 Leelabai was under 18 years of age. In view of this, charges under sections 363 and 366 IPC for which the accused has been convicted, must be set aside. As a result of the aforesaid discussion conviction of the accused under section 363 and 366 IPC and sentences there under imposed against him are set aside and the appeal allowed.