VIRENDRA Vs. STATE OF M P

JUDGEMENT

(1.) This is an appeal against the judgment and order dated 7th April, 2004, passed by Fifth Additional Sessions Judge, Bhind (M.P.) in S.S.T. No. 10/2002, State Vs. Matrulal & another whereby present appellant Virendra has been convicted of the offence under Sections 366 and 368 of I.P.C. and sentenced him to undergo rigorous imprisonment for a period of five years with a fine of Rs. 5,000/- (Rs. Five Thousand only) and in default to suffer additional rigorous imprisonment of one year whereas other accused Matrulal has been acquitted of the charges under Sections 363,376 or in alternative under section 376(2) (g) of I.P.C.

(2.) The prosecution story was that on dated 29th February 2000, in night, the prosecutrix who was aged 14 years on the date of the occurrence, was sleeping in her residence with her parents at village Machharia, district Bhind. It is alleged that in the midnight, she without informing her parents left the house with accused. She was searched at the possible places by her father Shrikrishna but was not traced out. Ultimately, her father lodged the report at police station Mihona, district Bhind against accused Mattu, Bablu and Matru. The crime was registered and investigation was set in motion. In the meantime, her father got information by Sarpanch of village Sumaya that his daughter (the prosecutrix) was wrongfully confined in the house of Virendra. So, he went to that place and rescued her daughter from the custody of accused Virendra. After rescue of the prosecutrix, she was immediately examined by the doctor. During investigation, it also came to the notice that accused committed gang rape on the prosecutrix. After investigation, the charge sheet was filed against all accused before the Criminal Court. On committal, charge for offence under section 368 of I.P.C. against accused/appellant Virendra was framed. Other accused Matru and Bablu were tried for offence under sections 363 and 376 or in alternative under section 376(2)(g) of I.P.C. During trial accused Mattu and Bablu were absconded. Thereafter, the trial Judge after trial pronounced the judgment against accused/appellant, hence this appeal.

(3.) The contention of the accused/appellant is that the the judgment under appeal is against the law and procedure and therefore same is liable to be set aside. It is submitted that the trial Judge convicted the accused/appellant without framing charge under Section 366 of I.P.C., hence, conviction under section 368 is not sustainable in the eye of law. It is submitted that the prosecutrix was a major at the time of incident who willingly left her residence with an intent to marry with accused Mattu. At the time of leaving the house by prosecutrix, the accused/appellant was not accompanying other co-accused Mattu and Bablu. The prosecutrix after leaving her residence travelled with co-accused Mattu and Bablu willingly in a truck up to village Konch from where again she travelled in a jeep to the house of present accused/appellant. It is therefore contended that the prosecutrix left her house as per her own and free will and lived in the house of Virendra (present accused/appellant) and the prosecution failed to prove that the accused/appellant prior to stay of prosecutrix in his house had the knowledge that the prosecutrix was abducted by other co-accused. It is accordingly prayed that by allowing the appeal, judgment under challenge may be set aside and the accused-appellant may be acquitted of the alleged offence.