SUNIL KUMAR GARG,J. - (1.) This appeal from jail has been filed by the accused appellant against the judgment and order dated 10.3.2000 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Cases (Additional Sessions Judge), Pratapgarh by which he acquitted accused Smt. Munni Bai of the charges under section 366 IPC and 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'SC/ST Act, 1989') and he also acquitted the accused appellant Raju of the charges under section 376 IPC and 3(2)(v) of the SC/ST Act, 1989, but convicted the accused appellant for the offence under section 363 IPC instead of 366 IPC and sentenced him to four years' RI and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo three months RI.
(2.) Since the accused appellant was not being represented by anybody, this Court vide order dated 18.10.2000 appointed Shri B.L. Khatri, Advocate as Amicus Curiae, who argued the case on behalf of the accused appellant, who is in jail.
(3.) The facts giving rise to this appeal, in short, are as follows: - On 6.9.1997 at about 1.00 PM, Onkarlal, PW 8 made an oral report Ex.P/8 with the Police Station, Nimbahera District Chittorgarh stating inter alia that on 4.9.1997 in the night he and his wife Bhagdibai, sons Pappu and Rameshwar and daughter Sugna, PW 5 (hereinafter referred to as the prosecutrix) were sleeping in the house after taking food and at about 4.00 AM he was told by his wife Bhagdibai that prosecutrix aged about 12 years was not in the house. Thereafter, prosecutrix was searched and it was found that the accused appellant, who was the tenant of the neighbour Nanuram, was also not found in that house and thereafter, PW 8 Onkarlal was told by one Khemraj that on the date of occurrence both prosecutrix and the accused appellant came to Tantarmala and the prosecutrix, who was handicapped by both legs, was being taken away on bicycle by the accused appellant with an intention that she may be compelled to marry any person. On this report, police registered the case FIR No. 432/97 Ex.P/8 and started investigation. On 10.6.1998 police came to know that prosecutrix had come back to the house of PW 8 Onkarlal and, therefore, fard of recovery Ex.P/3 was prepared by the police. Thus, prosecutrix herself returned back to her house after living with the accused appellant for about eight months. The prosecutrix PW 5 Sugna was got medically examined for the purpose of ascertaining her age and for the purpose she has been raped or not and her medical examination reports are Ex.P/13 and Ex.P/12 respectively and Dr. Dilip Sharma, PW 10 has opined that age of the prosecutrix was between 15-16 years on the date of examination i.e. 10.6.1998. After usual investigation, the police submitted challan against the accused appellant Raju and his wife Smt. Munni Bai in the Court of Magistrate, from where the case was transferred to the Court of Special Judge, SC/ST (Prevention of Atrocities) Cases, Pratapgarh. On 18.12.1998, the learned Special Judge, SC/ST cases, Pratagarh framed charges under section 366 IPC and 3(2)(5) of the SC/ST Act against accused Munni Bai and under sections 366 and 376 IPC and 3(2)(v) of the SC/ST Act against the accused appellant Raju. The charges were read over and explained to the accused, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 11 witnesses and got exhibited some documents. Thereafter, statements of the accused under section 313 Cr.PC. were recorded. However, no evidence was produced in defence by the accused. After conclusion of the trial, the learned Special Judge, SC/ST Cases, Pratapgarh through his judgment and order dated 10.3.2000 acquitted the accused Munni Bai of all the charges framed against her and also acquitted accused appellant of the charge under section 376 IPC and 3(2)(v) of the SC/ST Act, but convicted the accused appellant for the offence under section 363 IPC instead of 366 IPC and sentenced in the manner as stated above holding inter alia: - 1. That from all point of view, prosecutrix PW 5 Sugna was below the age of 18 years and thus, on the date of occurrence she was a minor. 2. That prosecution has not been able to prove that prosecutrix was abducted for the purpose that she may be compelled to marry any person or she may be forced to illicit intercourse. 3. That accused appellant took prosecutrix on bicycle from guardianship of her father and thus, by doing so, he committed the offence under section 363 IPC instead of 366 IPC. 4. That for the offence under section 363 IPC, consent of the kidnapped girl i.e. prosecutrix in the present case is immaterial. Aggrieved from the said judgment and order dated 10.3.2000 passed by the learned Special Judge, SC/ST Cases, Pratapgarh, this appeal has been filed by the accused appellant from jail. ;