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Showing contexts for: s.366 ipc in Sc No. 255/17 State vs . Afjal Khan on 23 January, 2018Matching Fragments
5. On appearance, the accused was supplied with the copies of the chargesheet and other documents. After perusal of the chargesheet, the documents, and hearing Ld. Addl. P.P. for the State and Ld. Counsel Judgment : FIR No. 1585/15 page 3 of 19 SC No. 255/17 State Vs. Afjal Khan for the accused, since primafacie case against the accused was made out, he was charged for the offences punishable u/s 363/366 IPC, u/s 4 POCSO Act and in alternative u/s 376 IPC, on 23.05.2017. However, since the offence of penetrative sexual assault / rape was alleged to be committed upon the victim K repeatedly (i.e. alleged offence was committed in its aggravated form) and the offence was simultaneously covered under general law i.e. u/s 376 (2) IPC and not in alternative, the charge was amended accordingly, and amended charge for the offence punishable u/s 363/366/376 (2) IPC and charge for the offence punishable u/s 6 POCSO Act was framed against the accused on 23.01.2018, to which he pleaded not guilty and claimed trial. Ld. Addl. P.P. for the State stated that after amendment of the charge, no fresh witness was to be examined, nor any existing witness was required to be examined afresh, nor was there any requirement for any modification in the statement of the accused u/s 313 CrPC already recorded. Similarly, Ld. Counsel for accused also stated that after amendment of the charge, he adopts the same examination and crossexamination of the witnesses, which has already been conducted, and that no witness was required to be cross examined afresh, nor was there any requirement for any modification in the statement of the accused u/s 313 CrPC already recorded and opted not to lead any defence evidence.
OFFENCE U/S 363 IPC & 366 IPC.
23. The primary ingredient, which the prosecution is required to prove Judgment : FIR No. 1585/15 page 12 of 19 SC No. 255/17 State Vs. Afjal Khan in order to bring home the guilt of accused u/s 363/366 IPC is that the victim / child was enticed / taken away by the accused out of the lawful guardianship of her parents without their consent. Two material witnesses examined by the prosecution in the instant case were the victim herself (PW1) and her mother (PW2). The victim K as PW1, has categorically deposed, on 14.12.2015, after attaining 18 years of age, she accompanied the accused and married him, of her own accord and sweet will, and after their marriage, they started living as husband and wife. As per the version of PW2 / mother of the victim, on the alleged date of incident, the victim K left for her house from their tea shop at about 2 PM, but when she (PW 2) reached home, her daughter was not found at home, and subsequently she lodged the missing report. PW 1 / victim was specifically put the suggestions by the Ld. Addl. P.P. for the State that on the date of incident, she was caught hold and dragged inside the car by the accused and was thereafter taken away, which were specifically denied by the victim. She also denied the suggestion that she was threatened to cause injury with blade. She also denied that the accused gave her a cold drink and after consuming the same, she became semiunconscious and thereafter accused committed sexual intercourse upon her, without her consent.
26. In the case in hand also, since on the fateful day the victim has left the house willingly with the accused, without their being any Judgment : FIR No. 1585/15 page 14 of 19 SC No. 255/17 State Vs. Afjal Khan enticement or any other overt, act on the part of the accused, the offence of kidnapping of the victim is not made out, and therefore the charge for the offences u/s 363/366 IPC against the accused Afjal Khan, is not brought home by the prosecution.