/r ^4, -K^ ^- 3TT^T ?ET ^i^h 'TOT'sin^T ?CTN> .-/v •~\ s 3^- rqMl^-q, ^Tfi^^l^, fc)01^^< 'WR^ %srw ••••"•••"••••"••""""""•"•••""••••••••""•"••^ 200 3TI^?T'^F5F (^I^^T) ^wi^R ^if^a 3TI^T chMid^l'1 ^w^S^^Q <Rn^i< '^^iRiH^n^r HIGH COURT CHHATTISGARH AT BILA8PUR CRIMINM APPEAL N0. 1121 of 2001 Appellant (In Jaii) Resposident Present: Mi'. M.K. Bhadut Mr. Neeraj Meht^ (^ Dhirendm Mishra, J Heaixl on M.<I condonation of delay i^i preferred with a delay 2. For tb.e reasons| allowed. Delay iii fUiu^ 3. With the consej jSiially as it is pendhi^ Shatrugliaii Gond, son ofVmod Kuxi3.ar Goud, agcd about 20 ycars, resident of vUlage Raineshwar Nagar, Bhaupuri, P.S. P3iamartarai, Distt, Kaipur, C.G. VERSUS State of Cliliattisgarh tbrough P.S. Kb.aiaai'tai'ai, i, counsel for the appcllant. L, Panel Lawyer for the State. 3RALJUDGMENT 6th Novanber 2007) pr.P.No. 3214/2001, application for fUuig this appeal as the saoie has bcen ^f27 days. uidicated m. the above application, it is the appeal is condone<i. |it of thc pai-ties, the appeal is heard since 2001 aiid the appeUaiit is in iaU ^' ^T^T^T fiprw 'cTSTT^n^T sti^llch ^5-^^ •^i^id^, ?$Tfl'y4i<o, («t<r>i^^< NINdl th^Jcb' ^ 200 3H^?T'q^97 (4?<f^<^T) '^nW^rf^T^T^T from the date of pronoun dated 24.8.2001. hlas 4. This crmiuial appeal convlction and order of passed m S.T.No. 30/9' Sessions Judge, Raipur Sections 363, 366, 376 (1] undergo RI for 5 years, pa^ pay a fiiie of Rs.500/-, RI respectively and ui defau| adciitional RI for twf} niontlils months, respcctively. AI1 run concurreiitlv. 5. Case of tlie prosecul wheii fatiier of tlie prosecul liis wife iiiformed that the| she went to fetch water. T| enquired about the p3 Sata^aiitiiibai UTform.ed th^ai biicket iii her home aiid baiigles. Ou subsequent e^ has gone wifh the appeUa3|it, 20th November 1996 vid|€ recovered on 21.11.1996 CM^I<n41Ti 'RTR^f ^ fi1^!' <pxt^i< ^3tRW37T^T ^ement of the impugaed judgment |s dii'ected agaitist the judgment of enteiice dated 24th AugList 2001 whereby learncd III Additional convictcd the appeUant under of fhe IPC and senteiiced Iimi to a jfiiic of Rs.500/-, RI for 5 years, ^jr 7 years, pay a fhie of Rs.1000/-, [t of payment of finc to undergo >, RI for tayo montlis aiid RI for four sentenced iiave bcea dii'ectecl to tllie lon, iii brief, is tliat on 15.11.1996 :ix returned to his home after work, prosecutrix has not returned affcer iiereafter, pai'ente of tiie prosecutrix oseciitrbe ui the vicuiity. One that the prosecuti'ix has left thc fcold her that she is gotng to buy iquii'y he leai'iit that the prosecutrix :, whercupon report was lodged cn Ex.P/3. The prosecutt'ix was on beuig produced by Chaiidrika ^ll^fl-M ^N^T ^UII^, <l^'lJ^I|c( :—FS/59— 8/2007 —30,000. XI-HC- 75ST r*iNi<r-)<4, ^Tf1'Mll6, (fi<<»»l^^< (^) W^^i 1RWER "^ 200 3?n^r ?)T ^iN 'cT^iT ^lt^ ^^i^ 3H^?r ^^7 (4<4^<^) '^nw^rf?n^i^r were^eifced Strigh vide recovery exaiauiation to Me| IVteeaakslu Dubev O Ex.P/9. Durmg UIT| prosecutrix ^yas Roopram. Actoiissi| (Ex.P/12) issued bj prosecutrix 10th August 1983. test to Medical Cc^ Kumai- Gajbiye (P^ Ex,P/ 14, accordiiig be 14 to 15 years. was filed against tih Chicf JucUcial Additional Sessions trial. 6. Duritig trial prosecutioii. Thei recorded in which him i-n. tlie miplication ui fhe a1 after hearing couns seiiteiiccd flie appeM prosecut|ion CM<it<n<iii TTCT^if ^1^T^ <^t^i< ^T 3TRPT ^qi^T taiemo of Ex.P/ 8. She was sent for meclical ^ical CoUege Hospital Raipur whcre Dr. W-5) exainuied her aiid gave her report of ^estigation progt'ess report (Ex.P/5) of the sci^ed undei' Ex.P/4 on beiiig produced by |?n register (Ex.P/ 11) as also the certificate the Head Master of fhe school of tiie [, according to which hei' date of bii'th is ^The prosecutrix was seiit for ossification Rege Hospital Raipiir, where Dr. Kaoial 10) exainined her aiid gave his report of \o which age of prosecutrbc was assessed to ftfter completiiig iavestigation charge sheet |e appeUant before the Court of AdcUtional M^gisfat'ate, Raipur from where learucd Judge recdved the samc on traasfer for 14 witncsscs were examiaed by the eafter, stateio.ent of the accused was ie dcnied Uie evidence appearing against case aiid pleaded uuiocence aiid false )ove offence. However, leariied trial Court ?1 for the respectwe parties coiivicted aiid aiit as m.cntioned above. XI-HC—7J 3:^T ^IWW^, ^Tn'y'Ko, {sf01'y^< ^TTOCTT (feHKb -^ 200 371^1 ?RT ^NF TOT 3???^S? WRTW 3H^?r XRRR (4?1^<^) '^nw^rf^T^^T 7. Leai'ned counsl Court has assessed on the basis of certt&cate (Ex.P/12) ^ perusal of tlie statem^ proved the above doc] at the time of acim.j produced aiid the^n^ whereas tlie prosecul 1983. He further coi Roopram (PW-2) wai prosecuti'bc. The prosecutrix betaveea statem.eiit he has of tliree veai's on eith 8. It is further c<| prosecuti'ix herself ilj tlie appellaiit of her period she cUd not abduction. From pe| conduct, the possibU{.t be ruled oiit and shi{ she was less thaii appeUant caniiot be <t)|<4t<y1<Iil *(W<A ^f^^ <P»t^l< ^i'^TRm^n^r ^l for tlie appeUaiit submits that the trial ajge oftlie prosecuteix between 13-14 years mjark shcet, adxaission register aiid the i^sued by tlie Head Mastei\ Hc^veyer, from |ent of PW-7 D.C. Sonbe, teacher, who has liim.cnt it would be evident that tlie enbi'ies l^ssion of flie prosecutrb? have not been |ries produced pertaui to the year 1991-92 trix was aclmitted ui the school iu the veai' ttended tiiat eveii fatiier ofthe i^roseciiteix fc not awai'e of the date of birth of tlie radiologist has assessed age of the |I4 to 15 years aiid ta pai'agraph 2 of his ad|n;itted tliat therc is possibiUty of vaiiation ^r side iii the assesscd age. ^ntended that fi'om the statcmeut of tlie ^?rould be evident tliat she acconipaiiied |)WH free wiU to vaiioiis places aiid in tliis ccjm.plaiii to aiiyone about her forcible Insal of her statemeat and lookhig to her lj.tv ofher being a conseiituig paily caiiiiot ^e tlie prosecution has faUed to prove that 18 veai's on ttie date of iiicideiit, the Ijield gu.ilty iinder the aforesaid sections. 'S:v3[ ^NIO^, ^>T{i-y<|<o, i«l<'!)|^^< g) ^Wv[{ **<|ch ——-"•—••••-•-•••••—•-•-"••—• ^ 200 3n^?r XR^ (^cif^^) ^n^i^'f^Tw WT3TR?T sb^llcb CM^I<rt<i1i *iiH<riT'^f F^<<1 ^^K '^'^fRFT^T^T 9. On tlic ofliCT haiid, State/respondent siipporte| Court. 10. I have heard learned the m.atcrial avadlable on judgment. 11. To estabUsh age of t] cxain.ined PW-2 Rooprami, D.C. Sonbe, Asstt. Teachei- who has proved the copy of| the certt&cate regardiiig dat 12. PW-2 Roopram has tlmxi chlld and hcr age is 1| ui Class-V iii Bharipuri daugliter ui this regai'd is q:: this witness has stated tha1 dazighter was born, howev^ iri the moiith of Bhado. hi| had takea the prosecutrtM| where she pursued her st^ has fprgotten tiie date of h^: tlie record of the school. A|t the approximate date of tearned counsel appearirig for the 1 impugned judgment of the trial ounsel for the parties aiid penised record incluclhig the impugned le prosecutrbc the prosecution has 'ather of the prosecutrbe: and PW-7 )f Bhaiipuri Prioiary School, Raipur admission reglster (Ex.P/ 11-C) aiid sofbii'tliofEx.P/4. stated that the prosecutrbc is Iiis yeai's. His daugliter was stzichdng 3chool aiid the certificate of her x.P/4 aad Ex.P/5. la paragx'aph 19 todav he caniiot sav as to when liis r, he rem.embers diat she was born pai'agraph 20 he has stated tliat he for aclin.issioii to Bhanpiiri School idies iip to Class VI. Mowewr, he birth and it must be m.eritioned in the time of aclm.ission he had given l3iilh, wliich was recorded by tiie ^TKT^" ^Nk g^TT^T, <l^^J^lJc< —FS/59— 8/2007 —30,000. 'S^S^ ^WW^, ^•^\W\<o, ^vftW^. '^ ^TT^T^FT ^Jcb 'TOT^TT^T sh^lcb ^TR^IT sb^lcb W^ 200 3n^?r xi^? (^ctf^^) ^dTW Trf^T ^n^T teacliCT. The school recor< proseczitrtx as 10th August Class-I ui fhe yeai' 1991, w. Sonbe(PW-7). The report o| Kamal Kum.ar Gajbiye (P1%| report age of the prosecutipx This witiiess has actmitted of racliological examination years vaiiation on eitihier si father of the proseciiti'ix ai"| which is a pubtic document age of the prosecutrtx was] based on material avaUable 13. PW-1 tiie prosecuti-i}i iiicident 1-2 davs after DiwAU nature at'ound 1.00 ui tlie her hand and took her und^ released her at about 5 o?c:l iipon lier to elope witii hi4i friend at vUlage Tulsi aiid] viUage Dah where he resid^s vUlage Dali he comniitted ^ her requests to return h^i Chaadrika caiiie tliere. sh< cr)Nl<n4l'i "HFT^rf ^f f^^t <f^1^l< '^'^fRm^Ts^T 'tl shows the date of birth of the 1983 aiid that she was admiitted m |iich has been duly proved by D.C. ossification test conducted bv Dr. f-10) is Ex.P/14 and iti the said is assessed as 14 to 15 veai's. jliat age was assessed on the basis aiid there is possibility of tliree ^le. Thzis, iBrom. flie statement of |d adiiiission rcgister of tlie school, the jBiidiiig of tlie trial Court that |less thaii 14 years, appears to be bn record. has stated that at the time of ^i she had gone to atteud tlie call of |dternoon wheti tiie accused cauglit ^ tbi'eat to liis hozise aiid thereafter ock. On tlie next Hay he prevailed and took her to the house of his tiicreafter, took lier fi-oni there to s with his mother aiid brothers. Iii ape with Iier. He did not heed to to home aiid when her brotiier went with him to IICT village. Iii ^iiy^ ^^ g^n^T, <i^^i<jiici —ps/59— 8/2007 —30,ooo. 'S^^ T^WW^, ^•^\W[Q, (s|<^iy^< "%IN:^'; s^^s^s^^'" ^Wv\l sb*<(cb •^ 200 3H^?T V^K (^f^^) ^TT^T^T Ri^ch WT^TT??T *^l<=b ^^nw^f^T^n^T -7- cr)i^?<n<41i iTR^f ^f f^x^ {psi^K ^" ^tRpT a?n^r ^ hajs cross-exasiiiiiation she birtii aiid ia the lengtli^ clairaed that she was aiid hc committed scxiial not beeu able to teU her date of cross-examiiiation slie has oiily by the appeUant under tteeat b-tercourse witii her. coi-d&ned 14. The leai-ned tt'ial Col prosecutrix aiid also con{ corroborated from the st^ the prosecutrbc was subjej: the appellaat aiid has prosecutrix was aged abo| notodthstaiiding consent constitutes offence zuider of the prosecutrix has assesscd bv the trial Coiil tiie appeUaat has been cc^ 376( 1) oftiie IPC cannot 4 |irt relyuig upon tiie statement of the dderiiig tliat her statemeiit is duly Itement of her father, has held. tiiat Aed to forcible sexual m.tercourse by farther obsei-ved that siiice fhe |ut 14 years at the time of uicident, \f tiie prosecutrix, act of tlie accused ^ection 376(1) oftbLeIPC. Since age |already been held to be correctly ^t, fijidiags of the torial Court whereby avlcted undcr Sections 363, 366 aiid faulted. 15. Iii tlie result, the liablc to be disniissed aucll ippeal beiag devoid of substance is is accordingly, dissiiissed. Sd/- Dhirendra Mishra Judge ^iiy<fl^ ^t^ y^ii^, o^i^i^iici —FS/59— 8/2007 —30,000.