HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Auoeal No. 463/1993 APPBLLANT Versus RESPONDENT Jeewardhan S/o Basupnaka aged 26 years, resident of Phokatpara, P.S. Khamtarai Distt. Raipur (MP) State of M.P. CRIMINAL APPEAL U/S 374(21 OF THE CODE OF CRIMINAL PROCEDUR^. (SB: Hon'ble Mr. T.P. Sharma, J.) Present:- Mr. P.P. Sahu, Advocate for the appellant. Mr. U.K.S. Chandel, P.L. for the State/respondent. ORAL-JUDGEMENT (Passedon 09/07/2010) 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 30/4/93 passed by 4th Additional Sessions Judge, Raipur in Sessions Trial No. 14/87 whereby and where under after holding the appellant guilty for the commission of offence punishable under Sections 363, 366 & 376 o.f the Indian Penal Code and sentenced rigorous imprisonment for 2 years and fine of Rs. 100, in default of payment of fine amount additional rigorous imprisonment for 15 days, rigorous imprisonment for 2 years and fine of Rs. 100, in default of payment of fine amount additional rigorous imprisonment for 15 days 85 rigorous imprisonment for 10 years. 2. Conviction is impugned on the ground that without any iota of evidence relating to the age of prosecutrbc and BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.06 11:49:10 +0530 ^, factum of absence of consent, Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. 3. Prosecution case in brief is on 14/7/86 at about 7:00 P.M. appellant came near the house of prosecutrbc PW1 (name not mentioned) and called her, when prosecutrix came then after pressing her mouth. He took her towards open land where he committed intercourse with her. Thereafter, he took her to Devendranagar Colony by Rikshaw and other places including Mahasamund and Khariyar Road where he used to commit intercourse with her. Her father PW5 Ravindra Kumar Das lodged the Rojnamcha relating to missing of his daughter i.e. prosecutrix. On the basis of Rojnamcha a First Information Report was lodged vide Ex. P-14. During the course of investigation police went to Khariyar Road where prosecutrbc was found in the possession of appellant and prosecutrbc was recovered and also seized the suitcase and other articles from the Raidhar vide Ex. P-9. Prosecutrbc was sent for medical examination vide Ex. P-13. She was examined by the doctor and found secondly sexual character were not well developed, and are developing stage. She was habitual of sexual intercourse vide Ex. P-13A. Accused was also sent for medical examination vide Ex. P-12. He was examined by ^»-. w doctor and found capable to intercourse vide Ex. P-12A. Radiological test of the prosecutrix was conducted by the PW2 S.C. Vishnoi vide Ex. P-2. Radiological report shows determination of her age, her age of determined between 13 to 14 years. During the course of investigation, document Ex. P-4 relating to her age was seized from Sister L.C. Mary vide Ex. P-5. Her date of birth was 25/3/72. School admission register was also seized vide Ex. P-6 from Headmaster Smt. Amrita Shrivastava and was given in Supurdaginama vide Ex. P-7. Copy of school register vide Ex. P-8. Statement of the witnesses were recorded under Section 161 ofthe Code of Criminal Procedure, 1973 (in short 'the Code'). After completion of the investigation charge sheet was filed before the Additional Chief Judicial Magistrate, Raipur who in turn committed the case to the Court of Sessions, Raipur where learned 4th Additional Sessions Judge, Raipur received the case on transfer for trial. In order to prove the guilt of the appellant/accused prosecution examined as many as 18 witnesses. Accused was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication is claimed. After affording an opportunity of hearing to the parties, learned 4th Additional Sessions Judge, Raipur convicted and sentenced the appellant as aforementioned. Shri P.P. Sahu, learned counsel for the appellant and Shri U.K.S. Chandel, P.L. for the State/respondent are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellant vehemently argued that in case of conviction under Sections 363, 366 6& 376 of the Indian Penal Code; the age of the prosecutrix at the time of commission of alleged offence is material and prosecution is required to proof that appellant has committed intercourse with her without her will and consent, accused has not required to proof his innocency. In the present case, evidence adduced on behalf of the prosecution clearly reveals that at the timeof commission of alleged offence age of the prosecutrbc was not below the age of 16 years. She herself left her parental shelter and has accompanied with the appellant and appellant has conimitted intercourse with her consent and will. On the other hand, learned counsel for the State/respondent vehemently opposed the appeal and submits that prosecution has proved by adducing cogent evidence the age of the prosecutrbc is below than 16 years, on the date of commission of offence appellant himself has enticed the prosecutrbc and has taken her w, ~v from the parental shelter of her house then he committed intercourse with her.In the present case, the consent of the prosecutrbc was of no use. 10. After appreciating the evidence available on record, learned 4th Additional Sessions Judge, Raipur has rightly convicted and sentenced the appellant as aforementioned. 11. In order to appreciate the argument advanced on behalf of the parties, I have examined the evidence adduced on behalf of the prosecution. 12. As per evidence of prosecutrix PW1, other witnesses and documentary evidence the date of birth of the prosecutrix is 25/3/72 thereby on the date of commission of offence i.e. 14/7/86 she was aged about 14 years & 4 months. Child aged about 14 to 15 years is not fully mentally mature side but she becomes able to know his good and bad, right and wrong and result of cohabitation by the person. This is not a case of child who unable to understand her good and bad, right and wrong. 13. PW1 prosecutrix has substantially deposed in her evidence that while she was playing with her sister on the road, the appellant came and called her then he took her to the ground forcefully where he committed intercourse with her. He took her to Devendranagar, Mahasamund and Khariyar Road where he committed intercourse with her several times. Finally, they were recovered on 14. 13/8/86 after lapse of 1 month. She was residing with the appellant at Khariyar Road where appellant used to commit intercourse with her. Defence has cross-examined this witness in part in which she has admitted that she had not given any alarm at the time while appellant taking her or at the time of commission of intercourse. She has also deposed in her cross-examination that she never complaint the matter to other persons even at the time of traveling. Lastly in Para-21 of her evidence she has specifically admitted that she willing to marry with the appellant but her father was not ready therefore, she herself had left the house of her mother and father without informed them and had gone with the appellant to Khariyar Road where appellant committed intercourse with her. PW1 prosecutrbc is a person against her aforesaid offence has been committed. Prosecution has not examined any witness to proof the fact that appellant has forcefully taken the prosecutrix therefore, in absence of any other evidence and specific admission and statement of prosecutrbc, it is difficult to hold that appellant has enticed the prosecutrbc and has abducted and kidnapped with her from the parental shelter of the prosecutrbc. The evidence of prosecutrix is sufficient for drawing an inference that appellant has committed intercourse with her. In the present case, the ^v\ i %^^ '^11-??^. 1 ^ ^c age ofthe prosecutrbc is crucial to decide the commission of offence of rape. 15. Prosecution has examined PW2 S.C. Vishnoi, Radiologist who has deposed that he has radiologically examined the prosecutrbc for determination of her age and on the basis of radiological examination vide Exs. P-2 & P-3 her age was determined between 13 to 14 years. In case of Jaya Mala Vs. Home Secretary, Government ofJammu and Kashmir and other1 in which Apex Court has held that the version of 2 years on either side on the age determined by the Radiologist is permissible. 16. Prosecution has examined other witnesses PW3 Sister Maria Literia and PW4 Sister L.C. Mary relating to date of birth of the prosecutrix and as per their evidence and Exs. P-4 & P-5 the date of birth of the prosecutrbc is 25/3/72. PW9 Smt. Amrita Shrivastava, Headmaster has also deposed relating to age of the prosecutrix on the basis of school admission register and document Exs. P- 6, P-7 & P-8 which reveals the date of birth of the prosecutrbc is 9/5/72. PW4 Sister L.C. Mary who has categorically deposed that prosecutrbc born on 25/3/72 at Christian Hospital, her statement is sufficient for drawing an inference that date of birth of the prosecutrbc is 25/3/72 and thereby on the date of offence her age was (1982) 2 SCC 538 '^ 14 years and 4 months i.e. she was below the age. of 16 years. 17. Considering the age of the prosecutrK is below 16 years for the time of commission of offence of rape and her will and consent on part is of no use. The aforesaid evidence is sufficient for drawing an inference that appellant has committed rape with the prosecutrbc for the offence punishable under Section 376 of the Indian Penal.Code. While convicting the appellant under Sections 363 & 366 of the Indian Penal Code, Court below has not considered the specific statement of prosecutrix relating to voluntarily relinquish the shelter of her parents and thereby committed an illegality. 18. For the foregoing reasons, this criminal appeal is partly allowed. Conviction of the appellant under Sections .363 & 366 of the Indian Penal Code is not sustainable under the law therefore, the conviction and sentence of the appellant under Sections 363 & 366 of the Indian Penal Code is hereby set aside. Conviction of the appellant under Section 376 of the Indian Penal Code is hereby maintained. Considering the circumstances instead of rigorous imprisonment for 10 years, appellant is sentenced minimum sentence of rigorous imprisonment for 7 years. Appellant is in bail, he shall immediately surrender himself before the 4th Additional Sessions /^^1^ y \ Judge, Raipur/its successor in office for serving remaining sentence. Sd/- T.P. Sharma Judge n.