^^S^^Sy. ^'^S^-s^-i'1^ wsjSSsy^i, aj.ww-'^i •fEyt^^^wt' •aSSi-;;:'%"15'vS^ 'C'^ty ?-?" K'WWBSXS^ EI%^*;SSIK ffi£8SKR:S?';siB'IS;S8*H9 IN THE HIGH COUEiT OF WDHYA PRADESH AT 3AB&LPUR E.A. No APPCLLANT /. , -. _ 7 Budhram S/o Raiti prasad, ag ad abou-t A? "iysars*,^ s-tudent c-lass IXs / riesident of uillage 3aFbhata, F.5, Hal Kharoda, . Oistt. Bilaspur. '^Ww \: "? • ^~ :> t-- .<z-- ^/-/ ,,^t3PO?B£(,iT . o»N".1pd5>.-s-l':~^—"•"" ^y^^--' ^^^' ^'^^••"' t^^'" : ^_ <-,%, c?^--"" U £ RS U3 The Stats of iladhva pradash &£!S^l^S2S^LJ:S£JJi'JiLJS^ii^.J^J^..^^ F CRIHiNriL PRaCLOUiiL RAJESH KUMAR SONTEKE Digitally signed by RAJESH KUMAR SONTEKE Date: 2025.02.07 12:32:43 +0530 (^ HIGH COURT OFCHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1082 of 1993 APPELLANT RESPONDENT VERSUS Budhram State of Madhya Pradesh Shri Shailendra Dubey counsel for the appellant. Shri Vaibhav Goverdhan PL for the respondent/State. CRIMINAL APPEALUNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (08.02.2011) This appeal is directed against the judgment dated 5.11.1993 passed by the Additional Sessions Judge, Sakti in Sessions Trial No. 229/1992 convicting the accused/appellant under Sections 363, 366 and 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for five years with fine of Rs. 100 u/s 363, rigorous imprisonment for seven years with fine of Rs. 500 u/s 366 and rigorous imprisonment for seven years with fine of Rs. 500 u/s 376 IPC ptus default stipulations. 2. Case of the prosecution in brief is that on 13.4.1992 FIR Ex. P-5 was lodged by the father of the prosecutrix namely Govindram (PW-6) alleging that on 7.4.1992 the accused/appellant had taken away the prosecutrix (PW-1) aged about 15 years at the relevant time. Based on this FIR, offences under Sections 363 and 366 IPC were registered against the accused/appellant. On 22.4.1992 the prosecutrix was recovered from the possession of the accused/appellant near bus stand Malkharoda while getting down from the bus. After investigation, challan was filed against the accused/appellant and one Kishno for the offences under Sections 363, 366 and 376 IPC. Allegation against accused Kishno was that he facilitated accused/appellant herein in abducting the proseeutrix. However, the Court below framed charges against the appellant herein under sections 363, 366 and 376 and against accused Kishno u/s 363 and 366 IPC. ?''•?•' n: '' 3. So as to hold the accused persons guilty, prosecution has examined 10 witnesses in support of its case. Statements of the accused persons were also recorded under section 313 ofthe Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. This apart, two witnesses namely Pirit Ram (DW-1) and Bharat Lal Chouhan (DW-2) have also been examined by the defence in support of its case. 4. After hearing the parties the trial Court has acquitted accused Kishno of the charges levelled against him but convicted and sentenced the accused/appellant as mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the appellant submits that present appears to be a case of consent where the prosecutrix visited several places and remained in his company for about 15 days without raising any hue and cry. In respect of the age of the prosecutrix, counsel for the appellant submits that though the prosecution has filed the transfer certificate Ex. P-6 of the prosecutrix showing her date of birth as 23.6.1976, no legally admissible evidence in this regard has been collected by the prosecution. He submits that transfer certificate Ex. P-6 has been exhibited by the father of the prosecutrix namely Govindram (PW-6) and no other witness in respect of issuance of transfer certificate has been examined by the prosecution. 7. On the other hand counsel for the respondenVState supports the judgment impugned and submits that the minor girl was abducted by the accused/appellant and subjected to sexual intercourse with her and that being so the judgment impugned is well founded and calls for no interference in this appeal. 8. Prosecutrix (PW-1) has stated in her evidence that she knew both the accused persons and that accused Kishno is the maternal uncle of accused/appellant herein namely Budhram. Her date of birth is stated to be 23.6.1976. Her father was working at Korba and at that time she was prosecuting her studies at Korba itself but thereafter she started studying at Pirda. According to her, when she was in class VIII, accused/appellant was in class IX and as they were studying in the same school at Pirda they used to meet each other. According to this witness, in the month of April her exams were going on. One day when she was appearing in her sixth paper, accused/appellant herein asked her to run away and get married. At that time, accused Kishno was also along with the accused/appellant herein. Though firstshe refused to do so, after having'prasad'given to her by the accused/appellant, she accompanied the accused persons on bicycle which was being peddled by accused Kishno whereas accused/appellant Budhram was sitting on its frame and she was sitting on its carrier. First they went to Chhpora and then to Kharsia by taxi. From Kharsia they went to Bendra for watching fair and from fhere they went to Chakradharpur by train where they stayed for some time in the house of one Bhushan. On the next day they came down to Champa and stayed there in the house of the relative of accused Kishno. From Champa they went to the house of brother of the accused Kishno at Korba where they stayed for two days. From Korba they went to Gurdatti where they stayed for two days. Thereafter, she and accused/appellant herein went to Kharsia where they stayed in a.rented room for two days. According to her, at Kharsia accused/appellant committed forcible sexual intercourse with her and the same was repeated at various places also. According to her, from Kharsia they went to Malkharoda where the police took them into custody. Thereafter she was sent for medical examination. According to this witness, about one month prior to the date of incident also, she was subjected to forcible sexual intercourse by the accused/appellant. In cross examination this witness appears to be very shaky and several contradictions and omissions are there in her statement. Awadhram (PW-2) is the witness who had seen the accused/appellant and the prosecutrix together leaving the school. According to him, during examination the accused/appellant used to help the prosecutrix in copying. Shalikram (PW-3) - grand-father of the prosecutrix has stated that on the date of incident the prosecutrix ..—uL.ct.si % ^l -o was residing with him to prosecute her studies. On the date of incident, when she did not return home, search was made and then it was informed to him that the accused/appellant had taken her away. Agasram (PW-4) is the seizure witness of certain artiGles like undergarments of the accused/appellant and the prosecutrix and vaginal slides of the prosecutrix vide Ex. P-2, Ex. P-3 and Ex. P-4. Aasharam (PW-5) is the witness who had seen the accused/appellant and the prosecutrix standing near a tree. Govindram (PW-6) - father of the prosecutrix and lodger of the FIR has stated that date of birth of the prosecutrix is 23.6.1976. However, in the cross examination he has stated that his marriage was a child marriage but he did not remember its date. According to this witness, about one year after his Gavna a son was born but he expired though he did not record his date of birth. Thereafter a female child was born whose date of birth is 25.12.1972 who too died on 22.12.1992. Prosecutrix was born after about two yeas of the birth of his first daughter. He has stated that date of birth of the prosecutrix was recorded in the office of Special Development Area but he had not obtained any document from the said office nor has he filed any such certificate. He admits that the prosecutrix failed in class 2 and 8 and she studied up to class 8 . He has stated that police inspector had asked him to produce the school register and therefore he had approached the head master for the certificate and then certificate Ex. P-6 was issued. He admits that initially his daughter was studying at Korba and then after obtaining the transfer certificate she started studying at Pirda. Dr. J.S. Sahu (PW-7) is the witness who had medically examined the accused/appellant and given his report Ex. P-8 stating that he was capable of performing sexual intercourse. Dr. (Smt.) U.J. Elan (PW-9) who had medically examined the prosecutrix and given her report Ex. P-13 and P-15. According to this witness, no definite opinion of rape on the prosecutrix could be given. Her hymen was old ruptured and no injury was noticed by this witness on the private part of the prosecutrix. With respect to the age of the prosecutrix, she was not sent for ossification test. ASI C.K. Gajbhiye (PW-10) is the investigating officer who has supported the case ofthe prosecution. •^— 9. Minute examination of the evidence of the witnesses makes it clear that the prosecutrix accompanied the accused/appellant of her own and visited several places and remained in his company for about 15 days and in spite of getting sufficient opportunity, she did not raise any alarm and looking to her conduct it can safely be said that she was a consent party to the act of the accused/appellant. That apart, the statement of the prosecutrix being full of contradictions and omissions does not inspire full confidence of this Court. As regards the age of the prosecutrix, the prosecution has filed the transfer certificate which has been exhibited by Govindram (PW-6) but nobody from the school has beenexamined nor has any evidence been brought on record to show as to on what basis her date of birth was recorded as 23.6.1976. Thus in the absence of any legally admissible evidence in this regard, it cannot be said that on the date of incident the prosecutrix was minor. Even the oral evidence of the prosecutrix, her father and grand-father does not make it clear that at the relevant time she was minor. 10. In view of the aforesaid discussion, this Court is of the considered opinion that the trial Court has not taken into consideration the evidence adduced by the prosecution in its proper perspective and thereby committed an error in convicting the accused/appellant under Sections 363, 366 and 376 IPC by the judgment impugned. Accordingly, the appeal is allowed. Judgment impugned is set aside. Accused/appellant is acquitted of the charges levelled against him. He is on bail. His bail bonds stand discharged. Sd/- Pritinker Diwaker Judge 'l m: