NW“N“QNWINW :’ z. , M7, E‘Qmk Egw r @wwmE IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR. CRIMINAL APPEAL No. Lgé‘g OF 1995f E‘ dd vSLa’l‘ r/I \{l" 4‘, K V W f Mf i AypEL’LANTs *** :1. LILU RAM YADAvi" V, Son of Salikram Yadav, x aged about 22 yearq, v“ re51dent of Vlllage Amdl, Police statlon Arjuru, Tahsll Dhamtarl, D1¢tr1ct RAIEPUR M R! ‘ f VERSUS & g RESPONBENT 4:“ The State of Madhya Prarjesh. we“ ‘ APPEAL UNDER SECTION 374(2) OF THE CODE OF CRIMINAL W“ é ‘ § pROCEDURE z' k w w" the fmdlngs and Judqanent o£ Q?” (Against If. 5hr; R S Sharma, Addltlonal Secs1ons Judge, / ¢esq10ns Trlal 7 y i / : Dhamtarl, Dlctrlct Ralpur passed 1n No. 260 of 1994 decided on 7th dgy of October 1995).§2~ #¥ HIGH COURT OF CHHATTISGARH AT BILASPUR’ (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1649 of 1995 APPELLANT Lilu Ram Yadav .. VERSUS RESPONDENT State of Madhya Pradesh. Shri M.D. Dhote counsel for appellant. ; Shri Vaibhav Goverdhan PL for respondent/State CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE JdDGMENT (16.04.2010) This appeal is directed against the judgment and order dated 7.10.19§5 passed‘ by Additional Sessions Judge, Dhamtari, District Raipur, in Sessions Trial No. 260/1994 convicting the accused/appeHant for the offences punishabie under’ Sections 363, 366i and 376 IPC and sentencing him to undergo rigorous imprisonment for three years with tine of Rs. 500 u/s 363, rigorous imprisonment for five years with fine of Rs. 500 u/s 366 and rigorous imprisonment for seven years with fine of Rs. 500 u/s 376 IPC plus defauit stipulations. 2. 1 Case of the prosecution in brief is that on 26.2.1994 missing report Ex. P—15 was lodged by one Gariba (PW-2), the father of the prosecutrix allegingVthat his daughter was missing sigce 24.2.1994. Further case of the prosecution is that about one month thereafter the prosecutrix was recovered from Bhopal from the custody of the present appellant and based on her case diary statement recorded on 14.3.1994 the case was registered against him for the offences punishable under Sections 363 and 366 IPC. Subsequently, offence under Section 376 IPC was also added. ,u) 3. So as to hold the accused/appellant guilty, prosecution has examined 1’1 witnesses in support‘of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the charges levelled @ ‘1‘ against him and plea‘ded his innocence and false implication in the case. 4.; After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned above. g 5.; Heard counsei for the parties and perused the material avbiiabie on record. 6.; Counsel for the appeiiant submits that the prosecution has utterly failed to prove that at the time of commissmn of offence the proaegutrix was below 16 or 18 years of age. He submits that no legally admissible evidence has been adduced by the prosecution in this behalf According to him Gariba (PW-2) the father of the prosechtrix has categorically stated in his eVidence that his marriage had taken place about 20 years back there-from and about two years thereafter the prosecutrix‘ was born. He thus‘submits that at the relevant time the prosecutrix was aged about 18 years. Another piece of evidence, according to the counsel for the appellant, in this behalf is school certificate Ex. P—6 issued by Board of Primary Education mentioning her date of birth- as 3.1.1980 but no primary evidence on the basis of which this 'date of birth came to be recorded, has been brought on record by the prosecution. He submits that though on prosecutrix being referred, her X-ray was done, the doctor who had done the same has not been examined by the prosecution to prove it. Counsel for the appellant submits that conduct of the prosecutrix that she spent a considerable period of about one month with the accused/appellant at Bhopal where both of them were engaged in labour work, shows that she was a consenting party to the act of the accused/appellant. Moreover, according to the counsel for the appellant, the prosecutrix herselff has stated that, she was happy in the company of thel l 'Laccused/appellant. 7. Prosecutrix (PW-3) has stated in her evidence that she was allured away by the accused/appellant on the promise of marriage- from near the school. According to this witness, the accused/appellant and she herself went to bus stand and after "§ @_ ‘3‘ boarding the bus they went to Durg and then to Bhopal by catching train, where accused/appeHant kept her in the house of his brother- in-iaw and committed sexual intercourse with her which continued for 20—25 days. Thereafter, she was taken by him to a tempie‘where he had married her by appiying vermillion in her hair parting. She has;further stated that as her mind was not working properly, she hadi‘accompanied the accused/appenant. According to this witness, her father had come to Bhopai along with Police from where she was brought back to Durg ln respect of age this Witness has not stated anything Ganba (PW 2) father of the prosecutrix has sated that his daughter was 16 years of age at the relevant time. He has stated that oh coming to know about the prosecutrix being taken away by the accused/appellant he went to Bhopal along with the Police and brought her back to Durg. This witness has further stated that his marriage had taken ‘place‘ about 20 years back there—from and about two years thereafter the prosecutrix was born. Ahilya''bai (PW—4) — mother of the prosecutrix has also stated that at the relevant time the prosecutrix was aged about 16 years. R.N. Tlwari, Assistant Sub inspector (PW-5) who had recorded the FIR on the basis of entry made in Rojnamcha has stated that during- investigation he had seized the school certificate (Ex. P-6) in which the date of birth of the prosecutrix is mentioned as 3.1.1980. Other piece of evidence regarding age of the prosecutrix is the statement of Dr. Manorama Purohit (PW-6) who has stated that on the basis, of her denture her age at the relevant time appeared to be 15 years. Accgrding to this witness, hymen of the prosecutrix was old rupturedv" two fingers easily entered her vagina and no opinion regarding recent sexual ntercourse could be given Record also shows that though X ray of the prosecutrix was taken but the doctor domg so has not been examined by the prosecution to prove the same Thus the x-rayi report remains unproved. S. This apart, if overall evidence available on record is looked into, the conduct of the prosecutrix in accompanying the accuSed/appellant and staying with him at Bhopal for a considerable - period of about a month without offering any resistance or disclosing the things to anyone during her stay at Bhopal makes it clear that ‘u'ux l i l l _HA she was a consenting party to his act. As regards age, evidence of father of the prosecutrix namely Gariba (PW-2) in which he has stated that his marriage was performed 20 years back and about two years thereafter the prosecutrix was born, shows that the prosecutrix was not Iess than 18 years of age at the relevant time. ‘Even the author of school certificate Ex. P-6 has not been examined by the prosecution to prove the same. No primary evidence has been filed byl the prosecution to show as to on what basis the date of birth of the prosecutrix has been recorded in the school certificate (Ex. P—6) asl3.1.1980. g 9. l V ‘I'hus, in sum and substancegthe conduct of the prosecutrix in accompanying the accused/appellant and staying with him for almost a month and further non—availability of any primary evidence on the basis of which her date of birth is recorded as 3.1.1980 in school certificate (Ex. P-6) and non examination of the doctor who conducted radiological examination, drive this Court to hold that the judgment impugned convicting and sentencing the accused/appellant as mentioned above, lacks due appreciation of the evidence available on record entitling him to have the benefit of doubt. in a situation being so, findings of the trial Court being contrary to the evidence on record, are liable to go. 10.‘ Consequently, the appeal is allowed. Impugned judgment is set aside. Appellant is acquitted of all the charges levelled against him. Appellant is already on bail. His bail bonds stand discharged. Sdl- i Pritinker Diwaker i Judge . ...