§ g : §§§§t awk § i in? E ? H A 3AB. TH HIGH CG‘URT (J MADEHA PRAUES z T 'AIJ‘F‘UR mAwuAL No. ’ m? 199 n a son o uaewat aged ‘7 yexs R/o Vilagaz Matya Tenduatka P S o Bji a3 g arh Jis ‘ hh ‘ Ba j )ur ( Dl . P 0‘ C... \ \Ap QEAN 3 T S % $aau m f: Gh/K 2 é l i -bhf, . / [ ) EL . . ~ he ahe afixxadha Praa$s ... T st y h , REsPgJNDENT. (Hon. Mr. Justic Pritinker Diwaker) C riminal Appeal No. 02 of 1991. Sanau Ram RESPONDENT State of Madhya Paesh. rd Pt for pronounement of judgment on 04 -2-2010 os c Sdl— Pritinke iwakei’ S u r D Jdge HIGH COURT OF CHHATTISGARH AT BILASPUR e APPELLANT VERSUS H COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 02 of 1991. APPELLANT Sanau Ram son of Guha Kewat. VERSUS RESPONDENT State of Madhya Pradesh. Shri Y.C. Sharma and Shri Vivek Rathore counsel for appellant. Shri Vaibhav Goverdhan PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2)_OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT ( 4 32.2010) This appeal is directed against the judgment dated 6.12.1990 pa’ééed by Additiona! Sessions Judge, Raipur, Camp Court Baioda Bazar, in- Sessions Trial ' No. 62/1988 " convicting the accused/appeiiant for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for three years with fine of Rs. 100, rigorous imprisonment for five years with fine of Rs. 100 and rigorous imprisonment for seven years with fme of Rs. 100, respectively for each offence, with default stipulations. 2. ‘ Case of the prosecution in brief is that FIR (Ex. P-3) was lodged by Mehattar Das (PW-2) — the father of the prosecutrix alleging that on 30.10.1987 he had gone to village Churela for recital of Ramayan along with the prosecutrix. On the next day, they both went to village Tendubhata for the same purpose and when after reciting the Ramayan till late night they fell asleep in the verandah of one Mehattar and when at 5 o’clock in the morning he got up, the prosecutrix was not there. On enquiry from the villagers it was disclosed that the accused/appellant was also not there in the village and therefore, father of the prosecutrix showed his suspicion that it , s~\ , W uy7LW" W -2; might be he who had abducted his daughter. Ultimately the prosecutrix was found in the house of the sister of the accused/appellant at Baioda Bazar on 31.10.1987. Her statement was recorded on 31 10 1987 itself in which she has stated that the accused/appellant had subjected her to forCIble sexual Intercourse and then on the baSIs of her statement the offence under Section 376 IPC was also registered against the accused/appellant. After completion of investigation charge sheet was med against the accused/appellant. 3. So as to hold the accused/appellant guilty, prosecution has examined O7 Witnesses In support of Its case Statement of the ccused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the , case. g 4. After hearing the parties the trial Court has conVicted and sentenced the accused / appellant for the offence as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the appellant submits that the statement of the prosecutrix (PW—1) is wholly unreliable for the reason that mewhere she states that she was subjected to rape by accused/appellant whereas somewhere she has categorically denied about the same He submits that the medical evidence of the prosecutrix does not support her ver5ion as Dr Runda Madge (PW 4) who had examined her has categorically stated that there was no injury on her person He submits that the doctor (PW 4) has further stated that no definite opinion regarding the recent sexual intercourse With the prosecutrix could be given He sGbmits that the- age of the prosecutrix has not been proved by the prosecution and cording to the statement of the prosecutrix herself she was aged about 16 years at the relevant time He submits that it a case of is ~3" consent where the prosecutrix had elOped with the accused/appellant at her own volition. 7. On the other hand counsel for the respondent/State sup'oorts the judgment impugned and submits that when the prosecutrix has categoricaiiy stated that she was subjected to rape by the accused/appeiiant against her Will and without her consent, even in the absence of any positive medical evidence, accused/appellant can be convicted for the offences as mentioned above. According to the State‘counsel, age'of the prosecutrix has been duly proved by the father of the prosecutrix (PW-2) and the doctor (PW-4) who has stated that atthe relevant time the prosecutrix was 14 years of age. 8. Prosecutrix (PW-1) has categorically stated that she‘had gone along with her father to village Tendubhata for reciting Ramayan which went on till 12 in the night. Thereafter, she fell asleep in the courtyard along with her father and when at about 3 o'clock in the morning she went out to answer the call of nature, the accused/appellant with whom she'was not acquainted earlier; came there and lifted her away. When she tried to raise alarm, her mouth was gagged and then he took her to a nearby held, subjected to .threat and beating and committed forcible sexual intercourse with her. She has stated that on the date of incident she was 16 years of age. However, in the cross examination this witness has categorically denied regarding her having been subjected to rape by the accused/appellant. She has stated that after being lifted by the accused/appellant she was taken to a nearby brook where they both spent the night but she was not subjected torape by him. Thereafter, according to the prosecutrix, in the morning she went along with the accused/appellant to Baloda Bazar by catching a bus. Dr. Runda Madge (PW-4) who had examined the prOsecutrix has categorically stated that no injury was found on he? person. As regards age, this witness has stated that at the relevant time prosecutrix was 14 years old. Mehattar Das (PW-2) — the father of the prosecutrix has. also stated that on the fateful day in the morning , " prosecutrix was found, missing and upon search she was found in l l. fHAA V A i ...(_’__ the custody of the accused/appellant. In respect of age, the prosecution has seized the School Leaving Certificate of the prosecutrix (Ex. P-5) according [to which her date of birth is 25.4.1972. Chitranand (PW-5) — the Head Master of the prirnary school has stated that the school leaving certificate (Ex. P-5) was issued by him on the basis of the entry made in the original register. 9. What emerges from the evidence of the prosecutrix that she was not at all subjected to rape by the accused/appellant. This version of the prosecutrix is duly supported by the medical evidence also. Though in examination in chief, the prosecutrix has stated that she was subjected to rape by the accused/appellant, in her cross examination she has completely denied the same. Thus the statement of the prosecutrix being of shaky character does not inspire confidence of this Court and therefore cannot be safely relied upon to convict the accused under Section 376 IPC. Similarly, as the prosecution has utterly failed to establish the fact that the prosecutrix was abducted by the accused/appellant with intent to compel her to marry him against her will or forced or seduced her‘ to illicit intercourse, conviction under Section 366 IPC can also not be sustained in the eye of law. 10.’ In view of the aforesaid discussion this Court reaches the conclusion that findings of the trial Court convicting the accused/appellant under sections 366 and 376 IPC and awarding the resultant sentenCe being contrary to the material available on record, are bad and thus liable to be set aside. 11. ln the result, the appeal is partly allowed. Conviction of the. appellant for the offences under sections 366 and 376 IPC is set aside. However, conviction under Section 363 IPC is maintained. The accused/appellant is acquitted of the charges under Sections ' 366 and 376 IPC. Sd/- Pritinker DiWaker .3, i ll L} 'Judge gr; W, / @