^ ^ IN THE HIGH COURT OP JEJDICATUffi AT JABALPUR,M.P. CRIMINAL APPEAL N0. \*^Q>^ /1999 1^' APPELLANT (in jail) ^':> (-^':- ..i yv • ^" {^y^^ 'k-^L^ '"^' Vs» Santosh Kumar s/o Shri tTagannath Prasa^ Chandra» aged about 20' ye ars, R/o Karigoan, Police Station Malkharonda, Distt. Jan^glr-Chanpa, (MP). < State of M<P. through P,S. Malkharonda. Distt. J'anjgir, (Ch4>a/(HP). MEMOR&NDAM OP CRIMINAL APPEBL UNDER SECTION ^374 (2) oP THE CRIMINAL PROCBDUR2 COD2 RESP010ENT ,rf- 1 .^•° /:.. ^ -r ^ HI6H COURT OF CHHATTIS&ARH AT BILASPUR Cr. Aspeal No. 1795/1999 Sing.Se Bench: Hon'bie Shri Dillp Raosaheb \D@shmukh^ J. Santosh Kumar Versus State of Madhya Pradesh (now State of Chhattisgarh) Present:- Shri Yogeshwar Sharma/learned Counsel for the appetlant. Shri Neeraj Mehta.Panel Lawyer for the State. ORAL JUbGMENT (Deiivered on 3rd of May-2006) This appeai is directed against the judgment dated 17-064999 delivered by Shri CP,Suman, Additional Sessions Judge, Sakti, District-Bilaspur in Sessions Case No^OS/1999 whereby the appeilant was convicted under Section-376(l) of the IPC and was sentenced to undergo rigorous imprisonment for 7 years dnd to a fine of Rs.2,000/- and in default of payment of fine to undergo additionai rigorous imprisonment for 6 months. 2. Briefiy stated the factual matrix is that the prosecutrix was deeply in iove with the appelbnt and induiged in sexuai intercourse v^ith the appeilarst on an assurance of marrsage given by the appellant, The proseculTix had a!so conceived pregnancy but got it aborted upon medication given by the appellant. The sexual indulgence by the appeljant continued. Upon refusa! of the appeiiant to marry the prosscutrix, F.I.R.'was Eodged on 07-10-1998 vide Ex.P-1 at Police Station-Malkharoda. On medical exGmination br. Smt. SP.Kanwar PW»22 did not find any marks of vioience on the person or private parts of the prosecutrix and could not give any definite opinion about rape. Dr,5.Chatterji PW-16 conducted the ossification test for "~\ t IK ^J .r- ^•' uy ^:^- determination of the age of the prosecutrix and estimated the age of the prosecutrix to be t7 years, Schoot Admission Register showing the date of birth of the prosecutrix to be 01-07-1983 was sei2ed. Dr. R.&.6upta PV^"21 examined the appelbnt and found that he was capabie of performing sexua! intercoupse. After completion of investigation, th©appeliant was prosecuted. The appeltant abjured the guilt. The prosecution exGmined as many as 24 witnesses. No evidence in defence was led by the appellant. Reiying upon the evidence led by the prosecution, the learned trial Judge convicted and sentenced the appellant as aforesaid in para-1, (Supra) 3. Shri Yogeshwar Sharma, learned counsel for the appeitant has assailed the conviction of the appe!lant on the ground that the evidence led by the prosecution clearly shows that the prosecutrix was aged more than 17 years and being deeply in love with the appeiiGnt had voEuntarity consented to sexual intercourse* On these grounds, it wasprayed that the conviction and sentence awarded by the learned trial Judge is liable to be aside. On the other hand/Shri Neeraj Mehta, learned Pane! LGwyer for the State argued in support of the impugned judgment. 4. Having considered the rivat contentions, I have perused the record of Sessions Case Number-B08/1999. Ram Kumar PW-4, brother of the prosecutrix has stated that he was aged 20 years and the prosecutrix was 2 years younger to him. In this manner, it appears that the prosecutrix was 18 years of age at the time of occurrence. The rcport of ossification test conducted by Dr. S. Chatterji PW-16 dso shows that the age of the prosecutrix was estimated to be 17 years. Considering the iegaISy permissible margin of error of 2 years on either side, it cannot be ruled out that the prosecutrix was above 16 years of age on the date of occurrence, Primary evidence relating :fc. ^ to proof of date of birth of the prosecutrix was also not adduced by the prosecution. 5. There is overwhelming evidence on record to show that the prosecutrix was deeply in tove with the appellant and both were committed to marry and to commit suicide in the event of failure to do so.The testimony of the prosecutrix leaves no room.for any doubt that she had voiuntarily consented to the sexual intercourse committed by the appeibnt with her. The testimony of Radha Bai PW'M2, mother of the prosecutrix and Bhuwan Lal PW-3 also corroborated the testimony of the prosecutrix by deposing that the prosecutrix was deeply in love with the appellant. The testimony of Firal !al Charidra PW-15 in para-2 also corroborates the above fact. Investigating Officer B.P. Yadav PW-24 has in pQra-9 of his testimony admitted that during investigation it had emerged that the prosecutrix was deeply in tove with the appellant. 6. Having thus considered the evidence led by the prosecution in Its entiret^, I am of the considered opinion that it cannot be ruied out that on the date of occurrence, the prosecutrix was a woman aged more than 16 years and had fully consented to the sexual intercourse with the appellant. In this view of the matter, conviction of the appeSiant under Section"376(l) of the IPC and the sentence awarded thereunder by the leamed triat Judge deserves to be setaside. 7, In the result, the appeal is allowed. Conviction of the Gppetlant under Section"376(l) of the IPC and the sentence awarded thereunder are set aside. The appeilant is acquitted and he shall be set at libert/ forthwith, if not required in any other case. Fine if paid, -^ha!! be refunded to the appeilant, Sd/- Dilip Raosaheb Deshmukh Judge