?E€T &EELLA "a‘i‘ miminai [mgeai 3m. 3&1‘2605 mifirifi CCFGRT 53F CHEATTE§HALKE AT §ILA§zFii§ Kimawan Prasad ‘ State of Chhezttisgarh Judgmmn post for 0S: 12-2007 \ sm- ‘ DmENDRA MISHRA ‘ Judge L :29 mun Luum uy sHi-IAT—x'iSaARa a? BILASWR rgmmaiz‘a eai N FFELLAEIT ’ Khilawan Plaaad son of @mtosh Bhat B} JAJT § 90‘Prl D Qhnnf 9r) VPQrQ 1Pq1HPnf n“? (‘han’ndu I? ’ Pogce btciuon Neom, Lustmct Kalpm war) VERSUs Eg?@EVIEEE€T ' State of Chhattisgalh ‘through Pdice. Station Npnra n1<f1~1h1 Parnnr {FF} bum M Bhaduri Advocatp for t11€ appe‘i‘la. h nt ~ 9912—296?) “ ixeaéra MEEM, J $ ‘ ‘1‘i11s‘cmnma1 m. . . . appeal A 1s . directed _. . agamst . me. g juagmem . _ 01 A conviction 511d order of sentence da’md 22m1 Ja11ua1y, 2005 pasged in $i No. 37912004 whersby iéanmd 11g“ Aéditionai Sessions Judge, (M‘U), Raipur has convictai file appellant under Section 36$ 366 ane‘i 3‘?6 of LPG. ,ani‘t sentenced him to uneiergo RE. for ‘7 years with fme of Rs. 1600i— and in defauit of payment of fine, to further undergo Ri. for 4 months on. each count. A11 the eeiltences have. been etirected to run concurrently. z. Case. of the prosecution, in brief, is that on lit-$2004 eomplcunant “namannam moved rcpoxt oi LX P43 in Police-Station Neora mentioning tnerem tnat ne resides with his Wife, two daughters and son in viiiage Chova. On 9—8-‘26G4 at about 3.30 when he returneti from freki, his wife Saroj informed that his daughter—the prosecutrix is missing whereupon he seareheci for her. Appellant Khiiawan, aged ‘20 veers resiries in front of his house. He has eioped W m1 ner on the maucement or manage and nas gone to Ralpur His daughter 1s minor ine ploseeunu mas orven 1n the custoor ot nei father Samaruram Vine ex. WI . 'tne prosecutnx was sent tor memeat examination to Government Hospitai, Neora where Dr. Suciha ‘Samnei (9W. 11) examineti her and gave renoft of Ex P—ii, The appeiiant was also sent for medicai examination and his MLC report is EX. Pg. Copy of the admission register of the prosecutrix was taken into possession vide seizure memo of EX. P4. Copy of dupheate transfer E b. &U 2085 A {E R f) tu ‘ (‘2?) cf:riif1cat€ was aiss s€i2€d Vida Ex P—léi. After comp1€tj11g investigation, charge sheetwas Ema. L5. During triai, tim pmSecution examinaci 12 wimeSSes 1‘11 all Tha‘eaftsr stataman’t of thE accuseci was 1‘6C0rd€€1 iJi which ha d€ni€d the €vi€i€nce appaaririg against him in the prosecutioll caSa £11161 pieaded mnocencs ani‘i faiS€ impiic’ation. Howwar, thé triai Court after healing th€ (201111361 for mspecn‘ve panies, convicted anti sentencmi the appEfllagt' as mentioned m para 1 of This juc‘tgmant. 4. Léalned counsd for fhe appgilamt submittéd ‘Lhat the. age of th6 “fprosecutrix has not baen provcc‘i bfy‘ the prosmution {hat she was milior. The hiai Court relying upon Seizure memo of ai‘imieeion register of EX, P~4 and transfer certiflcate of EX. P— 14, which has been r .4 proveci e. by ~_-.. ‘Vljay humor -_ h. Uhruva (KW. ._.-.. 1U) .-._ Has .new __ That o {iate e . oiM. myth A of the prosecumix was; l5-3— E589, though the copy of me admission register has not been proveEi anti document of transfer certificate is not a conciusive prove of date of bimh, He further argued that the proseoutrix (RW. 8) accompanied the appeliant to various places of her own freewili and she was a consenting paity. She has contmdicteci her diary statement of EX. D—l on materiai particuiars anti the triai Court ignoring her previous statement has based the conviction on the statement of the proseeutrix which is contrary to the evidence avaiiabie on record. Rehanoe' is piaced in the matter of estate of Karnataha —v— Sui-ash Eahu Fukrai 35mm 1, Jinish Lai Shah —v— State of Eiharg, iehharam Judhauan Loahi -v— skate of M.F.3, and Gurdaniya —v- $tate of my. 5. On the other hand, iearned counsei for the State has supported the impugned judgment and contended that date of birth of the prosecntrix has been duiy proved by the prosecution and according to which, on the date of incident she was less than 16 years \of age. She has categoricaiiy stated that the appeiiant induced her on the promise of marriage and committed rape with her against her Wish and thereby abducted her from lawfui guardianship and committed sexuai intercourse with her on the promise of marriage, p H n i/mir n Inumr W n - 7n -LJ : 2 03(1) CGLJ 13-8 1998(2) MPLJ ~ 3o \ 5 ' 4 1987a) MPWN - 224 é. i have heard ieameci comisel for tha parti6s. I haw paused tha recorfi as 8139 the impugned judgment. ’7‘ Th€ firSt queSTion to b6. c011si€i€r€d is whétha‘ ”£116. p1‘0S6cuii011 hag; been abie to estabiish that the prosecuirix was 165$ tha11 18 years on The dare of incie‘ient 23 8 Kw. 1 Vijay Kumar Dhruva, In—Charge Head Master 0f the schoo} has deposed that the admiesion regieter of the school was produced by him 1'11 the. poiice station Neora alld the same was seized Vide seizure memo of EX P4 and after seizure, “me originai was $ ‘returned to him after obtaining photo copy and in the said register, name offhe prosecutn'x is mentioned ai Sr. No. 741. Her daie of birth 1S menn'ohed as 15—3— 1989 He haS further etated that on 15L8~2604, é duph'cate school Transfer certifrcate of the prosecutrix of EX. P— 14 were issued‘by him. 111 the cross—examination, Lhie Witnees haS stated that father of Ehe prosecurrix had come for her admission and he oraiiy toid her date of birth which was entered ow him iii the admission register. He did not produce any“ birth certifreate/ affidavit or any certificate issued by Kotwar. He had again given copy of transfer certificate to the uncie of the proseculrix Puneetram, The transfer ceirificate was not seized from him and the same was. issued Without producing chalian which is required as per ruies. 94 PW. 2 Samarin‘ani is father of the prosecutiix. He has deposed that the prosecutrix is his 3“i daughter. He got married in the year 1984. First daughter was horii in'the year 1953. A11 the 4 chiidren were born at intervai of one year. His birth year is 1L36'7. He married his eider daughter two years back after she compieted 18 years. in paragraphs '7 and 8, he has admitted that his daughter was born in Tilda and her date of birth is entered in the muiiioipai record however he has not received any certificate from municipaiity and he had sworn airy affidavit at the time of eni‘oihng his daughter, and he has no information as to on What basis he got his daughter admitted in the school and it is incorrect to say that he gave date of biith of his daughter b3 guessing. 1'0. in the matter of dtate (if Karaataiea wv— Sui-ash Bahia f’uie’ai Farrah, age of laiosecutrix, according to prosecution, was 15 years at Q fua tim€ of occumsnce, enny of (iata of birfn was made on th€ basis of the infomlat‘ion given by Tbs parents Wlmreas; railiologis: asseSSed 6 aga betwwn J6 t0 18 years, in these Circumstances, it W33 hem hat age of the prosecutrix was douht’fui, she accompanied the aceuseari to different wwn where she iodged with him, there was 11a specific ahegatiou aboui iniercourse 311d thus offence is not mac‘ie out. it wag aise heki that age. of the proeecu‘m'x was not specificaiiy fixed and when age. iS in dcubt, the queeiion of taking out from guarciiailship is not made out, r 11. in the matter of JiniSh iai ghahi on the baeis of statement of ather, age of the proeecutn'x was assessed as 19 years 011 the (iate of incident ‘and in these circumstances, it has been heki that the rosecution has to prove tha’i the girl Was minor and under Section 66, I.F.C.,xthe prosecutimi is requirec‘i to prove that the giri was compeiieti to marry the accused against her wih ane‘i/ or was forced to or induced to intercourse against her wi‘ii, .. in the matter of Lekhrami it has "been heid that entries in the schooi admission register are not conciusive evidence of (iate of hirih, 1'3. in the matter of {Euraaniya4 also, considering that the prosecutrix 1esided with accuseei for a considerahie time and in this ime, the prosecutn'x not complaining anything against the accused o anybody, it has been he‘t‘i that no offence is made out under Sections 363, 366 anti 3'76 ofLPC. i4. In the light of the above jutigments, if we examine the facts of e present case, we note that RW. 10 Viiay Kumar Dhruva has proved the document of seizure memo of Ex P-i} by which the admission register was seized. Neither the original admission register was prorlnceei during trial nor photo copy has been proved on the basis of original register. Though this Witness has stated that in the said register, the Clate of birth is enterecl as 153-1989‘ at Sr. No. 741. Copy of the duplicate transfer certificate is also'prepared on the basis of entity in the school admission register of EX. P—l4 which has not een proved during trial. 9W. 2 Samaruram has not mentioned the e of birth of the prosecutiix. in para 3, he has stated that he was married in the year 1984 and his elder daughter was born in the year Th t I g 3 1x t t th b dat .(55 1§85 and the prosacutrix is his sf‘i daughtsr and they were barn in Um mtalvai of 0116 year. if the above statement is considered, in that caee, the date. of birth of the proeecutrix ComeS to year 1987. He has iurmer stated that he. maITieé his elder daughter two veari; back after she compieied 18 years anti she is biesseci bv a Chiid. Thus in the year 2092, his daughter wae 18 years 01d as this witness is examiiied 2‘21“ December, 2004, In that case, the date of birth of his elder aaughter comes to sometime in the Veai‘ 1984 and in that case, the possmmty o: the prosecutrix’rs date. of birth in the year 1986 cannot be ruied out. in View of the statement of her father Samaniram. From the evmence avatiabie on recorti, it is ciear that the prosecutioa has not been ahie to specificall‘y‘ fix the age of the “prosecutrix anti before reeoittmg conviction under Section 363 of LP‘C. it is the dutv of the. pi‘oisecution fo estahiish that the prosecutrix was of more than 18 t years anti inimng ot the Triai Court in this regarti that she was less then 18 years on the date of incident is not based on proper appreeiation oi evmenee. 1:). the prosecutrix (PW. 8) has deposed that she had gone to attend the caji of nature where the. appellant and his father threatened her and asked her to accompany the accused or else she would be beaten and thereafter she was taken to Neora RajlwaV Station and from there they reached Sarona Where. the appeiiant went to her Dani’s piace. She was not permitted to go out of her house, even her grand-mother threatened her. She resided there for 4 d rs and in this period he committed forcible. sexuai intercourse on S occasmns though she was not wiih‘ng. From there they went to Knanrtarai in his uncie’s house Where his uncie advised her to marrv which was refused by hei: She was rescued hv poiice. Her totai statement beiore the Court is improvement from her diary statement oi EQX. D-i in which she has admitted that she had stated before the pence that on Lil—82004, when she was in her home, her neighbour Fremhai caiied her out of her home and infonned that Khiiawan is proceeding Kaipur wheieupon She went from her house on the pretext of going to her Aunty‘s piace and thereafter went with Khnawan to Raiiway Station, Tiida and from Tiida, she went to Sarona and stayed in the house of his uncle Rikhiram where both of them slept in one room where Khiiawan had sex with her. Thus from \\-\ UV O‘x 3H 11m" may statsmallt, it is manifSStly dear that shé accompankii i11€ appmlant of 1161‘ own frg€wii1 to various piaces. l6. Dr. Shudha 333111161 (PW. '7'} who has Examin€d rim nrosmutm‘x new: Statea that on €Xaminaiion of the pmSecuiriX She {mi not notica any 111111137 over hat pasom U11 intenlaj examination a130, har inwrnai paris were. haalthy alld them was no Sign of iniurv ovar 1mm. Har hymen was 0161 rupturac‘l which aiimittad two Iing’srs €asi‘lv a11€1 she was habitual to ssxuai intercourse. It has been airoac‘iv hem that tho prosecution has ‘fajiod to prom: th-S age of the prosscun‘ix boyonri 31} reasonabio doubi that she was agod bolow 18 V’ears at tho {11316 ‘oi melaoht. W'hoE the age is in douh‘i thou tho quasubn of taKmq hor away irom lawm} guardianship cioes 110i arise. Takihg or omiCiilg agx‘ay a mm‘or out 01 the Koopmg 01 The {awfu‘l guardian is an essen‘iial u mgrecuent of me offonce. of kidnapping In tho instant caso, it i3 clear l Irom the diary siatement of the prosecutnx mat she was herself eager ' aim Waihng to accompany the accused and accompanied him to her own treewiu, aid not compiain to anyone during her stav with accused in various places and therefore, we are of the. considered opnnon that the triai Court was not justified in convicting the appellant under Hections 363, 366 and 3'76 of LPG. and sentencing him to undergo Ri. for '7 years with fine of Rs. 1000f — on each count, ii. 1n the result, the appeal succeeds. The impugned judgment of the trial Court convicting and sentencing the appellant as mentioned hereinahove is set aside and the appellant is acquitted or” all the charges. He he set at liberty forthwith if not required in anv other unSC . s Sd/- DI-miEN'DRA NHSI'mA Judge