HIGH COURT OF CHHAmSGARH, BILASPUR HON'BLE 8HRI DILIP RAOSAHEB DB8HMUKH Ss HOyBLE SHRI RAJESHWA.RLALJHAMWA.R.JJ. State of Madb.va Pradesh Ramadhar, S/o Makhaii, aged 20 years, R/o Kufbrail, P.S.-Batrail, Distt-Durg, Tahsil & Distnct -Dug (M.P.) n-esenc Shri Pravm. Das, Dy. Govt. Advocate for the State/AppeIlant Shri Jitendra Gupta, counsel for tUe respondent. JUDGM ENT (Delivered on 13.04.2009) The foQpwiag judgmeat of the Court was deHvered by Raosalieb Des&taykh, J. 1. The State has preferred fhis appeal agauist tlie judgiaent dated 4.2.1989 delivered by the II Additional Judge to Sessions Judge, Durg in Sessions Case No.39/88, whereby respondent Ramadhar was acquitted ofthe charges uiiderSections 363 aad376 offhe IPC. 2. Briefly stated, proseeution case is that on 11.1.1988, fhe prosecutrix, a girl aged below 16 years along with one Kheiuia Bai had gone to tfie local luarket, but did not retiini. Upon beiag iafomied by Khemin Bai, Ashok Kuiaar (P.W.4), brother of the • prosecutrix went to .Bhflai andsaw the prosecutrix wifh the respondent in a house. FIR was lodged on 23.1.1988 byAshok Kuiaar (P.W.4) at Police Station- Ranclurai. The pi-osecutrix was examiaed by Dr. Jyoti Glirubaksani (P.W.2), who did not fiiid aoy injuiy oa her person pr privafe parts and opined that she was . habitual to sexual intercourse. Dr. A. K. Bhosle fP,W,-3), on examination, bpiaed that fhe resuonde.nt was capable ofperfomiinsE sexual-intercourse. After coinpletion of uivestiRation. yespondeiit— f""" .- YOGENDRA SINGH KANWAR Digitally signed by YOGENDRA SINGH KANWAR Date: 2025.02.21 12:09:25 +0530 -2- ^ ^. was prosecuted under Sections 363 aad 376 of the IPC. The respondent abjured the guilt. The prosecution examiaed 8 witaesses. No evidence was led by the defence. 3. Learaed II Additional Judge to fhe Sessions Judge, Diirgon appreciation of evidence recorded a fiadmg that the prosecution had failed to establish fhat fhe prosecutnx was less fhan 16 years of age on fhe date ofoccurieace..In paragraph -11, learaed Additional Sessions Judge recorded a findiag fhat the possibiUty thatsexual intercourse, if aay, committed by the respondent with the prosecutrix was with her consent could not be ruled-out. On these preinises, learaed Additional Judge acquitted fhe respondeut of the chai^e underSections 363 aad 376 ofthe IPC. 4. Sbri Pravin Das, leamed Dy. Govt. Advocate argued fhat learaed Additional Sessions Judge ought to have reUed upon the evidence givea by ttie prosecutrix after she was declared hostile and leading questions were put to her by the prosecution. So far as detenniaation of fhe age of the prosecutrix is concemed, it was subinitted that the evidence ofossi&Gation test of fhe prosecutrix was not led by the prosecution. The oiily evidence avaflable was the testunony of Dr. Jyoti Gurubaksaui [P.W.2), accordiag to whoin age ofthe prosecutrix was between 15 to 17 years. On these premises, it was argued fhat the acquittal of the respondent by learaed Additional Sessions Judge was contrary to law. 5. On the ofher haad, leamed counsel for fhe respondent argued ia. support of the judgment and further submitted fhat diiruig the ^ pendency of fhis a.ppeal, fhe prosecutnx and fhe respoDdent have sot married aad Uviug together as husbaad aad wife. 6. Havia^ -6ousideruig the rival subnussioa, we have perused the record. The testimony oF-Or. Jyoti Gurubaksaui (P.W.2) shows that fhe age of the prosecutrfa; was within 15-17 years. It is not ia dispute that prosecution did not lead fhe evidence of the ossificatioa test of the prosecutrix, accordiag to which, the age of the prosecutrix was opiaed to be 16 years. la view of the testimony of . Dr. Jypti. &urubaksatu (P.W.2) aad the possibility ofvariance ia the Qpiaion of age in fhe ossification test report, it could not be ruled- •"^S^SSfSsSsV^..:"^^. -3- Sjlihal out that on fhe date of ofiFence, ftie prosecutrix was aged niore thaa. 16 years. 7. Leanied Additional Sessions Judge had the opportiuuty to see fhe deiueaaor of fhe prosecutrix, who did not support the prosecution case in her examination in cfaief, but aaswered every leading question put to her by the prosecution after seeteing permission of fhe Cdurt, ia fhe afEnuative. Leamed. Additional Sessions Judge considered fhe above fact as also the testunony of tlie prosecutrix aod came to fhe conclusion fhat fhe possibUity that sexual iatercourse, if aay, coiiLmitted with the prosecutnx by ttie respoudent was with her consent could not be niled out. The testunony ofDr. Jyoti Gurubaksani (P.W.-2) fhat no exteraal iujury or injury on the private part was found on fhe prosecutrix aad that the prosecutrix was habitual of sexual interGourse also leuds support to fhe iaference drawn by fhe leamed Additional Sessions. 8. Having thus considered fhe evidence available on record, with utmost circuinspection, we are of the considered opiruon that acquittalofrespondent ofthe charge uiider Sections 363 aad 376 of the iPC is well nierited aad does not call for auy uiterference. 9, The appeal beiug devoid of aay inerit deserves to be disiaissed and is accoidnigly disinissed. Sd<- Dilip Raosaheb Deshmukh Judge Sd/- R.L. Jhaawar Judge 's^.