HIGH COURT OF CHEATTISGARH BILASPUR SINGLE BENCH: ' HON’BLE SHRI R. L. JHANWAR, J. Criminal Appeal No. 554/ 1992 ; APPELLANT Sonsai RESPONDENT State of Madhya Pradesh (Now Chhattisgarh) JUDGMENT POST ON 23 JULY, 2009 JUDGE‘ ° 15x /7/ 2009 .a HIGH COURT OF CHHATTISGARH SINGLE BENCH:N HON’BLE SHRI RAJESHWAR LAL JI‘IANWAR J. G Criminai Appeal No.554l 1992 Aggellant Sonsai, S/o Gurhadhar Gondrha, aged about 3O yaars, residence of Rimji Thana, Samipali, District, Raipur (MP) (Now Chhattisgarh) Versus Resgondent State of M.P. ( Now Chhattisgarh) gEPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE Presentu Shri RaP. Tripathi, counsel for the appeliarit. Shri U.K.S. Chandel, Panel Lawyef for the State. J U D G M E N T (Delivered on Z947] 2009) 1. This criminal appeal is dilected against the judgment of conviction and order of sentence dated 2nd May 1992 passed by Additional Sessions Judge, Raigarh in S.T. No.154/91, whereby the learned II Additional Sessions Judge, has convicted the appellant for commission of o§ence punishable under Sections 366 6n 506- B of the IPC and sentenced him to undergo R.I. for 6 yeals and to pay nne of Rsl200/ -, in default of payment of nne to undergo additional R.'I. for 1 month under Section 366 of the IPC and R.I. for 1 year Secu’on 506— B of the IPC. ’ ' ° 2. The prosecution steiy, in brief, is that the prosecutrix was living with her parents in the village Banvaspali. On 5.4.1991 she appeared in nnal examination of class 8th at high school Jhal. After examination she went to a well situated at school campus to drink water. The appellant who was standing there came and poured something on her v1 “head. Prosecutrix felt unconsciousness. She tried to raise alarm. The appellant threatened her life and. took her forcefully towards Village Kondopali on his bicycle. On way, Anand Gala (who is absconder) met them and all of them went to the house of Anand Gara. As the prosecutrix did not come back to her home, her father lodge report at police station— Baramkela, which is EX.P‘6. @ 3. Investigation took place. Statsments under Section 161E of Cr.P.C. were mcordcd, seizuye was made, prosecutrix refused for‘her medical examination. After due investigau'on, charge sheet was filed before the Jndicial Magistiate Fiist Class Sarangarh for the otfence puniehable under Sections 366 8r. 506-B of the IPC against Anand Gara and appellant. In due course, the case was committed to the Sessions court of Raigarh, Where the learned Sessions Judge made over the case to the learned II Additional Sessions Judge, Raigarh. Accused An&1'd Gaia remained absconding, therefore, only appellant has been tried. The learned II Additional Sessions Judge, Raigarh named charge under Sections366 & 506 B of the IPC and read over and ekplajned to the “appellant, who abjured the guilt and pleaded that he has been falsely implicated in the case. 4. The learned II Additional Sessions Judge after evaluating the evidence available on record and hearing the counsel for respective parties convicted and sentenced the appellant, as above. 5. I have heard learned counsel for both the parties at length and perused the record of the uial Court. 6. So for the prosecutrix’s age is concerned, except one document which has not been proved and marked (EXP-2) available on record. Neither ossincation test was conducted nor any,other evidence to support the age of the prosecutrix has been collected. Even the trial Court accepting the age of the prosecutiix below 18 year's has grossly erred in recording such nnding. According to prosecutrix, only role played by the appellant‘is that he poured something on her head and on the point of knife he took her on his bicycle towards Kondapali. Witness NLP Nayak (P.W.2) and Shanti Chouhan (P.W.6) have witnessed the incident, but: they have deposed contrary to the statement of the I prosecutrix. From the evidence M.P. Nayak (P.W.2) and Shanti Chouhan (P.W.6) it is clear that prosecutrix herself accompaniedthe appellant and even when Shanti Chouhan called her she did not reply. Neither prosecutrix was subjected to illicit intercourse by any one nor any attempt to marry her has been made. Therefore, in absence of proof of her age to be below 18 years and in absence of appellant intention, it cannot be proved that the appeH£nt abducted the prosecutrix with intent that she may be compelled or knowing it to be hkely that she W111 be compelled to marry any person agamst aEy w111 or 1n order that she may be forced to 1111c1t mtercouxse, or knowmg 1t to be hkely that she W111 be forced or seduced to 1111C1t intercoulse. 7. For the foregoing reasons, I am of the opinion that the learned lower Co‘ult has erred in believing the evidence of the pmsecutrix and g thereby convicting the appellant under Sections 366 & 506-B of the Ipc. "\ 8. In the Iesult, the appeal succeeds. Conviction for oh‘ence under Sections 366 85 506-B of the IPC recorded by the nial Court and sentence passed by the trial Court for committing the said oEence are -3 set aside The appellant 1s acquitted of the charge under Sections 366 65 506 B ofthe 1pc” “ " " Sap p R.L. Jhawar Judge kcf ~ . //