:T"r ;:!n3n^,^ft?pra', fsiriiy^ sn^i ^an.Bi^iaife ^TOW '**1Jcb W^?T •qsw (4?ifl«t<iiT) '^iRR'gitctsn^i *llfd4-tWraf Tf.fe^ xte5R ^'aifiwan^i APPELLANT (In Jail) RESPONDENT Vs Puru^hottam Mahanand, aged about 22 year^, S/o Shri Sudu Mahanand R/o Blepw Railtj/ay Line Saraswati Nagar, PS Amanaka RAlfUR, CHHATTCS6ARH The $tate of Chhattisgarh Present; Mr. Sachin Singh Rajput, Advoejate for the appellant. Mr. Arun Sao, 6ovt. Adv. for tl^e respondent-State. O RA L (13Tn S^ the judgment of conviction J U b GM E NT ptember, 2007) Per Dhirendra Mishra, J; This appeal under Secti()n374 (2) of Cr.P.C. is directed against and order of sentence dated 27th December, 2001 passed in Se^sions Trial No.405/01whereby learned 2 Additional Sessions Judg|e, Raipur has convicted the appellant under Sections 363,366 <& 3|76 of the IPC and sentenced him to undergo R.I. for 3 years and 1|o pay a fine of Rs.1,000/-, in default of payment of fine to further un ilergo R.I. for 6 months; R.I. for 5 years and to pay a fineof Rs.l,OC)0/-, in default of payment of fine to further undergo R.I. for 6 mofiths <& R.I. for 10 years and to pay a fine of Rs.2,000/-, in default of [jayment of fine to further undergo RJ. r'i| ffill XI-HC-22 . 3II^I'3iT •^t^Sllt^ *t|i«tiUlffl ^ -^ai •^lFIRH, ^•fl'^'i^ f6"'"'"!?- aii^yr 'v^^ MIUdl fbKI^ sK^i^'^gtwofef "5FI, 200 ^t^Q' *w[<'i<il-i iiwvif^fe'^ ^^ •^SlPWOT^I 'lr for 1 year respectively. All t^esentences hqve been directed to run concurrently. The case of the proseclution, in brief, is that on 15.8.2001 at abbut 8.00 p.m. the prosecutr(x had gone to dp the domestic work to the house of one Smt.Sangeelja Tikariya (PW-2) and uvhen she did not return fo the house till 7|00 p.m., Ramhebdi, mother of the prosecutrix, gave missing rejfort in the Police Station Amanaka. However, the prosecutr'ix retu^ned at about 10 p.m. in the night and on enquiry by Ramhebai, the pt'osecutrix narrated the incident that the appellant enticed her, t^ok her to his bnother's house and committed rape with her. Ther^upon, a reportwas lodged on 19.8.2001 at about 2.00 p.m. vide Ex.P-3 cjnd on the basis of above report crime was registered under- Sections ^63, 366 <& 376 of the IPC and FIR of Ex.P-6 was recprded on the san|ie day. The prosecutrix wassent for medical examindtion where Dr. preeti Agaruval (PW-10) examined her and gave her report of Ex.P-114. Subsequently, the prosecutrix was again examined by Dr. Nidhi Gu^ta (PW-11) and her report is Ex.P-12. The prosecutrix was sent for|ossification test to the Radiology Department of Medical Colleg^, Raipur and the report of the Radiologistis Ex.P-1. 1 i l ^^:^l;ii^--_^^^i A^^^^iSiSi.^l XI-HC-22 31T^?I?iI 'f?:IW3llt?I WRW ~SSl •^IWM'M, ^Tilti'1'i. («<WW1<- 3Tlt?T IR^? ll*<CTl «)*<i<:n""" "" ^It. 200 fe^a"""""" After completion of the] the Court of judicial Magis|1 committal the same was receivt Addrtiondl Sessions Judge. Dui witnesses, thereafter the sta1)i Section 313 of Cr.P.C. in whicll that he has been falsely implii Sessions :Judge after hearing convictedand sentenced theap) Learned counsel for the the statement of the prosec| accompanjed the accused to hi: distance of 4-5 kilometers butl even did not try to run away, aj bicycle, which is suggestive of party. As per the case of returned to her home on the fi report wqs lodged only on 19.8 the delay inlodging this report, appellant that report was lodc submitted that in medico-legal •*wlci41-i *<i4i'i('? fe'zt <pii«$i< ^T3lf:OT 311^1 investigation, chargesheet was filed in hrate First Class, Raipur and after id on transfer for trial by learned 2nd ing trial, the prosecytion examined 12 sment of accused was recorded under he denied the allegations and stated idted in the crime. Learned Additional |earned counsel for respective parties )ellant as mentioned herein above. ippellant submits that from perusal of jtrix (PW-3) it ,is evident that she brother's residence on a bicycle to a |she did not raise;alarm on the way or she was sitting in the carrier of the |the fact thatshe was the consenting jhe prpsecution, the prosecutrix had ^llowing day at 10.0 p.m., however, the |2001 and there is no explanation for whichestablishes the defence of the fed after duedeliberation.It is also ^eport of the prosecutrix no injury was f-rha t-t3- :t .Tt vt E 1s, t XI-HC-22 sn^r^i fc-li'* sdtRl ^H •af^t •SV^SFWvW, •SV\-»'iS,[^WW^ snt?r inra? mnCTi a>*ii<»> "WI. 200 f^?^T aii^i TOiim^ifet -1'i *l<lfa-fl-l WRlf '9 ^S fi\^K i?gpOT aii^i fowwl on^the person of the pro^ecutrix and the doctors havenot given any definite opinion about th^ commission of offence. However, the prosecutrix was habitual to sexual jtrix accompanied the accused on her |his bicycle,the ingredients of Sectiori doctor has stated that the] intercourse. Since the prpsed own free will on thecarrier of altegatibn df rape but looking 363 are^not made out. He fjjrther submits that fhou9h there is o the conduct of the prosecutrix and report pf the doctors the| • uncorroborated testimony of the prosecutrix cannot be acted up|)n. Lastly, it was argued that the trial court has sentenced the appe|lant under Section 376 (f) though it appears that the conviction i^ in fact under Section 376 (2) (f), however, there is no evidence cjvailable on record that the age of the prosecutrix was below 12 years|at the time bf inddent and therefore, conviction of the appellant u^der Section 376 (2) (f) cannot be sustained. I On the other hand, learne|d ©overnmentAdvocate for the State Supported the impugned jud^ment and submits that from the statement of S.B. Netam (PW-1(, Assistant Professor, bepartment of Radiology, Medical Colle9e,Raip(ir, who have assessed the age of the prosecutrix betwe&n 9-14 years| it is established that the prosecutrix was less than 18/16 years of ag^ at the time of incident. The doctor •t 1 ITC^I t XI-HC-22 31I^[^I h-\W 3BRRT wRwgi?^ ^ai •sWvFt, •S^OTS. fawwP 3ir^?T xpra? WtlWI Sh*ll<»> "WI. 200 l^qg' gn^i ?^nw 'dfef —^! has categoricdlly stated that the age of the prosecutrix wh <*l<ll<-l<il-l l<W<-il''?'fe<3t <fa«SK '^sipgtan^ ()o margin was possible with respect to (ch he has assessed to 9-14 years. He further submits that the pro^ecutrix has cdte9orically stated that she was enticed and compelled|3y the accused to accompany him to his brother's hQuse, thereafter ^he was kept in confinement for the whote night and was reteased o ily on the following dayat about 10.00 p.rn. and thiis the dccused' kidrjapped the minor prosecutrix from the lawful guardiariship with a pur^ose to commit illicit intercourse with her and thereafter he raped |her against her wishes. However, he fairly coricedes that looking tojthe report of Radiologist the age of the prosecutrix was between|9-14 years, therefore, the appellant ought to have been convicted urjder Section 376(1) of the IPC in place of Section 376 (2)(f) of the IP(}. I have heard learned co^nsel for the parties. I have perused the evidence available on reGord|gs also the impugned judgment. The trial court has basetl the conviction on the Statement of the prosecufrix. Even if the a|"guments of learned counsel for the appellant js accepted and fromjthe conductof prosecutrix it may be held that she was the consentin^ party in that case also looking to the age of the prosecutrix, which h4s been assessed at 9-14 years by the Radiologist, theconsent is of nc^ consequence, as the prosecutrix was V- "^^^-'^^x,-^- |a^B|j^^i^6^ XI-HC-22 SII^T^iI h-w'h snjsi sb^ich •^fstt -S^ -^WM^. ^WW. hv\wy. 3TI^?T tra^R lltCTl <nil<»)""""""'"""""""""""" •H^, 200 (cj+it<8T"""""""""""""""""" sii^i^^Rfiwafet —t,- below 18 years;of: age and ever) incident. Statement of the prk statement of PW-4 Ramhebai aA ' So far as the argument^ regarding unexplained delay ii|i evidence is available on reeord thecomplainant in the followj prosecutrix returned home an< report is immaterial. As far as the argunientsj that as per medical report no prosecutrix is concerned, th9 prosecutrix was a minor aged conviction of the appellant a absence of injury over her persc Therefore, in the con; conviction^ of the appellant unde] with law and the same does not into consideration the age, a| document of Ex.P-1 that her aq< of incident, the ends of justice 'iiiifi'f'iii'i 'wiHf ^ fe^t <r"it<;i< '^aipgiTan^T below 16 years of age at the time of isecutrix is duly corroborated by the also PW-7 Jamuha Bai. of learned coun^el for the appellant lodging the FIR is concerned, the that the missing report was lodged by |ng morning and only thereafter the therefore, the delay inlodging the of learned counsel for the appellant [ijury was found on the person of the Court has already held that the between 9-14 years, therefore, the jnnot be quashed on the ground of in. jidered opinion of this 'Court, the Sections 363 & 366 is in accordance ^all for interference. However, taking i^ assessed by the Radiologist vide ^was between 9-14 years at the time would be served if the conviction of I t XI-HC-22 311^1 WI W\* Sf^S w*^ ^%^t Tg •^lltlM^, »1ll'M*l®.PK'lWy 3TI^?T XRT?R *<I*<CTI ?h*li<t> " " " *<'1» 20ff •^^yf•----•------••• the appellant under Section Section 376 (1) of the IPC ancf years in plgceof R.I. for 10 yecji In the result, the appea| the conviction & sentence of t| of IPC, his Gonviction under S( set aside and instead thereof and sentenced to undergo R.] Rs.2,000/-, in default of paymc 3 months. *l'i|id4l-t 111'Rtf'? fS^t TfsRSIT ^SlfiOTSlI^I ?76 (2)(f) of the IPC is altered to he is sentenced to undergo R.I. for 7 •-S. . - . • ^ partly succeeds and while maintaining le appellant under Sections 363 & 366 ction 376 (2) (f) of The IPC is hereby he is convicted under Section 376 (1) for 7 years and to pay a fine of W of fine to further undergo R.I. for i: fe :p¥• (^ ^