XI-HC-S2 3?n^T^T f<y<i<=b 37T^T 5b^Icft ^[^a 'S^l ^WM^, ^Tll^^Ko, fa^l^y 3n^[?T 'q^? ^.A-^o. ^\}/6i\ ^ 200 ^l^cftl 9b^ich "I^^ST' ^TT^T '^TT^R <lf^a SB: HON'BLE SHKI DHlKENDRAl APPELLANT Vs. RBSPONDENT'S 16.08.2007 Shri N.L, Vishwakarma, Shri Neera] Mehta, Govt, Ijautam Rawate, son of Ram Siiigh, ^ged abou+ 25 years, Resident of (|jrani Nawagaon, PoUce Station- ^ntagarh, Distt. Kanker (C. G.) $tate of Chhattisgarh, fhrough PoUce $tation Antagarh, Distt Kanker (C.G,) 4d.vocate for the appellaut. Mvocate for tlie State. 2. This crimio.al appeal is couviction aiid order of sentend^ Additional Sessions Judge, F|,T whereby tlie appellaiit has bee|a aad 376 ofl.P,C, aiid sentencdd aa.d 7 vears wifh. fiiie of Rs. 20| wifh usual default ciauses. vears 3, AUegation against tlie young prosecutrix aged 15 yea^ thereafter subjected her to se^ The iiicident 1s of 23rd April, ^ prosecution case, at 10.00 A^ the prosecutrix aad asked her| <=M^f<n<flri ^i+KnT'^'fe^ ^^K ^3Tl^FT3TT^r IMISHRA. J. dtrected agaiast fhe judgment of dated 29-11-2003 passed by the 4th :.C., Kaaker m S.T. No.352/2003 convicted under Sections 363, 366 to undergo RJ. for 3 years, 5 years p/-, 300/- aiid Rs. 500/- respectively ^pellaiit is that he eloped witli the on the pretext of marryiag her and ^^hial uitercourse without her consent. ^003 at about 10.00 A.M. As per the 1/1. on 23-4-2003, the appeUant called |to accompaiiy him upto viUage Madle XI-HC-22 ^TT^T^T r<v\\^ ^^ 5t)^IGb <ifia 's^ ^ll^lld^, ^ni^^Ko, fa<ni<M^< y^ ^S^K :.^....^^.o:±^...(/d'<1 "FF1, 200 WWTT 5h<4ich 'I^ST' ^?T ^TT^R'Hf^T where tliey would maiTy. The pj her mofher shall repruuaad her.| lier of her life, as a result ofwf aiid went with hiin to the hous< aiid there he comraitted sexil continuouslv for 3 davs. They s tliereafter on 1-5-2003, tliey ^ Saugram SHigh axid resided the also, he coimiiitted sexual io.te] 2003, report was lodged ia the 31/2003 for otTence Sections 3^ investigation, fhe prosecutrix ^ her M.L.C. report is Ex. P-2 pr< (P.W. 1). Undenvear of the pros me prosecutnx was prepareq uivestigation, charge sheet v^ Magistrate First Class, B] comBiitted fhe case to the Se| leanied Additional Sessioiis Jij trial. 4, The trial Court fraBied Section 363, 366, 506, 376 andj aiid sentenced the appellaiit as| cni^f<n<flrl iTR^ff ^ l^st <P»1^K ^T 37f^FT 377^1 1-osecutrix refused on the ground that Whereupon the appellaiit Uireatened |iieh, she acconipanied the appeUaut ofhis brother-ui-law at viilage Madle jal uitercourse wifh fhe prosecutrix jtayed at viilage Madle for 5 days aad ^nt to vmage Korar ia the house of |rc upto I0m May, 2003 aad at Koi-ar ^ourse for 4 davs aad only on 11-5-- jPolice Station Antagarh ui Cnme No. }3, 366, 506 aad 376 ofl.P.C. Dumig ^as sent for medical examination aad ^ve4 by Dr. Smt, Vidhi Tenibhuraikar ^ecutrix was seized, Slide ofvagtiia of and seized. After completuig the \as filed ia tlie Court of Judicial i.anupratappur who subsequently >sions ducige, Jagcialpur irom wliere dge received Uie case oil traiisfer for Aarges agaiiist fhe appellaiit under 342 of i, P. C. aad after trial convicted mentioued above, [\,^ ^^ ^T XI-HC-22 3^1'^T f<Tlich 3T[^T ^^\<^ ^Ra T^ v^ll<41d<ll, ^Til<i<i<o, facni^y ani^r -q^r^ C^.^^6- ^H ^ 200 HW^\{ 5b^(Ch •l^^sr' ^TT^T'^TT^R ^rf^T docubientarv a4duced. assessilaent 5. Leamed counsel for me has held that tlie prosecutrix tbiie of iacident wliich is nol available on record as no the prosecutrix has been ossi&cation test for fhe of photocopy ofTendu Patta which was seized vide Ex. P-8| years, fhe trial Coiirt has hel4 less tliaii 16 vears at me tiBiel tiiat from fhe evidence availabJ tlie prosecutrix accompaiiied she traveled wim Uie suggesting of fhe fact that she| absence of aay deflaite proof| avmiable on record. tiiat Uie pi|< Court below ought fo have cliarges. appe^aat 7. 1 have heard leamed coubsel docunientarv aiid oial evideitce impugned judginent. CM^lf<n<fl1r1 'HTR^f ^ feTst <psi^l< ^^rf^THW^T ^ppellaiit submits Uiat tlie trial Court |was less tlian 16 years of'age at the >t based on aay adisiissfble evidence ocu|Gaentary evidence regarding flie age of She was also not sent for of her age an.d only on the basis Cf-ollection and payment of wages card in wliich her age is shown to be 15 Uiat tlie age of fhe prosecutrix was of incident, it was further contended ^jle on recorci, it woulci De evicient Uiat tlhe accused on her own free wiU and froni place to place which is was a consenting party, Uieretore, ui of age aiid lookiag to fhe evideuce (osecutrix was a consenting party, tlie acq|uitted the accused-appeUaiit of all tlie 6. On the ofher hand, leam|ed counsel for Uie state has supported Uie tuipugned judgnient. 1 for the parties. i have perused the available on record as also the XI-HC-22 'S^ v^ll^lld<4, ^Tl1^<i<o, [®l<ni<iy ^ 'STT^T'^T f^ri^-sn^T 5ti^ict) ^if^a *11*iC11 9bHI<=h 3TT^?T 'q^? ^..^..A.:fcf.:..^..'..^ I^^T' ^TT^T $«11^1< <if^a \ 8. The first question to be c{ was able to estabUsh that the a^ years at the time of iticident. T4 the trial Court has reUed upon 9) who has stated that she was| Sukaro Bai (P.W. 8) mofher of| her daughter was 12 years old prosecutrix was 15-16 years arj CM^f<n4Ti 'w^rf ^ 'fe^t <F3i^i< '^'^Tf^W^^^T ^nsidered is whether the prosecution [e ofthe prosecutrix was less tliaii 16 estabUsh me age of the proseciitnx, the statement offlie prosecutnx (P.W. 13 years old at the time of iiicident, |fh.e prosecutnx who has stated fhat ^.t fhe time of uicident, Honlal (P.W. 4), Patel of me village who ha^ stated the approximate age of the d fm.ally on tlie document of Ex. P-8 in which the age ofthe prosecutrix is nientioned as 15 years aiid has reached to tlie conclusion tih.at tlie prosecutrix was less tliaB. 16 years of age at me tiaie of uicident |P.W. 8 Siikaro Bai ia. para 2 of her statenient has stated fhat flie a| however she could not rememl exaiaiaation also, she has stat^ ;e ofme prosecutrix iRay be 12 years, ber her date of birth, In tlie cross- d tliat she does not know fhe age of her daughter whereas tlie pro|secutrix (P.W. 9) ui para 12 of her statenient. has stated that she she has not studied, however l|ier age is approximately 13 years, in para 19, she has denied tlie si^ has stated that she is statiiig P.W. 4 Horilal in para 8 of his| Uie prosecutrix may be 15-| evidence ofthese witiiesses, it i^ ^.oes not reniember her date of birth, Iggestion Uiat she is 20 years old and her age 13 years on approxiuiation. statement has stated that the age of 16 years approxiinately. From. the » evident that fhey have stated the age of the prosecutrix only on gi]|essuig aad tliere is 110 scientific or :"<. XI-HC-22 3^T^T 'f^rf^an^T 5^^icb ^f^a ^"^ ^ll^Krt^, ^Tl1<i4t<o, fa^l^y ^ll+IC^iT 5b<4|cb 3ffi^ ^^K .ar.-.^.^:^l ($) ^ 200 fN^sr' ^TT^T'^TT^IT'^T <T docunientarv evidence ia this P-8 is concenied, it is not a d< tlie age of a persou and Uiere age of fhe prosecutrix was en the sanie cannot be held to be was 15 years old at fhe time aciciuceci by tlie prosecuUon different age ofthe prosecutrix prosecutrix was not subjected age for Uie reason best knows circiinistances, the finduig of been able to estabUsh tliat the is erroneous aad fhe saiae cai: opiaion of tiiis Court, tliere is regardiiig tlie age of the prosq shewas less fhaa 18/16 years| 9. Now coiniag to Uie sec| was abducted by the appeUaj uitercoiirse witlioiit her conselnt ofthe proseciitrix (P.W. 9) poi]\ tlie accused aiid fhe proseciiti|E accoDipaaied tlie appeUant of | wiUi lier consent ancl smlt CM^f<n<flti 'WT^f ^ fi^ <psl^l< ^ 3?Tf^TH 3T[^r ^egard. So far as the document of Ex. lcuraent for the puriDoses ofassessuig ILS no evidence Uiat ou what basis tlie ?red ia the dociiinent of Ex. P-8 aad ^. conclusive proof fhat fhe prosecutrix of incident. Thus froisi Uie evidence Ivailable on record, it is evident Uiat |has been stated by fhe witnesses, The to radiological test for assessiag her to the iiivestigatmg agency. in these ^ie trial Court that fhe prosecution has prosecutdx was less th.au 16 vears old Inot be sustamed ao.d accordiiig to the io positive evidence avaUable on record mtrix by which it caa be iaferred that oid at tlie time of iacident. >nd question whether the prosecutdx it aad fhereafter siibjecfed to sexual it FTOBI fhe perusal of tlie statement icularly paragraph 20, it is foiuid that were ta love wifh each other aiid she ier own free wiU. aad had sex with him 3ly because tiie accused aad fhe XI-HC-22 'T^T ^ii^id<4» ^Til^Ko, fa<ni^<i< srrt^r 'q?ra? c,-^vo' ^^\ ^ 200 ^iw^r^KT^ 'I^^T' ^n^r^T f<Tii<=h ^^ '^'Rw^rfin ^.". T:-...i'" •&.t- p/ ^ ^TT^F'^TTSJT ^Tft?T s prosecutrix are of different cast aiid, therefore, she was prohibit^d Biarring the accused. 10, m tlie result, appeal judgment of conviction and under Sections 363, 366 aad ; is acquitted of all fhe charges. anv otb.er case. prefe^red by Uie appeUaat is allowed. The se^iteuce of fhe appellant for otfence 37^ of I.P.C. is set aside. The appellaiit 9e be set at Uberty, if not required m CM^F<n<flti 'w^ff "^ fecst ^^K '^3Tf^H37T^T ;s, their marriage was not possfDle trom goiiig with the accused aad Sd/- Dhirendra Mishra Judge [Tft^ ^R^^