IN THE HIGH COURT OF JUDICATURE OF CHMTTISGARH AT BILASPUR 3in§§ie gamh CRIMINAL APPEAL No. : 8 2.8 /2004 Shailendra Kumar , Aged about 21 years, S/o. r Shivram Nai, R/O—vi 1 lage* Chhachhanpahari P. S. * Ambagarh Chowki Distt. * Rajnangaon (C.G.) ‘ APPELLANT fkum 3}?» Hg VERSUS W (W J . § ESPONpENT ‘: State of Chhattisgarh Through*Station Officer, Police statiorr’ Ambagarh Chowki District - Rajnandgaon (C.G.) CRIMINAL APPEAL UNDER SECTION — 374 OF THE CODE OF CRIMINAL PROCEDURE WW,W,W WW a1 200 XI-HC 78 mm Era-m WW ?§Q§m m akaim‘am “a taksn ”£116 13r03€cutrix 1:0 vmag u11c1€’s 110nm in i116 eve of Ta ‘ 116m E1613 caught hm; téok } Ssxual interconrse. Th5 prosu will bg r€$p0n$ible if 301116 ap}}€1181‘1‘t anSWEX'Cd that nofk 3 Emfl made sexual intercourse. Whansvwwhe wa$ alone. Whi 1161- in her home, 911 H15 Wa e Chhachhanpahari to 116.1: matarmal 23a fw’rival, thsrs thé appfjlént came 161* £11 his aims aim forced her for :cuhix objact€d 311$ Said as; to who wing happgnss. O11 thie; accuSédi ing will happen, 116 Shail marry her in this way he rapagatad mis; act 16 1'16 was accompajlyiilg 1161" to 1eavs y“ aiso S116 was $11bje'cted to gsxual intercourse and («x11 tha m6 hf: premiSad that 116 Shem “'06 manymg km? mid as; a result of this became pregnemi. She died mother who m turn mamaté thereafter the preeeeutrix ale Went to the polibe station and Durmg iilvestiga‘iion Sit a; death report of viliage Mum Ram gP.w.-4) exammation vide. EXP-6 to 1‘» Ambagarh Chowki where Dr‘ gave his report of EX.P~ 1, The examination Vioe EXP—7 to there Dr. Shail Khare examined her physical relationship the prosecu‘aix .osea about her pregilancy'io her ‘d the same to other vmagerié ago 11g with her mother am} elder uncle lodged the report of EX. P— 1. e plan of EX. P-3 was prepared, birth akala waS seized from Kotwar Lagnu Accused was; sent for medicai Iediea1 Offlcer, Government Hospital, RK, Pasi examined the accused 311d prosecutrix Wae aleo sent for medical Nomen Medical Odicer, Government Hoepitai Ambagarh Chowki x vide EX. 13—4 l WW,WW WT m % 200 seem (13W) w‘w ;'XI—HC—7 8 Wwm WW i§Q§W émmm va alld gave 1161‘ Ioport of EXJf—lO. Tho Oboteiric USG roport of tho prosecutrix iS Ex. P—9. Afier complo‘o'ng inve‘otigation charge shoot was filed in the Caurt of Judicial Magistrat€ “($3111 committed ihe casa Raj11311c1ga‘on and the $3331: was mceivad by learned Additional Sgssions Judgo on transfer for trial Tho prosacution in onrlor to ostablissh the chargo againat the» accussed/app611ant examinezi gight witnewes £11 all. Tllsréaftm‘ statsment of accuééd unc‘é ppellant dsniad T116 circumStemcw apploaling agajnfsi him m iii: prosecution caso, pleadsd innooonco and falsE implication with mariymg. Leanléd trial Court a1 pal’iias convic‘uid and $611 hareinab ove. Lamimii counsel fm prosc—tcution had failed to eSt filo ago of prosscutrix was: incidont, as tho proweutri oxaminatiou for asceri'aming Fixst Class, Ambagai‘h Chowki who in to the Comm of Sassimls Judge, mccrdml in which thé z 6r Section 313 of th€ C1‘,P.C. wasa all iiltmltion to axort preSsui‘E for ‘mr llsarjng counSEl fOI the rospecfive teneod the appolial1t :as moationéd tho appollant $ubmits that i116 abh'sh by loading reliabk avidgnce thai less Wham 16 years on the. dato of x was not subjocted to radiological hor ago a11d only on ‘the baoio of (filmy W m w.W1 200 WW (13W) WT W u. 111 200 Wm (W) Wwm ‘ mw#fg€rm §aai1=cmané$1 B 4 04g; ‘ i116 birth 8Q déath registm‘ mamtainad by me Ko‘mvar of tha oncarnad Village thE agE of 1hr: pmSSC‘d‘triX has 136611 aSsessml to b6: 1€$s than 16 yEaIs. He further SubmiiS ihat th€ repm": of illcidfint haS 136611 lodgal afteir 7—8 montim of the alléget‘L i11cid611t and th€ Explailatien for d61ay Lu iadg‘mg First Infomaation n 1\ep01 ~4 l is n3§convinci2ag T116 c1elay i‘adf caus€s serious doubt ragarding allegation of rapf. and fhis aspect has 136ml ignored by tha ixial Cou’gt. He flirthm‘ arguad that 110 inikpéndant wiiusss 0f Pamchayat hag baa} examinid emc} €V€n if thr: €Vi€i€nC€ of th€ pmsecutri}; is acceptgd in its toiali‘qy‘, flmn 2.139 it iS gvitlant ‘rhai’ Sim had baan mmweating pzh'ty ai1d thm‘efore canvic‘tion 01 C A£116 appéliant unilar Séicfion 376 cf file IPC caimm ba Suiaiailmd. On The 011161‘ halul leai mid counsacil for ths State siubmittad ibai ags of tho prosocutrbi gas boon tightly aSS€S$€d to be 1€ss \ 111311 16 3%ars 011 the dais 01" incident by tho hainaél trial Court arm} the said fmding is basom 011 tho docunmnt of EXP—8C 136mg 111c— copy of birth 6r. doaih ro e‘i majlztamoc‘; by tho Kotwar of tho concommd vi‘dago. The: abovo docum€11t of EXP—8C ha$ aloe 116,611 groved from the origmal bi .~: (‘17; dsafh rogigier by the Kohvar concorood, who has math E2111 *ies 1'11 tho oaid rogisior, amd from 1:116 abovs ovidonoo it io clear t11 “t the prosocutrix was kss t11a11 16 yoais of ago 011 £16. date of ident Whioo 1S prior to 7~8 monih‘s from G9.01.2004. Ho {11111161 submito that the promcutlix 111 her (lepooition has catogoricaliy s atod That father of 1116 acoused 1&1 1161“ g‘ t l “C WT m w 200 Wmm WW WW &7aif%m‘a1%¥r mat€111a1 u11c16, th€ accused had takan har to his home. aim ‘k‘lmrsafter he persuadet‘x hm" 1'01“ s€xua1 i11tercourss on the promise 0f marriage and continual to have Elationship on that pre‘mxt a3 a resu‘it of which Shs 1360311116 ‘p cariying four months prégnar ‘35 thf; ‘proswutrix is cluly‘ c0"; on madicai exanlinaaon tha 1: confirmtid, who subaequ€11t1y submits: thai tha defame c proggcu’m'x was 163$ thail 16 ; 1 have heard Earned Ci pailsEd ‘iha r6co1‘a. 86 far as the aga of p coucernec}, as pm" ailagationa the pmSvscutrix, ’tllh incidmlt 09.01.2004 whml Q16 report ago of the proeecumx, Vil} Munjalkala has been examined as P.W.—4 who has staied that he was Kotxaiar of Village Munjelkala in the year 1967. He brought birth and death report form 11 its original and in the said repoit, at dated 17.04.1989 on the basis of information of _ entry No. 2 Krishna, father of prosecntrtit, her date of biith was 16.04.1989, was recorded. He has farmer stated that he recognises the proeeeutlix as also the accus regnant ahd thereafter when she was .Cy the IepofL wag lodged. The verSion oboraied by the medical evidence, as; regnancy of the groseeutn'x has been deh‘vered a female Child. He fumoe'r f conse11t is not available, a3 the zearS‘of age at the time. of incident. )unsel for the respective partiee and rosecutrix at the time of incident iS of the proeecution ant} statement of occurred (some 7—8 monthe prior to was iodged and for establishing the age Kotwar Lagnu Rain of village ed, The elder uncle of the prosecutrix mm (We) WT m W 200 mm (13W) 1 am% 31mm u»; I...“ WWW _ had convmmd a m€€fi11g of ortant pemons of The viHage gala 011 eaqujq' tha prosecuuix s statgd fhat She iS fwa months; pmgnant and accu$ad iS r spon3ib1€ for 1161‘ pregnancy. At that timE accuwd Wa3 algo pres nt who rimliéd that he was responsiblé @1‘ har pregnancy and only afier danial of the accused, report was lodgéd in tha polics Stati 11. in ‘the cross; examination of this witneSs th€ dafencn wa$ not able to e1icii anything which unpeacheS £ athe Veramty > of try _o+‘i date of bnth . 1n . the b11111 . and death register 9f the pros .cutrix. The entries were. matte on the very next day of the birth of the prosecutn'x by a public servant who is responeibie to male Such entries in the birth and death register and being a public iocument the same is admissible in the evidence. Therefare the iii Comt has not committed any iiiegality in placing reliance upon the entij; of riate of biith in the birth (‘35 death registei‘ and assessed the age of the prosecutm'x as less than 16 years of age on the date of incident. So fax as the commission of oifence of Tape by the appellant is concerned, the prosecut‘cix, P,W.—3 has stated in her deposition that last year in the eve cf Teeja festival she hail gone to village Chhachhanpahari to her ntateinal uncle’s home and the third day of her stay there, the accused hagl developed relationship with herv lie caught hold of her hand, took her inside and proposed for sexual intercourse. On his proposal, she said that if something happens, then she shall complain to her parents whereupon the ”W” u (z/ XI-HC—78 a p n mm (W) WWW H911 mafgam .47., WW§WW $ai§mé1m n/ q accusaC‘l aSkéd 1161‘ not t0 d LSCIOSE ‘zo hm‘ pamnts emci if somathiilg 11af3penS 115 $ha11 many Le}: and thereaftt-ir accusm} a3k€d far intercoume. $116 has furthsr stated that 5116 stayal in villaga C11hachhanpahari for two' monihs; am} during this p€ri0d accuSed contjnued to have phySical as; a r€su1t of which she bE silbjaci€éi t0 langthy CTOS$ showevm“ 1:1“0121 11E whole cross Examination, H16 dafence could 110i elicit ajly‘thing which mekss thE VEIsiOn of the pr0$ecut§i§g unreliabla or untnw‘avorfhy. br0$s Examination of this; witnase; it is From perusal 0f the Evidéni that 6V€11 11o Suggmiion is madg 011 behalf of ma defanm—t that 11m accusad did not hava amy- physical rglaiionship with i116 prosecutfix and that she pressure upon him to many her, pmsecutrix is conoboratéi‘: (Lagnu Ram) W110 is em ind from The ovidonco of P.W.~E document of EX.P— 10 being Khare in which the pregiiaicy of 2'2 weekS of the prosecufrix haé; been confnmed. The version of fhe prosecutix is alSo con‘oboi‘ated by {he Firet hifoimafion Report. of EXP—2. So far 81> the argummit of the counsel for the defence that the prosocutrix wao a coooé utilig pariy i3 concerned, it has ah‘eady mm ‘ r€1atio11ship With 1161" in his own house came pmgnzult. This wimew has 136611 examination by th€ t1€f€11ce (301111361, had irapiicatod tho accuood to oxel‘i Moreover, varsion of the from the statemsnt of P.W.4, i‘iotwar spoodant Wimos‘o, P.‘vV.—5 Malia as also Dr. Vimal Khunte who haa proved i116 the metiicai report given by Dr. Shail C: WT m W 200 k? mw,m,m 1» WA ma§‘ Fwmj “An !“XI-Hc—78 $2» WW 1n 200 Wm (W) ammm WWW i WWW ‘ WW§‘WW $aima1i¥1 .3“ 135611 116M 1'11 th€ foregoing paragraphs that fhe pm$€cut1ix “as 163$ than 16 yaars of age on the data of mcident and tha‘efore consalt of Tho prOSacuiriX is in‘elov'aht 311d moanill’gkss. 1 : On tho basiS of afomoaii‘: discussion, this Court is of tho ‘ \considorcol opinion that Tho : )rosocution has 136611 ablo to proVo tho chargo agaillst tho appellajot boyond roasonablo doubt alid tho trial Eouri has‘ not committed any mogality or mflrmity in convicting Tho appoHamt guilty undor Eviction 376 of tho IPC 311d somoocing him as montionod above. Tko agpoal being (iovoid of substance is liable to bo aismissod alad tho samo is horobv alsmlsscd u a w: // m;