N THE HON’ $§ng§e gencE BLE HIGH COURT OF JUDICATURE AT BILASPU CHHATTISGARH Cr.A. No. \JW {2009 Tulas, S/o. Kadaru Dewar, aged about 19 years, resident of Bagbahara, Thana Bagbahara, Distt. Mahasamund (C.G.). APPELLANT (in jail) VERSUS RESPONDENT State of Chhattisgarh Through — Police Station Mahasamund District W ”UM“ WW e w) CRIMINAL APPEAL UNDER SECTION 374(2) / OF THE CODE N OF CRIMINAL PROCEDURE 1973. J; EW’ WT“ ,‘L I HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 140 of 2009 / Tulas APPELLANT 1n Jan VERSUS . RESPONDENT State of Chhattisgarh Pregam: Qhri ygd Wt a2 AL, counse! for tha appellant Shn Akml M!shra Dy G A for the respondent/State JUDGMENT ’65972011) This appeai arises‘out of the judgment and order dated' O5 D2 2009 passed by the Additional Sessions Judge Mahasamund _ (CG) In Sessmns tnal No 71/2008 conwctmg the accused/appeflant under Section 363 of {PC and sentencmg him to undergo RI for seven years and to pay fine of Rs.3,000/-, m default of payment of fine to further undergo RJ. for three months. 2. Brief facts of the case are that on 0411:2008 accused/appettant is atleged to have taken the prosecutrix (PW-13 aged about 13 years along With hrm from her house to Katabhany ' ’ Orlssa It Is further atleged by the prosecution that the prosecutrlx remained In the company of the accused/aopettant for about 3 days and on 09 11 2008 she was recovered from the custody of the accused/apoettant Vtde Baramdgl panchanama EXP 11 FJR. Ex.P~4 was todged by Chandrlka (PW-2), the elder sister of the prosecutrix on 09.11.2008. Based on this F.l.R, offence under Section 363 of IPC was registered against the accused/appellant. After investigation, the challan was filed on 27.01.2009 under Sections 363, 366 and 376 of IPC. 3. So as to prove the guilt of the accused/appellant prosecution has examined nine Witnesses Statement of the accused was also ; recorded under Section 313 of the Code of Criminal Procedure in .which, he denied the charges leveiied against him and pleaded his innocence and false implication in the case. 4. By the impugned judgment, learned trial Judge has though acquitted the accused/appellant under Sections 366 and 376 of IPC but has convicted him under Section 363 of IPC and sentenced him as mentioned in para-1. 5. Heard counsel for the parties and perused the material available on record including the judgment of the trial Court. 6. Contention of learned counsel for the appellant is that in the case in hand, the prosecutrix (PW-1), Chandrika (PW-2), the elder sister of the prosecutrix, Vishnu (PW-3), father of the prosecutrix and Hari Kumar (PW-5). maternal uncle of the prosecutrix have not deposed anything in their statements and have turned hostile. He further submits that there is no legally admissible evidence in respect of the date of birth of the prosecutrix. Motiram (PW-4), the school teacher has categorically stated that the entries were not made by him and he was not aware as to on what basis the entries were made in the school register. He submits that the Court below has erred in law. 7. On the other hand, supporting the impugned judgment, it has been argued by Shri Mishra, learned counsel for the State that the conviction of the accused/appellant is strictly in accordance with law and there is no infirmity in the same. 8. The prosecutrix (PW-1) has not supported the prosecution case and has categorically deposed in the Court that she does not know anything about the incident. Thereafter, she was declared hostile. Chandrika (PW-2), the elder sister of the prosecutrix and Vishnu (PW-3), father of the prosecutrix have also turned hostile. Motiram (PW—4) the schol acher has stated that the date of birth of the prosecutrix i the school record is ()5.07.1995 and the admission reister is Ex.P- whereas, the affidavit is Ex.P-8. Howeer, in cross-examination, hi witness has categoricaiiy stated that entries in document Annexure P-9 were not made by him and e cannot tell s to on what basis this entry was recorded. He has stated that document Annexure P-8 was signed by Vishnu (PW-3) and Santosh. Hari Kumar (PW-5) has also not supported the prosecutin case and turned hostile. Dr. Vijay Pratap Singh (PW-6) who had medically examined the accused/appellant vide EXP-13 has stated that he was capable of perorming sexual intercourse. Balira (PW-7), Head Constable is the witness of Baramdgi nchnama and seizure of certain clothes Ex.P-10. V.K. Tiwari (PW-8) is th investigating Officer. Dr. Seema Binkar (PW—9) who had medicaily examined the prosecuix (PW-1) vide EXP—20 has state that her scondary sexual organs were fully developed, hymen was old to and she was habitual to sexual intercourse. 9. The minute examination of the evidence makes it clear that ‘l the is no legally admsible evidence available on record on which basis, the cuse/appellant can be convicted. The prosecutrix hersel, Chandra (PW-2), the elder sister of the prosecutrix and Vishnu (PW-), father of the prosecutrlx have turned hostile. Further, there is no, leglly admissible documentary evidence in respect of the age of the prosecutrix nor there is any legally admissible oral evidence to this effect. 10. Considering the totality of the facts and circumstances of the case and the evidence available on record particularly the medical evidence and that of the prosecutrix where while deposing before the Court she has not supported the case of the prosecution and has been declared hostile, this Court is of the considered opinion that the Court below has fallen in serious legal error in convicting the . o te n g 9 v ts h a o f m Pa e tr d e rn er is acd f ik 3 a accused/appellant by the judgment impugned by ignoring the evidence of the prosecutrix on materiai particulars and thereby the same cannot be heid to be sustainable in the eye of iaw. 11. Accordingly, the appeal is allowed. Judgment impugned is set aside. The accused/appellant is acquitted of the charge leveled against him. As the acoused/appellant is reported to be on bail, his bail bonds stand dischared. ' “xx Sd/~ )7 1; Pritinker Diwakelf)’ i‘ Judge {J Priya rsvha .V g