\\. -y IN THS HIGH CCXJRT OF JUDICATURS ^T BILASPUR(CHHATTI.SGARH) Cr.Appeal No^ V Of 200i ( Meniorandum. of Criminal Appeal U/%ction 374(^>f Cr,P^C») APPELIANT IN JAIL -/ : Sanjay SS^hi S/o Har Prasad Sarthi^ aged about 22 years^ resident of Tarenga, OS^ana a^iatapara District Raipur^ Versus RBSPONDENT rme State of Chhattisgarh, through the District Hagistrate^ Baloda Bazar,Raipur, MEMOR^HDUIl OF CRIHINAL APPSAL UNDSR SE'CTION ,374l^P_Cr,_P.G. ^^' HI6M COURT OF CHHATTISGARH AT BIL^SPUR Sir^l®Bench : Hon'bl®Mr. Justic®Pritinker Diwoker APPELLANT O" Jail) Criminal Appeal No. 7 of 2001 Scuijay Sarthi Versus RESPON&ENT State of ChhQttisgarh Shri Vishnu Koshtha, counse! for the appeiiant. Shri Rajendra Tripathi, Panel Lawyer for the State. CRIMINAL APPEAL UNDER SECTION 374(2} OF THE CGDE OF CRIMINAL PROCEDURE OR DER (01.02.2010) With the consent of the part'ies, the matter is heard final!y. The present appeal is directed cigainst the impugned Judgment ond order dated 20.10.2000 passed by Second Additional Sessions Judge, Baloda Bazcr, District Raipur in Sessions Trid No. 72/2000 convicting the Qccused/appeilGnt for the offences punishable under Sections 366 <& 376 (1) of the Indion Penal Code and sentencing him to under9o simpie imprisonment for 3 months with fine of Rs.1,000/- u/S 366 and to undergo simple imprisonment for seven ysars with fine pf Rs. 2000/- u/S 376 (!) pius default stipulotions. 2. Brief facts of the case are that on 17.12.2009 FIR (Ex.P-7) was lodged by Phuleshwari (PW-8) dleging in it that her minor daughtsr (prosecutrix (PW-6)} is missing since 13.12.1999. It is further dleged that ths appellant/accused had kidnapped her minor daughter after inducing her for morriage. Subsequ^ntly, on 03.01.2000 the prosecutrix was found in his possession and, thereafter, on the basis of the statement of the prosecutrix, the present case has been registered against the appejjant for the commission of offences under Sections 366 ond 376(1) of the Indion Penal Code. 3. So as to hold the accused/appellGnt gujlty, prosecution has exomined as many as 16 witnesses. Statement of the accused/appellant was dso recorded under Section 313 of the Code of Criminal Procedure in which he denied the charge levejed against him ond pleaded his innocence oind false implication in the case. 4. After hearing learned counsei for the part-ies the trial Court has convicted and sentenced the accused/appeltant for the offences mentioned above. Hence this appeal. 5. Counse! for the appellont submits that the conduct of the prosecutrix is as such from whichit is clear thot she wasa consenting party ond, therefore, under no stretch of imagination, the appellant can be convicted for ony offence. He furt-her submits thot the prosecution has fdled to prove the age of the prosecutrix in particular thott no ossification test hasbeen done by the prosecution nor the doctor has given any opinion that the prosecutrix was a minor girl. He also submits that prosecutrix has admitted in her cross-examination that her name was included in the voter list, she had casted her vote and, therefore, it is to be presumed that the prosecutrix was a major girl. He also submits that the medical report of the prosecutrix does not support the prosecution case and no ^ 1 injury whatsoever WQS found either in the private part of the prosecutrix or anywhere eise in her body. 6. On ths other hand, counse! for the respondent/State supports the impugned judgment and submlts that the date of birt-h of the prosecutrix is 3.4.1984 and on the alleged date of incident i.e. 13.12.1999, age of the pro^cutrix was about 15 years, 8 months and 10 days. He submits that prosecution has examined the viilage Kotwar Chhedidas (PW-7) who has categorically stated that date of birt-h of the proseeutrix is 3.4.1984. He also submits that Mdlkrffln Dhruy (PW-1), Head Master of the School has also been examined ond who too has support'ed the prosecution case and has said that date of birl'h of the prosecutrix is 3.4.1984. He also submits that conduct of the prosecutrix becomes Jmmateria! when sh®is minor and, therefore, the conviction of the appellant for theoffence under Section 366 and 376 (1) of the Code of Crimind Procedure is strictly in accordance with low. 7. I ho.ve heard coun^i for the pcrties and perused the moterial oivdjable on record. 8. Prosecutrix (PW-6) has stated in her evidence that on the date of incident, when she wos all ojone in her house, the accused/appeJiant came there, cjosed the door from inside and then had asked her that he wil! marry her. He furl-her asked the prosecutrix to a!iow her to commit sexual intercourse. She furl-her states that when she mo.de an attgmpt to shout, her | mouth wos go^ged by the appellant and thereafter, orfter | removing her undergarments, the appellcsnt also remoyed his ^ undergarments and committed the sexual intercourse. She furt-her stort-es that .thereafter time and again after looking opporl-unities, the accused/appeilant used to commit sexual intercourse agdnst her will. She also alieges that she wos token bythe accused to Bhopal against her wllt cnd on the way appellant applied a streak of vermJJion on her forehead and ofter reaching Bhopaj she was subjected to rope by him. She also stated that during a!l this period she was subjected to threat by the accused/appellant. In her cross-examination, she has stated that her elder brother is aged about 19 years and elder sister is aged about 18 years. She further states in paragraph No. 37 of her cross-examinotion that her nome was inciuded in the voter list and she has casted her vote. Though, from the statement of the prosecutrix, her age does not reflect but it is clear that she was subjected to rape and was allured for morriage by the accused. 9. AAalikram Dhruv (PW-1), who is Head Master of the School, has categoricallystated that transfer cerl-ificate was seized from his possession vide Arl-icle 'A', as per the some the date of birl'h of the prosecutrix is 3.4.1984. He has further proved admission register of the school vide Article IB' and as per the same also her date of birth is 3.4.1984. He hos also proved and cerl-ified the signature of the authorities who has signed the said document. 10. Chhedidas (PW-7), Kotwar of the village, has also been examined by the prosecution and as per the Kotwari Register Article *€', the date of birl-h of the prosecutrix is 3.4.1984. This document has been duly proved by the prosecutrix vide ^y:^"'.:,. .-'",^^i "'-, fls^]u \^-// Ex. P-1 ond the signature of the Kotwar has also been duly proved. 11. From the statement of Malikram Dhruv (PW-1) and Chhedidas (PW-7), it is thus very clear that on the date of commission of offence prosecutrix was aged about 15 years and 8 months and was a minor girl. 12. Dr. Reeta Chava (PW-2), who had examined the prosecutrix, has stated that she had not found ony injuryon the body of the prosecutrix and her hymen was torn and no opinion can be given about her oge. Dr. Rakesh Chava (PW-3), who had exomined the appellant, has categorically stated thot the accused/appellant was capable of performing sexuaj intercourse. Phuleshwari (PW-8), mother of the prosecutrix, has olso supporl-ed the prosecution case and has stated that she had lodged the missing report and subsequentiy prosecutrix was found from the possession of the accused/appellant. Phuldas Manikpurj (PW-9), who is the witness of seizure of Kotwari Register and he has duly supported fhe prosecution case. R.K. bubey (PW-13), Investigating Officer hos supported the prosecution case and likewise Shiv Singh (PW-14), Head Constabje hos also supported the case of the prpsecution. 13. After considering the entire evidence, it is clear that the prosecutrix (PW-6) was firstly kidnapped by the accused/appellant after being induced for marriage and thereafter subjected to rape against her will. 6 B l^. Having come across the entire pros and cons of the matter the only conclusion suitable for the offenders Jike appellant herein is the apathy not sympathy. Accordlngly, this Court finds nothing to interfere with the conviction ond sentence recorded by the trial Court and to blow a life to the appeal. Appeal being lifeless is dismis^d. It is being informed that the appeltant was on bail. His baii bonds are already cancelled by this Court- on 30.7.2007. The concemed authorities are directed to take appropriate steps against the appellont. Sd/- Pritinker Diwaker Judge