yi?y ;).^^^ ?*>" .-y c.\\f\ ,?""f ' -,0.'- n i-f* IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. A. N0, / 2007 APPELLANT fIN JAIU RESPONDENT V^RSU^ Anil Kumar Heliya S/o. Ramdas Heliya Aged about - 24 years R/o.- Kishunpur Khud, P.S.- Gandhinagar, Distt.- Surguja (C.G.) State of Chhattisgarh, Through : P. S. - Gandhinagar, Distt.- Surguja (C.G.) CRIMINAL APPEAL UNDER SECTION 374 f 21 OF THE CODE OF CRIMINAL PROCEDURE. 1973 '<? i a'; ^? ":"'c2y APPELLANT HIGH COURT OF CHHATTISGARHAT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 278 of 2007 Anil Kumar Heliya VERSUS RESPONDENT State of Chhattisgarh ^ i^^ Postfor pronouncement ofthejudgment on^ .8.2010 Sd/- Pritinker Diwaker Judge m. ,^:'1:. HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 278 of 2007 APPELLANT RESPONDENT VERSUS Anil Kumar Heliya State of Chhattisgarh Shri Rahul Mishra counsel forthe appellant. Shri PankajShrivastava PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2)OF THE CODE OF CRIIVIINAL PROCEDURE. JUDGMENT ! (^.08.2010) This appeal is directed against the judgment and order dated 12.01.2007 passed by Additional Sessions Judge (FTC), Ambikapur; Sarguja, in Sessions Trial No. 181/2006 convicting the accused/appellant under Sections 376 (1), 363 and 366 IPC and sentencing him to undergq rigorous imprisonment for ten years with fine of Rs. 1000 u/s 376 (1); ., rigorous imprisonment for seven years with fine of Rs. 500 under Sections 363 and 366 IPC with default stipulations. 2. Case of the prosecution in brief is that on 27.1.2006 a missin< report was lodged by Ravi Shankar (PW-10) - the father of the prosecutrix stating that his daughter aged about 12 years went missing from 26.1.2006. It is alleged that his daughter had left his house to attend the function of Republic Day organized in the P.G. College, Ambikapur but she did not return home. It is alleged that ultimately she was recovered on 28.1.2006 from Patel Para and on that day itself the FIR Ex. P-1 was lodged against the accused/appellant stating that when on 26.1.2006 she was returning after watohing the Republic Day Parade, accused/appellant had allured her away on the assurance of love and marriage. Th^ accused/appellant is alleged to have taken her to the house of his friend namely Guddu Uraon and committed forcible sexual intercourse with her in the night hours. Thereafter, on 27.1.2006, he took her to his own house and there also he had sex with her and then on 28.1.2006 he took her to Patel Para and after leaving herin the house of two girls known to —2- the accused/appellant he went away saying that he would come back in the night,. Subsequently, the police party reached there and made her free. After investigation the challan was filed on 13.2.2006 under sections 363, 366 and 376 (1) IPC and the charges were framed accordingly b^ the Court below. 3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 12 witnesses in support of its case. Statement of the accused/appellant was also recorded under sectton 313 of the Cod^ of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence a.nd false implication in the case. This apart, Dr. B.S. Sengar (DW-1) has also been examined by the defence in support of its case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant as menfioned above in paragraph No.1 ofthisjudgment. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the accused/appellant submits that prosecutrix (PW-1) has not supported thecase of the prosecution and has been declared hostile. He submits'that Dr. (Smt.) Sarita Singh (PW-9) who medically examined the prosecutrix has also not supported the case of the prosecution as she has stated that the prosecutrix was habitual to sexua intercourse. According to the counsel for the appellant, the prosecutiori has failed to submit the FSL report and therefore benefit should go in favour ofthe accused/appellant. He submits that the birth certificate ofthe prosecutrix has not been produced by the prosecution to show that on the date of incident she was minor. He submits that in respect of the date of birth ofthe prosecutrix, admission register Ex. P-19A has been produced by the prosecution but the person who made the entry therein has not been examined by it. He submits that as there are material contradictions and omissions in the statement ofthe prosecutrix, it cannot be made thri basis for convicting the accused/appellant under sections 363, 366 and 376(1)1Pc. ^^s^ 7. On the other hand supporting the impugned judgment it has beerf submitted by the counsel for the respondent/State that the impugnec| judgment having been passed after due appreciation of the evidencd available on the record is in accordance with law and does not confeit any interference in this appeal. According to him, though the prosecutrix has been declared hostile, in cross examination she has fully supported the case of the prosecution. He submits that so far as age of the prosecutrix at the relevant time is concerned, Sanjiv Kumar Sinha (PW- 12) who at the relevant time was working as Teacher, has categorically stated that the entry in the admission register Ex. P-19A was made by one Anita Sinha and that he knew her signature. As per thesaid schoo| register the date of birth of the prosecutrix is 1.7.1994. He submits thaf the ossification test of the prosecutrix was also done and as per th^ report of the Radiologist Ex. P-20, her age at the relevant time was between 14 and 16 years and when it is specifically stated by the Radiologist that age of the prosecutrix at the relevant time was betweeh 14 and 16 years, the same cannot be taken to be beyond 16 years. ; 8. Prosecutrix (PW-1) aged about 12 years at the relevant time has stated in her Court statementthat on 26.1.2006 she was studying in class VI. According to her, on the date of incident she had gone to attend th^ Republic Day function organized in PG College Ground,Ambikapur and after the function was over when she was returning homej accused/appellant met her on the way, asked her to accompany him and on her refusal to do so, he threatened her saying that he would kill her father. This witness has stated that the accused/appellant had only kissed her and did not do anything else. At thisstage, this witness has been declared hostile. In paragraph No.4 of her evidence, this witness has stated that from the college ground the accused/appellant took her to the house of one Guddu Oraon where he committed forcible sexual intercourse with her in the night hours. Then on the next day the accused took her to his own house where in the day time he could not do anything^ as his mother and father were there butin the night he took her to Patel Para and dropped her in the house where two girls known to him were i':a:r^, :^^.rl; •s«fy 's-^f' '"•^^.E^"' ia:3i w^- II!! ;ilil!| !;iN.i?: -^ residing. This witness has stated that while leaving her in the house of these two girls, the accused/appellant had promised her to return in th^ night but he did not get back. This witness has denied the suggestion pu< to her by the defence counsel that as her marriage had already taken place, she had become major. Namita Khesh (PW-2) and Vimla Kujui- (PW-3) in whose house the accused/appellant is alleged to have dropped the prosecutrix on 27.1.2006, have not supported the case of the prosecution and have been declared hostile. Dinesh Prasad (PW-4) th^ seizure witness of clothes of the prosecutrix vide seizure memo Ex. P-5 has not supported the case of the prosecution. Junas Bada (PW-6) - th^ Investigating Officer has supported the case of the prosecution. Dr. J.Ki Jain (PW-7) who had medically examined the accused/appellant ha^ stated that he was capable of having sex. Dr. Azad Bhagat (PW-8) who had conducted the pregnancy test of the prosecutrix and vide his report Ex. P-16 he opined that the test was positive. Dr. (Smt.) Sarita Singh (PW-9) who medically examined the prosecutrix has stated that twQ fingers easily entered her vagina and she was habitual to sex. For determination of her age, this witness had referred the prosecutrix for X- ray and for confirmation of pregnancy she had referred her for urine testi In respect of age, this witness has stated that at the relevant time the prosecutrix was aged about 12 years. Ravi Shankar (PW-10) - the father of the prosecutrix has stated that missing report was lodged by him and that after being recovered from Patel Para she had narrated the entir^ incident to him. Sanjiv Kumar Sinha (PW-12) has stated that according to the admission register Ex. P-19A the date of birth of the prosecutrix is 1.7.1994 and the said document was seized by the police vide Ex. P-13 and thereafter it was given to him on Supurdginama vide Ex. P-13A. H^ has stated that at S.No. 256 ofthe said register name ofthe prosecutrix is shown. He has stated that the entries in the said register were made by one Anita Sinha on the.basis of information given by the guardian and also on the basisof the transfer certificate. This witness has denied that date of biri:h as mentioned in the said document is not correct and is written on the basis of assumption. Report of the ossification test Ex. P- 20 shows the age of the prosecutrix at the relevant time as 14 to 16 III; Ny^'l!;' -^-. years. Jhough the radiologist has not been examined by the prosecution, hisreporthas been dulyexhibited bythe prosecution. i 9. Thus from the evidence it is clear that on the date of incident the prosecutrix who at the relevant time was below 16 years of age has been subjected to sexual intercourse by the accused/appellant and th^ prosecution has utterly failed to establish its case-to the effect that on thej date of incident she was major. In this view of the matter the finding^ recorded by the Court below convicting and sentencing the accused/appellant as mentioned above are in consonance with the evidence adduced by the prbsecution and do not call for any disturbanc^ in thisappeal. 1 10. Consequently, the appeal fails and is dismissed as such. The accused/appellant is already behind the bars and therefore no order regarding his being taken into custody and sent to the prison eto. i^ Sd/- Pritinker Diwaker Judge •l.lift 'Wf ;'!B: