lgt%ip'..<::'::^'.. ,^^ :^' (» ft.eo ''^- :t5y:^^.-^iK'i (^. mm ';\Jvo<;fe . ^ff-^f ^iiiil" 11CFB0000057632 ' Titt^jifr; :&eriCR^;{u.i(wMal,^^ I!i^li€_H.I6Ji.^^T3iF_J^^HyA^a^EM^AT_^^^ .;·'^^6^-:..;·^':v·'',l;'."i:^ CRIWIWAL.-^APfEAL,'MQ#.___^994:,\^1-,^ &£m-iAM£ fte^amlal S/G Anjxrdas^ '''•''W^ .^a g 8 d><^1;9 •y@^s9 oc ajj^ 't^ o.n- c ulti^^^ r/b.'I3a.3.dalihapara,,;li»»5-»:'Chaka.rbhat^,:, ;Di^stric,t-BlLA^^£.(-H.»:P«).' •:;-„::.' •:;/ ,:.,l :^ ^ V;_E_R_S_U_£ &ElPOND£ir The Sta te of M • P« thmi^ H P.5 • Cte fca rbhaia, Qis tric •b-tM^A^yS.tM. P.) •' ^';'••'-':.;.1^' : '• ;..;,/;il ^IMINA_M^AL_UMEJi_SE£IIOM__3I4i2l . • . .i.'^'-' afLJH_E_ffl_D£_OF CRI MI NA L PftOC E DU8 E BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.05 11:48:45 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. IVIr. Justice Pritinker Diwaker) Criminal Appeal No. 1409 of 1994 APPELLANT RESPONDENT VERSUS Reshamlal S/o Anjirdas Satnami State of Madhya Pradesh Shri V.R. Tiwari and Shri Varunendra Mishra, counsel for appellant. Shri Pankaj Shrivastava PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. J U DGM ENT (23.02.2010) This appeal is directed against the judgment dated 29.10.1994 passed byAdditional Sessions Judge, Bilaspur, in Sessions Trial No. 241/1991 convicting the accused/appellant for the offences punishable under Sections 363, 366 and 376 IPC and sentencing him to undergo rigorous imprisonment for three years, five years and seven years on each count, respectively. 2. Case of the prosecution in brief is that on 30.8.1990 FIR(Ex. P-3) was lodged by father of the prosecutrix namely Ram Khilawan (PW-2) alleging that on 26.8.1990 the accused/appellant had taken his daughter aged about 1 1 years to his house by way of allurement and thus removed her from lawful guardianship. It is alleged that for the first time the prosecutrix was taken away on 26.8.1990 but after counseling she was brought home. It is alleged that again on 30.8.1990 she was taken away by the accused/appellant. On the basis of this FIR, investigation was done and challan was filed against the accused/appellant for the aforesaid offences. 3. So as to hold the accused/appellant guilty, prosecution has examined 10 witnessec in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. This apart, three witnesses namely Ram Khilwawan, Vijay Kumar and Anjor Das (DW-1, DW-2 and DW-3 respectively) were examined by the defence insupport of its case. 4. After hearing the parties the trial Court has convicted and sentenced the accused / appellant for the offences as mentioned above. 5. hleard counsel for the parties and perused the material available on record including thejudgment under challenge. 6. Counsel for the appellant submits that conduct of the prosecutrix itself shows that she went to the house of the appellant of her own and was keen to tive with him. He submits that statement of the prosecutrix (PW-7) goes to show that she married the appellant on 26.8.1990 itself. He submits that age of the prosecutrix comes to about 18 years and when she had attained the age of exercising the discretion, it cannot be said that she was minor. He submits that there is no concrete piece of evidence available on record in respect of the exact age of the prosecutrix. He submits that Dr. C.S. Sharma (PW-1) who conducted the ossification test of the prosecutrix has stated that the prosecutrix appeared to be aged about 15-16 years and taking a margin of two years on either side, it can safely be inferred that on the date of incident she was about 18 years of age. He submits that as per the statement of Dr. Anjali Gupta (PW-10) who had medically examined the prosecutrix, her age at the relevant time was about 17 years. He submits that vide Ex. P-5A medical examination of the prosecutrix was done by Dr. Malti Chandrakar (PW-9) who had found that at that time the prosecutrix was carrying pregnancy of about four months which itself shows that prosecutrix was not only fully grown up but a consenting party as well. He submits that as per the statement of this witness,r breasts of the prosecutrix were fully developed and pubic hair were also present on her private part and thus it can safely be inferred j that at the relevant time prosecutrix was more than 18 years of age. /f"^^. \~^/ -3- 7 . On the other hand counsel for the respondenVState supports the judgment impugned and submits that on the date of incident prosecutrix was minor and therefore her consent if any and conduct in going to the house of the accused/appellant becomes immaterial. He submits that as per the report of ossification test, on the date of incident the prosecutrix was 15-16 years of age and in these circumstances ingredients of sections 363 and 366 IPC are clearly attracted to this case. He submits that a minor girl was subjected to rape as a result of which she had become pregnant and therefore, offence under Section 376 IPC is also clearly made out against the accused/appeltant. 8. From the evidence of the prosecutrix (PW-7) it is clear that 6-7 months prior to the date of incident when she had gone to the grain yard, accused/appellant came there and committed forcible sexual intercourse with her. She has further stated that 6-7 months thereafter she was again subjected to rape by the accused/appellant. In her cross examination this witness has admitted that at the time of her medical examination she was pregnant and she had aborted the same at the instance of her father. She has also admitted that she had given in writing to the police that the accused/appellant had taken her to his house but as he did not do sexual intercourse with her, she was not inclined to get her private part examined medically. She has denied of having given anything in writing that the -accused/appellant had taken her to his house by alluring her. She has stated when for the first time she was subjected to sexual intercourse by the accused/appellant in the grain yard, no disclosure ofthe same was madeto anyone and that at that time she was aged about 11 years. Father of the prosecutrix namely Ram Khilawan (PW-2) has stated that at the relevant time the prosecutrix was aged about 1 3 years. He has stated that on the date | of incident the prosecutrix was sleeping in a separate room whereas they were sleeping in the courtyard and at about 3-4 a.m. his wife had informed him that prosecutrix was not at home. On enquiry being made from the people of the vicinity, he came to know that the prosecutrix was in the house of the accused/appellant and thereafter /x..^ I l: :^/ -(/- when he along with other villagers went to the house of the accused/appellant where he informed that he had married the prosecutrix in a temple. However, at the instance ofthe villagers the appellant handed over the prosecutrix to him and then she Was brought home. According to this witness, two three days thereafter he again took the prosecutrix to his house alluring her and then also he had brought her back. In his cross examination this witness has stated that he was not aware as to for how many years the prosecutrix had relations with the accused/appellant. He has however admitted that on medical examination of the prosecutrix he came to know that she was carying pregnancy of four months. According to this witness, he was not aware as to in which year the prosecutrix was born. In paragraph 3 of his evidence this witness has stated that the prosecutrix was admitted to Dallipara Sakri school but in paragraph 9 of his cross examination he has stated that she had never gone to school nor was she admitted in the school. He has stated that when the prosecutrix was brought home for the first time, he had not lodged the report as the villagers had asked him not to do so. Ramcharan (PW-3) has stated in his evidence that when he along with the villagers accompanied the father of the prosecutrix to the house of the accused/appellant, the prosecutrix was found sitting there and after being taken out there from she was handed to her father namely Ramkhilawan (PW-2). He has however stated that at the relevant time the prosecutrix might have been aged about 11-12 years. Ravindra Kumar Pandey (PW-6) who at the relevant time was Assistant Teacher in theschool where the prosecutrix was admitted for schooling has stated that as per the school record her date of birth is 15.12.1976. In the cross examination this witness has stated that he had not mentioned the date on the said certificate given by him and therefore he cannot say about date of its issuance. Dr. C.S. Chandrakar (PW-8) who had medically examined the accused, has stated that he was capable of performing sexual intercourse. 9. The important question to be decided by this Court is the determination ofage ofthe prosecutrix. Dr. C.S.Sharma (PW-1) who had conducted the ossification test of the prosecutrix has stated that at the relevant time she was aged about 15-16 years. He has further stated that joining of radius and ulna starts at the age of 15 to 16 years of age, at the age of 17 it remains incomplete and it is completed after attaining the age of 18. According to him, in the case of the prosecutrix joining was not complete and it was in the process. Thus taking the evidence of this witness if two years margin is applied thereto, it cannot be said that on the date of incident she was minor. Even according to Dr. Anjali Gupta (PW-10) the prosecutrix was aged about 17 years but less than 18 years at the relevant time. Thus the evidence on record clearly establishes the fact that the prosecutrix had left her house and went to the house of accused/appellant twice and she was brought back by her father. Her marriage with the accused performed in the temple is also not disputed. Record does not go to show that at any point of time she had made any resistance to the act of the accused/appellant rather she has stated that she had gone to the house of the appellant on account of her being beaten by her parents. Record also shows that the prosecutrix had become pregnant due to her physical relationship with the accused/appellant on previous occasions. The overall evidence thus goes to show that at the time of incident the prosecutrix was in an age where she could have exercised her discretion in taking a decision and submitted herself to the disposal of the accused/appellant at her own. The statement of the prosecutrix does not inspire confidence of this Court. It would not be safe to say that the prosecutrix was minor on the date of incident and in these circumstances the appellant is entitled for benefit of doubt. The trial Court has thus arrived at an erroneous conclusion by not properly appreciating the evidence of the witnesses and therefore the accused/appellant is entitled for benefit of doubt. 10. In these circumstances, the impugned judgment being based on mis-appreciation of evidence available on record has fallen in legal error while convicting and sentencing the accused/appellant as mentioned above and in this view of the matter the same cannot be sustained in the eye of law. Accordingly, the appeal is allowed. Judgment impugned dated 29.10.1994 is hereby set aside. y -^,- Appellant is acquitted of the charge levelled against him. He is said to be on bail. Bail bonds executed by him stand discharged. r ^^— Sd/- Pritinker Diwaker Judge