1 HIGH COURT OF JUDICATURE AT JABALPUR (M.P.) Criminal Appeal No. 1132/1994 PRESENT : HON'BLE SHRI JUSTICE G.S. Solanki Budhsen S.o Ramgarib Lonia Vs. State of Madhya Pradesh ------------------------------------------------------------------- Shri Satish Chaturvedi, Advocate for the appellant. Shri Santosh Yadav, Panel Lawyer for the respondent/State. Date of hearing: 06/07/2011 Date of Judgment: 06/07/2011 J U D G M E N T The appellant has filed this appeal against judgment dated 31.8.1994 passed in S.T. No. 163/87 by the Court of Third Additional Sessions Judge, Rewa by which appellant has been convicted under Section 363 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and fine of Rs. 200/-, with default stipulation. 2. It is admitted fact on record that appellant was prosecuted and tried alongwith co-accused Jagdish for the offence punishable under Sections 366-A and 376(2)(g) of the Indian Penal Code. On appraisal of the evidence on record, learned trial Court though acquitted them to the aforesaid charges 2 however, convicted the present appellant for the offence punishable under Section 363 of IPC and sentenced as mentioned above. 3. The prosecution case in short is that on 13/6/1987 prosecutrix Neelu, aged about 17 years, was kidnapped and subjected to the rape. It is further alleged that she was found at bus stand of Rewa on 17.6.1987. 4. Police prepared seizure panchnama and after investigation appellant alongwith co-accused Jagdish have been charge sheeted before the learned Chief Judicial Magistrate, Rewa. Learned Chief Judicial Magistrate committed the case to the Court of Sessions. Learned Additional Sessions Judge framed the charges under Sections 366A and 376(2)(g) of the IPC against the appellant and his co-accused. 5. Appellant abjured the guilt and pleaded that he has been falsely implicated. 6. On appraisal of the evidence though the appellant and his co-accused have been acquitted to the charges under Sections 366A and 376(2)(g) of IPC, however, present appellant Budhsen, has been convicted for the offence punishable under Section 363 of the IPC and sentenced as mentioned hereinabove. 7. Learned counsel for the appellant 3 submitted that the trial Court has committed illegality in appreciating the evidence on record in its proper perspective. He further submitted that the trial Court failed to consider the medical evidence on record regarding the age of the prosecutrix, therefore he prays for setting aside the impugned judgment and also prays for acquittal to the charges levelled against the appellant. 8. On the other hand, learned Panel Lawyer appearing on behalf of the State supported and justified the judgment and finding of the trial Court. 9. I have heard counsel for the parties and perused the evidence on record and impugned judgment passed by the trial Court. 10. Prosecutrix Neelu (PW2) admitted in her cross-examination that she went to the house of her maternal uncle from the bus stand of Rewa and thereafter she went to her parental house. She deposed in her statement that she is 18 years of age. 11. Ramrati @ Mangu (PW1), mother of the prosecutrix, admitted in her cross-examination that the date of birth of the prosecutrix recorded in school record was based on the estimation. She further admitted that she had not recorded the date of birth in Kotwar Register. 12. Dr. Anand Singh (PW5), who conducted 4 ossification test of the prosecutrix, deposed that on the basis of X-ray report he opined that prosecutrix may be 16 to 18 years of age. He admitted in his cross-examination that there may be difference of two years in the age of the prosecutrix on either side. 13. Considering the aforesaid evidence on record, I am of the view that trial Court failed to appreciate this evidence in its proper perspective. Since Ramrati (PW1), mother of the prosecutrix, had not deposed exact date of birth and Dr. Anand Singh (PW5) also admitted that there may be difference of two years in the age of the prosecutrix on either side. In these circumstances, prosecutrix may be more than 18 years of age at the time of incident. 14. Thus, conviction and sentence recorded by the trial Court is not sustainable in the eye of law, therefore, the appeal deserves to be allowed and is hereby allowed. The judgment passed by the trial Court is set aside. The appellant is acquitted to the charges under Section 363 of the IPC levelled against him. 15. Appellant is on bail. His bail bond and surety bond shall stand discharged. (G.S. Solanki) JUDGE 06/07/2011 ravi