000087939 ishap m: ate o'f- Madhya z, Pr HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 619 of 1991 Narayan Singh Nishad APPELLANT VERSUS RESPONDENT State of Madhya Pradesh Shrl Avmash Mlshra counsel for the appellant Shrl Pankaj Shnvastava PL for respondent/State CRIMINAL APPEAL UNDER SECTION 374 (2! OF THE CODE O CRIMINAL PROCEDURE J U D G M E N T (11.03.2010) This appeal Is directed against the Judgment dated 24 6 1991 passed by Additional SeSSIons Judge Kanker District Bastar in Sessmns Trial No 286/1990 conVicting the accused/appellant for the offence punishable under Section 376 IPC and sentencing him to undergo rigorous imprisonment for three and a half years. 2. Case of the prosecution in brief is that on 8 10 1989 FIR (EXP 3) was lodged by the prosecutrix (PW-3) alleging that on 261 1989 when she was returning from Village Orchha after watching the programme of Republic Day, accused/appellant met her on the way and asked her to meet near a particular place known as Kaiu Plantation, At about 1 p m when she had gone to the said place along With her friend Purnavati accused/appellant after giVing e committed sexual intercourse With her assurance of marriag Thereafter he continued to have sexual intercourse With her till May, 1989 and in March 1989 she had come to know about the pregnancy as a result of the said moident Even on disclosure of her pregnancy to the accused/appellant he had assured of marrying her However in April 1989 he adVIsed her to undergo abortion and when she did not agree for the same he turned back from the fmarriage and started livmg somewhere else ln the month .promise o of August when he returned to his Village a Panchayat meeting was @ convened which, among others, was attended by one Baghel, Chief Executive Officer who rather had insulted her saying that the child in her womb was not that of the accused but someone else and when no decision was taken in the said meeting, she had lodged the report. After investigation, the police had tiled challan againstfthe accused/appellant under Section 376 IPC and then he was prosecuted for the same. 2_ 3 . In order to establish the guilt of the accused/appellant the prosecution has examined 06 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case. After hearing the parties the trial Court has convicted and sentenced the accused/appellant for the offence as mentioned above. 4. Heard counsel for the parties and perused the material available on record including the judgment under challenge, . 5. w 6. ‘ Counsel for the appellant, first of all, submits that there is an inordinate delay in lodging the FIR, as the incident had taken place on 26.1.1989 whereas the report has been lodged on 8.10.1989. According to him, age of the prosecutrix on the date of incident was about 16’years and even for this the prosecution has not led any concrete evidence. He submits that in respect of date of birth of the prosecutrix, prosecution has examined Nand LalTamrakar (PW-1), Teacher in Government Higher Secondary School, Orchha and Diwadhar Prasad (PW-2) Teacher in Primary School Orchha who had produced school register Ex. P-1 and P-2B according to which the date of birth of the prosecutrix is 16 6 1973 and thus on the date of Ineldent she was aged about 15 years O7 months and 10 days He submits that these documents produced by the prosecution cannot be relied upon as Ex. P-1 was issued on 11.10.1989 i.e. after commission of the offence whereas Ex. P-2B is a piece of paper app‘earing to have been taken out from the admission register. He submits that document marked as Ex. P-2B has been produced by ,l [.7 t ll 5} a Diwadhar Prasad (PW-2) and though he has admitted that in the said document name and seal of the then Headmaster is there but who is this Headmaster, he did not know. He submits that on what basis the date of birth of the prosecutrix was recorded as 16.6.1973, has not been established. According to him, the document’marked as Ex. P-1 has absolutely no relevance as the same has been produced by Nand Lal Tamrakar (PW-1) who has categorically stated that he was working as Headmaster of the school since 26.11.1984 and the certificate has been made by him as the concerned Station House Officer had approached himfor the same. He submits that mother of the prosecutrix namely Gauribai (PW-5) has categorically stated that she was not educated and therefore, did not know the date of birth of the prosecutrix. He submits that in the absence of any clinching material in respect of her date of birth, it cannot be said that on the date of incident she was below 16 years of age and thus according to the counsel for the appellant, it is clear that the prosecutrix was a consenting party to the act of the accused/appellant. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that It being strictly in accordance wrth law does not warrant any Interference In appeal. 8. It is not in dispute that for the first time the prosecutrix was s'ubject'ed to sexual intercourse on 26.1.1989 and the report Ex. P-3 was lodged by her on 8.10.1989. lt is also not in dispute that the prosecutrix had physical relationship with the appellant on number of occasions in between‘26.1.1989 and 8.10.1989. Prosecutrix has categorically stated as to the manner in which she.had physical relationship with the accused/appellant. Though she has stated that Panchayat meeting was called, there is nothing on record to this effect and none of the Panch witnesses has been examined by the prosecution. The record shows that there is inordinate delay of about nine months in lodging the FIR which has not been satisfactorily explained by the prosecution. ln respect of age of the prosecutrix N‘and Lal Tamrakar (PW-1) and Diwadhar Prasad (PW—2) have been examined by the prosecution. Nand Lal Tamrakar (PW-1) has stated in his evidence that he was working as Headmaster of the school and had given the document marked as Ex. P-1 showing the date of birth of the prosecutrix on being asked for by the concerned Station House Officer. However, this witness has not stated anything‘Ias to on what basis the date of birth of the prosecutrix was recorded: in the schooi register as 16.6.1973. Diwadhar Prasad (PW-2) is also the Teacher who had joined the said school subsequently. This witness has merely stated that he had brought the register in which date of birth of the prosecutrix was recorded as 16.6.1973 but he did not ow as-to by whom [and on what basis the said entry has been recorded in the school register. Thus there is no evidence available on record as to what was the origin of the date of birth of the prOSecutrix recorded in the school register as 16.6.1973. The entry made in the school register is not a conclusive piece of evidence unless its origin is proved by some reliable evidence. No ossification tst of the prosecutrix has been conducted to ascertain her age nOr e doctor who had medically examined her has been put to examination before the Court. Even the mother of the prosecutrix as stated that she being uneducated does not know the date of birth of her daughter (prosecutrix. ln these circumstances it can sfely be inferred that on the date of incident prosecutrix was 16 years of age. 9 . ln view of the aforesaid scrutiny of the facts and evidence available on recOrd the only inevitable conclusion to be arrived at by this court is that the prosecution has not proved the prosecutrix to be below 16 years of age on the date of incident and further the conduct of the prosecutrix in surrendering herself to sexual intercourse withthe appellant for a considerable periodpf about nine months itself shows that she had been a consenting party and therefore, the judgment impugned convicting and sentencing the appellant as mentioned above cannot be allowed to sustain. 10. Accordingly, the appeal is‘aliowed. Impugned judgment dated 24.6.1991 is hereby set aside. Accused/appellant is acquitted of the charge levelled against him. Heais already on bail. His bail bonds stand discharged. Sd/- i l Pritinker Diwaker r Judger/axxi K r kn e th h a