:L 7_ 4,, CF0000057565 I TEE HIGH COURTOF MADHYA PRADm AT JABALPUR. §h§§§ geach (Ewiiw CRIMINAL APEAL No. $233 0 199. ex: of Shri Dina S‘bni, ‘i, “ . ‘ / _ / Rajesrh ali$ Kameshwar s‘oni aged abowt 24 yea-9,, reagent of Tikragm-a APPELNT; a ipu: R . VERgUS. h f atate of Madhya Pradeeh thrOug the mdent Pollce Station, Purani Basti, Ralpur..gR E. APPEAL UNDER swrxon 3 OFVTH'E com OF CRIMINAL PROCED’URgg 1973. N i P 3 1 / {w x s , / LA § v’i‘» HIGH COURT OF CHHATTISGARH AT BILASPUR'V - (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeai No. 23 of 1991 APPELLANT Rajesh alias Kameshwar’ Soni VERSUS RESPONDENT State of Madhya Pradesh. Shri Anurag Dayal Shrivastava counsel for appellant. Shri Neeraj Mehta PL for respondent/State. CRWINAL APPEAL UNDER SECTION 374 12) OF THE CODE OF , CRIMINAL PROCEDURE. JUDGMENT (o1 .o4.2o1 0) This appeal is directed against the judgment dated 26.1 1 .1990 passed by Additional Sessions Judge, Raipur, in Sessions Trial No. 261/1989 convicting the accused/appellant for the offence pUnishable under Section 363 IPC and sentencing him to undergo rigorous Imprisonment for three years 2. Case of the prosecution in brief is that on 8 3 1989 FIR (Ex P- 2) was lodged by one Kartik Chand (PW— ) — father of the prosecutrix (PW-1) alleging that on 4.3.1989 at about 4.45 pm. the prosecutrix had gone to attend her tuition class but did not return home since then. It is alleged that on enquiry he came to know that it was the accused/appellant who had allured her away. On 30.3.1989 the prosecutrix Was recovered from the house of one of the relatives of the appellant at village Parasghat vide recovery memo Ex. P-10. Statement of the prosecutrix under Section 161 of the Code of Criminal ProcedUre was recorded on 31 3 1989‘ and after investigation charge sheet was filed against the accused/appellant for the offences under sections 363 366 and 376 IPC 3. So as to hold the accused/appellant gUIlty, prosecution has examined 12 Witnesses 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 D case. 4. After hearing the parties the trial Court has acquitted the accused/appeliant of the offences punishable under Sections 366 and 376 IPC but convicted and sentenced him for the offence punishabie under Section 363 IPC. 45. Heard counsei for the parties and perused the material avaiiabie on record including the judgment impugned. 6. Counsel for the accused/appeliant submits that the prosecution has utterly failed to prove the fact that at the time of commission of the offence the prosecutrix was minor. He submits that there is no admissible evidence on record to show that on 4.3.1989 she was minor. According to him, Kartik Chand (PW-2), the ‘. father of the prosecutrix has categorically stated that he did not know the date of birth of the prosecutrix. He submits that vide Ex. P- 23 and P-24 the doctor had referred the prosecutrix for ossihcation test but the same has not been done and therefore, benefit of the same has to be given to the appellant. He submits that the only piece of evidence in respect of the age of the prosecutrix is her mark sheet Ex. P—20D, school leaving certificate Ex. P-2OB, certificate Ex. P-2O issued by the Principai of the school namely Smt. B.R. Sethi (PW-11) and admission form Ex. P-20E but there is nothing on record to show as to on what basis her date of birth was mentioned on these documents. In support of his submission reliance has been placed on the decisions of the Supreme Court in the matter of Babloo Pasi v.State of Jharkhand and another (2008) 13 SCC 133, in the matter of Sunil v. State of Haryana reported in 2010 (1) SCC 742, in the matter of Ravinder Sinqh Gorkhi v. State of U.P. reported in AIR 2006 SC 21 57 and decision of the Chhattisgarh High . Court in the matter of Bablu v. State of Chhattisgarh reported in 2006 Cri.L.J.'3732. According to him the prosecution has failed to adduce any primary evidence in respect of the age of the prosecutrix on the date of incident and merely on the basis of entry in some of the school certificates not being a conclusive piece of evidence regarding age, cannot be mad'e basis for conviction under Section 363 IPC. He submits that in case where the appellant is discharged under Section 376, close scrutiny of the evidence with regard to the age of the prosecutrix is required. He submits that as the prosecutrix s ' was.“ @ was not removed from her lawful guardianship, the case in hand does not fall within the ambit of Section 363/361 IPC. Counsel for the appellant submits that since the radiological examination of the prosecutrlx has not been done in the case In hand adverse Inference has to be drawn in favour of the accused/appellant 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that once the doCuments related to the school have been proved, the prosecution is not required to lead any further evidence in this respect. He submits that \taking the date of birth of the prosecutrix as 1 .4.1973 her age on the date of incident comes to 27 days less than 16 years and therefore in relation to the offence under Section 363 IPC she was minor. He submits that Kartik Chand (PW-2) has stated that prosecutrix was born about 16 years ago and therefore also it is clear that on the date of incident she was less than 16 years of age. 8. Prosecutrix (PW-1) has stated that on 4.3.1989 she was taken bythe accused/appellant to various places and till 30.3.1989 she remained with him. Record also shows that number of love letters were seized by the prosecution and thus her conduct shows that she was a consenting party to the act of the accused/appellant. 9. V Now the only point to be decided by this Court is whether on the date of incident the prosecutrix was below 18 years of age or not. Kartik Chand (PW-2), the father of the prosecutrix has stated that he was not aware of the date of birth of his daughter (the prosecutrix). He has stated that in March 1989 she was studying in ninth standard in Dani School, Raipur and before that she was studying in Kali Badi School. Thus once this witness admits that he ~ is not aware of the date of birth of the prosecutrix, the‘other part of his statement in respect of age becomes doubtful. Admittedly, this _3_ witness has not produced any birth certificate of the prosecutrix. \ Moreover in paragraph 4 of his deposition he has stated that he has not written the date of birth of the prosecutrix either on paper or in dtary ln paragraph 5 this Witness has further stated that he being an illiterate person had got the application of the prosecutrix prepared i for her admission in the school by someone else but he is not aware @ ¢ _‘ of his name. He states that along with the said application of his daughter, no affidavit whatsoever was filed. The other piece of evidence in this regard is the evidence of Smt. B.R. Sethi, Joint Director in the School Education Department. This witness has stated that from April 1981 to June 1989 she was workihg as Principal in J.R. Dani Girls School, Raipur where the prosecutrix was got admitted by her father in Class Vl on 2.7.1984. She has stated that the prosecutrix had taken admission in her school on the basis of transfer certificate Ex. P20A after passing class V from Bengali Primary ,Girls School, Raipur and according to the said transfer certificate her date of birth is 1.4.1973. ln cross examination this witness has stated that according to the school record, date of birth of the prosecutrix is 1.4.1973. She has stated that before taking admission in her school, the prosecutrix was studying in Kalibadi School. According to this witness, at the time of admission only the application is necessary but no affidavit for that purpose is required. This witness has however stated that she is not aware of the procedure being followed in the Kalibadi School where the prosecutrix studied before joining her school. 10. Thus from the record it is clear that the date of birth of the prosecutrix taken by the prosecution is based on the transfer certificate issued by Kalibadi School but nobody from the said school has been examined by the prosecution to find out as to on What basis or on whose information the date of birth of the prosecutrix has been recorded as 1.4.1973. Even according to the father of the prosecutrix, he was not aware of date of birth of his daughter (the prosecutrix) and also of the person who had made the application for her admission in the school. Though the prosecutrix was referred to the radiological examination but no such examination has been got done by the prosecution and this failure on the part of the prosecution is a serious flaw to the prosecution version. Thus in the absence of any primary evidence regarding the fact that on the date of incident the prosecutrix was below 18 years of age and keeping in mind the aforesaid judicial pronouncements of the Apex Court, this Court is of the considered uopinion that conviction of the accused/appellant under Section 363 IPC would be a gross illegalit. ‘ y @ "§\ 11. In view of the facts and evidence discussed above, judgment under challenge being contrary to the material availabie on record is not competent to sustain. Accordingiy, the appeal is aiiowed. Judgment impugned convicting and sentencing the accused/appellant as above is set aside. Appellant is acquitted of the charge levelled against him. Appellant is already on bail. His bail bonds stand discharged. Sd/- Pritinker Diwaker Judge . t_\,_¥.