^:^}^-^:^:^^^^:;; •^^M ^'^';?:3^iE 'NiSffiinn PIIGH GOURT OF .M/OHY& 'O Lalpur» Sistrict R^ w.a/y &a; ?»S. Dhara Satnai e ^ u<S SB.^IH^-^££S^fc-S^-lZiIZL££-^ffi-c®£-£E-caIMia^-PBS@! ^ Coavicfelon ^-^s&= iaii ^; 1-C6H COURT OF CHHATTISSARH AT BILASPUR Single Bench : Hon'ble Mr. Justice Prttinker Diwaker Criminal Aooeal Na. 1018 of^992 APPELLANTS RESPOM>ENT Bhagcuya Bqi and anether Versus State of Wadhya Proidesh Ms. Sudha Agrawal,counse| forthe appellants. ^ Mr. Pravin &as, Dy. Govt'. Advoeate for the Slsts. CRIMINAL APPEAL UN&ER SECT10N 374 (2) CF THE C0 W CRIMINALPROCEDURE f JU &6MENT (22.03.2010) This appeat is directed cgainst the impjgnecl judgroent dated 18.9.1992 pcesed by 3rd Additional Sessions Judge; Raipur in Sessions Trial No. 210/1989 convicting the accused/appellants for the offenc^ punishcble imderS^fions 363 oind366-A of the Indian Penal <S>de artd sBntencing them to undergo rigorousimprisonment for threeyears for both the offences. Both the sentenees were wderwl to ?pun concurrently. 2. Brief facts of the ccse cre thcri- en the bgsis of one undated missing report lodged by fcrther of the prorecutpix Kuber Yadav (PW-3), investigcrt'ion was made onsl BF®n interrogationof accused/appellant NQ, l,the prosecutrRiCWas recovered vide Ex.P-5 from the possessiwi pf Sa^atri bat fnim Bombay and thereofter, on 6.7.1989 F.I.R. (Ex.P-4)was registered against the appellants for the offences,pun(shable under Sectwns 363,366-A cmd 368 qf the Indian Penq! Cqcte. After investigation challan was filed on 17.8.1989 for the offences punishable under Sections 363, 3^-A ar(d 368 pf the '«it. "-;"% ; :-A ~y i: .,;;[y' Indian Penat Code. However, clwrges were framed <yf the' offences punishable under Sections 363, 366-A arKi372 of^the Indian Penal Code. 3. So as to hold the accused/appetiants guilty, prosecution has exomined 06 witnesses in support' of its case. Stateagents of the accused/appellants were also reoorded ander l5ect|Xi 313 of the Code of Criminal Procedure in which they denied the charges levelled against them oind pleaded their innocenceand false implication in the case. 4. After heorin9 the parties the trial Court' has cenvicted and sentenced the oiccused/appeltflrrts for fhe offerrce ^s mentioned above. 5. Heard counsel for the parties and penised thie incfreriat availabie on record including the judgment irquigned; 6. Counsel for the appellants submits that appejlant Np. 1 Bhagaiya Bai has already undergone the entire senterBe.Sbe submits that appellcmt No. 1 is ncw aged cbout ^ yecrs whereas the qipetlcnt No. 2 is <qed cd>out 80 years <nd physical condition of both the appellcmrtsare so pathetjc thc* even theyccnnot walk properly. She furthersybmits thort- on this ground alone either the appellants mcy be acquitted or they moy be given benefjt of Probation of Offenders Act, 1958. 7. On the other hand counset for the redpondCTt/Stat-e support-s th®impugned judgment. 8. From the eyidence as adduced by the jirosecytjon, it is that no document whcrt-spever has bgen filed by th® -3 prosecution in respect of age convicting o"y of the person for 363, 366-A of the Indior) Pe? prosecutrix i-s very material but evidence whatsoever has been Code., the age of the the ca.se. in hand, no stich on the date of incident the prosscutrix was beiow 18 years of age. 9. Prosecutrix (PW-2) In her court .statement h.a-s stated that she had visited various phces m the company of the accussd/appe!!ants but her conduct cnd the act shows that she was a mature girl cuid yet she has not raised any aiarm or has not made any effort to get herself fres from the c!utches of the accused/appe!lants. The court- betow has accused/appellants on the basis of the prosecutrix wher®she has stated thort- she was a( years. Even the fat'her of the prosecutrix Kuber filed any document in relation to the age of th.e prosecutrix and has merety stated that she was about 14 Investigort-ing Officer H.C, Verma (PW-6) has also Looking to the evidence waitcbl®on record.In thct- there is no evidence on record to show that on 1!' age, furl'her that the appeliant No. 1 has aiready the entire sentence, the fact thct both the appellait present before the Cour!' are even not in a position 1 safe for this court to sd/appeliants. In thsse accused/appellants are entitied for benefit of doubt. ct the th.e 11. Consequently, the appeal is a\\owed. Impygn%i judgmertt dated 18.9.1992 is hereby set aside. Appellants qne ocquitted; of the charge levelted against thent. Theycrewibatl.Bcril bonds furnished by them stond dischorged. Pritinker Diwaker