‘ INIIIIIHIIIHHIVIWIIJHI”If! \ CF0000063454 Single Banch (frimina‘) IN THE HIGH CQURT OF JUDICATURE AT JABALPUR. Cr.Appeal N0. \ l\ 5 (2000. Aypellant : Gimar satnami, geri of Dhanaram (In Jail) fsétnami, aged 19 years, resident of Katiya, Police Statian Bilaigarh, J V District Rai'gur. M P.// Versus. Reszwndent : state of hadhya Pradesh. Criminal Appeal Under Section 374 (2) of the Cr. RC. @P? i / . _HIGH COURT OF CHHATTISGARI-LAT BILASPUR SB : HON’BLE MR. JUSTICE PRITINKER DIWAKER cmmo. 1219/2000 APPELLANT Gilwar Samami VEI‘SUS RESPONDENT State of MP. 0 , Shn' Deepak Jain, counsel for thc appellaJlt. Shm' Neeraj Mehta, P.L. for the Statc‘ ORA; UNDER SECTION 3’74 [2) OF THE CODE OF CRIMINAL PROCEDURE £ JUDGMENT (26.04.20 10) This appeal is diracted against the judgment and order dated 25.4.2000 passed by the Second Additional Sessions Judge, Baloda Bazar, District Raipur in S.T. No. 67/98 acquitting the appenant for the oii'ence punishable under Section 376 of the IPC however convicting him under Section 450 8r. 376/511 of the IPC and sentencing him to undergo rigorous imprisonment fog iive years and to pay iine of Rs. 500, in default of payment of fine to fmther undergo simple impn'somnent for three months. 2. Case of the prosecution in brief is that on 16. 12.97 a wn'tten report (EXPI 1) was given by the prosecutrix (P.W.-1) and based on that FIR (EX.P/ 2) was mgistered. it is alleged that on the said day when she was cooking food, accused/appeilant who is her neighbour, came inside the house, caught hold of her, took inside the zoom, threw her on the cot and then tried to commit forcible sexual intercourse with her. She has alleged that when he was trying to commit the offence, she raised alarm and after hearing the Cries, her brother Kamal Narayan (P.W.—6) came there and after seeing him the accused] appellant fled away from the spot. l 3. In support of its case, the prosecution has examined 12 I witnesses. The accused/appellant has examined himself as the l‘ defence witness. Statenient of the accused/appellant was also i recorded under Section 313 of the Cr.P.C. in which he denied the ‘ ‘0: 41' ‘ ‘ charges levelltd against him and pleaded his innocence and false implication in the case. 4, After hean'ng counsel for the parties, the Court below has convicted the accused/appellant for the oecnces as mentioned above. Hence this appeal. 5; Contention of Shri Jain, counsel for the appellant is that the nt and on the V relevant date, the present is a case of conse prosecutrix was aged about 16 years. He submits that number of u f love lettexs of the prosecutrix (Articles 1 to 19) have been seizeti by ution and irom the mpoxt of;.the handwriting expert it the prosec has been eetablished that all these letters were written by the prosecutrix» He submits that the language of these love letters makes it clear that the prosecutrix was deeply involved in love with the accused] appellant and she used to call the accused] appellant. a case Where unfortunately He submits that present appears to be the accused] appellant and the prosecutrix have been seen by her brother asa result of which FIR has been lodged. In respect of the age of the prosecutn‘x it has been argued by the counsel for the appellant that there is no cogent admissible evidence aVailable on which basis it can be safely said that the prosecutn'x was record on below 16 years of age. He submits that even as per the case of the pmsecution, the prosecunix was 15 years 11 months and 28 days and therefore also the appellant/accused, could not be convicted. He submits that in View of the contents of love letters it is clear alled by the prosecutrix and that the accused] appellant was c therefore the oil'ence under Section 450 IPC will not be attracted. 6. On the other hand supporting the impugned judgment it has y been argued by Shri Mehta that the prosecutn'x was fortunate the accused/appellant would have committed rape on her. He submits that the Court below after correctly apprising the entire; evidence, has convicted the accused] appellant. 7. I have heard counsel for the parties and perused the judgment impugned as well as the material available on record. where, upon hearing her cries, her brother came there otherwise l @ Prosecutrjx (P.W.—1) has stated that on 16.12.97 when she was cookg food at home, accused/appellant cntered her room, took her to another mom, threw he on the cot and tried to commit mpe on her. She has stated that on healin her cn‘es, her brother Kl Narayan (P.W.*) came tere and then the appellant hed away from the spot. She has stated that after the arrival of her mother and father she narrated the entire incident ard then the Written report (E P/ 1) was prepared and FIR (E P/2) as rete1e She as state that she was medally examed by the docto a; In cross examination the prosecutrix had stated that the house of the accused] appellant s adjacen’to her house. She has stated that she does not like the accused/app and she has denied the fact that she was having any ad'air with him since last two years. She has lso'denied the fact that she used to meet the ‘V accused/appellant. In respect of love letters (Article 1 'to 19) the prosecutrix has denied the writing of any such letters. However, from the contents of love letters it appears that she was deeply involved with the accused] appellant and even used to invite him to have pnvacy Though the Wntmg of these letters have been demed by the prosecutnx but from the report of State Examiner of questioned documents Bhopal dated 8 2 2000 1t 1s clear that these love letters were wntten by the prosecutnx 8. Statement of the prosecunix has been supported by her brother (P.W.—6) Kamal Narayan who has stated that after hearing the cries of her sister when he reached to his house he saw the accused/appellant and the prosecunix in objectionable condition Fe had stated that after seeing him the accused/appellant iled away from the spot In cross exammatlon this Witness has stated that when he i saw the accused/appellant and the prosecutnx at that ponit of i time, accused/appellant was removmg her skirt and underweari thereafter this witness has stated that the sldrt and underwear of 1 the prosecutrix were already removed by him and he was trying to commit sexual intercourse Initially he has stated that after seeing ‘ him the accused/appellant hed away nom the spot however ‘ thereafter he stated that after pushing him the appellant fled away ‘ in r g ama 6 h‘ i x x w g1sd h d lc m r i t ellant a He has admitted the fact that in his case diary statement he has not deposed the said fact. Sukhjxam (P.W.~2) and Shann' Bai (P.W.— 3) parents of the prosecutrix have also made an attempt to support the prosecution case. Sukhiram has stated that when he and his wife returned from the iield the prosecutrix was weeping and she has informed him about the incident. 9. In support of the age 01: the prosecuuix it has been stated by her father that her date of bi£~th is 18 12 81 and this witness has also demed the wnhng of love letters by h1s daughter In respect of sgme matenal onussmns and contradlctlons m 111s court statement from that of hls case dlary statement, he has merely stated that he is not awam of the same. This witness has admitted the fact that he is facing the mal in respect of oh‘ence under Section 307 IPC in which cousin brother of, the accused/appellant is one of the witness. 10. Argun Yadu (P.W,—4) Asstt. Teacher has stated that the school register of admission (EXP/6) was seized h‘om him however he has categorically stated that the entries made in the Registry were not made in his presence Mukut Ram (P W -5) appears to be a v111ager and has merely stated that Sukhnam has narrated the meldent to him However 1n hls statement also there appears to be material contradictions and omiss1ons. Prem Sai (P.W.—7) Headmaster of the school has stated that the school register was seized vide EXP/6 and he had issued the certificate EXP/9 in respect of date of birth of the prosecutrix. He has stated that in his school, the prosecutrix was admitted in Vlth standard on 7.7.93 f however he is not aware as to hom where she had passed herl‘ primary school. He has further stated that he has not made the i entries in the school record nor he has verified the same from the l U Kotwar register. Dr. Chandrashekhar Patel (P.W.-8) who had [ examined the prosecutn'x (Ex.P] 10) and has found slight didused i swelling on the left hand has categorically stated that the said} injury could nothave occurred if someone twists the hand and the l same could have been caused on account of beating by a wooden ‘ plank. Budhiam Dewangan, Patwari prepared the spot map ll (EXP/4) and Anil Shanna (P.W.-10) Asstt. Sub Inspector has ‘ / i ‘ @ conducted the part of investigau‘on. Nathuial (P.W.-11) Samanch of the village has not deposed anything. H.S.Yadav (A.S.I) has recorded the FIR. 11. Minute examinau'on of the evidence of the Witnesses makes it clear that the prosecutn'x was having aEair with the accused] appellant and the language of the love letters reflects that she used to call the accused/appellant and they used to look for an opportunity to meet in pxiv‘acy. The evidence also redects that the relations of the accused] appellant and the prosecutn‘x was not lilE‘ed by‘the family members of the prosecutrix for which on many l occasions she was scolded and was also beaten, t A 12. From thewecord, age of the pmsecutrix comes to about 15 yeals 11 months and 28 days however no primary evidence whatsoever has been adduced by the prosecution. The evidence in respect of age as adduced by the prosecution does not appears to be very sound and it Will not be safe on that basis to hold that on the date of commission of the oEence the prosecutrix was minor. Statement of the prosecutrix does not inspire full coniidencevof the Court and therefore beneht of doubt is to be extended to\the accused/appellant and it would not be safe to convict the accused for the odence under Sections 450 8t 376/ 51 1 of the IPC. 13. Consequently, the appeal is allowed. Impugned judgment convicting and sentencing the accused/appellant as mentioned above is set aside. He is acquitted of the charges levelled against him. Accused/appellant is reported to be on bail. His bail bonds stand discharged. P Sdl-’ " Pritinker Diwaker -L. Judge m