L. !te IB^ % ;ncii 'H-te'-HlGH COURT OF JUDICATURE AT BILASPUR ^^ Cr. Appeal. No.-Z2^ Of 2006 (Memoraadum ofCr. Appeal u/s 374 (2) ofCr.P.C.) APPELLANT: (In Jail) 1. Kishore kumgr , S/o Makhan Deepak aged about ^6Years,residence ofVillage Hatkarra, Police Station - Korar, Distt.- North Baster Kanker (C.G.) -VERSUS- RESPONDENT: State ofChhattisgarh, through the District Magistrate, Kanker (CG). MEMORANDUM OF CRIMESTAL APPEAL UNDER SECTION 374 (2) OF Cr.P.C.. _CQnmLctinn. Sentence yf) HI6H COURT OF CHHATTIS6ARH AT BILASPUR Single Bench; Hon'ble Shri Dilip Raosaheb Deshmukh, J. Kishore Kumar Versus 9nri P.C.Pant, leorned Counsel with ^iri Nilesh Pont, Counsel for the appel!ant. Shri Ashish Shukla, Govsrnmen-t Advocate for the State. ORBUUDeMENT (&elivered on 27th day of April 2006) This c^ipeat is directed against the judgment datsd 31-01-2006 delivered by Shri B.Ram, Additional Sessions Judge, (F.T.C.), Konker in Sessions Case No.406/2005 whereby the appeltant was convicted under Section-363, 366 (A) of I.P.C. and was sentenced to undergo rigorous imprisonment for 5 years and fine of Rs.500/- in default of payment of fine to undergo additional rigorous imprisonment for 3 months for each offence. Both the sentences were ordered to run 2. Briefiy stated the prosecution story is that the prosecutrix left her maternal home on 11-07-2005. Her father fianesh &as Manikpuri PW- 2 todged a missing report on 18-07-2005. On 01-08-2005, the prosecutrix came to the Police Station-Kor-ar along with the oppellant whereupon her parents were called at the Poiice Station. The report Ex.P-4 was lodged by Sanesh Dcs Manikpuri PW-2, father of the prosecutrix against the appellant on the same date. The prosecutrix was sent for medical examination. t5r. Smt. Sarita 6oti PW-6 examined the prosecutrix and found that all her secondary sexual characters were fully developed. f*i\ ^-^ ^N^^^^N'^ ^Sli-SR 'Si!:;;-s:';-."-J" --^ W^K <sHi3i3gS9S- tSSS:"\ AAenses-had started at the stage of 12 years. Hymen was ruptured. Vagina admitted two fingers without any pain. There was no sign of any injury or tenderness in the vagina. No definite opinion could be given about any recent sexual intercourss with the prosecutrix. Vaginal slides were prepared which were sent by the Police for chemical sxamination to the Forensic Science Laboratory. Report of the Forensic Science Laboratory was not produced during trial. The appellant was also medically examined by Dr. Sunil Bharoti PW-14 who found that he was capable of performing sexual in+ercourse. No documentary proof relating to date of birth or cge of the prosecutrix was fumished by the prosecution. Ossification test was aiso not conducted though advised by Dr. Smt. Sarita 6oti PW-6. Af'ter completion of investjgation, the appellant was prosecuted for the offences under 5ections-363, 366(A) d 376 of the IPC. The cppeltant abjured the guilt, pleaded innocence and led no evidence in defence. The prosecution examined as many as 14 wi'hiesses. Relying upon the evidence led by the prosecution, the tria! Judge convicted the appellant for the offences under Section-363, 366-A of the IPC ouid ^ntenced the appetlant as aforesaid in para-1 (Supra). The appsllant was acquitted of the chcrge under Section-376 of IPC. 3. Shri P. C. Pant, Searned counssl for the appellant has argued that tiie prosecution has miserably failed to prove the guilt of the appellant under Ssctions-363 & 366-A of the IPC. In the absence of any docurnentary proof or report of ossification and in view of the clear admission by Sanesh Das Manikpuri PW-2, Sukaro Bai PW-4 and the prosecutrix relating to ignorance about the date of birth of the prosecutrix, it coutd not be ruled out in view of the findings recorded by '. Smt. Sari-ta 6oti PW-6 that the prosecutrix was aged 18 years or more on the date of oecurrence. It was also contended that the admission ._^A-_ '••ws'gg^rti by the presecutrix in para-14 that she went with the appellant of her- ovm volition and aiso retumed with the appellant on her own volition coupled with the admissions made by her in para-8, 9 A 10 of her testimony regardmg not informing about the incident to anyone, clenrly negatives the prosecution case under Section-363 <S 366-A of TPC. It was also argued that the F.I.R. WQS lodged by fianesh t5as Manikpuri PW-2, father of the prosecutrix and not by the prosecutrix herself though she was present with the appelldnt ct the Police Station of her own volition. On these premises, learned counsel argued that conviction (snd sentence awarded by the leamed trial Judge deserves to be set aside. On the other hand, Shri Ashish Shukla, 6ovt. Advocate has argued in support of the impugned judgmsnt. 4. Having considered tiie rival submissions, I have perused tiie record of Sessions Cdse No. 406/2005. There is absolutely no documentary evidence on record to estabtidi the dote of birth of the prosecutrix at the tims of occurrence. Ossification test, though advised by Dr. Srst. Sarita ©otiPV/-6 was not conducted on the prosecutrix. Mark-list of the prosecutrix, though produced by the prosecution, was also not proved by leading any cogent evidence. The testimony of Scnesh Das Manikpuri PW- 2 in pura-10 clearty shows •rtiat he had mentioned the age of the prosecutrix by guess work while admitt'ing her in the schooi and there could be varimce of one or two years on either side. Sukaro Baj PW-4, grand mother of the prosecutrix atso stated that she had no knowledge of •the date of birtii or age of the prosecutrix. The Prosecutrix her»tfhas admitted in para-13 that she does not know her age and there could be variancs of one or two years in the ay which was recorded. In this view of 1+ie matter, the findings recorded by Dr. Smt. Sarita 6oti PW-6 become releyant. Shs found on examination of the prosecutrix that 4 |ESsslBg|| secondary sexual characters were fully developed. She -w*s also found that hymen was ruptured. Even Or.Smt. Sarita 6oti PW-6 admitted in pura-5 of her testimony that she did not express omy opinion about the age of the prosecutrix and there could be variance of 2 years or even more in the age of the prosecutrix. Under these circumstances, the possibility that the prosecu+rix was a girl of 18 years or more on the date of occurrence cannot be ruled out. Ttie testimony of the prosecutrix in paru-2 clearly shows -rtiat •the appe!!ant was a frequent visitor in her house oind she was in love with her and wantsd to marry him. In para-14, she has made positive assertion that she went with the appeilant of her own volition and that the appellant did not indulge in " Salat Kam". She has also admitted that -Ae appellant himseif took her- to •rfie Police Station. She also admitted that she tived with the appellant on different ptaces for almost 20 days and did not s'nform onybody during tiiis period that she was kidnopped or lured by the Oippellant in cny manner. In view of the positive assertion made by the prosecutrix in her testimony, it ci!so awnot be ni!ed out that the prosecutrix, a girl aged 18 years had gone with the cppettont of her own freewil!. In this view of the matter, -tiie evidence led by +he prosecution faits to establish the guilt of the qspellant under &ction-363 and 366-A of the IPC. Conviction cnd sentence awarded by •ttie learned trial Judge, therefore, deserves to be set aside. 6. In the result, the appeal is allowed. Conviction of the appellant under Section-363 and 366-A of 1+ie IPC is set aside. Ths appellsmt is acquitted and he shall be set at liberty forthwith, if not required in any other case. Fine if paid, shall be refunded to the s^ipellant. \ -^&r"B \ oW<la95t>e