sn^i ?ei R-fi'* WIT 3)I^T shtli'* 'Sv^ •^wii^'ii, WTfwifo, Rtciiyy N1*4yll *l41cb .6'^..G.:..^e..:...6:tl/..Q.L{. an^r xrag; (4°i!l«i<{Er) 200 ^<n^R <t^a sn^r CRX^AI ^ELLA (In Jail) Vs Mangrc] Shri N| ft/0 ^ Kunkuri State Kunkuri i, aged about 23 years, S/op ?an Ram Kumhar, Occupation-Labour, Shatmunda, Potice Station , Distriet Jashpur, Chhcttisgarh. |of Chhattisgcrh, Throuqh: SHO, |, District Jashpur, C&. Present: Mr. Ranbir Singh AAarhas, Adv^cate i<Ar. S. Yadav, Dy. 601 ith Jl This appeal is directe< order of sentence dated 30J whereby leorned Specia! Juc|( Castes (Prevention of Atrocit|e appellant under Section 376 senteneed to undergo R.I. forl in default of paYment of fine Case ofthe prosecutiorj, unaer Section 376 of the IP<] Tribe & Scheduled Caste (Pre^ <?hi'itl<r(<i^i 'V^i ^^^ •(fa^.K '^sfRFT^n^T for the nppe'iant, |Acivocate for the respondent-State. f against the judgrnent of conviction and ^4.2004 passed in Special Case No.3Z/OS Ige under Scheduled Tribes a Scheduied ^es) Act, 1989, Jashpur has convicted the ^f Indian Penal Code (for short 'IPC') an< 10 years and to pay a fine of Rs.10,000/-, jo undergo additiona! R.I. for 10 months. j, in brief, is thnt on 11.10.2002 an offence <f and Section 3 (i) (xii) of the Scheduled fention of Atrocities) Act, 1989 (for short siA'?rw h-u* ^TT 3TI^T sft*ii<=h 3^' •^wiv^^, w^\w'i<a, [^vftwy. •^IMrtl *^11+ sn^r tRra; (4«if-i«i<{«>) 200 's^nw^toCT^i •2.- the Act') was registered aga the proseeutrix that 5-6 rnonl^h appeitant had forcibly comi^i thereafter repeated the abw^ not disclose thls fact to discovered the sign of pregncsj^ mother. The prosecutrix was Cominunity 1-leaSth Centre, Kun 15) examined her and gave carrying pregnancy of 28-30 w taken into possession vide se entries in the adrnisslon regis^s vide seizure memo of Ex.P-4, a^ prosecutrix is 23.7.1989. After completing the iw the Court ofChief Judicial M( received on transfer for tria] prosecution examined 16 witni the aceused 'was recorded und] denied the evidence avaitabte a!eaded false impiication. Lea 'kllirt'il'i Hlldl ^fezt <I"I<(K ^ afRffl ^tr^I ist the appe!tant on the basis of report of is before the date of fiiing of reoort the intercourse w/ith her and 20-25 times, howevw, she did an^body out of fear and when her mother icy in her, she d'isciosed this fact to her Isent for medica! examination to the |<uri where Dr. (Mrs.) Indubala teinz (PW- ^er repwt [Ex.P-18] that prosecutrix is ieks'. Mark sheet of the prosecutrix was |zure memo of Ex.P-2, whereas, relevant gis^er of Ex.P-5-C was taken into possession ^cording to which the date of birth of the gis^er ^estigation, the charge sheet was fiied in gistrate, Jashpurnagar and the same was )y the triai court. buring investigation the Isses in all and thereafter statement of fer Section 313 of the Cr.P.C. in which he ^gainst him in the prosecution ease and jpned triai court after hearina learned SII^T ^T R-ti* w an^r *ii<4i 3'sET •^wwti, a'xTi'M'KS, Ritfi'yy NIMdl **<!<*) an^r iraw cv^^y TOiTWtte an^i -•? counsei for the respectiv^ appeliant under Section 37^ appel!ant ofthe charge und^i Learned counset for t| 'available on record it would were in love with each ot| eonsenting party. So far concerned, the prosecution re!iabie evidence regarding person who has made the examined and there is no e| the admission register was bir'th of the prosecutrix. ossificfftion test and therel evidence regarding date of trial court that the prosecut incident cannot be sustained. On the other hand, !e the impugned judgment. I have hecrd learned impugned judgment as a!so t! (ft)*fT<Tttht ^lNtif '^^l^st' <f«i*$i< "^ 3Tf?FT 3TI^?T parties has convicted and sentenced the of the IPC, however, he has acquifted the Section 3 (i)(xii) ofthe Act. le appeliant submits t'nat from the evidence jse evident that the prosecutrix and accused ler and in fact, the prosecutrix was the \s the evidence regarding date of birth is las failed to prove by' leading admjssible and date of birth of the prosecutrix, as the erijtries in the admission register has not been 1/idence that the date of birth recorded in |n fact given on the basis of exact date of 'he prosecutrix was not even subjected to |ore, in the absence of cogent and reliabie lirt-h of the proseeutrix, the finding of the ^ix was below 16 years of age ot the time of |arned counsel for the State has supported ^ounse! for the parties. I have perused the |e evidence available on record. I^HC-^78 ';.:,.rf> 'SvE- W^ ^ ^.i y 3 311^51 JR RHI* WI 3IKW i.liliw -fssi ^w^, ^W\6, ^wy. an^T'RW ('pf^??) TRiRR^fsaail^T •"\ (PW-3) and Sunni Bai (PW-4) ri •ollidfl-l ^Wcif li.fttft <?«$]< ^? <*i(afl 3H^T The conviction of the a|}peiiant is based on the statements of the prosecutrix (PW-1), father of the prosecutrix Beneram (PW-2), Poyararn other of the prosecutrix. The prosecution has also examined Lohara Ratn (PW-5), Head Master of Sirls Primar'y ./ . .•-.'• '. - - 1 •' . . School, ©hal'munda,who has pt^oved the admission register of Ex.P-5C by producing the original admissit^ of the statement of this witni n register and the triai court on the basis iSS has arrived ot the conclusion thcri' the date of birth of the proseculjrix is 23.7.1989. Lohara Ram (PVV-5) has stated in his deposition that]he is Head Master in the fiirls Primary Schoot, the name of the pros^ecutrix is entered at Sr. No.271 of the admission register and her d There is no cr'oss-examincrt'ion of this witness stands un-rebu1 ite of birth is mentioned as 23.7.1989. by the defence and thus, the statement ted and therefore, the triai court has not committed any iliegality by as^essing the age of the prosecutrix to be less than 16 years ol- the time i^f offence. 5o tar as the commissiorl to estabiish this fact has exi|imined the prosecutrix (PW-1), who has stated in her deposition thnt of offence is concerned, the prosecution ne year before her examirifft'ion she hud gone iii the Borat of appella^it's brother' to Viltage Kodke! cnd had returned to Village Shatmunde] when she was sleeping in the hi^ to another room and forcibty r^ in the night. On the dart-e of incident use of the accused, the accused took her t ped her and thereafter threatened her 3'Sq' •^l<)|(?i<l|, yiTfl^'lfi, [clrtiyy ^y . MWdl **<!* WI. an^I ?CT R-fi'* ^^! -SV^ Sft+iicfi an^?r''cre (4»if-j«<<{8T) g«]|ti;R<lf?fl 3n^?T -^' xamiijiofion not to disclose this fact t4 have sexual intercourse w] she became pregnant. As that she became pregnan^ 1 put to her by the prosec^ thot she toid her parents 1)1 [n the cross-e; their relationship was con^ that an affidavit was filedl the trial court' w/herein However, the version of Staternenf of her father Sunni Bai (PW-4)/who hav| she is carrying pregnancy ^ not been abie to elicit any^ unreliable or untrus+worth' So far as the p| concerned, it has aiready^ prosecutrix is 23.7.1989 13 years.of age and On the basis of tl considered opinion that th tfrl^ld^l'l 'RTO^ ^fec3t <f<qt$l< i;3ifOT3!li?[ others. The accused thereafter also used to th her on S-9 occosions, as a resu!t of which she denied in her cross-exam'ination-in-chief through the accused, a teading question was ition and in reply of which she has admitted hat she is pregnant from accused AAangraram. by the defenee she has admitted that [ensual. There is evidence ovailable on record by the fffther of prosecutrix Beneram before the aliegation of intercourse was deniea. prosecutrix is ouly corroborated from the |eneram (PW-2), Poyoram (PW-3) and mother itated that the prosecutrix told them that hrough accused AAangror-am. The defence has p'hing to md<e the version of the prosecutrix ^ 'osecutrix being the consentin9 party is been held thof the dsrte of birth of the as such, at the time of incident she was 12- consent, if any, is immaterial. ^e aforesaid analysis, this Court is of the trial court has not cominitted any illegality /• XI-HG—78 3:EST ^ww^, •a'^ww, (sic'ii'yy .^,---'^ ^WTPIT <b*f|cb aii^r ?ii ft-fi.* W 317^1 sb*< Roshan/'- 3fl^?T'qiR; (4tlf*t«i<<tl) 's^nwgfer 3ii^r or infirmity in convicting & ^ of the IPC. However, +0^1 prosecutrix nnd her paren^ prosecutrix u/ith the appetla^t and further considering that c male child h/as born to the prosecutri?{ proceedings have expressec| served if the appellant is se of the IPC in piace of R.I. for^ albwed and w/hile maintaini hereby redueed and instead Rs.10,000/-, in default of pa' <t>lol<*l<il-< WHvS^fs^S <Pn<$i< ^sifiPTSI^CT entencing the appellant under Secfion 376 ing into consideration the faci' that the s were rea3y and wiliing to rnarry the through the appellant and parties to the their desire to compromise the matter inter-se, in the considered o^inion of this Court ends of justice would be itenced to undergo R.I. for 7 years and to pay a fine of Rs.500/- minim^sm sentence prescribed under Section 376 10 years nnd to pay a fine of Rs.IO, /-. In the result, the ap|ieal preferred by the appe!lant is partly g the conviction of the appetlant under Section 376 of the IPC, the|jail sentence imposed upon the appeilant of R.I. for 10 years and to pay a fine of ment of fine to underao additioncl R.I. for O months, the appellant is sdntenced to unciergo R.I. for 7 years and to pay a fine of Rs.500/-, in additiona! R.I. for 2 months. Certified copy as per r default of payment of fine to undergo ies. Sd/- Dhirendra Mishra Judge