ging’e fiemh > " ”i \JmEna'.) mmw '/tiawwm L“. N 2m: Hum “g.“ g"..- um @w;c.1mm ..._.A.;.; .&‘“&B;AJL?;.QE 'cRmINaL APFEALNO, \CLQ3 /2000 V un ‘ 91 ' e tio£1 3 ;4‘2} 0i C1.POc I) / WLAQE ‘ nreu Dawa. f aged 21 irhrjQ} “ .- ' iP Raw. «ream, S Earangarh, s/o R/o Pa Lzdira j313armt Awas, aari. Ra n gagrh am y \ I O I {L.P )o ._, ’ VSg ate of ma, mXugh Distric ‘ I n m t ' RESPONDENT 1 x x HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1203 of 2000 Ravi APPELLANT In Jail VERSUS , State of Madhya Pradesh § sPresent: L Shri H.S. Patei, ccunsel forthe appeHant. Shri Vaibhav A. Goverdhan, PL f’or the respondent/State; JUDGMENT NR £ (08.07201 1) This appeal arises out of the impugned judgment and order dated 20.04.2000 passed by the 2'” Additional Sessions JUdge, Raigarh (CG) in Sessions Trial No.89/1 999 convicting the accused/appellant under Sections 363, 366 and 376 of IPC and sentencing him to undergo R.l. for three years and to pay fine of ' Rs.500/-, in default ,of payment of fine to further undergo R.l. for six months under Section 363 of IPC, to undergo R.l. for seven years and to pay fine of Rs.500/—, in default of payment of fine to further undergo R.l. for six months under Section 366 of IPC and to’undergo R.l. for ten years and to pay fine of Rs.500/-, in default of payment of fine to further undergo R.l. for six months under Section 376 of IPC. Ali the sentences were ordered to run concurrently. i 2. Brief facts of the case are that on the basis of undated written report Ex.P-8 made by Munna Lai (PW-2), father of the i prosecutrix (PW-3) on 03.06.1999, F.l.R Ex.P—9 was lodged ! against the accused/appellant under Sections 363 and 366 of Z _IPC. In this report, it is alleged that on 06.04.1999, the E accused/appeliant after alluring his minor daughter aged about , 11 years, had taken her along with him and whenever the ' enquiry was being made from Panchramwvfather‘ of the \\§ accused/appeilant, they threatened him. The statement of the prosecutrix (PW 3) under Section 161 of Cr P C was recorded on 04 06 1999 In which she has alleged that she was reSIdlng wrth her parents and used to beg as they are beggars She has v: further alleged that the accused/appellant took her along With hlm kept her In the house of one Rolesty Chowhan there she was being subjected to physrcal relation by hlm She has further l alleged that thereafter she lived In various places along wrth the accused/appellant and they used to have physrcal relation and t they lived like husband and wrfe On the basis of the statement s of the prosecutnx (PW 3) and after Investigation challan was Q filed on 06 07 1999 by the Police under Sections 363 366 and 376 of lPc 3 So as to prove the guilt of the accused/appellant lprosecutlon has examined 12 Witnesses whereas one defence jwrtness has also been examined by the accused/appellant iStatement of the accused/appellant was also recorded under Sectlon 313 of the Code of Cnmmal Procedure In which he denied the charges levelled against hlm and pleaded hrs Innocence and false Implication In the case 4. After hearing the parties, learned trial Court has convicted and sentenced the accused/appellant as mentioned in para-1. 5. Heard counsel for the parties and perused the material available on record Including the Judgment of the trial Court ’x/ 6. Contention of learned counsel for the appellant is that present is a case of affair where the accused/appellant and the prosecutrix (PW-3) were having good relations and even when the statement of the prosecutrix (PW 3) was recorded In the Court they were liVing together and were also havrng an Issue He submits that there is no legally admISSIble ewdence in respect of the age of the prosecutrix (PW-3) and therefore, the accused/appetlant eannot be convicted under Sections 363 and 366 of IPC. It has been further argued that inordinate delay in lodging the F.l.R a the conduct of the prosecutrix (PW-3) where she remained aiong with the accused/appellant for number of days makes it clear that she was a consenting party. 7. On the other han supporting the impugned judgment it as been gued by Sh Goverdha learned counsel for the State t the conn of the ccused/appellant ls In £ ccordance h la 8. . The rosecutrix (PW-3) in her Court statement has stated that she knew the ccused/appellant and his father got conducted an ey on the allegation against the acsed/appellant for cog rape h her She has stated that on the date of t, she went along wrth the accued/apellant of her wn a place called Peekn‘jharan where they got arried with each other. She has stated\that before marriage, she was having affair with the accuse/appllant and after getting married, she started living with him and sed o have phsical relation with him. She has further stated that before marriage, th accused/appellant never had physical relation with her and on 6‘“ April, she got married with him t Sarangar and the marriage was attended by the residents of the locality. She as further stated that she was admitted in the Bhojpur schoo b her mther and father and her d v c h ar ri n hat VIctio a a wrt w a ate of birthwas not correctly reorded in the said School. She has furher ate that she was forcibly ken by her parents and brother—in—law nd initially, she has refused for the same and ultimately n er society, her mariag was solemnized with the as n e her e e ccued/appellant ad then she started living with her in-laws. Sh has furt statd that sh had never gone to lodge the nd d p a nqUir cu mmittin wrt lncrden sp o to m de u t y e a h h l y o t std ta a i h re @D report and it is her father who had fodged the report and thereafter, this witness was dectared hostiie. In cross-examination, she has clarified that she is not minor and age ofrher eider brother is about 25-30 years and she is just next to him. She has further stated that she has come to Court from the house of the mother and father of the accused/appellant. in paragraph-7 of her statement, she has further clarified that ' she was having affair with the accused/appeiiant and they used to exchange letters with each i‘other“ She has further clarified that she has married the accused/appellant on her own. She has also submitted that while admitting in the School, her'age was shown to be less and i only under that condition she was admitted in the School and the accused/appellant has never committed sexual intercourse with her against herwishes. She has repeated that the age of her j elder brother is 25-30 years and he is elder than her by 1 “/2 ' years. She has stated that at the time of her marriage, even her ‘ parents were there who have initially agreed for the same but when the accused/appellanthas refused to fulfill their demand: a fatse report has been lodged. She has further stated that her age has been wrongly shown by her parents just to implicate the accused/appellant in a false case. 9. Shanti Bai (PW-1), who is the mother of the prosecutrix (PW-3) has stated that it is the accused/appellant who took away her daughter along with him. Munnalal (PW-2), the father of the prosecutrix (PW-3) has stated that it is the accused/appellant, ‘ who took his daughter along with him and when she was found 1 in his company, she refused to come back along with him. He l‘ has stated that thereafter, he and his wife were threatened by ‘ the parents of the accused/appellant and then the F.l.R. was lodged. He has stated that the Police have never recorded his statement and after filing of the F.l.R, for the first time, he is deposing before the Court. Radheshyam, (PW-4) is the seizure witness of EXP-2 and has been declared hostile. Laxmi Prasad (PW—5) has not deposed anything specific agains he accused/appellant. - Jagranthia (PW-6) is the seizure witness of EXP-2 and P-3. Butia (P-7) is a witness who had goe to brin back the prosecutrix where she refued to accompany him. Dr. (Smt) J. Triphi (PW-), who had medically examined the prosecutrix (PW-3), has deposed that she ws aged aout 14-1 7 years. Hr secondary sexual orgns were fully develop, V ymen was old torn and she was habitual . to sxual intercourse and for correct determinatin o her ag she was referred for dioloical test. Salikram Raut (PW-9) is the Police Constable ho tk te prosecutrix (PW—3) for medical examination. Dr. Anil Kumar Tirkey (P-10) had medically examined te accused/applant an ound him capab of performing sexual intercOurse. amdas Jagde (PW-1 1) is the school acher and witness of tnsfer certificate EXP-6. school admission Ex.P-6(c) and school register P-7 and according to him, the date f birth of the prosecutrix (PW-3) s.‘05.07.1988, which was recored on te ass of the instructions of her fathe and he cannot ll as to whether the correct information as iven to him and whether the proecutrix (PW-3) has studied some other schol fr about 3 years or no. J.P. Singh PW-1 2) is th investigating Officer. 10. The minute examination of the videe n particuiar that of the prosetrix W—) clearly shows tat she was having affair with the accuse/appellant, on the date of incident, she wen along with-the cued/appellant of her own, her marriage was soiemnized with th accusd/appellant and then she had , phsical h time relation of incidnt, with she hi was with major'but' her consent. intentionally, Aordg her to her, father at got recorded her age showing her to be minor just to implicate the accused/appellant in a false case. The impugned ‘judgment further reflects that when the evidence of the prosecutrix (PW-3) t t W n g s at 8 a b ‘ e a ed ‘ h e l o f e. rag jp w oo h l‘ W h el d f le R te ra ‘ EX o i d h bi r te w g s in o o t ( e enc i cu (P3 h t d £t acs i e e 4' Ey te e m ccin @ Was being recorded in the Court, she was .c‘arrying pregnancy of ’ 7 months and from the impugned judgment, it appears that at the time of conviction of the accused/appellant she had a child. iThough as per the school teacher, the date of birth of the ,e ,iprosecutrix is 05.07.1988 but even this witness has admitted the ifact that he cannot tell as to whether the correct date was given tstugied in other school also and as per Ramdas Jagde (PW-‘1 1 ), lhe wasnot aware of the said fact. Dr. (Smt) J. Tripathi (PW-8) :who had medically examined the prosecutrix (PW-3) had idetérmined he‘r age between 14 and 17 years and she had also ireferred her for ossification test but admittedly, no such test was conducted and therefore, benefit of doubt should go in favour of the accused/appellant. Moreover, as per the lady Doctor, the prosecutrix (PW-3) was found to be a fully developed girl. 11. Considering the totality of the case, particularly the statement of the prosecutrix (PW—3) where she has categoricatiy stated that she went along with the accused/appellant of her own, got married with him, had physical relation with him after marriage and that her father has deliberately implicated the accused/appellant in a false case, the other evidence making allegation against the accused/appellant does not appear to be trustworthy. , , Considering the overall aspect in particular the fact that the prosecutrix (PW-3) and accused/appellant married with each other and they are living together and they are also having an _ issue and most importantly the prosecutrix (PW-3) has turned ‘ hostile and there is no clinching and conclusive evidence in respect of the age of the‘prosecutrix (PW-3), this Court is of the considered opinion that the conviction of the accused/appellant under Sections 363, 366 and 376 cannot be upheld. lat the time of the admission of the prosecutrix (PW-3). Further, , lthe evidence makes it clear‘that the prosecutrix (PW-3) had» Priya 1a. Accordingly, the appeal is allowed. Judgment impugned is set aside. The accused/appellant is acquitted of the charge leveled against him. As the accused/appellant is reported to be on bail, his ball bonds stand discharged. r"—‘_——‘“a we Sdl- ’ s+ 1 l 7 Pritinker Diwaker} 7"!