@ HIGH COURT OF CHHATTISGARH, BILASPUR criminal Appeai No. 153/2005 APPELLANT J Billu @ Ram Versus NON-APPELLANT State of Chhattisgarh J D G E M E N T POST ON Vb MAY, 2009 5 Sd/_ I R.L. Jhanwar Judge y i3 /5/200 b £éxi J HIGH COURT OF CHHATTISGARH BILASPUh sINGLE BENCH: HON’BLE SHRI R. L. JHAN’WAR: J. criminal Aggeal No; 15312005 Blllu @ Ram S/o Samaru aged 35 yaars R/o Mangludxpa Ralgarh Kotra Road Raigarh Dlsmct-Ralgarh (CG) r Versus 8mm of Chhatttsgarh through In chalge- Pohce Stauon —Amb1kapur Dlsmct-Sarguja (CG) Anyeuant Non-appellant V} _ _ Present: g ‘ ' . ‘ Shri J.A. Lohani, counsel for thc appellant. V ‘ L _ shn' D.K. Gwahe, Govt. .Advoca for he Stat. J U D G M E N T (Delivered on \3 5.2009) 1 Thls Cnmmal Appeal 1s dlrected agamet the Judgment of conwchon and order of sentence dated 18th January 2005 paesed m QT No 351104 whereby the learned III Addmonal Sess1ons Judge (FTC), Amblkapur has conv1cted the appellant under Sectlons 363 366 A & 376 of the IPC and sentenced to undergo R l for 3 yeam and to pay a nne of RS500] -, in default of payment of due to further undergo SJ. for 6 months under Section 363 of the IPC; RJ. for 4 years and to‘pay a nne of Rs. 1,000/—, in default of payment of line V to further undergo RJ. for 1 year under Section 366—A of the IPC and R.I. fof 7 years and to pay a nne of Rs.2,000/—_, in default of payment Of nne to furthen undergo ‘S.I. for 1 year under Section 376 of the IPC. 2. Prosecution story in brief is that on 23.4.2004, the prosecutn'x was taken away ’by the appellant on the promise of marriage to angiudipa, Rajgarh and he committed scxual intercourse withvhe , ,_ , _ m t e M r. / After a long interval Ramprasad (P W 3), father of the pmsecuirlx lodged the repoxt FIR was leg1stered and the case was mvesngated The prosecutnx was recovered &om the possession of appenant‘ After investigation, it was found that the age of the prosecutrix was 15-years at the time of incident. Prosecutxix was abducted and rape] was committed by the appellant therefore the charge for oh‘ence under Sections 363 366 —A 85 376 of the IPC has been med m the Court of Chief Jud1c1a1 Magistrate Ambikapur District-Sarguja, who commltted the case to the Court of Sessions for trial. Sessions Judge made over the same forhial to III Additional Sessions Judge, Ambikapur. . change under Secuons 363 366 A & 376 oftht IPC was named and r explained to the appellant who abJured the guilt and took a demece that he 1s mnocent and has been falsely implicated After due trial the learned trial Court after evaluatmg the ev1dence avallable on record held the appellant guilty of the 0%nce punishable under Qectlons 363 366—A 85 376 of the :IPC; and therefore, convicted and sentenced‘him. t. I have heard learned counsel for both the parties and perused the record of the tnal Court . Learned counsel for‘the appellant submits that on the date of incident, the prosecutrix was more than 18 years The trial Court on the bas1s of her mark Sheet adduced by the prosecution Wherem‘ er date of birth shown as 1 7 1988 held her age below 16 years . h the doctor, who exammed the prosecutnx has not found any mtemal mnuy on her person He mrther contended that fmm th ev1dcnce 1t 1§ clear that the prosecutnx was consentmg party Therefore, no oh‘ence 1s made out. The'appcllant deserves to be acquitted. 7. On the other hand leamed counsel for the State supported the unpugned Jud gment and order passed by the mal Court 8. From perusal of’the judgment passed by the learned 11ml Court, itvis clear‘thatr the judgment rest on the basis that the age of the prosecutnx on the bas1s of document of Ex P/2 was less than 16 years From perusal of the ev1dence 1t 1s clear that although Mark Sheet (Ex Pl 2) has been med by the prosecuuon but to prove the same no ev1dence has been adduced Even Ramprasad father of V the pmsecutnx m h1s cross—exammauon has statedvthat hedoes not know the correct date of birth of his daughter as he ls Ilhterate Even no oss1ticatlon test for determmahon of age has been conducted by the pmsecutlon; therefore the age of the prosecutrix below 18 years or 16 years has not been proved by the prosecution and the learned trial Court erred n1 holdmg the age of the prosecutnx below 16 years. 9. Accordmg to prosecutton story Itself the prosecumx went along _ ‘L ; w1th appellant on the false pronnse of mamage From ewdence 1t 1s clear that she hved along w1th the appellant for about 1 month but ‘ d1d not make any complamt to anyone Father of the prosecumx dld not make any report for about 1 month There 1s no other ev1dence to support the prosecunon story, even medlcal evrdence 1s negative v s Fromv all these material, it can clearly be. inferred that the pmsecutn'x was a consehting party. 10,When the age of the prosecutn'x was not proVed below 18 yams or 16 years, it is clear that she was a consenting, palty. No oEence .under Sections 363, 366—A 6n 376 of the IPC has been made out. 11 In the Iesult the appeal 1s allowed Conwction for oEence under Sections 363 366-A 8n 376 of the IPC Iecorded by the tnal Court and sentenced passed by the tnal Court for committing the on‘ence are set asmle The appellant 1s acquitted of the charge hamed against him He be set at hberty forthw1th 1f not quired 1n any other case Sd/- R.L. Jhanwar Judge \i Ie