1 ||y E IN THE HIGH COURT OF JUDICATURE AT BILASPUR. CHHATTISGARH CRIMINAL APPEAL N0. 1 ^ ^ OF 2005 APPELLANT: f^e4 OTI...-..-(P-: rShri...J^^-"- .A'^T^C^^ Raju Yadav, S/o Mustkim @ Doodnath Yadav, Aged about 30 years, R/o Nikolia, District Balrampur (Uttar Pradesh). Presentlv residing at : Near Firantin Mandir, Basantpur, Rajnandgaon, Dist. Rajnandgaon (Chhattisgarh). K to D. R. 3^1 RESPONDENT: Versus k^^\^^ ^ ^^ ...^ State ofChhattisgarh, Through : The District Magistrate, Rajnandgaon, Dist. Rajnandgaon (Chhattisgarh). ^" A MEMO OF APPEAL UNDER SECTION 374 f2) OF THE CODE OF CRIMINAL PROCEDURE APPELLANT HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pntinlcer Diwaker) Criminal Appeal No. 196 of 2005 Raju Yadav RESPONDENT VERSUS State of Chhattisgarh. ^l CRtMINAL APPEAL UNDER SECTION 374 (21 OF THE CODE OF CRIMINAL PROCEDURE. Present: Shri V.R. Tiwari, counsel for the appellant. Shri Vivek Sharma, PL for the respondent/State. JUDGMENT (10.05.2011) Thls appeat js directed against the impugned judgment and order dated 22.01.2005 passed by Special Judge, Rajnandgaon (CG) in Special Case No.65/2004, convlcting theaccused/appellant under Seetions 363, 366 and 376 of IPC and sertencing him to undergo R.l. forthree years andpay fine of Rs.250/-, In default 6f payment of fineto further undergo Rl for two months under Section 363 of IPC, to undergo R.l. flve years and pay fine of Rs.500/-, in default of payment of ftne to further unctergo R.l. for three months under Sectjon 366 of IPC and to undergo R,l. for seven years and pay fine of Rs.500/-, jn default ofpayment of flne to further undergo R.l. for three months under Section 376 of IPC. 2. Brief facts of the case are that on OS.07.2004, F.I.R. Ex.P-12 was todged at City Kotwali, Rajnandgaon (CG) by Ratnamala (PW-9), mother of the prosecutrix alleging in tt that on 09.06.2004, she had gone to Gondia for some personal worte and she had teft her chjldren including that of prosecutrix in her house. She has further stated that she had requested her brother-in-law (Jeth) Sudama Ganvir (PW-11) to take care of her chiMren. However, on 09.06.2004, when she returned from Gondia, she found the brosecutrix mjsstnd and thereafter: her brother-in-law had informed /^'^. »f ^A,.' ,.„„,,.:'.>.... ^ ^ '^•.s';v;^;; ^. ^ '^•^M:^^^A ^ %^sr! ^ her that the accused/appellant Raju Yadav used to visit her house to meet the prosecutrix and he ateo spent one night with her on 08.06.2004 forwhich, Sudama Ganvir (PW-11) hasalso scolded the prosecutrixand on 09.06.2004, the accused/appellant had taken the prosecutrix along with him. The todger of the F.I.R has further alleged that when the whereabouts of the prosecutrix coukl not be traced, the report was lodged. While the report was lodged before City Kotwati, Rajnandgaon and thereafter, the samewas transferred to Rajnandgaon Police Station wherein, tt was lodged vide Ex.P-6 on 05.07.2004 itself vide crime No.455/2004 and the offences under Sections 363, 366 and 376 of IPC were registered against the accused/appellant. On 07.07.2004, the prosecutrix was recovered from Surat vide Baramdgi Panchnama Ex.P-16. After Irwe^igation, the challan was flled on 31.07.2004 under Sectlons 363, 366 and 376 of IPC read with Section 3(i)(xii) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989. 3. So as to prove the guitt of the accused/appeltart, proseeution has examined as many as fourteen wttnesses. Statement of the accused was also recorded under Section 313 of the Code of Criminal Procedure in which, he deniedthe charges levelled agalnst him and pleaded his innocence. 4. By the impugned judgment, leamed trial Judge has though acquitted the accused/appetlant under Provisions ofthe Special Act, but has convicted him under Sections 363, 386 and 376 of IPC and sentenced him as mentioned in paragraph-1 ofthe judgmerrt. 5. Heard counsel for the parties and perused the material available on record Induding the judgment of the trial C©urt. 6. Contention of learned counsel for the appeUant js that in the present case, the prosecutrix has not been examined as she died even before filing of challan and therefore, under no circumstances, the accused/aDoeltant can be convtoted for the offence under v^y Section 376 of IPC. He further submits that even in the medical report of the prosecutrix Ex.P-2, no external or internaj in|ury was found and the Doctor has categorteally opined that she was habitual to sexual intercourse and there are no signs of forcefut sexual intercourse. He further submits that the conviction of the accused/appellant under Sections 363 and 366 is atso bsKl in the eye of the law because there is no legatly admissibte evidence in respect of the age of the prosecutrix and further there is no evidence that the accused/appellant took the prosecutrix under the promise of marriage. 7. On the other hand, supporting the impugned judgment, it has been argued by Shri Vivek Sharma that the convtetton of the accused/appellant js strtetly in accordance with law and there is no infirmity in the same. 8. Admittedly, the prosecutrix has not been examined in the case as during the pendency of the investigation itself, she expired. Ratnamala (PW-9), the lodger of FJ.R and the mother of the prosecutrix in her Court statemerrt has stated that she has flve cMldren and the prosecutrix was the eldest and her age was about 15 years. She has stated that on or about the date of incident, she had gone to Gondia teaving behind her children in the custody of her brother-in-law (Jeth) Sudama and after about 2-3 days, when she returned, she found the prosecutrix missing and when she enqutred from her brother-in-law (Jeth), he had Infonned her that the accused/appellant used to visit her and even he had ^ayed wtth her jn the night. She has stated that the prosecutrix wasalso scotded by her brother-in-law and then she came to know that the accused/appeltant took the prosecutrix along wlth him. She has further stated thatwhile searching her daughter, she was Informed by the wife of the accused/appellant that the accused/appellant had gone out for his livelihood. Thereafter, she has further stated thal after her return. she lodaed the missina reoort before Cttv Kotwall: ^ ^^p^ /f/^ " ^ h»<» ^' Rajnandgaon against the accused/appellant. She has furtfier ^ated that the prosecutrb< was recovered from Gu|rat and as she was not well, she was hospjtalized in the Govt. Hospital, Ra^iandgaon where she expired. In paragraph-5 of her cross-examination, she has stated that her daughter had studied upto Class 6-7, she was admitted In the school at the age of 7 years, and she had left the school about 8-10 years back. She has further stated the fact that the birth certificate of the prosecutrix has not been fried. Sukhdev (PW-10), father of the prosecutrix has made almost slmilar statement as made by his wlfe Ratnamala (PW-9). Paragraph-? of the evidence of this witness makes it clear that he is not awareabout the exact date of birth <rf the prosecutrix and had deposed her age only on the basis of assumption. Sudama (PW-11) has stated that the prosecutrix was daughter of hls younger brother and on or above the date of incklent, the father and mother of the prosecutrix had gone to Gondia asking him to take care of their famlly and during that period, the accused/appellant used to visit the prosecutrBc, he spent one night with the prosecutrix and on the seGond day, the prosecutrix had gone alone with the acGused/appeUant. Dr. Sanjay Bakshi (PW-1) had medtoally examinecl theaccused/appellant vide Ex.P-1 has stated that he was capable of performing sexuat intercourse. Dr. Smt. Sushma Kurre (PW-2) has medteally examined the prosecutrix vjde Ex.P-2 has stated ttiat she was aged about 17 years. Her secondary sexual organs were futty devetoped, her hymen was old tom, she was habttual to sexual intercourseand there was no evidence in respect of forceful sexual intercourse with her. Rajshree (PW-3) te a poltee constable who took the proseGutrix for medical examination. Draupadi Deshmukh (PW-4) is a seizure witness of the caste certificate of the prosecutrix. Gharobaram (PW-5) is a police constable who took the accused/appellant for medical examination. Rajesh Parihar, constable (PW-6) who made the seizure of caste certificate te Ex.P-5. M.G. Choukey (PW-7) registered the F.1.R. Ex.P-6. Devendra Potai (PW-8) has done part of investioation. The Investiaatina Offlcer has suDoorted the ,-^^?> ^- "' '^^m. €) prosecution case. Shruti Singh (PW-12) Ghanshyam Deshmukh (R/V-13), head constable had recovered the prosecutrix vide Baramdgi Panchnama vide Ex.P-16. Bhupendra Singh Chatri (PW-14) js the school teacher who had produced the transfer certificate and the admission regjster Ex.P-17 and Ex.P-18 and the attendance register Ex.P-19. According to hlm in the reeord, the date of birth of the prosecutrix has been recorded as 01.04.1989. However, in his cross examination, he has categorically deposed that in all the documents, retevant entries were not macte by him and the same were made by one Smt. Chaya Thakvr and it is she who can tell as to who got recorded the date of birth of the prosecutrix. He has further admttted the fact that transfer certificate was not signed by hlm and used to be prepared by a clerR or the teacher, however, signature of teacher or the prlnclpal is not neoessary in these documents. 9. The mlnute examination of the evtetenoe makes it elear that there is no legalty admissibte evidence in respect of the age of the prosecutrix. Though as per document Exs.P-17, 18 and Ex.P-19, the date of birth of the prosecutrix is recorded as 01.04.1989, but the teacher who got recorded the same has not been exsNnlned nor there is any evidence from the record to show as to on what basis the said date was recorded. 10. Considering the settled legal position, merely on the basis of this evidence, St cannot be said that the date of birth of the prosecutrix has been proved by the prosecution beyond all the reasonable doubts. Further, there is no evklence on record (o show that the prosecutrix was subjected to sexual intercourae by the accused/appellant. 11. As per the case of the prosecution itself, the prosecvtrix eloped with the accused/appellant on 09.06.2004 whereas, ftie report has been lodaed on 05.07.2004. 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