n? "C'F' 00060662 1i89/0aiff JT.R. 11/94/2,000 lw^:';.-. i^"?k :^? r <»N|»t?1. •Ss»". 18 ^! •^ :^. ^ \ - O'.^'P^^W^ ©*^' APPEAL OF' PRISONER Name.... ••^s" ler's name ^ |idence..,0, '-"WiK"? K . %gp3^\"^WV^ Age...Ate^§-. CTCed;to.i^..^-.^..^^.%^.....On.....^.l^^^ ~"Q(y"iW€\:'K-;-ir'"""'"-''""""~'-'-"" ' ,^»fr^'tte<sfc/.-.i,t,&-&c,^%A'<'u.,r ler section .?"a,q&-v^-< ^^- r<i^)' It is explained to the prisoner that ifhe states or wishes to be represented bylegal stitioner the Appellate rourt will not proceed with the base for seven,days unless legal practitioner appears . If the legal praGtitioner does not appear within seven he may not heard at all Ifihe prisoner states that he does not wish to be repre- ted by legal praetitioner the couTt may pruceed at once with the case andwill not be iged to give a hearing to any legal practitioner who should appear . Date of Application for copy of Judgement Date on which copyreceived 1 Date pn which Appeal seat Whether the prisoner wishes to be represented or g<Bt-^- Yes / No .^^».^:.........................;........Name.,, c\ mfinedin ...... ..^,—-^~r.................Jail.. "eg^rg^'"""""""""""-"" ""•Tn^'gs h....--^^fe--f^^-Dated...^j..^.f..|..;..-199^ irwarded to the-€H -^UQICTAI-10f7!rt^<a-liA:FE Igatherwhich a copy ofjudgementQrorder passed i§~tfi&Ease?or'Faveu¥ ins-' |ission to the proper Appellate Conrt. ^ e^~isy\;—'— -t-\y\ b&o^e^ C0V\^ <•) \ -q {,/q; "~fr<.L-T-J 1,1^-—— £?L ^ . . . . '^- <e\?M? "'•r^ ^^&^effi»«a^it"_' 'y-'^fk ?^vs^- ''vPw'teT^ '%^^r^Ml,A8R .(M:!>.J. )ate of receipt in... ........ ................... office late of Teceiptiecord to acconapanythe .......... femo ofAppeal to ihe Appellate court .......: .-sf^; 10 .....;.. ....Dated ':;..,:,..;;.,,^?;.^:.199..;i....;. •^ fc-t' ''orwarded to the ............. .::..\,.......... iif.^t''"..^...............'.i,..... ^ -^^ ,^'ev :'3tJ'/-*---.—••-::•••l*.'* *': iate;af.receiptm::A^pejlate^urf^,^..^-y^.^%rf8^^^..^ :^~'••„:-.''7iwi^ T •*A:^ ^;: ;• ^' ^^^t^ i %.r a» ®'' 1[S'S 'i^^teii S II:ii ^!i'si^8 :la!l:fi^^, •%..^> ^»< ^-p^ ss: :& ] tt,!gi' HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice PritinkerDiwaker) Criminal Appeal No. 760 of 1996 APPELLANT RESPONDENT VERSUS Narad State of Madhya Pradesh Shri Vishnu KoShta counsel for the appellant. Shri Ravindra Agrawal PL for the respondent/State. CRIMINALAPPEALUNDERSECTION374(2)OFTHECODEOF CRIIVIINALPROCEDURE. JUDGIVIENT (16.08.2010) i 1 This appeal is directed against the judgment and order dateG| 12.03.1996 passed by Additional Sessions Judge, Rajnandgaon, Sessions Trial No. 176/1994 convicting the accused/appellant undeit: Sectjons 376 & 450 IPC and sentencing him to undergo rigorous imprisonmentfor sevenyearswith fineofRs. 2,000 u/s 376 andrigQrous imprisonment for two years with fine of Rs. 1,000 u/s 450, plus default stipulations. 2. Case of the prosecution in brief is that on 05.11.1993 FIR Ex.|ID-3 was lodged by the prosecutrix (PW-2) aged about 12 .years thaf si^ months prior to lodging of.FIR she was being subjected to sexual intercourse bythe acGused/appellant as a result of which she pregnant. It is allegedthat when she requested the accused/appellantl marrying her,he refused for the same and gave certain medicinesi abortion. After investigation c/ia//a/? was filed on 31.12.1993 Sections 376 and 450 IPC. became •:for .jfof uhder 3. So as to hold the accused/appellant guilty, fhe prosecution examined as many as 12 witnesses in suppprt of its ease. Statemeint the aceused/appellant was also recorded under section 313 of the ofCriminal Procedure in which he denied the charges levelled him and pleaded hisinnocence and false implication in the case. iri Sfr .3*"^' "s i;-!.l*,<.i»"' "israiiiS ti:;: i <• ^2_ ^ 4. After hearihg the parties the ti-ial Court has convicted anc| sentenced the accused/appellant as mentioned above. I 1 5. Heard counsel for the parties and perused the material available on record including thejudgmentimpugned. | 6. Counsel for the accused/appellant submits that the prosecution has utterly failed to prove the allegations made against the aGcused/appellani byleading cogent and clinching evidence. He submits that even the ag4 of the prosecutrix has not been proved by the prosecution as is required under the law. Me submits thatthe prosecutrix appears to be agirl of more than 16 years ofage and the report has been lodged after about sixj months of the incident and therefore prima facie it appears fo be a Gaser of consent and the appellant cannot be convicted under Section 376 IPC. He submits that the accused/appellant is tiowever not pressing thTs appeal against the conviction under Section 450 IPC and would Gonfinel hisargumenttothe sentenee partof'the sameonly. i 7. On the other Mand counsel for the respondenVState supports th^j judgment ofthe trial Court in respect ofage of the prosecutrix; documentsl of Ex.P-SA & P-8 i.e. school registerand transfer certificate are there Qn record and as these documents have been duly proved by Jageshwar Lall Sahu (PW-8) - the in-charge head master of fhe schoQl fhere remains no doubtthat on the dateofincident prosecutrix was 12 years of age. ! 8. Prosecutrix (PW-2) has stated in her evidence that on the date o^,, incident when she wasalone in her house, accused/appellant came thier^l and on the pretext of marriage took her inside the room, made her lie dn; the cot and after removing her cloths as well as of his own committedj forcible sexual intercourse with her. It is also alleged that.thie; accused/appellant has also asked her not fo disclose the incident untilj; and unless he married her and for this reason she remained tight-lipped| Thereafter when her menstrual cycle stopped she made tH^. accused/appellant aware ofthe sameand on this he gave hersome'pills.i, and asked her to have the same. Accordingito her after she tQok one pilt,^ she felt some problem in her stomach and then she stopped tgiking'tll^^ :t, remaining pills. After the lapse offive monthsfrom the date of Gonception she disclosed the incident to her aunt that it was the result of her physic&l ^ llff' to V: ••* sfc ^ '(V ..ag,;aSS>- lt!.i: ffi'li Wt »! -s— relation with the accused/appellant. Thereafter her uncle and the father o( the accused/appellant took her to the village doctor who after examinatiori told that she was carrying pregnancy offive months and at that stage the abortion was not possible. She has stated that in the meeting convened in the village the accused/appellant had accepted that it was as aresult of his physical relation with the prosecutrix she had became pregnant. However, after the meeting was over the accused/appellant retracted from his version and thereafter the report Ex. P-3 was lodged. IFI Paragraph-15 of her cross-examination, this witness hasstated fhat sh^ studied up to class II in Primary School, Rana Tola and as atthat tim^ she was very young she did not know as to who had got her admitted iri the school. This witness has stated that at the time of her admission irj the School her father had already expired. Accordingito her, 2-3 yearsi thereafter the school was opened in her village itself and then she was again admitted in that school in class 1st and studied there up to class 5f , According to this witness, at the time of admission her date of birth was recorded by the teacher of the school. Indira Bai (PW-3) - the mother of the prosecutrix has stated in her evidence that about 10-12 years there- before her husband expired and the prosecutrix at the relevant time was aged about 16 years and she was educated up to class 5 . This witness has narrated the fact as to how she dameto know about the pregnancy of her daughter. In respect of her own age and that of other family members including the prosecutrix, this'witness has statedthat she cannot tell the age of anyone. She has stated that when the prosecutrix was admitted in the school at Rana Tola, her admission was got done byherliusband and at that time she might be around 6-7 years of age and thereafter when the schoolwas opened in her own village, she was again admitted in class 1st. This withess has reiterated that inthe school at Rana Tolath® prosecutrix studied up to third standard and that she could not tell as to what age of the prosecutrix was recorded there. The other evidence |iri^ respect ofage ofthe prosecutrix is the, statement of Jageshwar Lal Sahu (PW-8) who at the relevant time was working aslncharge Head Master pf ^. the school. This witness has stated that he had brought the origir|al: admission register of theschool showing the name of the proseGUtri^af^ pageNos. 4 and 5 at S.No. 13 and according to it her date ofbirthjis -sy' l;EK!jlii BE i^!,..!i-_...-.- asii'i Ksf[ •ih iisrii inr 1111 lll;l.:.1 ElfilS, •^ ^- Ll" 10.6.1981. According to thiswitness, the prosecutrix.was admitted in th^ school on 16.8.1988and left it on 16.5.1993. The said school register 14 Ex. P-6 and its photocopy Ex. P-6A. This witness hasstated that Ex. P-$ is the fransfer certificate of the prosecutrix showing her date of birth a^ 10.6.1981. In cross examination this witness admits that there is som6 over writing iri the said register particularly at the place where the name of the prosecutrix is shown. He admits that the entries were not made by ffim but they were made by his predecessor who had left fhe schobl before he joined it. This witness has stated that date of birth of the prosecutrix is recorded on the basis ofdeclaration form submitfed by the guardian but he could not say as to on what basis the date of birth ofthf prosecutrix was recorded in the said school register. He has admitted th^ fact that there is further over-writing in the register while writing the date of biri:h ofthe prosecutrix as 10.6.1981 (in figures and words as well). On the last date of hearing i.e. 28.7.2010 this Court had directed th^ Government Advocate to file the original register of fhe school (Ex.P-6) and today the same isavailable before this Court. A bare readingoTfhe original register makes it clearthatthere is overwriting in the date bfbii'th of the prosecutrix (both in figures and words). Further, thereis|nci evidenGe available on record as to on what basis the date of birth ofthe prosecutrixwas recorded as 10.6.1981. Mother ofthe prosecutrix admit^ that she does not know either the date of birth of her own or that of her family members including the'prosecutrix and in this view ofthe matter i is difficult to hold that at the relevant time the prosecutrix was below 1Q years of age. Further, the prosecutrix herself has admitted that she studied for three years in Rana Tola School and then she again got admitted herself in the schoolat village Jharan in cla&s 1st and studied there up to class 5* . Thus, the factum of prosecutrix being below! 1:6 years ofage on the date of incident remains unprdved as no cogentand legally permissible evidence has been adduced bythe prosecution totHis effect and these circumstances benefit of the same must go in favour|Grf;i theaccused/appellant. , ? 9. Considering thetotality ofthefacts and eircumstanees ofttTeGgs^it? can besaid without hesitation that the prosecution has utterty failed 16' prove the dateof birth of the prosecutrix. Moreover, R. Satyanaraygn V"t 11- ws ? n ^. ^Ll^/WQU Aq }BL|) pue s4)uouj 3Ay inpqe^o poued B jo^ iief ui psuiBiusj :^l:ies.(|e?sE4 luel|9ddB aUt (eMl 'iuspioui 9Lj} eouis AC] p3||oj 6u]Aeq ^ciu^y lusioryns SL^MaiA ui 6uidaa>| •peuieiuiEUj S! 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[ Sd/- Pritinker Diwaker Judge :5H 'n~\ pllt ^. ^