n r.; HIGH COURT OF CHHATTISGARH, BILASPUR ^ DB: HON'BLE SHRI SUNIL KUMAR SINHAR, SB HON'BLE SHRI PRASHANK KUMAR MISHRA, JJ CR. M. P. No. 91 of2010 APPLICANT NON-APPLICANT RESPONDENT State of Chhattisgarh, through the District Magistrate, Ambikapur (C.G). Vs. Kamluddin Ansari @ Kamal S/o Khaleel Ansari, aged about 19 years, R/o Punisal, P.S. Ona, District Bakuda, West Bengal, presently residing at Kusmi, Distt. Surguja (C.G). APPLICATION FOR GRAST_OF_ LEAVE TO APPEAL UNDER SECTION 378(3) AND MEMORANDUM OF APPEAL^UNDER SECTION 378 (1) OF THE CODE OF CRIMINAL PROCEDURE. 1973 Appearance: Mr. Sudhir Bajpai, counsel for (;he applicant. ORAL ORDER (11.02.2010) SUNIL KUMAR SINHA, J, Heard. By allowing I.A.No. 1/2009, the documents filed along-with this application, are taken on record. . "^ Heard on admission. Being aggrieved with the judgment of acquittal dated 26.5.2009 passed in Sessions Trial No.280/2007 by the III Addl. Sessions Judge (FTC), Ambikapur, District Sarguja, the State has filed this petition for grant of leave to file an appeal. The facts, briefly stated, are as under: ' ^ •^"^ %•~s». Cr.M.P.No. 91/2010 The prosecutrbc (P.W.4) was missing since 14.5.2007. A missing report (Ex.P.21) was lodged by the father on 17.5.2007. The girl was recovered on 21.05.2007 and thereafter the First Information Report (Ex.P.10) was lodged on the same date. The respondent accused was charged u/ss 363, 366 fis 376(1) IPC. The prosecution cante with a case that the prosecutrfac (P.W.4) was aged about 14 years on the date of incident i.e., 14.05.2007. She was abducted by the respondent from village Kutku, P.S. Kusmi and was taken to village Chando from where she was taken to village Kusmi. The prosecutrbc resided with the respondent for 7 days, during which, she was subjected to sexual intercourse by him. The learned Sessions Judge held that the prosecution could not establish that the prosecutrK was belqw 16 or 18 years of age on the date of incident and looking to the overall conduct of the prosecutrbc, the respondent/accused was acquitted ofthe charges. Learned counsel appearing on behalf of the State argues that the Sessions Judge erred in law in holding that the prosecution failed to establish that the prosecutru; was below 16/18 years of age. He further argues that on the evidence of the prosecutrix, the .present appears to be a case of abducdon and rape, therefore, the judgraent of acquittal vidates. We have heard leamed counsel for the State at length and have also perused the records of the Criminal Miscellaneous Petition. For determining the age of the prosecutrix, the Sessions Judge has discussed the evidence of father of the prosecutrfac Jageshwar Yadav (P.W.10) in Para 8 of the Judgment. On appreciation of his evidence, the Sessions. Judge held that it was not established by his f^ '» Cr.M.P.No. 91/2010 4'- evidence that fhe prosecutrfa; was below 16/18 years of age or she was aged about 14 years on the date of incident. The other evidence relating to age is the mark sheet of the prosecutrix seized by the police during the course of investigation. In the said mark sheet, her date of birth has been entered as 10.08.94. No person from school was produced by the prosecution to prove the entry of the mark sheet. Even the copy of the school adaiission register etc., have not been produced by the prosecution to prove such date of birth. Therefore, the leamed Sessions Judge held that the unproved entry of date of birth in the mark sheet seized during the course of investigation was not relevant to prove the date of birth of the prosecutrbc. Apart froin the above, the prosecutrbc was sent for her ossification test. The ossification test was conducted by Dr. Anil Pratap Singh (P.W.7). He gave his report (Ex.P.9). Acc6rding to the ossification test report, the age of the prosecutrix has been assessed to be between 14 and 16 years. The .Sessions Judge observed vide para 10 of the judgment'that fhe radiologist has admitted in the cross examination that there is always a difference of 2-3 years in the radiological age determined by the radiologist which depends upon many factors. In Modi's Medical Jurisprudence (20th Edition), it is stated that too much reliance should not be placed on the table showing the age and years of the appearance and fusion of some of the epiphysis as observed by different authors as it merely indicates the average and is likely to vaiy in individual case even of the same province owing to the eccentricities of development. It is further stated that recent work has shown that the range of error may be upto three years on either side. ^>?'w<? /" &. • ll 1 u\ i. ~'~!9 J "••.'Sfc^'^ ''-"ss?. Cr.M.P.No. 91/2010 /^s £ Except the above, no other evidence of age was produced by the prosecution. It is in these circuinstances, the learned Sessions Judge held that the prosecution could not establish that the prosecutrbs was below 16/18 years of age on the date of incident. As far as the conduct of the prosecutrix is concerned, she deposed that on the fateful day the respondent came to village on a Boxide Van and forcibly took her to village Chando where she resided for 6 days. In the cross examination vide para 16 she admitted that froni village Chando, they boarded a bus and went to village Kusmi. The bus was a big bus and many passengers were there in the said bus. She deposed that since she could not find any known persons, therefore, she did not make any complaint. She further admitfed that the said bus stopped in Kusmi at a particular place where many persons were present but she did not make complaint. The overall evidence of the prosecutrbt shows her conduct and in the facts and circumstances of the case, a possibility of the prosecutrb; being a consendng party with the respondent cannot be fully ruFed out in this case. For the foregoing reasons, we do not find any good ground for grant of leave to the State to file an appeal again'st the acquittal of the respondent. The petition has no merits. The same is liable to be disruissed and is hereby dismissed. Sd/- Sunil Kumar Sinha Judge prashantKumarM^^ Judge Rao