&: HIGH COURT OF CHHATTISGARH At BILASPUR APPELLANT : Criminal Appeal No. 151 of 1991 Guddu alias Nandkishore, son of Mangal Prasad: Dhimer, ^ged about 22 years, residpnf of Luhrasi (Kharod), Polic^ |tation - Shivri-narayan, Distoct EiEaspur, present address -r^sident -pf — village Gurda, Pol^e Statron Kharsiya, District Raigi&<1(M.P.) Versus RESPONDENT The State of Madhya Pradesh, through the District Magistrate, Raigarh (M.P.). CRIMINAL APPEAL UNDER SECTIQN 374 OF THE CODE OF CRIMINAL PROCEDURE. (SB: Hon*ble Mr. T.P.Sharma, J.) Present:- Mr. Sandeep Shrivastava, Advocate for the appellant. Mr. R.R. Sinha, P.L. for the State/respondent. ^v- K^:^ ORAL-JUDGEMBNT (Passed on 13/07/2010) Challenge in this appeal is to the judgment of conviction and order of sentence dated 19/12/90 passed by •^d^^:^ ^J .Additional Sessions Judge, Raigarh in Sessions Trial No. 63/90 whereby and where under after holding the appellant guilty for the commission of offence punistiable under Seclions 363, 366 & 376 ofthe Indian Perio^Cpde y and sentenced Rigorous imprisonment for 7 years ,and fine ofRs. 500/-in default of payment of fine amount additional simple imprisonment for 6 months, rigorous imprisonment for 7 years and fine of Rs. 500/- in default of paynieBfr^ of fine amount additional simple :-'*-'-^ imprisonment for 6 months and rigorous imprisonment for 10 years and fine of Rs. 1000/- in default ofpayment of fine amount additional simple imprisonment for 1 year. Conviction is impugned on the ground that while convicting the appellant, Court below has not considered the evidence relating to the age of the prosecutrix ^pd factum of consent of the prosecutrix and thereby committed an illegality. Prosecytion case in brief is PW1 prosecutrbc (name not mentioned) was aged about 15 years. On the date of incident i.e. 8/2/90 she went fo railway station for purchasing newspaper. Appellant was sitting in the train, he called the prosecutrbc and dragged her in the coach. The appellant took the prosecutrbc in first class coach where appellant and prosecutrix were present then he committed forcefully intercourse with her in the running train. Another person Vishnu was sitting in another coach. At Chakradharpur railway station Vishnu came she narrated the incident to Vishnu then appellant took her to Saragaon, Shivrinarayan and lastly she came with the appellant at village Loharsingh her paternal house. Father of the prosecutrbc PW9 Padumram lodged the First Informatiori Report vide Ex. P-11 relating to missing of her daughter. Underwear of the prosecutrbc was seized vide Ex. P-1. School attendance register was seized vide -mwm^'^^'~~^ / M" Ex. P-2. She was sent for medical examination vide Ex. P- 5A. She was examined by PW5 Dr. Smt. Lalita Rajnala vide Ex. P-5 and found she was accustomed to intercourse. Accused was also examined by PW3 Dr. G.N. Tiwari vide Ex. P-4 and accused was found to capable to commit intercourse. Smegma was missing. Rs. 1100/- was seized from Mangal Prasad Vide Ex. P-6. Undergarments was seized of the accused vide Ex. P-7. Horoscope of Umakumari article (C) containing date of birth 21/5/74 was seized vide Ex. P-8. Mark sheet of the prosecutrbc Ex. P'10 was seized vide Ex. P-9. Statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code?). After completion of the investigation charge sheet was filed before the Chief Judicial Magistrate, Raigarh who in turn committed the case to the Court of Sessions, Raigarh where learned 2nd Additional Sessions Judge, Raigarh received the case on transfer for trial. In order to prove the guilt of the appellant/accused prosecution examined as many as 14 witnesses. Accused was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication is claimed. ^- After affording anopportunity of hearing to the parties, learned 2nd Additional Sessions Judge, Raigarb convicted and sentenced the appellant as aforementioned. Shri Sandeep Shrivastava, learned counsel for the appellant and Shri R.R. Sinha, P.L. for the State/respondent are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellant vehemently argued that in order to convict the appellant under Sections 363, 366, 376, of the Indian Penal Code prosecution is required to proof the fact that at the time of incident the age of prosecutrbc was below 16 years. Present appellant has enticed the prosecutrix and kidnapped her for illicit intercourse and bas committed intercourse with her without her will and consent but in the present case prosecution has not proyed the age of prosecutrbc on the date ofoffence below the age of 16 years. Prosecution also not proved the fact that appellant has committed intercourse with her without her will and consent and has taken the prosecutrbc from the lawful guardianship of her parent. Learned counsel for the appellant further argued that as per evidence of PW1 prosecutrix in stead of going to school she herself gone to the railway station where appellant was present, she herself has accompanied the s-' L 10. 11. 12. 13. appellant. She was having love affairs with the appellant since last one year and appellant has intercourse with her with her will and consent. As per the evidence of the prosecution the age of the prosecutrix at the time of alleged incident was not below the age of 16 years therefore, the present appellant has not committe.d any offence. On the other hand, learned counsel for the respondent/State opposed the appeal and submits that in the present case prosecution has adduced sufficient evidence to proof the age of the prosecutrix, absence of consent and will at the time of commission of intercourse and also proved that appellant has abducted and kidnapped the prosecutrbc for the purpose of illicit relationship with her. After appreciating the evidence available on record, Court below has convicted and sentenced the appellant as aforementioned. In order to appreciate the arguments advanced on behalf of the parties, I have exainined the evidence available on record. As regard the question of age of the prosecutrbc is concerned PW9 Padumram retired teacher and father of the prosecutrbc has deposed that horoscope of his daughter who was prepared by one Pandit Badrinarayan ^ •^' and in horoscope name of the daughter has been written as Umakumari. Her date of birth of 21/5/74. He has further deposed that in school document i.e. Ex. P-10 her date of birth has recorded as 20/10/73 which was written by teacher suomoto.In his detail cross examination he has admitted in Paras -12, 13&14 that initially she was admitted in Bhagora Primary School thereafter she was admitted in Middle School, Binjcot. He has specifically deposed that at the time of admission in Middle School, transfer certiflcate was issued by the Primary School in which date of birth of the prosecutrbc was written as 20/10/73. This witness himself is a teacher but has not tried to amend such date of birth. He has not examined who has prepared Article -C Horoscope, even after knowing the fact that false date of birth has been written in the school document. This witness who himself was a teacher has not tried to correct the same. In these circumstances in absence of any probf ofdate of birth recorded in Horoscope the only document Ex. P-10 is available for determination of the age of the prosecutrbc, at the time of alleged offence which shows the date of birth of the prosecutrix as 20/10/73. Prosecution has also not tried to collect Kotwari- Panji therefore, in these circumstances it is difficult to hold that date ofbirth of the prosecutrbc was 21/5/74. Onthe L !^^ry K ic ^ ^•' ^ ^/ basis of Ex. P-1 at the time of incident age of the prosecutrbc was 16 years and 4 months. 14. As regard the kidnapping and abduction andrape by the appellant with prosecutruc is concerned. PW1 prosecutrix has deposed in her evidence that on the date of incident i.e. 8/2/90 at about 6 A.M. she proceeded for school. She was bearing school dress instead of going to School she went to the hospital. Her father also directed to her to purchase newspaper. She was also having Rs. 2,000/- to give the same to one Chamara Patel then she went to the railway station for purchasing newspaper. She has further deposed that at the time of Titalagarh Passenger train was standing on the platform. She purchased the newspaper and was standing the platform where she saw that appellant was sitting in the train,he called her when she went to near the appellant then he dragged her inside the coach and told that they will go to Mela. The appellant has also shows the cloths of her mother. They reached Jharsuguda at about 1 P.M. where Utkal Express was standing, they boarded in the Utkal Express in first class coach. Appellant and prosecutrix were only present in the first class coach. Appellant committed rape with her without her consent and will. As per her evidence again in second station, Vishnu came to her whom she narrafed the incident thereafter appellant took her to ^^—'A'^ ..rp ;tfu" ' % f Sfe^. 1 ^^ii&^. Y" ^ ^m ] ^-. '\^^-.^'" A;n' "•^^.-^^ 15. 16. Shivrinarayan and different places and flnally they came to village Loharsingh. Defence has cross examined this witness in detail. In her detail cross examination she has not admitted the factum of consent and willingness. Her first statement Ex. D-1 was recorded on 13/2/90 which was confponted to her in which it has been mentioned that she was having love affairs with appellant since last 1 year. She herself has left her house and went to railway station from where she kidnapped by the appellant. She was willing to mariy with the appellant. Appellant committed intercourse with her. Prosecutrbc has admitted the aforesaid statement in Para-13 of her statement but has tried to explain that she was under pressure of the appellant and has stated at the instance of appellant. In the present case, it is not disputed that prosecutrbc went to the railway station and from railway station she went along with appellant to different places and appellant has committed intercourse with her. As regard the relinquishing of lawful guardianship of the parent by appellant or kidnapping and abduction is concerned, as per evidence of prosecutrbc on the date of incident at about 6 A.M. she left her house for school. She bearing school dress but instead of goirig to school firstly she went to the hospital thereafter, she went to the railway r '•'....''^lfe;. •'^^ "•^^;:''..<^y '"^RRys-^'' ^ A' station for purchasing newspaper for her father at that time she was having Rs. 2,000/- which she was required to pay one Chamara Patel. Her previous statement Ex. D- 1 reveals that she was having love affairs with the appellant since last one year and she was willing to marry with the appellant. She herself has accompanied the appellant although she has stated in her Court evidence she was under pressure of the appellant and at the instance of appellant she has given such statement. 17. Her evidence shows that appellant has kidnapped and abducted and committed rape with her without her will and consent when she was with police after her recovery then she was required to give true statement. After leaving custody and shelter of the appellant, it is difficult to hold that still she was under pressure of the appellant. As per her evidence in stead of going to school she has chosen to go hospital and railway station even after purchasing the newspaper, she was standing on the railway station when she has purchased the newspaper then there was no propriety to stay at railway station. Finally she proceeded from her house for school then there was no propriety to take the money of Rs. 2,000/- for payment to another person. These all circumstances shows that she herself has left her parental house and willfully she has gone railway station whepe appellant -^/ 10 (^ u' 18. 19. was waiting her. She accompanied the appellant. The part of statement recorded in Ex. D-1 appears to be just and reasonable against her statement that still she was under pressure. As per her evidence first time appellant has committed intercourse with her in the train. She was examined on 13/2/90 within 5 days of her first intercourse but as per evidence 6f PW5 Dr. Smt. Lalita Rajnala she was accustomed to intercourse. Her vagina admits two fingers easily. These all facts are suggestive of the fact that she was having long physical relation with the appellant and she herself has left her parentalshelter and she willing and consenting party for intercourse. After appreciating the evidence available on record learned 2nd Additional Sessions Judge, Raigarh has convicted and sentenced the appellant as aforementioned but has not considered the aforesaid material eviderice of the prosecution thereby committed an illegality. On close scrutiny of the evidence the conviction and sentence of the appellant under Sections 363, 366 & 376 of the Indian Penal Code are noit; sustainable under the law. Consequently, this criminal appeal is allowed. The conviction and sentence of the appellant under Sections 363, 366& 376 of the Indian Penal Code are hereby set aside. He be set at liberty at once. I Sd/- T.P. Sharma Judge