HHHIH CF0000058018 r§;( @s M IN THE HIGH CUURT HF WlmiYA P§A8ESH AT’JABALPUR Criminal A p§a ApPELLA&1 {INVJAIL) ; Ramlal S/a Kedar Prasad Kughuaha, aged abnut 19 years, R/u Vlllage Jhalngo, P 5 Ragpur, 01strLct SUREUJA (m p ) V E R $.U 5 Stata of M P through S U Pollce atatlan Ragpur, DLStt sarguaa m P RE3PUNDENT' cInImAL AppEAL naEa SEETIDN 4 ' cane uf LRIMINAL DRGPhauRE l L q HIGH COURT (3F CHHATFIS$ARH AT BILASPUR Se Bn : H' r Ji r kr ' ingl ech onbie M. usTce Pri?inka Diwae Crimfna! Appeal No. 1%3 of 1995 Ram cn’ \of edar Pm (In aii) Kushwah i Varsus ’r Madya Prudesh (no CmTir‘h Shri Shdkt Raj Sng, cus far Th ppeliant hi Vibhav A Goha e awy f we Sr a . verdri,, Panl Ler or Sfafe. ’ (2. 0. 01} Presen appeal rises nu? o e impune judgmg an ' order- d‘red 3135 pased Spéco Udge, Ambikaur Dt argu i pe C 194 cfi§ ist. Sja n Scial rimimi Case No. 145/9 cnvicn The sedppzan? or 'e fce uihabe er ec‘rion 7 c The Indn erm Ce a semeng hi 1‘0 r-go igr imprsonmenf fr ve ar's. , C The mcuTicnin e i ThT 894 IR 2 ase of pse' brif s a on 4.19 F. (1) dged y Trix W1) ge oT 14 yes EXP— was To b prosecu (P-, ad abu ar alging in i T n 5.1.1 whe she was r'eTur'g ae waTching Teievisian akmg uwiTh. her friend Kalhi, accused/appeiiam forcibiy Toak her near The agrécuTTum! field of onerBir‘jhu, Threw 'h'er an The fieid and afTer removing his and her cioThes’commiTTed forcibie sexual §nTercourse wiTh I z l I I i \ /( her. IT is alleged ThaT when she become pregnant she gave This .TL‘g marriage The accused/agapellan‘r has/refused, TO marry her. She has sTaTed ThaT The PancheyaT meeTing was celled, however. in The same also The accused/appellanT has refused To marry her. l‘ informaTion Ta The accused/appellanT and requesTed him fcr l i: 1 l i APPELLANT m s K s'ézd J a RE$PONDENT Sme of h w hhsga) i ih onei e a CRIMINAL APPEAL UNDER 5ECTION 334 (2) GF THE CéaE OF ' CRLMINAL PR$CEDU§E JUDG£§ENT 6 4 20 f a f fh gd n'r d a 12199 s by i! J p accu/aii f rh ofen ‘phsi und S 36 f Ec P de nd nci m unde roous i e sen ye ‘ _ e le T haT o 1994 n nin fTr Af’rer‘ inVesTiga’rion, fhe peiice has fited chaikan under Sac’rion ¥ 376 bf Tha Indian Pengi Code and 3{1)(xi§) of The S¢heduied Cas're & Scheduled Tribe (Pravenfbn 'ef Afrocifie‘s) Act ' ‘ 3. So as to heid 1‘0 cccused/appe!!anf guil’w, pmsecuticn has examined as many as O7 wimesses in supper? cf ifs case’ S‘l'afemenf of The accusedfappeilam was also recorded undar' Sec’rion 313 of 1‘he Code 0f Crimina§ Pracedure in which he denied the charges %eve!izd against him and pieaded his innacenc‘e and faise impiica‘iion in The case, 4. Affer hearing ihe pgm‘igs The ‘ir‘iai Cour’r has acquii'ied he accused/appellant fer the affenca under- Sam‘ion 3(1){xii) of The Scheduied Casie 6i Scheduiad Tribe (Prevention of Atrocifies) Ac'i but has convicted and sen‘ienced him far 'ihe offence as men‘rioned above. Hence this appeal. 5. Counsei for The appeiien’r submi‘is ihm‘ 'rher'e is inordina’re deiay in ledging ihe First Infchmm‘ion Report He submi'rs ihm‘ incident is said To have Taken place. on 15.1.1994 whereas FIR. has been‘iodged after aboui‘ ihree months Le. 8.4.1994 and wfhe said delay has no? been expiained properiy by 'ihe prosecution. According To him, in respect of The age of The ‘ prosecu’rrix, there is no documen‘r on record To show ihe aciua! age of The prosecutrix. He submii's Thai The docTor has referred The prosecuTrix for ossifica‘iion TesT buT The same has noT been done and Therefore, benefi‘r of The same has To be giyen To The accused/appeiianT. 6, On The oTher hand counsei for The'STaTe supporT-ing The impugned Judomem‘ submiTs The? in respec? of The age of The nrosecmrlx no rross-exammriTion was pJT To The prosecuTion e T @ wrfnesses and fherefar-e n‘ Is To be presumed fhaf on 1he daTe of commission of offence the pmsecu'rmx was minor 7. I have heard counsel for Me par-hes anti perused The maTer-Ia! madame on record induding The JJdamem Impugned 8. Prosecm‘r‘ix (PW-1) has s‘mfed ma? on the dam 9f incident a)? The gve m‘ "Sgr'aswaffPL/ja”, she had gone To watch Television in ihe hause ef one Teacher- nameiy KLjur end a‘r aboui’ 10 O’ ciock m ”the night accused/appeiiani farcibly mak her near fhe ugmcui’mmi fiele 0f one Bir‘hu and Threw her on I fhe fieid and affer remavmg his and her cia‘ihes commi‘i’red forcibie sexuei iniercourse wii’h her, She has sfa‘red 1'hm‘ on / account of fear she did noi’ nqr afe The irCidenT Ta anycne Sale furTher sTaTed ThaT afTer abauT T‘Tree monThs when she was gomg To her; friend Kaihi, on The way, accesed/appeiian‘r meT her and she gave informgTion To The aecused/appeiianT ThoT she is carrying Three, monThs’ prenancy and requesTed him fer marriage buT The same has been refused and Then she iodged i The reporT. 1n The cress-examinaTion, This wiTness has sTaTed ThaT had she noT become pregnanT from The accused/appeiianT she would ncT have iodge The reporT. She‘has sTaTed ThaT she had noT disclosed The incidenT To her moTher or faTher. In paragraphlli of her eross—examinaTiOn, she has caTegericaiiy sTaTed ThaT she never gave any sTaTemenT To Thepeiice To The effecT ThaT when she had informed The accused/appeiianT s abouT her pregnancy, accused/appeiianT has said ThaT he wii! i marry wiTh her. 9. Heera (PW—2) - foTher of The prosecuTrix has sToTed ThoT The age of The prosecuTix is obouT 13 years and one day = she saw The accused/appellanT and The prosecuTrix Taiking To a. if? V f, i, {we __, ‘ I é,‘ ‘ ' each oTher' cudd than he decided ’ro go ’ro fhz palice station, but on fher way he me? cne Manger and Then Fanchqyat meeTing'was cal!ed. As no decision couad be taken in the ?anchat and the accused/appeilanf has refused To marry her, report was lOdged. 10. 'Har‘i Pmsad Soni (PW—3) — one of The panchaya? witness has been deefar’ed . hostile and has stated that in The panchayai, .prosecuiix has admitted the fact that since iast two year's/she is having love affairs with the accused/appeiiant nd she is carrying thr-ee months‘ pregnancy from him. ' Dr.’(5mt.) Kiran Bhajgawli (PW77) who has examined the prasecutrix and has given her report Ex. P-1O has stated that she found no injury whatsoever on the externai or internai part of the prosecutr‘ix. She has further stated that to‘ determine the’age of the prosecutr-ix, she has referred her for radiological test. In the cross-examination, she“ has disclosed the age of the ‘prosecutrix as 14 years oh the basis of assum ption. 2., Admitted position is that the incident issaid to have taken piace on 15.01.1994 whereas the FIR. has been lodged on 8.4.1994 and this delay in lodging the F.I.R. has not been explained properly by the prosecution. Furthermore, friend of the prosecutrix namely Kaihi, who is alleged to have accompanied her onv 15.1.1994, has not been-examined by the [ prosecution. There is no documentary evidence in respect of ’ J the age of the prosecutrix except oral statement of her father Heera (PW-2). Prosecutrix was referred for: ossification test to determine her age but the some has not 5een done. Thus overaii testimony of the proseoutrix does not a 1 l 6% inspire confidence of this Ccur‘f to susfaiin the findings recorded by Court beliuw convicting and sentencing The, ccused/appellanf as menticned nbove and That being s0 benefit of doub’r mus? gc in favaur- of The accused/appeiiani, 13. Consequently, The appeal is anewed. Impugned judgment da’red 13.111995 is hereby 5e? asidenA‘ppeiian'r is acquifi'ed of The charge levelied agains’r him. The appe!!cint is reported fo‘ be on baii. Bail bond furnished by him s‘land discharged. l sw- i Pritinker Diwaker ‘ ‘ V Judge K a l 7