^'.-vsela'"-— :^-^'^^^^^^ CF0000058605 "t-ll' IH tSS HIGH GOUai OF MtBHYA PMffiSSH AT JA.Btt.PUB CBIMISAL- APPBAL N0; s- Baja 8lias Eaj 1992. Kuaer soa of j.pA'paiya, residenfc of (M.r>.) .c*" - »0» I®Sp^a®@.-'-- 8 State of Madbya prg^e'sh. APPSAL UB&Sa SKiIIGN 371i- (2};e? TIS G®S GSIMIHAL FEQCEDgm. " HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1183 of 1992 APPELLANT Raju alias Raj Kumar VERSUS RESPONDENT State of Madhya Pradesh. Shri Prafulla Bharat, counsel for appellant. Shri Pankaj Shrivastava PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (08.04.2010) Thisappeal isdirected against the judgment dated 18.11.1992 passed by Additional Sessions Judge, Jagdalpur, in Sessions Trial No. 280/1991 convicting the accused/appellant for the offences punishable under Sections 363 and 366 IPC and sentencing him to undergo rigorous imprisonment for five years on each count. 2. Case of the prosecution in brief is that deceased/prosecutrix namely Mamta aged about 14 years had eloped with the accused/appellant on or about 10.3.1991. Thereafter, she was recovered from the house of the accused/appellant. However, on 14.3.1991 she set herself on fire. Subsequently, on 22.3.1991 FIR Ex. P-5 was recorded by Station House Officer of Police Station Bijapur (PW-4) for the offences under Section 363 and 366 IPC against the accused/appellant. Further case of the prosecution is tbat four months after 14.3.1991 deceased/prosecutrix died of burn injuries sustained by her. ^ / 3, So as to hold the accused/appellant guilty, prosecution has examined 04 witnesses in~ support of its case. Statement of the '^ccused/appellant was also recorded urider section 313 ofthe Code of.Criminal Procedure in.which he denied the charge levelled against him and pleaded his innocence and false mplication in the case. 4; After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned above. T '^StKSii^" -2- 5 . Counsel for the accused/appellant submits that even if the entire case ofthe prosecution is taken as it is, the appellant cannot be convicted under sections 363 and 366 IPC as there is no legal evidence on record regarding the correct age of the deceased/prosecutrix. He submits that unfortunately as the deceased/prosecutrix has expired, there remains nothing against the accused/appellant. He submits that though the prosecutrix was alive for four long months, her dying declaration recorded by the prosecution has not been proved by it. 6. On the other hand counsel for the respondent/State supports the judgment impugned. '1 7. Mother of the deceased/prosecutrix namely Radhabai (PW-1) has stated in her evidence that at the relevant time her daughter was aged about 15 years and that she set herself on fire on account of shame. She has furtherstated that two-three days prior to 14.3.1991 the deceased/prosecutrix was at home and when she had gone to the market, accused/appellant took her somewhere and when she retumed home at about 8 o'clock in the night she made a search for her but could not find her. According to her, the villagers had informed her that it was the accused/appellant who had taken her daughter away. However, thr.ee days thereafter she came to know that her daughter was in the house of the accused/appellant. Then she along with other persons went there and brought the deceased/prosecutrix back home, who on thesecbnd day set herself on fire. According to this witness, the deceased/prosecutrix remained hospitalized for four months and being under treatment she succurhbed to the burn injuries sustained by her. She has stated that when she met the prosecutrix in the house of the accused/appellant, she had informed her that the accused/appellant had rriolested her, and probably because of this she might have set herself on fire. In cross examination this witness has stated that she had disclosed the age of the deceased/prosecutrix on the basis of assumption and there is no official record regarding the same. Dr. S. Pandey (PW-2) who had medically examined the deceased/prosecutrix after she sustained burn injuries, has stated ,i,fss:Kssi{v / ^&-~ '.,siv:.^.:. 1 ^tfl* -3- f ^ that she was habitual to sexual intercourse and that no sign of recent sexual intercourse was noticed by her. According to this witness, she had not noticed any injury on the body of the prosecutrix. Kashiram (PW-3) - Assistant Sub Inspector is the witness who had done part of the investigation and recorded diary statements of the witnesses. Nirbhaysingh (PW-4) is the investigating officer who had recorded the FIR and sent the memo to the Naib Tehsildar for recording the dying declaration of the deceased/prosecutrix, has supported the case ofthe prosecution. 8. From the record what appears is that though the dying declaration of the deceased/prosecutrix is on record yet the prosecution has not bothered to prove the same. No legal evidence has been adduced by the prosecution to show that the deceased/prosecutrix was below 18 years of age on the date of incident. The prosecution has also failed to prove that the deceased/prosecutrix was removed from her lawful gyardianship by the accused/appellant. From the record it also appears that the deceased/prosecutrix was referred to ossification test but the same has not been done. Thus the prosecution has failed to prove its case on all fronts and in these circumstances the benefit of doubt has to go to the accused/appellant. 9. Thus while passing thejudgment impugned the trial Court has not given thoughtful consideration to the evidence available on record and that being so the findings recorded by it convicting and sentencing the accused/appellant as described above have to -vanish from the scene. So the appeal is allowed. Judgment impugned dated 18.11.1992 is set aside. Appellant is acquitted ofall the charges levelled against him. Accused/appellant is on bail. Bail bonds furnished by him stand discharged. "Sd/- Pritinker Diwakar Judge N~