HIGH COURT OF CHHATTISGARH BILASPUR SINGLE BENCH: HON’BLE SHRI R. L. JHANWAR J. w eximinal Animal No. 79/ 1999 APPELLANT Sanjay @ Jai Chand Versus RESPONDENT State of Madhya Pradesh (Now Chhattisgarh) ‘ POST ON Q1 AUGUST 2009 / \ Sdl‘ , R‘L' Jhanwar Judge M ‘ n JUDGMENT HIGH CGURT OF CHHATTISGARH: BILASPUR SENGLE BENCH: HON’BLE SHRI RAJESHWAR LAL JHANWAR, J. Criminal Appeal No.79] 1999 ‘ ‘ , Memorandum of Appeal ul$ 374 i2] of the Cr.P.C. Present: - ‘Shri Vishnu Koshta counsel for the appellant Shri Pradeep Singh: Panel Lawyer for the State. J UDGMENT (Delivered on l 8/2009) 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 28.11.1998 passed in S.T. No.10] 1994, whereby, the learned 5*11 Additional Sessions Judge, Durg' has convicted the appellant under Sections 363 and 366 of the IPC and sentenced him to undergo R.I. for 4 years and to pay a fine of Rs.500i -, in default of payment of nne to further undergo S.I. for 3 months, and R.I. for 3 years and to pay a fine of RS300] —, in default of payment of fine to further undergo SJ. for two months respectively with a direction that sentences shall run concurrently. 2. Prosecution story is that on 15.6.1993, the appellant told the prosecutrix to provide good education and promising her to marry, took her from Durg to Raipur and thereafter from Raipur to Jabalpur. Appellant kept her for two months and fulhlled his sexual lust but, he did not marry the prosecutrix. i 3. —On{15.6. 1993, when the prosecutrix did not come back to her house, her mother wformation to police on 18.6.1993. Police recorded \ Appeliant Sanjay @ Jai Chand, aged about 19 years, S/o In Jail Manchand Shanna, Rio Rajiv Nagar, Durg. Versus Respondent State of Madhgfa Pradesh (now Chhattisgarh) through thc PoHCE Station Durg (MP) missing report and made attempt to search her, but could not succeed. After two months prosecutrix wrote a letter (EX. P—l) fmm Jab’alpur to her mother complaining ill-treatment committed by the appellant with her. Her mother went to Jabalpur and brought her back.‘ Prosecutrix after coming from Jabalpur lodged alreport 1n Police Station —Durg. Police recorded FIR‘under Sections 363, 366 and 376 of the IPC and proceeded to investigate the matter. After completing the investigation, charge sheet was tiled in the Court of C.J.M. Ding, who committed the case to the Court of Sessions and the Sessions Judge maae over tHe same for trial to 5th Additional Sessions Judge, Durg. 4. Charge under Sections 363, 366 and 376 of the IPC was framed and explained to the appellant, who abjured the guilt and took a defence that he is innocent and has been falsely implicated. 5. After due trial, the learned trial: Court evaluating the evidence available on record held the appellant guilty of the offence punishable under Sections 363 and 366 of the IPC and convicted and sentenced m 3 him as above. However the learned trial Court acquitted the appellant of the charge under Section 376 of the IPC. 6. I have heard learned counsel for both the parties at length and perused the record of the trial Court. 7. Learned trial Court convicted the appellant holding that the prosecutrix was below 18 years of age and she was taken by the e; appellant from Durg to Raipur and after that to Jabalpur and kept her there for about two months. The trial Court, for recording the age of prosecutn'x, has relied upon- the evidence of Dr. Madhuri Gupta (P.W.10) and Dr. G.S. Thakur (P.W.11). From perusal of the record . V i x\ ‘5‘ and statement of Dr. Madhun' Gupta (P.W.10) it is evident that Dr, Madhuri Gupta did not examine prosecutrix to determine her age. So ‘ far as the statement of Dr. G.S. Thakur (P.W.11) is concerned, in his statement he has stated that the age of the prosecutrix is 15 years. He in his cross examination has told that margin of 2 years either side is possible. ‘Her statement does not hnally determine the age of , prosecuttix to be 15 years. On the other hand, from his statement it could not be said With certainty that after ossification test of the prosecutrix her age is below 18 years or above. Her mother has also not deposed any thing to ascertain her daughter’s age. Having considered these factors it is manifest that the trial Court has grossly erred in recording the age of the prosecutrix below 18 years. . Learned counsel for the appellant has submitted that medical report is only on expert opinion and the expert’s opinion if not consistent it is open for the Court not to rely thereon. According to him, in'the present case, the medical opinion is inconsistent and it is only process of assessment. He further submitted that in such a situation assessment of age is not sudicient. The accurate assessment of the age is required and it must find corroboration by some other evidence, but in the present case, the corroboration is completely lacking. Even the mother of the prosecutn'x is not sure about the date ofbirth of her daughter. In view of this, learned counsel submitted that it is a case Where the appellant is entitled for benefit of doubt regarding her age and he may be exonerated from liability under Sections 363 and 366 of the IPC. He placed reliance on [1994) 1 Supreme Court cases 468 (State of Karnataka Vs. Sureshbabu Puk Raj Portal) 85 AIR 2003 Supreme Court g081 gJinish Lal Sha Vs. State of Bihar). I t \ \ 9. Hon’hle Apsx Court whila 1‘6ndering above judgmént has also obServed that medical evidence in determining the age is not a conclusive pmoi 10. Froxn the statement of prosecutrix it is clear that she went along with the appellant to Jabalpur and lived them for more than 2 months Without complaining her grievances to anybody, that itself suggests that she on her own accord went to Jabalpur and lived with the , appellant. From the earlier discussion it is clear that her age was 18 years o} fabove. Therefore, considering all the factors as discussed above conviction for commission of offence under Section 363 and é 366 of the IPC could‘not have been recorded against the appellant. 11. In the result, I am of the opinion that the learned tn'al Court recording conviction and imposing sentence on appellant for committing offence under Section 363 and 366 of the IPC has grossly erred and called for interference. Accordingly, the appeal is allowed. The impugned judgment of'conviction and sentence is liable to be set aside and accordingly the conviction given by the trial Court under Sections 363 and 366 of the IPC and sentenced him to undergo RI. for 4 years and to pay a fine of RS500] 3 in default of payment of hne to further undergo SJ. for 3 months, and R.I. for 3 years and to pay a fine of Rs.300/ —, in default of payment of fine to further undergo S.I. for two months respectively are set asidei The appellant is acquitted of the charge under Section 363 and 366 of the IPC. /// sdl- Jhanwa‘ ' wage Si-