...."i-y "'[':.;l.,:,Et""i ^ ..o' •.^S'^f'-^ewvj HIGH COVRT OF CHHAmSGARH. BILASPUR Criininal Aooeal No. 103 of 2008 APPELLANT: [lil ijaltj RESPONDENT: Tejbhan Singh, aged about 19 years, S/o Brij Lal Gond, R/o Inderpur, P.S. Khadganwa, Distt. Korea (C.Q.) Versus State of Chhattisgarh, throueh P.S. Khadganwa, TahsU Manendragarh, Distt. Korea. {Criminal appeal under Section 374 of fhe Code of Criminal Procedure, 1973} Present: Mr. AnU Pandey, counsel for fhe appeUant. Mr. Sanjeev Kiimar Agrawal, Panel Lawyer for the State/ respondent. , SinfileBenchL^on'ble Ma". T.P. Sharma, J ORAL JUDGMENT (7-7-2009) 1. This appeal is directed against thejudgment ofconviction & order of sentence dated 13-4-2004 passed by the Additional Sessions Judge, Manendragarh in Sessions Trtal No.218/2003, whereby leamed Additional Sessions Judge after holding the appellant guilty for commission of..offence under Sections 376 (1) & 363 of fhe I.P.C., sentenced him to undergo R.I. for seven years & pay fine of Rs.500/-, in default of payment of fine to furtfaer undergo R.I. for five months and to undergo R.I. for three years & pay fme of Rs.500/-, tn defaiilt of payment of fine to further undei^o R.I. for five months, respectively. 2. Judgment ofconviction & order of sentence are challenged on the ground fhat leamed Additional Sessions Judge has not considered fhe fact of consent of fhe prosecutrlx and fhereby committed illegality. 3. Case ofthe prosecution, ui brief, is fhat on 18-3-2003 at about 12 noon fhe prosecutiix, who was aged about 17 years, was takini bafh near the pond where the appeUant came and caught hold of ^ i';!;;.;.f!s^ l' '""^ e'' i!».-'"^ ^•K:.:]-:^"" her and took her to the forest where he comiaitted sexual intercourse wifh her. Thereafter, the appeUant took her in his house where his mother directed him to take fhe prosecutrix to vfllage Bartunga and on 19-3-2003, fhe appellant took the prosecutrte to vUlage Bartunga by jeep where he committed sexual intercourse wifh her. When fafher & mother of fhe prosecutrix reached fhere, fhe prosecutrix narrated the incident to them. Thereafter, she lodged Dehati Nallshi Ex.P-1. Her clothes were seized vide Ex.P-2. She was examined by Dr. Smt. Neelam Tirkey (PW-5) vide Ex.P-3. The doctor prepared slides of her vagtnal smear. Undergarment of fhe accused/appeUant was also recovered vide Ex.P-4. Clothes of the prosecutnx were recovered vide Ex.P-5. The F.I.R. was registered vide Ex.P-7. Spot map was prepared vide Ex.P-8. Slides were rccovered vide Ex.P-9. Recovered articles were sent for chemical analysis vide Ex.P-10. Osstfication test of fhe prosecutrix was conducted vide Ex.P-11 where her age was recorded between 16- 17 years. 4. After completion of investigation, charge sheet was filed before the Judicial Magistrate Fu'st Class, Manendragarh who in tiim committed fhe case to fhe Court of Sessions, Ambikapur, froia where leamed Additional Sessions Judge, Manendragarh received the case on transfer for tnal. 5. In order to prove the guilt of the appeUant, the prosecution has examined as inany as ten witnesses. Statement of the accused was recorded under Section 313 ofthe Cr.P.C. tn whlch he denled the circumstances appearing against him and pleaded innocence & false tmpUcation. 6. After affordtng opporturdty of hearing, leamed Additional Sessions Judge convicted & sentenced Che appellant in fhe aforesaid manner. 7. The appeUant has filed this appeal after 1314 days of its limitation and delay in fiUng fhe appeal was condoned. 8. I have heard leamed counsel for the parties, perused fhe impugned jud^nent and record of (he Court below. ^^ % ~.:;;..*^; ¥., .>£- tfe^—lu.,....^ l^^s^s^S^: ss^ 9. Leamed counsel for fhe appeUant submits that evidence of the prosecutrfx is sufficient to draw mference that she was consenting party and she herself has left fhe custody of her guardians. The appellant has not committed any sexual intercourse agauist the wUl and consent offhe prosecutnx. 10.0n fhe ofher hand, leamed counsel appearing on behatf of the State/respondent supported the impugned judgment and submitted 'that the prosecution has proved its case beyond all reasonable doubts. ll.In this case, evidence adduced on behatfofthe prosecution shows that at the time of incident the prosecutrix was not below the age of 16 years. 12.As regards the question of kidnap and commission of rape, the prosecutrix (PW-1) has deposed that when she was taking bath near fhe pond, the appellant came and took her from the pond to viUage Ghutra where he committed forceful sexual intercoLirse with her and also committed rape at vUlage Bartunga. But in para 7 of her cross-examination, she has admitted that her father & mofher caine to vUlage Ghutra for searching her. She has spectficaUy admitted fhat when her father & mother came, the appellant took her along wifh her two sisters aad left near the pond. She has also admitted in para 8 of her cross-examination fhat she stayed m fhe 'house of fhe appeUant where his mofher, fafher, brother & sister were also residing. 13 .\ 14 It reveals from para 7 of her evidence that she was only with the sisters of fhe appeUant when her fafher & niofher were present at vUlage Ghutra, she was not under fhe control of the appeUant and she was free to escape or go wifh her father & mother, but instead of going with her father & mother she stayed wifh fhe sisters of the appellant. This is suflGcient to draw inference that fhe prosecutrix herself has left fhe custody of her parents and accompanied fhe appeUant. The appellant has committed sexual intercourse not wifhout her consent or wUl. .Leamed Court below has not considered the matenal facts and has committed iUegality in convictng & sentencing the appeUant. Sonia Judgraent of conviction and order of sentence are not sustainable. iS.Consequently, fhe appeal is allowed. Conviction and sentences tmposed upon the appeUant under Sections 376 (1) & 363 of the I.P.C. are set aside and he is acqiiitted of the sald charges. The appeUant be set at liberty forthwith, if not required ui any ofher case. Sd/- T- P. Sharma Judge t^Sfi^f..;.- .>. ^^•^^•e-?^:;^- F' • " —-.^K^Si^ K»(