HIGH COURT OF CHHATTESGARH AT BQLASPUR [38: Hon’bie Mr.T.P.Sharma‘J.} Criminal Appeai No. 453 of 290‘s APPELLANT Tuakram 8/0 Khetram Sahu; aged about 23 years, Occupation Taikoring Rio Vinaga Sargi, PS. Magariod, District Dhamtari, CG, VERS US RESPON DENT State of Chhaitisgarh, through Officer ln~ charge PS. Magarbd, Dhamtari, Distt. Dhamtari (CG) Shri CR. Sahu learned counsel for the appeilant. Shri Ajay Dwivedi Dy. Govt. Advocate for the respondent/State. CRIMINAL APPEAL UNDER $ECTEON 374 OF THE CODE OF CRIMINAL PROCEDLIRE (ORAL) JUDGMENT (18 ,8‘2oe8) This appeal is directed against the iudgmen'z of conviction and order cf sentence dated 4.42006 passed by the Additionai Sessions Judge Dhamtari in Sessions Triat No. 244120Q5 whereby the appetiant has been convicted for the offences punishabte under sections 376(1), 363 and 366 of the Indian Penai Code and sentenced to undergo rigorous imprisonment for 7 years and pay ifne of Rs. 100!— in default of payment oftine to undergo R! for one month u/s 376(1), rigorous imprisonment for five months and pay fine of Rs. 1001—, in default of payment of fine to further undergo R! for one month u/s 363 and 366 of the indian Penai Coded 2. The judgment of the trial Court is ohalienged on the ground that the prosecution has not adduced any evidence to the effect that the accused/appellant kidnapped or abducted the prosecutrix and committed forcibie sexual intercourse with her. Prosecution has also not adduced any evidence to the effect that the prosecutrix was below the age of 16 years on the date of incident Thus the trial Court has committed an illegality in convicting and sentencing the accused/appellant in the absence of any reliable evidence to @3w Show that e accused kidnapped or abducted the prosecutrix who was below th 16 years of age on the date of incident and committed rape on her. 3. Heard Shri C.R.Sahu counsei for the accused/appenant and Shri Ajay Dwivedi Dy. GA for the respondent/ State and perused the materiai availabie on record including the judgment of the triai Court 4. Case of the prosecution in brief is that on 184.2005 at about 8 pm. the prosecutrix went to the shop of accused/appeiiant Where he toid her that he ioved her and asked her to come out of her house at 11 p.mi to go to some tempie to marry. Accordingly, she came out of her house at 1i pm. where acoused/appeilant was waiting for her. Both of them went to a temple where accused/appellant applied vermillion in the streak of her forehead and then they went to the forest where accused!appellant commttted sexual intercourse with her. Thereafter; they went to various places and spent 8 days together and sexua! intercourse between them continued during all this period. Lastly they came to village Sargi. Father of the prosecutrlx Luku Ram (PW-2) lodged the FIR on 2.5.2005 vide EX, Ps3. Kotwari register Ex. P-6 mentioning the date of birth of the prosecutrix was seized under EX. P-4. Prosecutrix was recovered from the house of accused/appellant vide recovery Panchnama Ex. P—‘i. She was medically examined by Dr. Kalpana Nand (PW-1 3) who vide medical report Ex. P4 1A opined that secondary sexual characteristics of the prosecutrix were developed, hymen was torn and she was accustomed to sexual intercourse. Vaginal slides were prepared and sent for chemical examination. Accused/appellant was also sent for medical examination to Community Health Centre, Magarlod where Dr. KK. Som (PW-9) examined him and vide his report Ex. P-QA he opined that the accused/appellant was capable of sexual intercourse. $megma was not present over his penis. Petticoat of the prosecutrix was seized under Ex. P-8. After recording statement under section 161 of the Code of Criminal Procedure and after completion of investigation charge sheet was filed agatnst the accused in the court of Judicial Magistrate First Class, Dhamtari who in turn committed the case to the court of Sessions w from wherE learned Additional Sessions Judge received the same on trahsfer for trial. 5‘ It is argued on behalf of the accused/appellant that the prosecution has not proved the age of the prosecutrix to be below 16 years on the date of incident. The prosecutrix left her parental house at her own to save herself of marrying one Mayaram and the aoousedlappellant has not kidnapped or abducted her from her lawful guardianship. 6. in the case of kidnapping or abduction and rape the prosecution is required to establish the following ingredients of the offence: (i) woman was taken from the custody of her lawful guardianship with an intention to marry her or with the knowledge that she will be forced or seduced to illicit intercourse ; (ii) (iii) accused has committed forcible sexual intercourse with her; (iv) at the time of commission of rape she was below 16 years of age, 7. In this case the prosecution has adduced oral, documentary and medical evidence in support of its case ln order to establish the complicity of the accused in the crime in question i have examined the entire evidence adduced by the prosecution. on the date of incident she was below 18 years of age 8. Prosecutrix Bhuneshwari (PW—1) has stated in her evidence that at about ’lO pm. when she came out of her house to answer the call of nature, the, accused, who was already present there, caught hold of her, closed her mouth and took her to the forest. When she tried to raise alarm, accused showed her knife and threatened to kill. Father of the prosecutrix Lukuram (PW-2) has stated that the date of birth of his daughter i.e. the prosecutrix is 17.5.1989 and he himsetf got her admitted in the school of village Pahanada. Lakhanlal (PW~6), the Kotwar of village Pahanda has stated in his evidence that the date of birth of the prosecutrix as entered in the Kotwari register Ex. P~6 is 17.5.1989. ln‘his cross examination this witness has admitted that said entry was made by his father who was also the Kotwar of village Pahanda. Lukuram (PW-2), father of the prosecutrix has also supported the date of birth of the prosecutrix to be @r 3 ’q_ 175.1989 as mentioned in the Kotwari register, Date of birth recorded in the Kotwari register is a conclusive evidence to prove the date of birth. in this case the incident took place on 184.2005 and on that day the prosecutrix whose date of birth is 17.5.1989, was beiow 16 years of age, 9. According to the statement of the prosecutrix) the accused/appeilant took her to various piaces and committed sexuai intercourse with her and iastly they both camexto viilage Sargi and was recovered from the house of the accused in that viilage. in the cross examination the defence has not suggested the father of the prosecutrix Lukuram (PW-2) that the prosecutrix was not found in the house of the accused/appetiant. Evidence of this witness is supported by Shanti Bai (PW—3L the mother of the prosecutrix, The defence has’subjected the prosecutrix to lengthy cross examination in which she has admitted that she went to various places along with accusedfappeHant butvshe did not tell anyone about the incident. Rather it shows that the prosecutrix left her parentai house and went along with the accused/appellant at her own good will and maintained physical relation with him. It is not a case where the accused kidnapped or abducted her from the custody of lawful guardianship and committed forcible sexual intercourse with her. 101 Undisputedly, on the date of incident the age of the prosecutrix who was subjected to forcible sexual intercourse by the accused/appellant was below 16 years and thus the act attributed to the accused/appellant squarely falls within the four corners of rape defined in section 375 of the lndian Penal Code, 11. In the instant case, it is borne out of the record that the prosecutrix left her parental house and went along with the accused/appellant at hen own accord. They visited several places and spent 7-8 days out side and during this period they made sexual relation. The prosecution has not brought any material evidence on record which is sufficient to warrant conviction under sections 363 and 366 of the lndian Penal Code. Learned trial Court has not considered the statement of the prosecutrix which clearly shows, that the prosecutrix has willingly accompanied the accused without any opposition on her part in the courge of entire journey, and arrived at a wrong conclusion in convicting and sentencing the accused under sections 363 and 366 IPC. Thus the conviction under section 363 and 366 of the indian Penal Code is not sustainable. As far as conviction under section 376 (1) is concerned, there is sufficient evidence against the accused to maintain the conviction for commission of rape 12‘ As regards sentence, ieamed Additional Sessions Judge has sentenced the accused to undergo Rl for 7 years and pay fine of Rs. 100l- under section 376 (i) IPC. Considering the peculiar facts and circumstances of the case and the fact that the accused/appellant is a young man of 23 years; l am’of the opinion that the sentence imposed by the trial Court requires reconsideration. 13. For the forgoing reasons; the appeai is partly allowed. Conviction and sentence imposed under sections 363 and 366 IPC are set aside. He is acquitted of the said charges. Conviction under section 376 (i) IPC is sustained. However, instead of the rigorous imprisonment of 7 years and payment of tine of Rs. 100I- imposed by the triai Court he is sentenced to undergo rigorous imprisonment of 5 years and pay fine of Rs. 100l-, in default of payment of fine to further undergo Rl for one month. firii sd,_ T. P. Sharma Judge ”it: