^^ APPELLANT (In jGii) HI©HCOURT OF CHHATTIS©ARH^T BILASPUR Criminai ^&&e<tl No.53 ©f2001 Santhuram S/o $udharura?n aged about 27 years ft/o ^ram Bandara, P,S< Devri Dist: Durg-(Chh) RESPONDENT Versus State of Chhattisgarh through P-S. Devri Dist: Gurg (Chh) (APPEAL UNDER SECTCON 374 (2) OF THE CODE OF CRIMIN^L PROCEDUftE, 1973) (SB; Hon'bte Mr. T,P. Shonna, J.) Present; Mr.Ratnesh Kumar Agrawal, counsel for the appeitent. Msss Sunita Jain, Pane! iawyer for 1+ie State/'respondent, OKAL JUD©MENT (Passsd on 29th January, 2010) ^l. Challenge in thisopped is to 1+se Judgment of conviction & order of sentence dated 5.1<200tpa$sed by the Additional Sessions Jydge, Babd, in Scssions Tria! No.151/2000, whereby & whereunder learned Additlona! Sessions Judge cfter ho'ding 1+ie q5pe!lant gui!ty for the commission of rape wi1f» PW-4 prosecutrix convicted under Section 376 (1) of the Indian Pena! Code and sentenced him to undergo rigorous imprisonment for 7 years. 2. Judgmenst is Impugned on the ground that without any iota of evidcnce, the Court bebw has conyicted and S€^ten<^d 1+ie appelic^t ^ aforementionecJ and thereby committed jllegality. 3. Case of the prosecution, In brief, Is that prior to 8-9 months of 23.3.98, the prosecutnx PW-4 came irito contact with the appellant, they were hcyhg iJljclt relation and as a result of such relation, she concelyed and abortion took place on 23.3.98. Ths F.I.^. was Sodged yide Ex.P/10, The S^l > 4. 5. prosecutrix wos examined by Dr.Smt.S.Sawant (PW-9) vide Ex.P/t A and found delivery of grown-up chlld (foetus). She was also advised for x-ray. She was admitted in hospital yide receipt Ex.P/12. Her bed headi ticket is ExP/13, Slides of virgjna! srpear were taken and same were seiz&d yide Ex?/2. Rojnamcha Sanha was recorded vide Ex.P/1- School certlfjcate of 1+ie prosecutrix was seized vide ExP/ll< Statements of the witnesses were recorded under Section 161 of the Code of Crminal Procedure, 1973 (hereinafter referred to as lthe Code'). After completion of Investigation, chorge sheet was fited In ^ie Court of the Additional Chief Jydlcia! Magistrate, Balod, who irs turn committed the case to the Court of Sesslons, Durg from where the Additlono! Sesslons Judge, Balod received the ca^ on transfer for tridl. In order to proye the gusSt of l+ie accused/Qppellant, the pro^Bcutlon has exarpined as mcsny as 9 witnesses. Statement of 1+ie accysed/appellant WGS recorded under Section 313 of the Code where he denled +he ^ circumstances appearing against him and pleaded innocence <^id false imptjcation m the crjme in question. 6. After affording an opportunity of hearing to the partses/the Addstiona! Sessions Judge, Babd has conyicted <md ^ntsnced the oppelbnt as aforementioned. 7. I have heard learned counsel for the parties, perused the judgment impugned and record of the Court below. 8. Learned counse! for the appe!!ant vehemently argues -rtiat the present case is based on the evidence of the prosecutrix PW-4 who has Jntimated her mother on 23.3.98 that she was having illicit rebtion with the appeltent slnce last 8-9 months. Learned counsel furt-her argues that the age of the prosecutrix was not beSow 16 years at the tis^e of alleged incident^ Even accordsng to the evidence of the prosecutrix PW-4, she <3 was consenting party. She has conc^aled the faclzim of tllicit relation and pregn<2ncy. 9. On the other hand, learned State counsel supported the Judgment impugned and argyes that the prosecutrix PW-4 has CQtegoricoJly deposed that the csppelhnt is the person who has committcd ^^xual intercourse with her< 10. In order to appreciate 1tre arguments advanced on behalf of the partics I have examined the evldence adduced on behalf of the pro^cution^ In the present case, conyict'on is ba^d on ^re evldenc^ of solitary wilness prosecutrix PW-4< In case of rape, conyiction can be based on "Hie soHtary evidence of the prosecutrix^ if the evidence of 1+se prosecutrix jnspires confidence. The pro^cutrsx PW-4 has deposed in her evidence that 2-3 monl^s prior to the date of delivery/abortion of the chi!d, the appellant has committed Sexual jntercourse with her and after commission of sexua! intercourse, the oppellant promi^d that he will ^\ marry with her- The defence has cross-exomined the prosecutrix in detail In para 9 of her cross-examination, she has deposed that she was not hoying any bve affair wi1+s the appeltont. The appeltant has committed sexuai intercourse with her only one time. In para 12, ghe has deposed that caste meeting was convened and she was called in 1+iie meeting where she stated 1+iatshe was not pregnant. Shc has also deposed jn the meeting that she was not hayjng any retatjon with the appeJlant.In para 14, she has admitted that on the adyise of the advocate, she has stated that 2-3 months prior to such dellvery/abortion, 1+ie appettont has committed sexual sntercourse with her. 11. The evidence of the prosecutrix reyeals that the oppellant has not committed se^ual intercourse with her 2-3 months prior to deilvery/abortion of the chlld le. 23.398. TTie appellant was not havin9 ony regubr sllscit rehtion with the prosecutrlx and he has not commitihed &/- any sexual intercourse with the prosecutri^ wsthout her wJll and consent. The prosecutrsx has concealed the factum of pregnancy and any retetion with the oppelhnt eyen being asked by the c^ste meetmg- The prosecution has not proved 1+te fact that when 1+ie offence has been committ-ed and what was the age of tiie prosecutrix on the date of such commission of the offence, 1+ierefore, corsyiction of 1+ie c^ipel!ant under Section 376 (1) of the Indion Pena! Code is not sustdnable under 1fie Jaw. 12. White conyicting the oppellant, 1^he Court bebw has not considered the evidence of the prosecutrix PW-4 ond other witnesses and thereby committed iilegaljty. 13. For the foregoing reasons, the c^peal is oJlowed. Conviction & sentence imposed upon the appellant under Section 376 (1) of 1+ie IndiQn PenQl Code are hereby set aside. He is in custody. He be set at liberty at once and be released forthwith, if not reqyjred in ony o1+ser case. Sd/- i T.P. Sharma Judge