^%^/ shsy ^^sv HIGH COURT OF CHHATTISGARH AT BILASPUR 'SS. •8i. '^•'ll 'Bi Coram : Hon'ble Shri Sunil Kumar Sinha and Hon'ble Shri R. L. Jhanwar, JJ. Cr.M.P. No. 394 of 2008 Acguittal Appeal No. /2008 APPLICANT District Distt. NON-CLAIMANTS State of Chhattisgarh, Magistrate, Rajnandgaon, Rajnandgaon (C.G.) Versus 1. Pyarelal @ Paitu, S/o Amru Singh Gond, Aged about 24 years, Occupation - Unemployed, R/o Village Kopro, Thana - Salhewada, District Rajnandgaon. 2. Kartik Ram @ Baba, S/o Ramsingh Nai, Aged about 22 years, R/o Village Kopro, Thana - Salhewada, District Salhewada, District Rajnandgaon. 3. Dhanraj Bomchar, S/o Shri Ramaji Bomchar, Aged about 31 years, Occupation - Service (Constable Police Line Balaghat), R/o Khusud, Thana Rupghar, District Balaghat (M.P.) APPLICATION FOR GRANT OF LEAVE TO APPEAL U/S 378 (3) AND MEJWORANDUM OFAPPEALU/S 378^(1) OF^RIIVIINAL PROCEDURE CODE, 1973. Appearance: Mr. Kishore Bhadur, Additional Advocate General for the petitioner/State. ORAL ORDER (07.04.2010) Per Sunil Kumar Sinha, J. Heard on I.A.No.01/2010, which is an application for condonation of delay in filing the petition for grant of leave to file an appeal against the judgment of acquittal. 2. According to office report, the petition for grant of leave is barred by 17daysoflimitation. i ~;5a;to-/s Cr.M.P. No.394 of 2008 Acauittal appeal No. /2008 ^^^' 3. On due consideration of the submissions made by the learned Addltional Advocate General for the petitioner/State, we are satisfied that the petitioner/State has sufficiently explained the delay in filing the application for leave to file appeal. 4. Accordingly, I.A.No.01/2010 is allowed and the delay in filing the petition for grant of leave is hereby condoned. 5. Mr. Kishore Bhaduri, learned Additional Advocate General for the petitioner/State is also heard on the question of grant of leave to file appeal. 6. The three respondents namely Pyarelal @ Paitu, Kartik Ram @ Baba and Dhanraj Bomchar were prosecuted for the offences punishable under Sections 363, 366, 120B and 376(1) of the I.P.C. The allegations are that respondents No.1 & 2 abducted the prosecutrix (P.W.1) on 12.06.2007; took her to the house of respondent No.3 and left her there. The prosecutrix resided in the house of respondent No.3 for about 4 days. In the meantime, she visited many places on his motor cycle. It is alleged that respondent No.3 committed forcible sexual intercourse with the prosecutrix. 7. The Sessions Judge recorded a finding that the prosecution could not establish that the prosecutrix was below 18 years of age on the date of incident. Looking to the conduct of the prosecutrix, he further recorded a finding that it was not established by the prosecution that the prosecutrix was abducted by respondents No.1 & 2 and she was subjected to forcible sexual intercourse by respondent No.3. Therefore, the respondents/accused persons were acquitted ofthe charges framed against them. 8. Mr. Kishore Bhaduri, learned Additional Advocate General for the petitioner/State argues that finding in relation to the age is perverse, therefore, judgment of acquittal vitiates. 9. We have heard learned Additional Advocate General for the petitioner/State at length and have also perused the records filed along with the miscellaneous petition. 10. For proving the age of the prosecutrix, the prosecution had produced the copy of Kotwari register (Ex.P.7). In the said register, the date of birth of the prosecutrix has been mentioned as 01.07.1990, according to which, she ^ts<s^-, .,S'^^'i^: v 6 i Cr.WLP. No.394 of 2008 Acauittal appeal No^ /2008 would be aged 16 years 11 months and 11 days on the date of inctdent which took place on 12.06.2007. The other evidence of age is the oral testimony of the grandmother of the prosecutrix namely Sohaga Bai (P.W.2). Sohaga Bai (P.W.2) deposed that mother of the prosecutrix namely Sahodra Bai died 13-14 years back. The youngest issue of the mother and father of the prosecutrix is their son namely Ishwar, aged about 16 years. Dhaneshwari, another daughter of the couple, is 1 % years elder than Ishwar. The prosecutrix is 1 '/i years elder than DhaneshwSri. On this evidence, the Sessions Judge held that the age of the prosecutrix would come to about 18 years and not about 16-17 years. The Sessions Judge has further observed vide para 19 of the judgment that the father of the prosecutrix was not examined in this case. Indeed, it was an infirmity of the prosecution case that the prosecution did not examine the father of the prosecutrix to prove her age. 11. In the above facts and circumstances of the case, we do not find any infirmity in the finding recorded by the Sessions Judge that the prosecution could not establish that the prosecutrix was below 18 years age on the date of incident. 12. The prosecutrix (P.W.1) deposed that when she came out of her house in the night of the incident i.e. 12th June, 2007, she met with respondent Pyarelal and Kartik Ram. Pyarelal told her that he would marry her. Thereafter, she accompanied them from village Kopro to village Salhetekri. They went to the house of respondent No.3 - Dhanraj Bomchar. All of them resided there in the night of 1 2th of June, 2007 and in the morning respondent - Pyarelal left their company and said that he is going to village to see the position. Thereafter respondent - Kartik Ram also went away from the house of Dhanraj Bomchar. She further deposed that she resided in the house of Dhanraj Bomchar for 2 - 3 days and during this period she visited many places on the motor cycle of respondent No.3 - Dhanraj Bomchar and during said period she was subjected to forcible sexual intercourse by him. 13. The conduct of the prosecutrix that she accompanied the respondents No. 1 & 2 and went to village Salhetekri and thereafter resided there with respondent No.3 - Dhanraj Bomchar for 3 - 4 days and visited many places ^ ^•-!'aaf^ /£ "<t '"% ff ^K'.SS^ % I ^£ia11 fS^ •i "-iaaS;^ i .. ^"® 4 Cr.M.P.No.394of2008 Acauittal appeal No. /2008 1 on his motor cycle would show that the possibility of her being cons^nted party-cannot be fully ruled out in this case. 14. It is on this evidence, the Sessions Judge held that the prosecution could not establish that the respondents/accused persons have committed offences punishable under the aforesaid sections of the I.P.C. and all the respondents were acquitted ofthe charge framed againstthem. 15. We do not find any infirmity or illegality in such finding recorded by the Sessions Judge, in the above facts and circumstances of the case. 16. For the foregoing reasons, we do not find any substance in the petition filed by the State for leave to file appeal against the judgment of acquittal dated 29th January, 2008 passed in Sessions Trial No. 97/2007 by the Additional Sessions Judge, Khairagarh, District Rajnandgaon. The petition is liable tobe dismissed and is hereby dismissed summarily. Sd/- Sd/- Sunil Kumar Sinh Judge a 1 R .L. JHANWAR Judge