•t,^.. <s"r' \.^; •'&;--"'y I. . J ^ '^^s! ^^ f^^ ^j^ /.r. /^-»' •f CS) HI6H COURT OF CHHATTISeARH ^T_BILASPUR Criminai Appeal Nu.llll of 2001 APPELLANT Cn Jaii) RESPON&ENT Pardeshi Lohar Son of Bir'ju Lohar &yd about 18 vears, resident of vil ^par.gada-Teii, P.S.Sobra Nawapara ESistt. Raipur (C.6.) Versus State of Chhatt-isgarh Through > P.Sii&orba Nawaparo Distt.Raipur (APPE.4L UNDER SECTEON 374 (2) OF THE CO&E OF CRIMIN.AL PROCE&URE, 1973) (SB-- Hon'bleMr. T.P. Shornia. J.) Present: , Ms Scmgeeta Mishrn, counset for the appeflant. Mr. Sudnir Bajpai, Addl.Public Prosecutor/Dy.fiovt.Advocate for the State/pesponaent. ORAL JU06MENT (Passed ors 11 Februcry, 2009) This oppeat is directed against the judgment of conyiction & order of sentence dated 12.9.2001 passed by -the Sixth Additional Sessjons Judge. Raipur, in Sessions Trial No.60/2001 whereby the learned Si.xth Additiona! Sessions Judge after holding the appetloint guilty for •fte offence punishable under Sec+ions 363, 366 & 376 of the Inditsn Pcnel Code sentenced him to undergo rigorous imprisonment for 5 year's cyid to pay n fine of fts. 200/-, in defau!t of payment of fine to further undei-90 rigorous imprisonment for 1 month, rigorous imprisonment for 7 year-s and to pay a fine of Rs.300/-, in defau!t of poyment of fi.ne to further,under'go rigorous imprisonment for 2 montiis and rigorous imprisoninent for 10 years and tp poy a fine of Rs.ltXX)/-, !n default of payment of fine to further undergo rigorous imprisonment for 3 months, re<pectiye!y. • . p——BiI- ^ 2. Judgment of conviction is chcllenged on tbe ground that without-there being &ny ciinching aid reliabte eyidence against the nppellant 1+ie court below has convicted and sentenced the appeilant as aforementioned aid thereby committed an tllegality. 3. Case of the prosecution, in brief is 1+iat prosecutrix Sarswati Bm (PW-ll) aged about 14 yeacs was residing with her parents at her parental house. On 8.12.2000 she went to see yideo and s-he wus present at -th®placa where yideo wasplaying at about l,yp.n". and she did not re'hir" to her house. Accused was present 1+iere who entioed the prosecutri.x ond took her with him at Chongona Bhatn where he committed sexua! intercourse with her for so many days. F.I.R. was lodged yi.de Ex.P/13 on 27.12.2000. Police has recoyered the prosecutr>.Y from the house of Budhram Yadav along with the accused "ide Ex.P/9. Underwear- of the accused was seized yide Ex.P/10. The prosecut''ix was sent for medical examination. She was examined by br'.Pushpa Guns O'W-13). l-1er hymen was ropture. Vagina admits two fingers and she wes occustomed to intercourse. Slides of yaginal smear were prepared. Spot map was prepared by police vide Ex.P/14. Ctothes of the prosecutrix were also examined bv -ttie doctor'. Same were seized yide Ex.P/Z.Accused was tnke" into custody and was sent for medica! examinatio". Spot map was pr^ared by patwari vide Ex.P/7. Entry retating to her- age i.e. birth certificate (Ex.P/8) was seized vide Ex.P/1. Seized articles were sent for medicat exnmination vide Ex.P/16. 4. After completion of investiga+ion, chcr9e sheet was fited in the Court' of -the Judicinl Magistrate Fir'st Class, Raipur who in tum committed -fti®case to the Court of Sessions Jud9e, Raipur frem where •the Sixth Actditionat Sessions Judge, Raipur received the same on transfer for tria!. S. In order to prove the guilt of the appellant/accused, th®prosecution hcs examinsd as nwny cs 15 witnesses. Statement of the cccused/appellant was recorded under 5ection 313 of the Code of Criminal Procedur-e, 1973, in .wHrch he denied the circumstances appearing against him and: innocency and g fe-a 9- ua faise implication is claimed. The accused hcs taken defence in his cross-examinotion that age of the prosecutrix on the date of commission of offence was more than 16 years and she herself has teft her parental dielter and accompmied the accused. The prosecutrix vws consenting party; therefore, she has not committed any offence. 6. Lenrned Sixth Additional Sessions -Judge after affording opporhjinity of hearing to the parties, convicted and sentenced the accused/appetlants as •'i aforementioned. 7. I haye heard Ms Sangeeta Wishra, counse! for the appellant and Mr. Sudhir Bajpdi, Addt.Pubblic Prosecutor/by-Sovt.Advocate for tiie State/respondent nnd perused the judgment impugned as also record of the court below. 8. Leamed counsel for .the appello'nts aubmits that the present case is a csoae. of consent on the pretext of loye nffair and m<u'riage. The prosecutrix herseif has left the par«ntal shelter and acc&mpanied the accused. The prosscutrix was aged about nore than 16 yeor-s on the date of commissio" of such offence. Ledmed counsel further- submits thct the nccused is in custody since 28.12.2000 and he has compteted near about 8 years and same is sufficient sentence for the nfomsaid offences. 9. On •the olher hand, judgment tmpugned is supported on behalf of the respondent/State and submits that the statement of Sar-swati Bai (PW-11) who was aged about 14 years on the date of incident has bee" corToborated by the ocular cnd medicoit evidence suff'cient for wniTanting conyictio" against the appellcnt. ' . . 10. In order to oppreciate the. contentjons of the parties and to connect the accused/o^pe!tant in crime in question. I hcye excmined the eyidence adduced on behalf of 1+ie prosecution. As regards the question of age of the . prosecutrix is concerned le<ir-ned Sixth Additiona!^ Sessions Judge has : aseert-ained the age of the prosecutrix as 14 yenrs on the date of her ~\ ^ -^;^.., ^ .,:r .-••; ..''.-'' "3': examination in the Court; She has statsd in pnra-llof her cross-examination thnt she is aged about 14 year-s- Dr. Pushpa Suru (PW-13) hcs atso nscertained 1+ie age of -the prosecutrix as 15 years yide Ex-P/15. Kotwnr- Rikhiram (PW-7) has stated in his eyidencs that birth entry was seized by the police from him y'de Ex.P/1 and copy 6f •Hie entry of birth of the prosecutrix is Ex.P/8. In his cross-examination he has admitted that on the basis of information giyen by Adhnr Sahu he hos made e;ntry in the birth register Ex-P/8 and also admitted that he has tcken signature over Ex.P/8. He has atso adi?!itted thnt he hiinself has made entry relating to Ex.P/6. I<^ para-3, he has admitl-ed thct Adhar came to him for informing the date of birl+i. Ex.P/S shows -that daughtsr- of Adhar-Rukhminbo! was bom on 15.6.85. Adharnim (PW-10) (father of the prosecutri^) has deposed i" his evidence 1+iat •rtie age of the prosecutrix is 14 years. He hns stated m para-4 of his cross-examination that he himsetf has inforined -ttie Kotwar reldtmg to date of birth of his daughter. The statement of the prosecutrix cnd her fother is supported by -rtie birth aid entry registry, which shows that the prosecutrix is daughter of.Adharram who born on 15.6.85 and on the date of incident she was be!ow tiie ageof 16 years. 11. .4s regards the question of commission of sexunl intercour'se by the accused wi1+i the pr-osecutrix aid kidnappmg and abduction by the accused fs concerned, prosecutrix Sorswati Bai (PW-11) has deposed in her evidence 1+sat whiie she wos wotching video Jambai told her to go to Rajpur to see temple and wil! come at "'ornino +hen she went with Jannbai and the accused. But instead of taking her to tercple, the accused took her at Lodhipara and on the point of knife he commit+ed se?aiat intercour'se with her. She stayed wsth the accused for 2-3 days and accusedused to commit sexual intercourse with her. Lastly, her retatiyes came then she went "n+h them. She has also stated l+'at she wos excwined by the doctor ond spot map was also prepared by police yide Ex.P/14. Santosh (PW-12) (brother of 1+ie proseajtrix) who was aiso present at the piace of yideo has deposed in his eyidence that when he came to calt her sister at thot time she was present wcth Jambai th<!n proseeutrix went with-Jdunbsi -to answer the cal! of nature but die did not turn back. \ \'- "sss". a issssssa^ j :5' s^—^("^*' !i'i Budhnim (PW-3) has stnted in his eyidence, 1+iat the accused, prosecutrix smd his daughter Jcmba! came to his house and cifter 4 to 8 days fath-er fnd mother of the prosecutrix came there cnd they took her. He also stated that the pr'osecutrix was recovered from his house. In his cr-oss-e?aimination, he has stated that the prosecutnx has not accompanied the accused but m para-4 of his cross-examinotion he has stated that he used to go for his livelihood at about 6 p.m.-and used to come at about 11-12 at njght and during his absence he ccmnot say who us? to come and who use to go in his house. This wi+ness is fnther of Jambai who was atso pnrty, wh.o enticed the prosecutrix. It reyeals from his stateirient that the accused along with the prosecutri3< and Jambdi came to his house but afterwards with a yiew to support his deiughter and the accused he has substantially not supporting his statement and tried to r-econcile from his statement. -Jamuno Bai (PW-2) (sister-in-law of the prosecutrix) has stated in her evidence that the prosecutrix vms found at Raipur ui'th the accused. Sarswati Boi (PW-ll) has denied the suggestion of the defence relatjng to love affairs and lenying the house of his father off and on. She has admitt®d•rtie photographs Ex.D/1 (uid has e?<plained that the accused has compelled for photographs at Raipur'. This suggestion of -the acaised nnd e?<planation of the prosecutrix issufficienf to infer that the prosecutrix "ids with the accused at Raipur at the tiine of photography. Her statement relating to the commission of sexual intercourse by the accused has not been challenge-d by -rtie accused in her cross-exan«ination.O" •fheo-ther hand, the accused has tried to show that tiie pr'osecutri.x was having loye affairs and was willing to "narry with the accu%d and has fatsely implicated th®accuse.d at the instance of their relatiyes, which she has denied. 12. Statement of the prosecutrix iscorroborated by the statement of the other witnesses are sufficient for dmw'ng inference that the accused took 1+ie prosecutrix from her yillage on the pr-etext of yisiting temple and forcefu!ly detained her and committed se?<uat intercourse with her. This is 'no+'-a case where the prosecutri?< herself has left her parental shelter- '•"se "^SF 6 wi!lfu!ly but the accused has instigated and enticed her- to visit tempte and on the basis of such enticement the p!'o%cutrix occoinpanied the accused md went to Raipur where the accused has detained cnd conf'nsd her in the ^IOUSK of Budhmm ond committed sexual inteccourse. It shows that the accused.has intentiona'ly kidnapped and then abducted •rfie prosecutrix wi'th intent to comrnit itlicit intercour% and committed sexua! intercour-se with her wi-rfiout her will and consent ancLat the time of such commission of offence die was befow the age of 16 years. ,;• r.1 13. After appreciating the evidence'ayailabte on record, the court below has conyicted the appellont for +he offence punishabte under Sections 363, 366 & 376 of the Ind'an Penal Code. The conviction of the appel!a"t for the offence punishable under Section 376 of the Indicin Penal Cocte is sustninable under the law. 14. As regards the question of sentence is concemed, on -riie date of comn'iission of offence age of.the oppellant wns also IB.years and St nppear-s that with a v'lew to marry with •the prosecutrix the accused hos committed the afonesaid offences who is in custody since 28.12.2000 and he is in custody for about 8 years and 1 t months, Taking into consideration, -riie sentense suffered by •the c^pellant is sufficient for- the offence punisheA»le under Section 376 of the Indicm Penal Code. 15. Consequently. the appeal is partly ailowed. Conyiction is maintained. Sentence awarded under Sections 363 & 366 of the Indian Penal Code is also maintained and sentence awarded under Section 37,6 of the Indian Pena! Code is reduced from rigorous impr'sonment for 10 years & to pay n fine of Rs.lOOO/-,!" defoult of ptxynnent of fine to further undergo rigorous impr'sonment for 3 months to the period already under'gone i-e. 8 years and 1 S- months & to pay n fine of Rs.lOOO/-, in defautt of paymsnt of fmc he shall •ftjr-riier- undergo rigorous imprisonment for 6 months- p-- T.P.Sharma Judge 8/-.