'•M =s-a •7:~~;^~fs V1. W I.tBs._HIOH ^QBK'r.aatADIIZA fMBESB. AT JABALyUK Criaiaal Appeal H».. j.(^?e 793 ^s- o' -^' .< N^' J^ '$?-;^-'" ?&s^v ^ J- ^^°u e-<^-^ AB»ellaat; i«t.A .^•"^•-" /•••" y>- ^••" ..-" ^ n.'' y '%> ^ / _ .. /.. -. . -. / Maa'braa'saa af Ataaran alias Babu Bawat, agest a'bftu.t 28 years^ CultivatT, reslA<»atcf villageSls,, i ^ / Palise $tatis.B Rataapur> Distriet Bilasgur.^ Versus. . . ' . •^>r^ • J5>.//- Besgoadeia.t: gtate •f Madhya PradesW. CriMiaal a.Bpeal ufft^er SectlBa 374f2-) •f the RAJESH KUMAR SONTEKE Digitally signed by RAJESH KUMAR SONTEKE Date: 2025.02.07 12:29:04 +0530 ,.?sa! HIGH COIWT OF CHHATnSGMtH AT BIMkSPUR (Hon. Mr. Jnstlce Pritiaker Dlwaker) CRIMmAL APPEAL N0. 1006 OF 19&3 APPELLANT RESPONDENT VERSUS MaatraDi State of Madhya Pradcsh Shri Goutani Kheteapal, counsel aloag wlth appellant. Shri Vaibhav Goverdhan, P.L. for the respoadent/State. CRIMIWAL APPEAL UHDBRSECTION 374 (2t OF THB <?ODE OF CRIMIMAL PROCBDORB. JUDGMENT (16.04.2010) The present appeal arises out ofjudgment and order dated 16.9.1993 passed by tlie Additioiial Sessions Judge, Bilaspur in Sessions Trial No. 318/91, whereby convicting fhe accused/appeUantfor the criGfence under sections 363, 366 & 376 of IPC aud sentencuig him to iiadei^o rigorous unprisoiuuent for three years, five years aad seven years, respectively and to pay fine of Rs.2,000, in default of payment of fine to iindeigo ngorous unprisonnient for two nionths, 2. Case of tbc prosecution iu brief is that 011 23.2.89, the prosecutrix aged about 14 years eloped wifh. the accused/appellaat and visited various places aloag with him tiU 4.4.89 and on 4.4.89 she was recovered j&oia Kota fix>m fhe possession of fhe appellant. Meanwhile, on 13.3.89, NR (Ex.P/3) ws^ lodged by uacle of the prosecutcb; Dharam Siagh (P.W.-2) alleging in it that the prosecutrix has eloped wifh the appellant. After iavest^ation, chaUaa was filed against the accused/appellant & co-accused Chaudrika Prasad for fhe ofiFence punishable iinder Sections 363,366 & 376 oftheIPC. 3. In support of its case, fhe prosecution has examiaed 16 witaesses. Stateinent of the accused persons were also reeorded 3. In support of its case, tihie prosecution has examined 16 witnesses. Stateineiit of fhe accused persons were also i^corded under Section 313 ofthe Cr.P.C, in whlch they denied fhe charges leveUed agatnst thein aad pleaded their iuaocence and false implication ia the case. BSig.SSteaiBi ••"sssysas 4. By fhe unpugned judgment, fhe Coiul below has acqiutted fhe co-accuscd Chandnka Prasad but has convicted the accused/appellant for fhe ofifence as inentioned above. Hence the present appeal. 5. Contention of the couusel for the appeUant is that adiuittedly fhe prosecutrix was in the eoinpaoy of accused/appeUant from 23.2.89 tiU 4.4.89 and she has visited various places along with hicu. He submits that as per the ossi&cation test Ex/P/14, X-ray Ex.P/15 aad the statemeut of fhe doctor C.S.Shanna (P.W.-12), who had couducted the radiological exainination ofthe prosecutrix, fhe age of the prosecutrix was about 18 years. Hc subinits fhat this age is not decisive and fhere may be variation of two years on either side and fhat way her age at. (he relevant ttoae could be 20 years also. 6. Now the question to be decided by tliis Court is whether on fhe dafe of incident, the prosecutrix was below 16 or 18 years of age. Dr. Smt. Aujali Gupta (PW-9) who had niedicatly exaniined fhe prosecutrix has stated m. his evidence that at the relevant tixae she could be 14 to 17 years of aye also. He further submlts that fhe othcr piece of evidence ia fhis regard is her birth certiflcate (Ex.D/3) in wtdch her date ofbirth is mentioned as 10.6.1973 aad as per the progress report (Ex.P/3) her date ofbirfh is recorded as 15.6.1974. Thus according to the counsel for fhe appeUaat, fhei^ is no concrete cvidence available on record on wtdch basis it caa be ascertained that the prosecutrix was below 16 years of age. He submits that fhere is no pruaaiy evidence available on recori to show as to oa what basis her date of birth was recorded as 10.6.1973. Neifher fhe person who has recorded the date of birth of the prosecutrix has been examiaed by the prosecution nor the iR-".^^-.p.^i^i»Y "St; person who has givcn the said information has been exammcd. Ttie prosecutioa has also not established fhe fact as froin Where fhe progress report of the prosecutrix mentioning her date of birth as 15.6.1974 has been seized. Eveu fhe mother & father of the prosecutrix has iiot given the exactdate ofbirfh offhe prosecutrix. Accordiag to Wm, in aay case fhe prosecutrix was more than 16 years ofage and fherefore fhe appeUant caruiot be convicted for the offence under Section 376 offhe IPC. 7. Counsel for ttie appeUant submits fhat lie is not pressiag fhis appeal as far as it relates to the offence under Section 363 Sa 366 of the IPC and would confine his aiyunent to fhe sentence part fhereof only. He subinits that fhe appeBant has already remained in jaU for about four years and five sionths and the niaxiinuia sentence which has been awarded to him is offive ycars aad therefore fhe same be reduced to the sentence already undergone by him.. 8. On the other haad supporting the impugned judgment it has been ai^ued by Shri Goverdhan, that on the date of cominission of the offence as per the prosecution case, age of the prosecutrix was about 14 years whereas as per the defence docuinent, she is aged about 15 years, eight inonths and 13 days aad therefore aU ttie offences are made out against fhe appeUant 9. I have heard counsel for the pardcs aad perused fhe inipugiied judgnaeut as well as the aaaterial availablc on record. n 10. Admittedly, the prosecutrix had visited various places along wifh the accused/appeUaat fi?om 23.2.89 till 4.4.89 aad therefore she was a consentmg party. As per (he ossification test done by Dr. C. S. Shanna (P.W.-12) the prosecutrix was aged about 18 years of age aad he has also stated fhat there may be variation of two years on eifher side. Furfher fhe prosecution has not adduced any priinaay evidence in respect of the age of the prosecutrix aad therefore it witl not be safe for fhis Court to convict the accused/appeBant for the ofFence under Section 376 offhe IPC and he is fhcrefore acqiutted for the said offence. So &r as the oflfenees under Sectioas 363 & 366 of the JPC are concemed, as the appeUant is not pressii^ this appeal for these two sectioas, his conviction under these sections is maiatamed. 11. In the facts and circuiastances of fhe case, the appeal is partly atlowed. Conviction part of the impugned judglaent is taauitained. AppeUant is reported to have reiuaiaed in jail for a period of four years aud five monfhs aud therefore his sentence is reduced to fhe period already undergone by him. ?;, Appeal thus partly succeeds. Sd/- Pritinker Diwaker Judge ^