^> !ELlli,.....t.l.:EM ;tj: (!| :3n....^"-^••---—••"—" iL,-.AAM.lo%t'..^.te^ : (!1 '30 .11. 'r"!'" ,<»ia»tlW--^* ***v i^:;r;. -i!^ i.' jv(rcet R:toD.8. DL..-!.^3^ IB: TBS; m.ea GOWS er: M3B®A-%assH..As;3- (S.^.^S'ES^^SO .^ {/^'^^' ':: ' :,l.;^'.1.99lt-. Vasaae-^alias 7asfieYis®a'@fGoiEal • - KasaA^a.lias S^asaB: &&3ssi.,a.ge& .: :t.* l;al)oafc 21, yea!ts:,'^]*e^3;asirfc-of vttlage: ::1 ^ ? 'Pandar.a.yfi^'.£iis't,r3,:e'fc,,Bila&piar,BE •• :; . : ^'•|j •V ri'VSs :M.S$. ^i;^?i';.:^T? ;%w^ ^SSSaSMW^^KSS^'S.SS^^T^^^^'ESW.SS^SWt _CQS -a.ssss'ssss-SL^ li'.^ li<i e.F SB w HIGH COURT OF CHHATTISGARH AT BLLASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 428 of 1994 APPELLANT RESPONDENT VERSUS Vasudev @ Vasdev State of Madhya Pradesh Shri Santosh Bharat counsel for the appellant. Shri Vaibhav Goberdhan PL forrespondenVState. CRIIVIINAL APPEAL UNDER SECTiON^74^(2LOF THE CODE OF CRIIVIINAL PROCEDURE, JUDGIVIENT (13.08.2010) This appeal is directed against the judgment and order datecj 16.04.1994 passed by Additional Sessions Judge, Link CourtlVlungeli, District Bilaspur, in Sessions Trial No. 296/1990 convictingthe accused/appellant under Section 376 IPC and sentencing him to undergcj rigorous imprisonment for seven years. j i 'l Case ofthe prosecution in briefisthaton 04.08.1990 FIREx.P-S was lodged by the prosecutrix (PW-9) aged about 14 years at thel relevant time, alleging that she was working as a maid-servant in different houses of the locality. According to her, she also used to work in th^ house of oneAwatar Singh and sleep in the house of Rameshwar (PW-i 1). She has alleged that the aGcused/appellant used to meet her on the way and by alluring to marry her committed forcible sexual intercourse! with her about six times in the house of Rameshwar (PW-1). She ha^: alleged that the accused/appellant used to say that if she disclosed this ' . /. .. ' . ••. . • ., .\ t factto anyone, he would not marry her. This report has been lodged by the prosecutrix when she was carrying pregnancy of about five months; After investigation the challan was filed on 16.09.1990. 3. So asto hold the accused/appellant.guilty,theprosecutionhas examined as many as 09 witnesses in support of its.ease. Statement of the accused/appellant was also recorded under section 313 of the Codej of Criminal Procedure in which he denied the charge levelled against htn-i •."^r > c^ 1^ ^t- 1^1 .iii.riL;.J^;...;;iis;:iLi.<lji!ii-i i...-:&^2r'JKS:-jE.£.l^tBasS....=ff' "i.'.. fc1 y/ w o - and pleaded his innocence and false implication in the case. This apartj one Dinesh Singh (DW-1) has also been examined bythe defence ir^ support of its case. 4. After hearing the parties the trial Gourt has convicted ancl sentenced the accused/appellant as mentioned above. 5. Heard counsel for the parties and perused the material available or record ihcluding the judgment impugned. 6. Counsel for the accused/appellant submits that prima faeie i< appears to be a case ofconsent as till the prosecutrix had not becomej pregnant, no reportwas lodgedby her. Hesubmitsthatthereis inordinate! delay in lodging the FIR and that on the date of incident the prosecutri)< was major and supposed to understand the repercussions of fhe act of the accused/appellant. He submits that the prosecutrix herself has stated in her evidence that she had called the accused/appellant in the house of Rameshwar and that before conception she did not disclosethe incident to anyone and that the appellant had not given her any promise of ffiarrying her before she became pregnant. 7. On the other hand, counsel for the respondent/State supports the impugned judgment and submits that as the accused/appellant has maclqi the prosecutrix victim of his lust as a result of which she ccinceived, his| conviction under Section 376 is just and proper and needs nq interference inthis appeal. . ' 8. Prosecutrix (PW-9) in her Court statement has stated that4-5yeaF^ prior to the date of'incident she was residing at Pandariya and used t@ work as maid-servant in different houses of the locality and sleep i^ other's house. She has stated that the aGcused/appellant used to com^ to the place where she slept and Gommit sexual ihtercourse with heras^ resultofwhich she became pregnantandthen she lodgedfhe reportExl P-8. She was medically examined and fordeterminationofherage.heif X-ray was taken in which it was found that at the relevant time she wasi 14 years of age. In cross-examination she has stated that f&r thre first :<sil w -'5- time the aecused/appellant had committed sexual intercoursewith her ii the house of Rameshwar (PW-1) and at that time wife of Rameshwait namelyKamla Bai was also present in the house. In paragraptt-4ofhen cross-examination she has statedthat it was she who had called the accused/appellant in the house of Rameshwar and that before becoming pregnant she had not disdosed the incident to anyone. According t6 herj the accused/appellant committed sexual intercourse with her on 5-6| occasions and when she became pregnant he refused to marry her. SHej has stated that had the accused/appellant married her, she would hof 1 tiave lodged the report. She has Gategorically stated that thej accused/appellant had assured to marry her only after she became| pregnant, and before that he had given no such assurahce to herJ Rameshwar (PW-1) in whose house the prosecutrixallegedly used tq sleep and had physical relations with theaccused/appellant for the first time has not sypported the case of prosecution and has been declare:d hostile. Similarly Kamla Bai (PW-2) -wife of Rameshwar (PW-1) has not supported prosecution case and has been declared hostile. Khedu Prasad (PW-3) has also not stated anything against the| ^accused/appellant. Dr. S. K. Tiwari (PW-4) who medically examined the| accused/appellant has stated in his report: Ex. P-3 thatfhe appellahtwas capable ofperforming sexual intercourse. Ramji.Gupta (PW-5) isthe Patwari who had prepared the spot map. Dr. C. S. Sharma is th^ Radiologist who conducted ossification test of the prosecutrix has giveh his report Ex. P-5 according to which age of the prosecutrix at fhe reTevant timewas 17-18 years. Dr. (Smt.) Malti Chandrakar (PW-7) whci medically examined the prosecutrix and given repcirt Ex. P-7 has stateef that at the time of examination shewas carrying pregnancy ofabout 5^3i months. A. R. Bairagi (PW-8) - the Investigafing Officer has supportec| the case of prosecution. J 9. Thus having gone through the material availableon record it ig apparent that at the relevant time the prosecutrix was major, that there isj inordinate delay in lodging the report and that the prosecutrix has admitted in her evidence that she herself had called th^ accused/appellant in the house of Rameshar and tHat he had not givgiji ^ ro -4- any assurance to marry her before she became pregnant. All these things| have not been given thoughtful consideration by the Court below whil^ passing the judgment impugned convicting and sentencing the1 accused/appellant as mentioned above. 1 1 10. Thus, in view of the aforesaid discussion the findings recorded b^ the Court below appear to be based on mis-appreciation oftheevidenGei available on record and that being so the judgment impugned cannot bej allowed to stand. Accordingly, the appeal is allowed. Judgmentimpugnec) is set aside. Accused/appellant is acquitted ofthe charge levelled againsf him. He is reported to be on bail. His bail bond stand discharged. / Sd/- Pritinker Diwaker Judge •~^ ^'^ s^A_ ph^ VMj J rS^ ^ W] ;/to