Wm , m zoo 511%“ m (W) ammm am énémm WWW v WWW1¥WW $ aim 5am? \u HIGH COURT OF CRIMINAL CII-II-IATTISGARHAT BILASPUR AIPEAL no 604 or 2005 APPELLANT (I11 Jail} Naresh Kumar S; o Shri Ghasiyaram, aged about 19 years, eccupation Agriculturist. Resident of Village Kumhaxlkhar, police station Kanker, Distt. Kanker (CG) Versus RESPONDENT State of ChhattiSgarh Through D.M. Kanker. Present: ‘ MI. Paukaj ML Neeraj Mehta, Shrivastava, Pane] counsel for the appellant. Lawyer f0: the State] respandent. JUDGMENT ecember 200'?) directed against the judgment of ence dated 23rd June 2005 passed in ned First Additional Sessions Judge, ppeilant under Sectien 376 of the IR) ergo RI for ten years, pay a fine of yment of iine to undergo additional RI in nutshell: is that on 7.9.2004 at trix, aged about 13 y?~s/,h'a\d§o’xxi>e~£ow Dhirendra Miéhra! J This criminal conviction and order S.T.No.327]04 whereby Kanker, has convicted and sentenced him RS500] —a11d in default for one month. 2. Case of the about 3.30 p.131. the {14th appeal of sen 1e the to un of p prosecuti prosec is 11, E @ WW,W,W Wm m 200 mam (W) RQI aa3‘$‘r§ai$ mW ‘ WM} Qf%am 3 $aaq‘ . “IE a; W . E.‘ &Ie§1 rgé1(§!§{ .. triai Court after hearing counsd for the respectiVE parties convicted and saltmced the appellant as mentioned in paragaph 1 of this judgment. 6. L€arned counssl fgir the appellant submits that th€ mosmution has failed t0 p1 (Ne that age of the promcutrix was less than 16 vears on the date 0f incident. The trial Ceurt has relied upon the admission regster and mark-sheet of the prosecutrix igloring the evidence of the radiolog'sL who on the basis of ossii‘ication test, has opined that age of The prosecutrix could be between 14 to 1'7 vears. Tile father of the prosecutrix Ishwar has stated that her age was 11 years on the date of incident, however, that is on the basis of approximation and he was not able to gve exact age of the prosecutt‘oi. in these circumstances, the Court below considering the report of the radiologist ought not to have r accepted the evidence of PW—S Paxasram Netam, Head Master, who has moved the admission register of EX.Pf 12-C, on the basis of which entry in the mark's eet of EXP} 1 has been made where the date of birth of the proef cutrix is mentioned as 20th February 199 l. It is further argued that horn the evidence of the nrosecutrix {PW-7) it is clear that she was a consenting party and reoort was lodged only because her Liicle Rajkumar (PW—6) saw her in the company of the appellant. W mm, m, J;:g ? a 7’. 011 the Omar hand. lea Supported impugmed judgmej 8. I have heard learned c perused the evidence avail judgment of the trial Court. 9. To establish age of t relied upon her mark-sha EX.P}' 12—C and repnrt of the] 10. Pw~2 Ishwar. father of the prosecutrix is 11 years e mark—sheet of EXP! 1 was se of EXP] 2, Which hears h examination by the defence this Witness remains um‘ebu" :ted. 11. PW—8 Parasram Nete admission register of EXP} prosecutrix is mentioned a} recorded as 20th February 1991 and she was admitted in the In the cross-examination he has ission she was brought by her father Ishwar who put his thum impression in the declaration form since he was illiterate and date of birth of the prosecutrii’g Was ined couneel for the Statefrespondent 1t of the trial Court. ounsel for both the parties and have able on record including impugned be proeecutrix, the prosecution. has :t of Ex.Pf 1, admission register of 'adiologist Ex.Pf 22. the prosecutrix, has stated that age of pproximately. He further stated that Lzed from his home vide seizure memo is siglature. There is no cross— on the point of age and testimonv of m, Head Master, who moved the 12—(3, has stated that name of the S1.No.558 and her date of birth is school on 3.7.1996 in Clas —I. stated that at the time of at W m 'H'vL 200 mm (W) WWW WWW mmm 4 WW Wm §7a¢fanénéw @ mw,m,m mm (W) mmuw’wm ésaifcmanéw WWW § rccorded on.the basis of infor ‘ ation given by hm fathér. He has denied thc suggestion that I ' r did not give her date of birth PW—l Piluram, uncle of‘ thé ths prosecutrix as 13 years. \ nced by learned counsel far the .C. Thékur (PW—13) has assessed 14 to 17 years on the basis of ‘ Ossi’flcation test, is concerned assessment of age on the basis of ossilioation test is only an o inion and Where there is cogent evidence of date of birth in the orm of admission register, in which entry has been made on The b sis of information g'ven by father of the yrosecutrix and the evic nee adduced by the prosecution stands unrebutted, opinion f the radiologist cannot be given precedence and such entries axmotlbe ignored. Therefore, in the considered opinion of this Cou t the trial Court was wholly justined in relying upon the entry m de in the admission register and mark—sheet to arrive at the c nelusion that the prosecutrix was less than 16 years of age on th date of incident. 13. VSo far as the second defence of the appellant that the prosecutrix was a consen‘ g party, is concerned, she has categorically stated before th Court that because it was holiday she went to the forest along with her h‘iend Jamuna to collect iireWOod and wax. At that s and it was entered by guess 1g. prosecutrix, has also given age 12. V appellant that radiologist Dr; age of the mosecutxix hetW So far as arguments the accused came there, caught e , .g. W ~FS/59~— 8/10!“ ‘30,?100l VWWW 'f a a a e , / WW, m,W W m 200 aW$% WWW é anéw nae: (W) WW f3‘z}m $3im311é¥1 hey, inu'midated her frimd ‘ lie on the ground, undr However, when his uncle R; from the place of incident. prosecutrix has also suppo: Leading questions were pu version she had given 111 k confirmed the version of thc the evidence of Tilakram field, he sawvthe accused t Defence in the Close-exam] lamuna and drover her away, made her is sed her and thereafter raped her. ijkumar reached there, the accused ded PW— 12 Jamuna, who accompanied the rted her ver sion in material particulars. t to her as she did not fully state the er diary statement and thereafter, she pro secutrix. l4. The teetimony of the prosecutrix is also corroborated from (PW—5), who has deposed that The prosecutrix complained that the accused had committed rape with her. P‘W—é Rajkumar has also stated that While he Was going to his raving intercourse with the prosecutrix. nation of these witnesses has not been able to elicit anything which makes their version unreliable or untrustworthy. accused beyond reasonabi committed any illegality in l5. For the aforesaid reasons, this Court is of the considered opinion that the prosecution has been able to prove the guilt of the e doubt and the trial Court has not convicting the appellant under Section 376 of the IPC based or. the oral and documentary evidence available on record. t J.- WWW _y mmewm %a¥'¥%wsni¥1 at the time of incident th€ a§Jpe a11d whi16 imposing sentcnce th‘ into COnsideration his age. 17‘ In the result, the appeal is convictivn of the appellant in} and in place thereof, he is sent ‘ a me 0f Rs. 1,000/— and in deg additional RI for three months. ‘Wl Sdl- Dhifendra Mishra I Judge ‘ .. ' I mam Mu gamma, W ~Fsz59— 3mm .Hgaeug. ,.__... L. WW, We, W 3mm (W) ——- .1...“ 16. At this.stage,. harried c0u¢sel for the aglyellant submits that Uant was a young b0}; of 19 years t Court belmv ought to have taken partly allowed. While maintaining ‘der Section 376 of the IPC, his eentence of 10 years’ RI and e of Rs.500j~ is hereby mod$ed iced to undergo RI for 5 years, pay Lult crf payment of @e to undergr) ‘