mam-wim fgétm $WW IIIG-H COURT OF CHHATTISGARH BILASPUR CRIMIIWAL APPllAL NO. 13 of 2003 / Present: _ Mr. A.K. Prasad, cou Mrs. Madhunisha Si ORAL (1st November 20057)“ ’Dhjrélidra' Mishra, J. This criminal appeal conviction and order of sent S.T. No. 1‘2 1] 02 whereby lear ed Sessions Judge, Surguja has convicted the appellant und Sections 363, 366, 376 of the Indian Penal Code and sentenced him to undergo RI for 3 years, 4 years, 7 years respectively with due of Rs.200/- on of payment of nne to undergo for the appellant. P.L. for’the Statejrespondent. DGMENT is directed against the judgnent of ce dated 20.11.2002 passed in each count and in default additional RI for 10 davs each Case of the prosecution, in brief, is that the on 31“ December 2001 at about 6.00 p.m. the prosecutrix had gone to :ycle repairing to the house of 2. l pay the labour charges of ns n , APPELLANT ‘ Matiyas @ Manesh @ Damru Uraon (In Jail) S/O Iukeshwar Uraim, aged about. 19 vears Caste —‘ Uraon r10 Village :Akkadiha Khotro, P.S. ’Rajpur, Distt. Surguia, CG VERSUS RESPONDENT The State of Chhattisgarh, through RS. F- ajpur, Distt. Surguja C.G, warm m mmatm 3L §§m W 200 WWW wW éwtmm the accused on way, who was on i by the accused, she sat on his used took her towards the forest threat and committed rape with 3 he promised her to marry and ouse,'con+'med her in a room and ilso.v In the next morning the home and narrated the incident to her family members and Sainath. Howevar. she met his bicvcle. On being aske bicycle. Thereafter. the act despite her objection under her. After committing rap thereafter took her'to his h raped her in the night z prosecutrix returned to her it was decided to convene a 'Panchayat. However. P ’ ultimately a report was 10d examined her and gave ascertaining her age and r Pf 11. For the purposes of admission reg‘st’er (Ex.P/ 9) investigation charge sheet Mag'strate First Class, A \by learned Sessions Judge f r trial. 3. During trial the pros all. Thereafter. statement which he denied the circ the prosecution case va ed 0115.12002 vide Ex.P/ 1. e Dr. (SmtJ Kiran Bhujagwali her report of EX.P/ 14. During sent for X-ray examination for ort of the radiolog'st is EXP] 10 8r scertaining her age, copy of school s also seized. After completing s med in the Court of Judicial pur and the same was received cution examined 11 Witnesses in of the accused was recorded in tances appearing against him in pleaded innocence and false an 4 n a m ' a a s \mm g1 200 m WWW 3 WM wm avaia‘wm d trial Court after hearing counsel convicted and sentenced the ioned in paragraph l of this \ 4. Learned counsel for Court has convicted the a prosecutrix below 16 years t' on record, the prosecutior prosecutrix was lws than incident. Referring to the tel Dr. M.K. Jain (PW—’7) it is a report of Ex.P[11 has asst pfosecutiix to be 14 years. the Court he has stated that ' more than 16 yeaxs and i further stated that a variati report. Referring to the dot admission register and the Lakda, Head Mistress of the; the admission register twas certjhcate of Class-V. howew been produced Whereas fath (PW-2) has stated in paragra age of her daughter was reco] i implication. However,learne for the respective parties: accusedfapyellant as men' judgment. . evappellant argued that the trial pellant by assessing age of the iough nom the evidence available L has failed to prove that the 18 years of age on the date of tort of radiologist and statement of Lrgued that the radiologist in his ssed the radiolog'cal age of the However, in his statement before age of the prosecutrix could not be ‘n his cross—examination he has 3n of 1-2 years is nossible in his ‘ument of Ex.P/9 i.e. copy of the statement of PW—6 Ku. Shanti school, it is argued that entry in made on the basis of transfer er, the transfer certihcate has not 3r of the prosecutrix namely Darji ph 8 of his cross—examination that ‘ded by the teachm' approxim ately. J/ie / in the matter of Ravinde Sinzh Gorkhi Vs. State of U.P. reported in 2006 AIR 8C 2648 it is argued that Where the orig'nal register is not pr duced to substantiate the date of birth at the time of trial d where the person who had made entries in the said register not been examined, the entries in the admission reg‘s cannot be relied upon. Further referring to the judgnent this Court delivered in the matter 01‘ Mukesh Kumar Vs. 8 te of (LG. reported in 2007[3l C.G.L.J. 41 it is argued too much reliance should not be placed on the table sh ' the age and years of the appearance and fusion of s me ofthe epiphysis as observed by ‘djnereut authors as it mer y indicates the average and is likely en of the same province owing to opment and the possibility of such determination mav be there. Therefore; if the age asses d by the'radiolog'st is taken on its face, as per Modi’s Medical Jurisprudence the possibility of age of the prosecutrix being m re than 18 years is there. Further referring to the statement f the prosecutrix, it is argued that \conduct of the prosecutrix s suggestive of the fact that she was a consenting party as fr her deposition it is evident that initially she alleges that she was subjected to rape in the forest, ‘ which was witnessed by S‘arju (PW—3), Who is also her uncle and thereafter she proceeded with Sarju up to a distance and to varv in individual case the eccentricities of difference of three vears s t d ' v l o Wm m W 200 summ 111%?! \4 W1m WW $ WWm 5. Relying upon the jud ‘ mt of the Hon’ble Supreme Court \ . : W 200 raw mmm 5* W$i§fm“ when she was going alone With him, accused agahi took héFto his house, conEned her for her. He further argued ’ night and committed rape with 6. On the other hand, ed counsel for the State has supported the impugled judgment of trial Court and ‘ vehemently argued that'ag of the prosecutn’x wag below 14 years on the date of incident which has been established mstly from the school admission eg‘ster wherein her date of birth Easbeen mentioned as 1.7. 988 and secondly, nom the report of EXP! 11 of the radiolog'st herein age of the prosecutrix was shown as 14 years. It is als argued that the appellant forcihly took the prosecutrix onhi bicycle, raped her in the forest, ivhich was ‘Wkitnessedby S ju (PW—3) and thereafter, took her to his house, conhned h there for the night and again committed sexual intercour e with her against her will and as \such; the trial Court’has not a consenting party. 7. I have heard learned counsel for both the parties and ence available on record as also tly held that the prOsecutrix was ‘ have perused the material , imyugned judgment of the 11 e n r' 'd ‘iTvffvwrWr-- M» Wwv'‘wn '~ 8. ' First of all, I propose to consider ‘the arguments advanced by learned counsel fOr the respective parties regarding age of the prosecutrix. The document of Ex.P[9 shows ‘the date 'of birth of the prosecutrix as 1.7.1988. However Mrs Shaun a (PW— ) who has proved the above document has catego callv stated that the entrv m the adm1sslon regster was de on the basls of transfer certlhcate of Class—V and thus, th date of birth is based on the transfer certihcate i e the entry V ade in the primary school at the time of admlssmn of the pro ecutrlx but that emdeuce has not been adduced by the prosec tron during trial The father of the prosecutrlx has categ rically stated; that [at the time o admission the teacher ecorded age of the prosecutrix on the basis of approxim ation. He has not stated that the entry was made by the teacher o the basis of information g'ven by him and therefore, there is f rce in the argument of learned counsel for the appellant that age cannot be assessed on the basis of admission register of X.P[ 9. 9. Now coming to th report of the radiolog'st; The report of the radiolog'st of EXP] 1 mentions age of the prosecutrix to be examination—in—chief the radiologist has stated that the p secutrix could not be more than 16 years of age at the n'm of commission of the crime and in the cross-examination he has admitted that there may be a variation of 1-2 years i the age given by him in his report. The mfirmMwi‘wimwkW‘immrv''nw-‘ ‘ > 14 years. However, in d L‘ a e e f {J 5 mm .- .....................................‘gi 200 ..............................................W ................................................ WM WW ~a§w3amna§a '9 $amm law in this regard is settled report of the radiologist is only approximate estimate of the ge and there may be variation of 2-3 years in the age asses ed by the radiolog‘st owing to v. hereditarv and other factors :&‘ect1hg the people of the djf erent states of India, it cannot be reasonably expected/ to form late a uniform standard for the determination of the age of variations in ch'matic. diet union of epiphysis for the Whole of India. Therefore: in the co sidered opinion of this Court the inference of the trial Court at the prosecutrix was less than 18 years at the time of incidei t was not proper. 10. The second question i whether the prosecutrix was a consenting party? After C10 ely scrutinizing the statement of the prosewtxix, that of all ed eyewitness Sarju (PW—3) and also considering the statem t of Dr. (Stat) Kiran Bhujagwali prosecutrix had not sustained any injuries on her person iding her private part, she was not complaining pain in her private part, there was an old rupture of hymen, the posSJbility of her being a consenting party cannot be ruled out. 1\1. In the result, the appeal is allowed; lmpugled judgment of the trial Court convicting “he appellant under Section 363, 366, 3'76 of IPC and imposing sentence thereon, are set aside. The appellant is acquitted of the above charges. He be set at Sdl— Dhirendra Judge 7 / (PW— 1 ll, who has stated that libertyforthwith if not required in any other case. ‘ t 'c ' h e