XflK—78 's^ -^ww^, w^ww, ^^wy. *1Wdl sb^llth an^CT'q'ra? (4<il-l«!<ti) C'(^l^I'ft;iW ^STT 3TT^?T ^RN? TOirar'afta 3n^i ct)i*i[<n<ili ^TO^ Tf,feE^' ^t(^R ^ ^W ^flT^l HIGH COURTOF CttHATTISGARH AT BILASPUR CRIMINAL APBEAL N0. 1512 OF 2000 APPELLANT Rajendra Kumar Choubey S/o Dhan Prasad Choubey, Aged 24 years, Resident of Tikarapara, -Raipur (M.P.) VERSUS RESPONDENT State of Madhya Pradesh, Through : Police Station Tikrapara, Raipur (M.P.) Present: - -^ Mr. R.K. Jain;counse] Mr. Neeraj Mehta, leaijned for the appellant, PL for the State/respondent. ORAlL ATDG:MENT (30f Abgust2007) Dhirendra Mishra. J The appellant has prej conviction and order of senti S.T.No. 176/99 whereby le| Raipur (M.P.) has convictef^ 366, 368 and 376 ofthe Inc}i undergo R.I. of 10 years on| Rs.2,000/-, Rs.1,000/-, Rs thereof,' to further underg^ srred this appeal against judgment of ;nce dated 26ihApril; 2000 passed in irned IV Additional Sessions Judge, appellant Rajendra under Sections ian Penal Code and sentenced him to each count and alsoi imposed fine of 5,000/- respectively; and in default R.I. for six months, R.I. for three XI-HC—78 3:CTT^nqreq', eTfty'its, Isit'iiyy NIM^! thMI* an^?r'<H9; (iyi^«i<iti) 3II^r5ilf(;-fi-=K wnan^caOTW 'reiwc ^ifro sn^i months and R.I. for.six have been directed to run monjths, respectively. All the sentences coitcurrently. [Oltl ;eti pri|)secutrix 2fr 2. Case of the prosecutioiji, ^f. 4) brother of the prosecuta-i3i| iri Police Station Tikrapara, sister, the prosecutrix, age^l 13.1.1999 at about 7.00 members whereupon the Police Station Balod on appellant vide recdvery meirjo lodged by H.I^-Tiwari (PW-; under Sections 363, 366 against the appellant. Durirt sent for medical examinatioili; where Dr. (Smt.) Nisha prosecutrix and gave her replort the prosecutrix and the accu^ed were taken into possession examination to Forensic Scie) The copy of school admissi(|>n from Head Master Abdul Azizl 3. After completing inves^ Court of Judicial Magistraj ^i<fi<n<il'(^t*i^ Tf.^1^ •<f<<$R '^'stRmsn^ff >, in brief, is that Sanjay Yadav (PW- lodged a missing report of Ex.P/19 |Raipur mentioning therein that his 16 years, has left the home on ^..m. without informing the family was recovered by police of f.1.1999 from the custody of the of Ex.P/ 7. Thereafter, report was 1) vide Ex.P/26 whereupon offence 376 of the IPC was registered investigation the prosecutrix was it,to Medical College Hospital Raipur |V[ukherjee (PW-11) examined the of Ex.P/13. Wearing apparels of as also pubic hair of the accused dnd the saine were sent for cheniical jice Laboratory, Raipur vide Ex.P/20. register of Ex.P/12-C was seized Siddique (PW-9). dnd igation charge sheet was filed in the te First Class, Raipur which was t !•-.•, | XI-HC—78 g^q-anqr^q', o-rflyiis, fsj^iyy W^v\{ *MI* "^ an^?r'q'ra? ('pf^?8!) sn^i ?5i [t;-ii+ TTO 3D^t sk'<i+ ^aiwafeTsn^i *l^<rl^l'1 'f3SSS^^^^ <^n-^.i< ii'aiRnsii^ received on transfer by trial. lea(-ned Additional Sessions Judge for 4. During trial the pr^secution fi. | Thereafter, statement of-acci|ised he denied the circumstanites prosecution case and pleadj He also examined defence w( sister of the accused/appell^nt accused/appellant. examined 21 witnesses. Rajendra was recorded in which . appearing against him in the ;d innocence and false implication. tnesses namely Kumari Bai (DW-1), and Tejabai (DW-2), wife of the 5. Leamed trial Court aftt parties acquitted the accusef 363 on the ground 'that age years on the date of incident |and mentioned in paragraph 1 that the accused/appellant| intention to commit kidnapped her and wrongfullj her. :r hearihg counsel for the respective •(1/appellant of charge under Section t>f the prosecutrfac was more than 16 convicted and sentenced him as of|tfiisjudgment by recording a finding enticed the prosecutrix with an iu^l intercourse with her, thereby Ij? confined and committed rape upon 6. Conviction of the acl stateruents of the prosecutrut prosecutrix and Sanjay Ku|nar prosecutrix. The prosecutrb^ accused Rajendra had forcibl ;used/appellant is based on the j: (PW-1), Indu (PW-2) mother of the Yadav (PW-4) brother of the has deposed before the Court that |y taken her with him on the date of '\ XI-HG—78 3^ST "tll'tll^, ®Tflyi<o,Rftfiyy ^Wv\\ **41* an^i w l<-<i* '?Pff STT^T sh+1lch 3n^?r TRTO (^pf^ssw) TOIIWdfOT SD^I <f. incident. The accused was she used to do the work ofl also the temple. Whenever s^ give her something wit,(i remembered the accused ot person. The accused asked| she readily agreed. He took house of Santosh (abscondi accused/appellant. -The acc^ her and did wrong work for her stay in the house of Sanj the house of Santosh and th] Santosh to police station wl^ In cross-examination she hd with wife of Rajendra as shel and the name of Rajendra admitted that when she acc< time his wife Kejabai and 1- She has denied the suggf Rajendra. In paragraph 14 she slept with Rajendra and Balod. She has denied thesi pf the accused after-talking from her home. She has al; pgrty. However, she has +)^T<!'i'4l-Hi Tcm^f "£ffe^ <fo(^t< ^sifimsii^r priest in the nearby teinple whereas cleaningthe utensils of teinple and le visited teniple the accused used to Pitisad under the effect of which she (ily and did not listen to any other her to accompany him, upon which ]her to Balod and stayed there in the ijng accused), who is nephew of the ^sed used to beat her^nd sleep wkh ^ continuous period.;of 8 days during [osh. After eight days-police came to ;y took her along with Rajendra and ;re she narrated the whole inciderit. 1^,6 admitted that she is acquainted I'used to visit the house of Rajendra 1's wife is Kejabai. She has also (mpanied Rajendra to Balod, at that jis daughter also accompanied her. jstion that she was in love with ()f her statement she has stated that |his wife in the house of Santosh at i^iggestion that she accompanied wife 1:0 her and after seeking permission s|o denied that she was a consenting [accepted in paragraph 18 of her •^:. XI-HC—78 'ysss •^w[v)ii, ^Tfl'y'Ke, ?sic'ii<a^< WWIT *NI<b "^ sn^i ?ii ftiw W Sf^l Sti*li'* sn^yr'(RRR (iyi-i,«t<it>) 'TODW flftCT SD^T deposition that accused Rajj called her. In paragraph 2; at Balod she werit outside tH and she did not disclose tq jendra never caine to her house or she has stated that during her stay house of Santosh for easing herself atiyone about the incident. brQ^hqr 7. Indu (PW-2) mother of of the prosecutrbt is 15-16 j? three years. Accused Rajend| since long they are_erigag{ utensils and for this purpos^ prosecutrix. She has furthei door of the temple was \o\ whether her daughter had enquired from the elder on which he mformed him gone te the house of his sistji address of his sister. Sanji the prosecutrix whereupon r\ Thereafter, the prosecutrix accused/appellant. In par4 stated that she is residing 4 years, her two elder issues v| rest of the children were child is 22-23 years and the| difference of age between her| '+wfci'il') •o'wf4.'is^ <Ri«ti< ^ajRnsil^I the prosecutrbs has stated that age /•ears and she left her studies before •a is priest in the nearby temple and ^d in cleaning the temple and its she used to send her daughter, the stated that on the Aate f>f incident :ked, however, she was not aware |one with Rajendra. Her son Sanjay of the accused about his sister, that accused Rajendra might have |er, however, he did not give him the ^ could not trace either Rajendra or sport was lodged by her son Sanjay. recovered from the custody ofthe (graph 9 of her statement she has {t Raipur for the last more than 25 ^ere born in her matemal hoine and at Raipur and age of the eldest prosecutrix is her fourth child and wias bdrn two child is 1 '/2 tQ 2 years._Si^ulai^, ff XI-HG—78 3:5q'^TPn?^, ®T{1^'l<o,Roiyy 1WRW slbNI* 311^1 ^I W[* ^Kff SFTR^T 5t)+1Sct) - j4:' an^?r"<i;i% (^f^^i) 'ronwdfei sii^r is the statement of Sanjay prosecutrfac, who lodged th| stated that his sister, the d Rajendra had taken her fo^ sister's house. In paragr&p] 1 • . . . .) days prior to the incident the] 8. The trial Court has a.i 16 years. Case oj ,fhe prose^ was less than 18 years andj age of the prosecutrix, the recorded whichhas been de| the statement of mother of aecepted in that case, than 18 years of age ori the,| Apart from the statement prosecution has also examinl Master of the school wheri studies. This witness has being the school admission i the prosecutrix is entered a1 register, which was seized P/11. He has stafed in cro| was made by him at the tims the same has been made on <i»rai<!f'iilTi'^PRf^ '^J^st' <hq+$i< ^; aiRiT aii^i Cumar Yadav {PW-4}, brother of the ; missing report. This witness has rosecutrix, had stated that accused •cibly on the pretext of visiting his -i 7 this witness has stated that 15 appellant had eveteased her sister. [sessed age of the prosecutrix about [;ution is that age of the prosecutrue As such she was minor. To establish statement of her-ingther has been (:ailed in the foregoing paragraph. If |±ie prosecuta-ix regarding her age is poss^bility of the prosecutrix being mpre Bate of incident cannot be ruled out. |of mother of the proseeutrbc, the i^d Abdul Aziz Siddique (PW-9), Head the prosecutrix had pursued her Iproved the document of Ex.P/12-C jegister. He has stated that name of Sl.No. 726 of the school admission (rom him vide seizure niemo of Ex. ^s-examination that the above entry of admission of the prosecutruc and f±iebasis of certificate of Class-V and II ||i43Su 5j XI-HC—78 -sssf ^i-ii ioi.il, (STlly'Ko, ftrtiyy MIMcn *MI«b Wl 3K^I?iTR;-li?h ^v sn^i sb*i!^ .sn^r.irasR Cq?f5^T) ^^<tI^R -y^tt ^tt^l admission to the primary scl He has admitted the suggest|on to illiterate parents is recorc^ by them. However, h? has| Class-V of the prosecutrbc -w| 1 same was not seized at tU Ex.P/12. 9. From perusal of the s^ statement of mother of thf considered opinion thati. tt| documentary evidence availajsle prosecutrix and the prosec^ition prosecutrix was less than I§ lady doctor Smt. Nisha MuM| advised for radiological e3s evidence regarding radiologici these circumstances, there that on the date of incidenl years o! age. 10. From the evidence a.vai statements of the prosecutrbs based, it is evidenf that she Santosh for a period of eigh •tillldll-f 1W<'i! 'ifJS'st <!»lt<;ft '^aifin sii^i lool is- given on the basis of affidavit. that age of the student belonging ;d on the basis of information given further admitted that certiiicate of as not shown to the poUce and the time of seizure of docunient of tatement of this witness as also the prosecutrix, this Court is of the ;re is no reliabte;-or trustworthy on record to establish age of the has failed to prove that the years on the date of incident. The j.erjee who examined the prosecutrbc s|amination, however, there is no jil examination of the prosecutrix. In L^ no evidence on record to suggest the prosecutrK was less than 18 able on record particularly from the on whose evidence the conviction is accompanied the accused, his wife and also her daughter to Bal()d and stayed there in the house of ( days. The overall conduct_g XI-HC—78 7SS! ^\W\^, (S^WW,^ ^'ftWy. % HINdf *N!ch an^r v\ istro ^ff Stl^l ^*if an^OT figi (ipf^g^g) 's^nwgfei sii^i t aild tie frobi prosecutrbc during this pe4od clearly suggests that she free will as she did not disfc Balod or complained about) wife of the accused or .his witness Tejabai (DW-2); wif^ prosecutrix resided in thj acquainted with her as the they developed intiniacy prosecutrix) expressed her <^t to Balod where sister of after seeking pgmiission accompanied them to Balod| (DW-1), sister of the accuse|l. appear to be more probaljle' prosecutrfat who has also company of accused, his wi^ in fhe house of his sister overall evidence available prosecutrix was a accused of her own free foregoing paragraph that th^ the prosecutrix was .less incident and in these that the accused/appellant 4)I^I<rf14l'l 'W^'^^f^ <?«(<$R- ^ <ti(a*i <*ii^?i as is evident from her statement :companied the accused of her own {:loseto anyone about the incident at Ithe conduct of the accused either to [sister. On the contraiy, the defence of the accused, has stated that the same locality in Raipur, she is ^irosecutrix used to visit her home and because of this intimacy she (the (esire to acGompany (tiem in their visit accused resided.5 'Hie prosecutrbi; her parents came to her home and Similar is the version of Kumari Bai l./The version of these two witnesses b|ltf in the light of deposidon of the that she went to Balod in the and his daughter and resided there p.e Kumari Bai (DW-1). Thus, the ^n record goes to suggest that the itjing party as she accompanied the It has already been held in the prosecution has failed to prove that 18 years of age on the date of ,, finding of the trial Court [abducted the prosecutrix by enticing admitfed consengin wlll tliian circLtmstances, ^ li!:il I-HC—78 -yg5f^\S[fv^i, gKf1yil<i, RfOWy KWdf Shlich 311^1 ?a R-fi'* 'gsil STTOT ifii'r K/ an^r ^°ra (iyi-j,»i<ti) •^tiIWafTO3^ SiRld'd*) WR?f if.rs-e) <I"I<SK ^STfiW 311^1 her with an intention to hive illicit sexual intercourse with her and took Uer to Balod anijl rapped her there for a continuous period of eight days, is r^ sustained. 11. So far as conviction ol 368 of the IPC is concemed, out against the present appf 3t proper and the same cannot be the accused/appellant under Section no ingredients ofthis section is made lllant. 12. In the result, fhe aplpeal is allowed. Conviction of the appellant under Sections 36^, 368 and 376 and sehtences passed !1:1 . - - -• ^..^'""-'^ ~ _ thereon, are set aside. He i^ acquitted of the above charges. He be set at liberty forthwith ifij ot required in any other case. Sd/- Dhu-endraMishra Jud^e