1—78 r^ K.' /••,,.1 anS^ivf WM ^WT sn^t s*>*<i'* ^=sa 3'e? ^mvft^, fsi^ww, Rfii'yy MINdl *'<!<* •W^ 200 OTSsr'tRiw (1j?rfy5?r) wiiw ^ift^ ai^r Cr.A. No, [Sinale Bench: Hon'ble APPELU4NT/ APPUCANT CTN 3A1L) RESPON&ENT 13,12,2007 Beni yeai bisl Vs Sta-tle of Chhattisoat+ii. thr'ouah- Bagfc)chara. Couiksel Shri Akhil Agrawal, Shri Sandeep Yadav, &y Heard. ils Thi3 criminal appeal conviction and order of sentel Sessions Trial No.152/2001, Sessions Judge, Mahasamun^ Sections 363, 366, 376(1), 50( him to undergo R.I. for 7 yei^rs, years, poy a fine of Ks.50() Rs.1,000/- , R.I. for 7 years, and pay a fine of Rs.500/- the sentence^ have been diredted ^^rfcraV') TWT^f '^,'fe^ ^^R ^i'aifOTaiI^T 1098 OF 2001 Mr. Justice Ohirendra Mishral hram, 5/o Madhuram. aqed about 24 's, R/o. Village-Mongra, P.5. Chhura, k-ict-Raipur(C.6.) P.S. for the appellant. Sovt.Advocate for the State. directed against the judgment of nce dated 12th October 2001 passed in whereby the leamed TE Additional 1 has convicted the oppellant under i(TI) and 343 of the IPC and sentenced i, poy a fine of Rs.500/-, R.I. for 10 /-, R.I. for 10 years, pay a fine of lay a fine of Rs.500/-, R.T. for 2 years with usual default ctauses. All j to run concurrently. - j re4)ectivety y_._ / XI-HC 'Sv^ ^ww^, •a-^ww, (stwiyy MtM^I shHlch Wi, 200 sn^T wra? ('pf^RtT) 3Il^t ?il R-fi* ^t^ 3TR?T sti+iicr> ^aiWHfet 3ii^i - ^- ^i^I<n<fliJW^ ^^St <Pn<-$i'<, i; sifaT a.n^i waf 2. Case of the prosecutk with the minor prosecutrb prosecutrix searched for her missing report vias lodged in She was recovered on 30^ accompanying her. She thereafter report VM.S lodgs investigation prosecutrix Community Health Centre B examined her and qave her of Ex.P-10, marksheet of E investiqation. |n, in brief, is that the appellant eloped [ on 21.01.2001. The parents of the however. vuhen she could not be traced the police station on 25 January 2001. January 2001 <md the accused vws 3 brought to Vitloge Khairatkala ond d by her on 31 January 2001. During sent for medical examination to ^bahara where Dr. Smt. Asha Mishra ;port of Ex.P/16-A. l-1er birth certificate x.P-ll and Ex.P-12 .were seized during ulas 3. After coinptetin9 inve) Court of Additional Chief Jdidicial same was received on trdnsfeb' Judge. itigation charge sheet was filed in the Magistrate, Mahasamund (md the for trial by tearned Additional Sessions 4. burin9 trial prosecutioi statement of the accused evidence appearing against ^ innocence and faise imolicatid 1 examined 8 witnesses in all. Thereafter was recorded in which he denied the im in the prosecution case emd pleaded n. 1-loweyer, the leamed trial Court after y. XI-HC 3'SET •^IIW'ft^, •S-iS\W , [sftftWy. MINdl *MI* WI. 200 an^r ii'ra; (iyi('j"<iyii) SII^f Vf I<;-)i.'+ ^T 3TT^?[ sh+iict) WITW ^ifta sni^r ^- cM^^pilt^n*!^ '^1^1^' <^^$i< ^T sifitH an^T hearing counsel for the the appellant as mentioned in F resp^ctive parties convicted and sentenced aragroph 1 of this judgment. ito rfc 5. Learned counsel for thej accomponied the appelldnt for to various places and did not him in the bicycle. Thus, over shoui that she was a consenti) the medico legal examination she did not sustain any exterr) was ciccustomed to sewal intel be old rupture and as suc( corroborated from the medida that even if it is held that sH time of incident, looking to th prosecutrix and age of the circumstances for convicting a| KL under Section 376 (1). appellant submits that the prosecuti'ix a period of 10 days. She went with him >mplain to anyone and she accompdnied all conduct of the prosecutrix goes to ig party. He further argued that from ^port of +he prosecutrix it is clear that lal or internal injury on her person. She "course as her hynien has been found to 1 version of the prosecutrix is not evidence also. Finally, it was argued |e was less then 16 years of aoe at the fe overall circumstances, conduct of the appellant, there were no aggrayating nd sentencing the appellant for 10 years 6. On the other hand learr the impugned judgment. 7. Leamed trial Court on t father of the prosecutrix ed counsel for the State has supported hie basis of the statement of Sanguram, (P.W.2), birth certificate qf. the XI-HC smS^gii R;-II<* WIT 3TR?T *'<!* 3%r^nqT^T, csxfly'iis, Ri^iyy ^WMI 95W3R Wt. 200 SV^! VSV (li<!l?-l«t<tT) ^^R ^lft^ 3^^?T •^. prosecutrix (Ex.P-10), which Himmatlal (P.W.5), mark-shee-) (P.W.3) hos recorded a findirjg 1987 and -Hius she was minop t 2001 and was in -the lawfut ctjs' The above evidence availaby cross-examination of these wit this fact in his statement und4f pt'osecu1|rjx 8. The profiecutrix has substance of her deposition l engagement function of her person, he took the going to Cinema Hal), howeve there he comtnitted forcible alleged ttiat after the her va9ina. The appellant rep^ to keep her in his home in the her to the forest and this co| by her brother bogar Sin^ acconnpanied h'm- They were (^ to ftee. bfeen commiBsion ^iftf?^^;t<W^tf ^^^ <f^^R ^T SlfiPT 3II^?r has been duly proved by Kotwar- of Ex.P-11 & P-12 proved by Khejonlal that her date of birth was 25 June kn the date of incident i.e. 21 January stody of her father fiangunim (P.W.2). on record stands unrebutted in the hiesses and the accused has not denied Sectipn 313 of the Cr.P.C. examined as P.W.l. The sum and that -riie accused was invited to the Isister Yad Bai. Accused is a married to Mahasamund on the pretext of [•, he took her" to Mongara Forest and ^xual intercoura with her. 5he has also of rape there was bleedin9 from the offence. Thereafter, he used (^ight and every moming he used to take (i+inued for a week tilt she was spotted h and 4-5 other persons, who had |ble to apprehend the accused who tned^ p^ated XI-HC—78 Te^ -^ww^, yS\ww, Riwwy ® W^^i *MI* WI. 200 sn^?r 'qsro ('^f^gsa) 31I^!( ?;( R-<i<t) ?TSff 3TI^T'9RN? ^WTWaf^T 311^51 ?- ^p(f?i<ftT( "tntT^[f '^\fei^ <f^i^$(< ^sifiiiTsn^r 9. fiangurqm (P.W.2), t cor'roborated the statemenl invited in the engagement when he returned to his including the pro^cutrix mi{ when she cou.'d rsot be tt therein that the appeltant infor-mation that the appel Mongara Forest on 29 daughter and caught Benur'an) <te l|ather of ttie prosecutrix has also of pro^cutriK that the accused was ^eremony. Howeyer after the ceremony f^ome he found both of her doughters i^sing- Initially he aearched for her and I, report was lodged on 25 mentioning eloped with his daughter. On getting was hiding in the forest he went to othsr yillagers ond recovered his from there. •roceld hbs llabt wlitii statentent 10. Siwitar is the corroborated the version o) defence has not been abte toi untrustwor-t+iy and unreliabtej of Khejanlal (P.W-3) who has also the prosecutrix and her father. The elicit anything which makes their version W[8) 11. Dr. Smt. Asha (P.V examination report of Ex.P/| she exammed the prosecutri^ on exaniination she did not the person of the pr-osecutr| intemal examination she f4 odmitted two fingers easily, who has proved the medico legal 6-A of the prosecutrix, has stated that j< on 3! Janusry 2001 in the eyening aid tiotice any external or internal injury on jx. 1-ter vagina was futly developed and on |und old rupture of hymen, +he vagina 1'here were no tendemess in the yagina of XI-HC-178 •yesf '^m<ft<i, yrfly'is, fqwi^y WVv{\ **11* V^ 200 an^?r iisra; (^?fy5W) an^r ^T R-ii^ ?T8TT ^fT^T St»+llct> q)i*tt^i<ftti ^i+i^ii* '^f\fe(:3l' '<i^K"^)i( ^aiRnaii^r the prosecutrix, she was accu^tomed of sexual intercourse and there was no sign of resent intercour^e. leet) antl abUucted 12. It is true thut the pr^) present flppetlant for a perj prosecutrix, they used to slee^) used to take her to the Forefft conduct of the nrosecutrix the allegation that she was life, aooears to be imorobablel is presunied that the prosecuti^ix free will, considering the posit) was tess then 14 years on the by her is of no consequence 366, 376 (1) is clearly made under Sections 506 (TI) and 3^', Oljt >secutrix remained in the custody &f od of one week. According to the in the home of the appellont and he in the day time. Thus, considering the her medico legal examination report, and raped on the threat of her and untrustworthv. Howeyer even if it 'ix accompanied the accused of her own ve evidence regarding her age that she date of incident, consent, if any, given and the offence under Sections 363, r. However conviction of the appellant 3 of the IPC can not be sustained. 13. After going through th counsel for the appellant that sentence the appellant under is of the opinion that ends of of 10 years' RI of the reduced to seven years. i|a arguments advanced by the learned 1+iere is no aggravating circumstance to ^ection 376(1) for 10 years, this Court justice would be served if jail sentence cjlpellfl^it under Section 376(1) of the IPC is ;a-HC—i 3'eq' "tii<ii<«i<i4, «iTi1u'i6,(sirtiyy NtMt^l *Mt<* •Wl, 200 an^?r ^isw (1j?(^5<T) sn^t ?ii ft-ti'* ^SH 3H^T ^flcb KTOR ^ifro 3ii^i -7- qii<Awl<fll TTFRff ^^T3t' <f<q-I^K '^i'stfwan^T (< 14. In the result, the app appellant under Section 506 he is acquitted of the above conyiction under Sections 363 years' ftl imposed upon the a^ IPC is hereby inodified and undergo RI for 7 years. Re: sentences under Sections 363 ^al is partly allowed. Conviction of the (IEI) and 343 of the IPC is set aside cnd charges, 1-lowever, while mnintaining his |, 366 and 376(1), the jail sentence of 10 ^pellant by the trial Court u/s 376(1) of in place thereof, he is sentenced to itt of the sentences includinq the fine 1|, 366, 376(1) of IPC shall remain as it is.