BEFORE THE HIGH COURT OF CHHATTISGARH AT BILASPUR [CHHATTISGARH‘1 Cr.A. No. Q3 g 12006 I ‘ r Singie Bench: E Lachhuram @( Guddu S/o. Law Vishram Bhunjiya aged ajbout 22 years, R/o. Village Pall, Police Chowki—Patera, ‘ RS. ’I‘ungaon, Disft‘. Mahasaniun‘d (C.G.). AP ELLANT v-v.‘- Y~ W VERSUS RESPONDENT : State of Chhat'tisgarh, througl’. ~ Police Station Tumgaon; District—Mahasamund [C.G.] - 1 6063' CRIMINAL APPEAL U/ S 374(2) OF THE CRIMINAL Q§ PROCEDURE CODE 1973. $ ,Q/ S meal/zoos vide judgment and 03—05-2006 delivered by The 1st asamund. Additional Sessions Judge, M It is alleged by the prosecution that on 20-10-2005 at about 4 P.M.. prosecutrix aged 14 years from the lawful the intention of subjecting her to sexual took the prosecutrix to the brick clan, on her. A missing person report was lodged by Bisambhw PW-z vide EXP- 15 (C) on 22-10-2005. He found the prosecutrix at brick clan, Kanekeraon 22-10-2005. F.I.R. was lodged by the prosecutrix PWel vide Ex.P~6 on 26- 12—2005 The prosecutrix was examined by Dr Smt. Alka Pardal PW-8 who did not find any marks of Injury either on her person or on her private parts. Vagina of the prosecutrix admitted two fingers ea5ily Hymen had an old tear. It was opined that the prosecutrix was accustomed to sexual the appellant kidnapped the custody of her parents with intercourse and thereafter Kanekera and committed rape XI—HC-78 3aW, Wm,W CTANQ' 9H 2604. Wm . . . . . ., W 200 Wm (W) W Wm WW ffWW wmm mwmm aawm ‘ 21 -08-2006 Lochhm @J Mdu by Shrl Vlrendr-a Shorma Advocate Appellmi‘ Stafe by Shrl Ravmdra Agrawal, Panel Lawyer. This appeal was finally Hueard today. The appellanf is aggrieved by his conviction under Secfion-363. 366 a: 376 of the IPC and seni'enoe of rigorous imprisonmen? for 5 years and fine of Rs.250/- each and in defaulf of paymenf of fine to undergo additional rigorous imprisonm 1' for 1 monfh under Sections-363 d: 366 of the IPC and rigorous impri 1 em- for 10 years and To a fine of Rs.500/— and in default of paymen‘l of fine 1‘0 undergo additional rigorous imprisonment for 2 months u er section-376 of the PC‘in Sessions Case Kotww the possibility that prosecutrix was aged about 18 yegglor e ...... u XI—HC-78 Ké 3a mam, W13, W3? Q ‘ C§~A*K‘O‘ 4(18((Q¢0 Wm ....................‘ m 200 Wm(W) WWW awWm 8mm:W 1¥fWW mat Hf%am , ~9v %a;f—3wm infercourse. After conducfing radiological examina‘l'ion for determination 53¢: of age of The prosecufrix, Dr. 5m. Alka Pa'dal PW-8 esfiinafed the age of the prosecufrix fo be 16 years Vida report 5<.P-5. The appellant was medically examined by Dr. A.KTripathi, PW—13 and was found to be capable of performing se‘ ual intercourse. After completion of investigation. the appellant w prosecuted. The appellant abjure the guilt, pleaded innocence and false implication and led no eVide in defence. The prosecution emined as mow as 13 witnesses Relyi upon the evidence led by the prosecution. the learned trial Judge he d that on the date of occurrence the prosecutrix was aged 14 y and convicted and sentenced the appeilant as aforesaid. Shri Virendra Sharma, earned counsel for the appellant, contended that primary evidence rel ing to proof of date of birth of the prosecutrix i.e. the evidence f Kotwar of the concerned village. though available with the prosecution as deliberately suppressed as was revealed in para-20 of the testimony c the Investigating Officer Head Constable Kapishwar Pushpkar PW-10. I was also urged that the testimony of the prosecutrix in para-3 & 4 leave no room for my doubt that the prosecutrix had gone with the appellant of her own freewill and both lived as husband md wife for a od Mt 2 months. It was also urged that the evidence of Bismhbhw P -2 di Chhmulal PW-4 relotingto the age of the prosecutrix was highly ontradictory and in view of. the medical evidence of Dr. Smt.‘ Alka P nl PW—S and the non—examination of the XI—HC—78 XI—HC-78 EW,WW,W could no1' be ruled out. On these premises, i* was urged 1-hal' wnvictian f fhe appellant under Section-36$, 366 dz 376 cf 'lhe IPC and lha sen anczs awarded thereunder by the lam/led ‘lrial Judge was liable f0 be se aside. 0n the olher hand, 5h Ravlndra Agrawal. learned Panel Lawyer for the State argued in support f the impugned judgment while contending that not only in the missing arson reportEx.P-15—C but also Bisambhar PW-Z. father of the pro rix, Sonia Bai PW-3,mother of the prasecutrix and Chhanulal W-4, brother of the prosecutrix had categorically stated that the prosecutrix was aged about 14 yew-s which testimony stood wholly unr ed in cross examination. On this premise, it was urged that consent of he prosecutrix wa wholly immaterial since the prosecutrix was less than 6 years of age on the date of occurrence. Having considered riva submissions, I have perused the record of Sessions Case Number-25 with utmost circumspection. The testimony of the prosecutrix in paw-3 leaves no room for any doubt that she left with the appellant on her own freewill and lived with him at Brick clan. Kanekera like husband d wife and voluntarily submitted to sexual intercourse by the appellant. The testimony of Santosh Kuma‘ PW-5 in para-2 and para-4 also shows at the appellant and the praseoutrix came to brick clan. Kanekera in s arch of a job. It also shows that he had permitted the appellant and prosecutrix to live in the office room where they used to live toge . It also trmspires from the evidence led by the prosecution that till B ambhm‘ PW-Z found the prosecutrix living at the Brick clan at Kaneke a with the appellant, the prosecutrix had s t e t 6 e t i h mm ..................... m 200 mmaaiaw) WWW mm§wm wmm mmmm ém%n3¥r%$ XI-HC—78 Wm W 200 Wm (W) WWW wmm ‘ mmrsam § f$§§$§ .. £ § W never complained to anyone or objected To Want—We commi?fed by the appellant appellant The took prosecu'rrix her from in p Blbdnara a-10 of to her Bihqihnr testimony and stated thereafter that the ta Kanekera and that they lived together at the brick clan md developed relationship like a married couple. It leaves no room for any doubt that the prosecutrix had voluntarily consented to the sexual intercourse committed by the appellant. 50 far as the age of the prosecutrix on the date of occurrence is concerned, no documentary evidence has been fwnished by the prosecution. Chhannu lal PW-4- stated that the prosecutrix did not go to school. Bisambhw PW-Z. Soriya Bai PW-3 and lChhannu lal PW—4 have stated the age of the prosecu rix to be 14 years only on the basis of being informed by the Kotwar. H ever. the Investigating Officer Kwishwar Pushpkar PW-lO has admitte in para-20 of his testimony that proof of date of birth of the prosec trix was not seized from the Kotwar. Non examination of the Kotwar the prosecution also justifies an adverse inference against the prosec tion in this case since the primary evidence reiating to date of birth aft prosecutrix was suppressed. [[9 In this manner. the only proof relating to the age of the 2 prosecutrix is the testimony f Dr. Smt. Alka Pwdal PW-S that the age of the prosecutrix could be 16 ears. However. a perusal of the radiological examination conducted by he vide EXP-8 shows a finding that ossification centre of crest of ileum was also in process of fusion which completes at i the age of 17 to 19 years. I this view of the matter. in the abserEeL of .4 ”u "'fj:: A \ a: mwmm XI—HC—78 . 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