EELTHE HIGH COURT OF CHHATTISGARH AT BILASP'U& CRIMINAL APPEAL N0. C3 G ’ \ OF 2010 ging§@'aench AEPELLANT in J} Mahesh @ Raja, S/ o Panchanan Vishwas, aged about 25 years, R/o' Sonpur No.45, Police Station Rajgarh, District Nauranghpur (Orissa). State of Chhattisgarh, V Through z District Magistrate, Jagdalpur, Bastar (CG). mgMo OF APPEAL UNDER sECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE 31A. S HIGH COURT OF CHHATTISGARH AT BILASK)PUR\- (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 601 of 2010 APPELLANT Mahesh alias Raja VERSUS RESPONDENT State of Chhattisgarh Shri S.R.J. Jaiswal counsel for the appellant. Shri Pravin Das Dy. GA for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. ‘ J U D G M E N T (07 03 201 1) Thls'appeal Is directed against the Judgment and order dated .2010 passed by Addltlonal Sessuons Judge (FTC) Kondagaon Sessnons Trlal No 13/2007 conv1ctmg the accuse pellant under sections 366 and 376 IPC and sentencing him to undergo rigorous Imprisonment for seven years and pay fine l ‘ of Rs 100 on each count plus default stlpulatlons 2. Casedf the prosecution in brief is that on 3.6.2003-FIR (Ex. P- , ‘1’ .6) wasxidd'ged by the prosecutrix (PW—1) aneging' that oh 13.5.2003 she had gone to the house of one ,Ku.‘ Bina where the a/ accused/appellant and the co—accused "Neel-‘ Kanth were already there It is alleged that accused/appellanthad'asked the prosecutrix , t to meet hrm on 15 5 2003 behind the house of said Btna from where they would run away Accordingly, on 15 52003 the prosecutnx ,_ y I } went behind the house of Bma where the accused/appellant was already there. It is alleged that thereafter the accused/appellant allured her away on the pretext of marriage. He took her to village Jugnani Kalar where they boarded a truck and went to Masora and stayed in the house of one Kedia. On the second day he took her to the house of his brother-in-law and in the presence of his sister he married her in a temple and from 17.5.2003 to 20.5.2003 she was kept in a rented house and during this period she was subjected to sexual intercourse by the accused/appellant. Based on this FIR, ofe udr sections 363, 366 P e risr nst the accused/appeiiant and co-accused Neel Kanth and ater s fencs ne and 376 IC wer egteed agai f invetigation, challan was filed by ’(he police. 3. So as to hold the accused persons guilty, the prosecution has examined 16 witnesses in support of its case. Statements of the ed persons were also recorded under section 313 of'the Code f Cminal Procedure in which they denied the charges levelled it them and pleaded their innocence and false implication in the se. This apartgone Chandi Charan Mitra and Shital Banal (D1 and DW-2) have also been examined by the defence in sort of its case. upp 4 aus ccu 3 IP 5. Heard counsel for the parties and perused the material ' ailble on record including the judgment impugned. i After hearing the parties the trial Court has acquitted the co— cced namely Neel Kanth of the charges levelled against him. Ased/appellant herein has also been acquitted of the charges und section 5 of the Child Marriage (Prohibition) Act and secti er on 36 C but convicted and sentenced by it as mentioned above. . Counsel for the appellant submits that there is no concrete evince available on record in respeCt of the age of the prosecutrix a in these circumstances the appellant cannot be convicted under ecton 366 IPC. He submits that as the prosecutrix prima facie appars to have been a censenting party to the act of the acsed/appellant, his conviction under Section 376 IPC is also bad in l. aw . On the other hand counsel for the respondent/State supports he judgment impugned and submits that the manner in which a inor girl has been kidnapped by the accused/appellants and ' bjected to forcible sexual intercourse, the conviction of the ed/appellant under Sections 366 and 376 is just and proper. 8. Prosecutrix (PW-1) has stated in her evidence that her friend Bina had come to her house for taking nail—polish and while drinking water, she told her that accused/appellant was standing behind her accus o ri agans ca W- vaa 6 de nd Si e cu 7 t m su accus cused/appeHant took her to the house of his brother- sister and brother- in-law at Narayanp’ur By bus. Thereafter, in—law of the accused/appellant took them to a eel/appellant took her to —4 days and during this period he used to have a rented house for 3 sex with her everyday. According to this witness, after the accused/appellant took the house on rent, essential commodities were made available by his brother-in-law and she used to cook food. Three-four days thereafter when Sudhir and his wife had come I to the house of Neel Kanth (acquitted accused), she had also gone thereto where the information was given that the police was also there and in the evening she was sent back to her parent’s house.- ut as the was taken d anything About two days thereafter a village meeting was called b accused/appellant had not attended the same a decision to lodge the report. This witness has though not state ,VF about her age, she has denied the suggestion put b the defence that she was about 18—19 years old. Sukumar (PW—2) — the father of the prosecutrix has stated that when he found his daughter missing, he enquired about the same and ultimately when he came to know that she was in the company of the accused/appeilant, she was taken back. He has admitted that he was informed by his daughter as to in what manner the appellant married her. He however has not stated anything about the age of the prosecutrix. Smt. Geeta (PW-3) : the mother of the prosecutrix has not supported the case of the prosecution and has been declared hostile. She has however stated that the prosecutrix was aged about 16 years at the relevant time. Smt. Kalpana (PW-4) and Meghnath Burman (PW-5) have not stated anything specific. Kalyan (PW-6) -— the priest of the temple has not supported the case of the prosecution~and has been declared hostile. Sudhir (PW-7) has not ’ supported the case of the prosecution and has been declared hostile. Parimal Saddar (PW-8) has not stated anything specific. Ku. Bina (PW-9) and Krishna (PW—10) have not supported the case of the prosecution and they have been declared hostile. DrfBenidikta Ekka (PW-11) who had medically‘examined the prosecutrix and given her report Ex. P-17 has not found any external or internal injury on her person and she was habitual to sexual intercourse. For determination of age this witness had referred her for radiological examination. Pankaj Yadav (PW—12) is the witness to seizure of articles made under Ex. P-18. Chaituram (PW-.13) is another witness to the seizure of articles made under Ex. P-19 but he has not supported the case of the prosecution. D.S. Gahalot (PW-14) is the witness who had done part of'the investigation. A. Nuruti (PW—15) is the investigation ofhcer who has supported the case of the prosecution. Subhash Mandal (PW-16) is the head master of the school who has stated that as per the admission register Ex. P—16, the date of birth of the prosecutrix is 12.12.1987. According to him, the prosecutrix was admitted in the school on 7.8.1993 and studied there up to Class V. This witness has stated that he had brought declaration form given by the father of the prosecutrix showing her y @ date of birth as 12.12.1987. In cross examination he has admitted that all the documents in relation to her age are Xerox ones and the originals were either with the prosecutrix or the department concerned. He has admitted that in the declaration form signature of the father of the prosecutrix is not there and it was signed by one Biii ~§,. Mistri. He has admitted that at the time of admission, birth certificate . H of the prosecutrix was not produced nor any document from the Kotwar was given. Q 9. Minute examination of the evidence thus makes it clear that the prosecutrix went in the company of the accused/appellant at her own volition. Record also shows that she visited various places along with him without any protest on her part. Record also shows that the prosecutrix did not offer any resistance when she was first subject to sexual intercourse after marrying her in the temple. Ali this shows that the prosecutrix was a consenting party to the act of the accused/appellant in taking her away and subjecting her to sexual intercourse. As regards age, neither the prosecutrix herself, nor her father has stated anything. Even her mother has not been very specific and has simply stated that the prosecutrix was about 16 years of age at the relevant time. School certificate showing the date of birth of the prosecutrix has also not been duly proved by the prosecution in accordance with the requirement of law. The person who made entry in the school register has not been examined. Original documents on the basis of which her date of birth has been recorded have not been produced and merely on the basis of evidence of Subhash Mandal (PW-16), it will not be safe for this ’ Court to hold that on the date of incident the prosecutrix was minor. 1/ The doctor who had medically examined the prosecutrix has stated I that the secondary sexual characters of the prosecutrix were fully developed. ThOugh the prosecutrix was referred for radiological examination, it remains undone and therefore the inference is to be drawn against the prosecution. That apart, there is about 18 days inordinate delay in lodging the report which has also not been properly explained by the prosecution. In the midst of these lacunae @ in the case of the prosecution, benefit of doubt has to go to the accused/appellant. 10. Accordingly, the appeal is allowed. Judgment impugned is hereby set aside. Accused/appellant is acquitted of the charges [evened againSt him' He is in jail and be set free forthwith if not wzvw Sd/— i i ?ritinker Diwaker 1 .i V Judge i 'Q'K‘ required in any other case. k) e