H!GH COURT OF CHHATTISGARH AT BiLASPUR Criminai AppeaS No.25SoT 1893 Vinod Kumar, Son of Devnath Ram Munda, Aged about 19 years, R/o. Viliage Purna Nagar (Rani Bagicha) Pofce Station - Jashpymagar, Distt.Raigarh (M.P.) (Now C.G.) . Versus State of Madhya Pradesh' (Now Chhattisgarh'); Through Station House OfRcer, Police Station — Jashpurnagar, Distt.Raigarh (MP) (NowCG) (Crimina! Appea! under Section 374 (2) of Cr.P.C.) Hon'ble Mr. T.P. Sharma,J. Presenf:- Miss Sharmila Shinghai, counsel for the sppeiiant. Mr.Rakesh KumarJha, DeputyGovernmentAdyocatefortheState. JUDQMENT (Passed on 21st July, 1. Chaitenge In this appeat is to the judgment of conviction & order of sentenee dated 4.3.1993 passed by the Additionai Sessions Judge, Jashpumagar, in Sessions Trial No.159/90, whereby & whereunder iearned Additionsl Ssssions Judge after holding the appellant guilty for the offence punishable under Section 376 ofthe I.P.C. senteneed him to undergo R.l. for seven years and to. pay fine of Rs.1000/-, in defauit to payment of fine to further undergo R.K for sb< years. 2. Convictfon is impugned on the ground that wfthout there being any proof of age of the prosecutrix beiow 16 yearsandabsence of consent and will, thetriai Ctei/rt has convicted & sentenced the appeiiant and thereby committedillegaiity. 3. Ca?e<?fthe pr6secution, in brief, is that on 4.5.90 the prosecutrix (PW-1) (name not mentioned) aged about 14 years was present in her hou^ at A- Rflnibagicha, district Jashpur alone, her mrther fether were admitted in :- hQsp.itai,theappellant came.to her house and committed forcefuily sexuai-intercourse. wjth her, she shouted for help but neighbours were in //. ^ -2. drunken conditions, they do not notlce, thereafter the appeilant used to come in the house of the prosscutrix and used to ccmmit sexual intercourse with her, sheconceived, then she narrated the incident to her parente and finally she iodged the F.1.R. on 10.8.90, after three months of the firet inctdent vide Ex.P/1. Torn frock and undervvear of ttie prosecutrix were seized vids Ex.P/2. Letters Exs.P/4 to P/8 were ^ized from the prosecutrbc vide E».P/3. Photocopy of the marksheet of the proseeutrix was seized vide Ex.P/9. Schooi regteter was seized vide Ex.P/10. The prosecutrix was sent for medical examination, she was examined by Dr.Kumudani Kerketta vide Ex.P/16 and opined that her secondary sexuai characters were weil developed, she was accustomed to sexuai intercourss and was pregnant. For determination of age of the 'prosecutrix, radioiogical test waseonduGted by Dr.M.D.Joshi (PW-5) vtde Exs. P/13 & P/14, her age was determined behveen 12 to 15 years. The accused was also examined by the doctor. 4. Statement of the witnesses were rscorded under Section 161 of the Cr.P.C. and after compietion of investigation, eharge sheet was fited before the Judiciai Magistrate First Ciass, Jashpumagar, who intum, committed the case to the Court of the then Sessions Division, Raigarh, from where Searned Additional Sessions Judge, Jashpumagar recejved the case on transfsr for triai. 5. IR order to prove the guiit of the aecused/appellant, the prosecution has examined as many as nine wtnesses. The accused/appeilant was examined under Section 313 of the Cr.P.C. where he denied the circumstances appearlng against ;feim and pleaded inn{K;ence and false impiication in the crime in question: 6. After prov'iding opportun'rty of hearing to the parties, learned Additional , -Sessions Judgfe, Jashpumagar convicted & sentenced the appellant as aforementioned. ''-» 7. 1 t?ave heard iearned counsei for the parties, perused the judgment impugned and record ofthe trial Court. 8, Learned counsei forthe appellant vehementiy arguedthat in the present case in order to prove the offence of rape against the appeilant, the 1 .^osecutlon 1s requirsd to prove the fact that the age of the proseeutrix at - 3 •^" the time of commtssion of offence was beiow 16 years and the appeilant has committed sexual intercourse vvith hsr without her will and consent, but in ihe present case, the prosecution has utteriy failed to prove the age of the prosecutrix below 16 years and absence of her wili and consent for commissloR of sexua! intercourse by the appeilant with her. 9.0n the other hand, Searned State counsel supported the judgmsnt impugned and argued thaf evidence of the prosecutrix (PW-1) and radioiogical examtnation rsport are suffteient for drawing infersnee that the age of the prosscutrix was below 16 years on the date of commission of the offence and she has,never consented for sexual irtercourse. 10.1n orderto appreciate the argumentsadvancsd on behaffof the partles, l hsve examined the evidence ayailable on record. 11.As regards the question of the age of the prosecutrix, the ags of the prosecutrix has ascertained by the triai Court as 14 yearsat the time of her examination. Dr.M.D.Joshi (PW-5), who conducted radioiogicai test, has deposed that on the basis of radiologicai examination vide Exs.P/13 & P/14 the age of the prosecutrix v/as between 12 to 15 years. in his sross-examination, he has deposed that the age determined by radiologicai examination Is subject to variation of three years on both sides. 12. For determination of the age, the prosecution has seized photocopy of marksheet Ex.P/9 of the prosecLA-ix vide seizure memo Ex.P/18. The prosecution hss also examined Headmaster Laxman Prasad Soni (PW-3) who has deposed that ^x.P/9 phofocopy of marksheet was issued by him. He has ateo deposed that admisslon register was seized from--him vide Ex.P/10. tn his cross-examination, he has specifica!iy admitted that he used to write the date of birth ofthe child at the jnstance - ~of their parents, he has not r^^rded the date of birth of the prosecuirix. . The ^irosecutrix has aiso exaogjned Shaniyabai (PW-2), roother of the prosecutrix, who has specificaity deposed in para 3 of her cross-examination that the prosecutrix was born in her matemai house. The prosscutrix hersetf has deposed in para 4 of her cross-examination Ithat shewas residing since 11 years at Jashpur, snd prsviously shewas ssidfngat Ghoraghat for iast 7 years. The prosecution has examinedthe pro^cutrix on 29.10.91, if the statement of the pr^ecutnx is -^' considered, then her age in the year 1990 viz., on the date of incident wouid be 17years. 13.This te a case of marginal age. !n age of marginal age of the prosscutrix, ths prosecution is required to prove the age of the prosecutrix by adducing cogent and reiiabie evidence. The prosscution has not produced original documents viz., birth sntry rsgister. The prosecution has also not producsd origl^al schoo! registsror the person 'who has taken entry of date of birth of the prosecutrix. Dr.M.D.Joshi (PW-5) has conducted radioiogicai examination who has determined the age of the prosecutrix bet<ween 12 to 15 years with variatioh of three years on both Sldes. As per evidence of Dr.Kumudani Kerketta (PW-6), her secondary sexua! characters were well developed and she was pregnant.As per version of the prosecutrix, she was agsd about 17 years at the time of incident. In these circumstances, it is diffscuit to ho!d that the age of the prosecutrix was beiow 16 years at the time of commission of the offence. 14.in the present case, the prosecutrix (PVV-1) has categoricalty deposed thatthe accused has committed sexuai intercourse wifti her in herhou^, thereafter.he frequentiy ussd to visit her house and committed sexuai intercourse with her and as a resuit of such sexual intercourse, she conceived and thereafter, she has lodged the F.I.R. after iapse of more than three months of the date of incident. Evidence reiating to commission of ssxual intercourss by the appeilant with the prosecutrix is unrubutted. . l5.As regards the question of consent and wiiiingness, the prosecution has seizsd iove ietters Exs.P/4 to P/8 fro>m the prosecutrix vide Ex.P/3. The prosecutrix hss sdmitted in para 10 of her cross-sxamination that she has written iove letters to ihe accused, although she has tried to explain Shat she had not written any love letters to the accused voluntarily. Her -. / entirs evidence reveais that she was having love affair and physica! reiation with the appsilant and aS a result of such reiation, the appetiant has' commltted sexual intercourse with her. 16.Considsring the evicienee of the prosecutrix, especiaity in the iight of 'lletters Exs.P/4 to P/8, it is difficult to hoid that the prosecutrix was not . wiliing otcbnsenting party for commission of sexuai intercourse by the appetiant v/ith .her. Evidence adduced on behalf of the prosecution ."""!°?% _ s~— cleariy shows that ths prosecution was not proved the age of the prosecutrix be!ow 16 ysars on thedate of commission of the offencs. The prosecutrix herseif was wiliing and consenting for sexual intercourse with her by the appeilant. 17-White convicting the appetiant under Section 376 of the i.P.C., leamed Additionai Sessions Judge has not considered the evidence reiating to the age and reiating to wili and consent, and thereby committed illegaiity. iS.For the foregoing reasons, convlction & sentsnce imposed upon the appellant under Section 376 of the i.P.C. are not sustainabie under the iaw. Accordingly, the appea! is aliowed. Conviction & sentence imposed upon the appeilant under Section 376 of the I.P.C. are hersby set aside and he is acquitted of the said charge. The appeliant be set at iiberty at once. i/- Sd/- T.P. Sharma Judge '•^i-