Judgment · High Court

(BY SHRI A.S. PARIHAR, PUBLIC PROSECUTOR) .....RESPONDENTS T h is appeal coming on for orders this day, t h e cou rt passed the following: JUDGMENT This criminal appeal has been preferred under Section 374(2) of Cr.P.C. feeling aggrieved by the judgment of 2nd Additional Sessions Judge, Biaora, District-Rajgarh in Sessions Trial No.63/2015 whereby the appellant has been convicted under Section 363 of IPC and sentenced to undergo for a period of one year RI and fine of Rs.1000/- with default stipulation. 2 ) The facts of the case are that the appellant accused was tried under Section 363, 365, 366(A), 366, 376(1) of IPC and 3/4 of POCSO Act, 2012 on a matter arising out of First Information Report registered in Police Station- Malawar, Dist. Rajgarh as Crime No.19/15 regarding kidnapping of prosecutrix, Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 30-12-2023 15:10:37 aged 17 years on 20.01.2015 and committing sexual assault till 31.01.2015 and 2 causing criminal intimidation and wrongful confinement of the victim. 3 ) Appellant/accused abjured the guilt and the prosecution examined father of the prosecutrix (PW-1), mother of the prosecutrix (PW-2), brothers of prosecutrix (PW-3) & (PW-4), Ramprakash (PW-5), Amar Singh (PW-6), Vijendra Singh (PW-7), Dr. Sandeep (PW-8), Shyamlal (PW-9), Mangilal (PW- 10), Dr. Shaili Garg (PW-11), Mohan Singh (PW-12) and prosecutrix (PW-13). The trial Court acquitted the appellant/accused from the charges under Section 365, 366(A), 366, 376(1) of IPC and 3/4 of POCSO Act, 2012 and convicted the appellant/accused under Section 363 of IPC and sentenced to one year RI and fine of Rs.1000/- with default stipulation. 4 ) Challenging the conviction and sentence, this appeal has been preferred on the ground that the trial Court has ignored the discrepancy in the statement made by the complainant and other witnesses. The evidence regarding the age of the victim has not been appreciated properly and committed error in concluding the age of the prosecutrix below 18 years. 5) Learned Public Prosecutor has supported the conviction and sentence. 6) Heard with the aid of amicus curiae Shri Ajay Gupta, advocate and perused the record. 7 ) The trial Court in para-23 of the judgment has recorded the conclusion that the victim was below the age of 18 years on the date of

20.01.2015. The conclusions of the trial Court are based on Ex.P/11 & P/12 in the age of the prosecutrix is recorded as 15.05.1977. The appellant/accused has assailed the findings of trial Court regarding age of the prosecutrix. The father of prosecutrix PW-1, mother of the prosecutrix PW-2 Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 30-12-2023 15:10:37 3 and brother of the prosecutrix PW-4 has stated that the prosecutrix was already married one year before the date of incident and prosecutrix (PW-13) has claimed to be above the 19 years on the date of examination i.e. 15.12.2015. Para-7 of PW-1 and Para-3 & 6 of PW-2 does not support the correctness of date of birth as of 03rd July, 1977 mentioned in Ex.P/3, P/9, P/11 & Ex.P/12-C. On re-appreciation of the evidence of PW-4, the findings of the trial Court are not based on proper appreciation of the evidence. Hence, the findings of the trial Court that the victim was below 18 years on the date of 08.01.2015 are reversed and it is held that the prosecutrix (PW-13) was above 18 years on the date of 21st January, 2015. Categorical statement of prosecutrix (PW-13) states that she was already married and her husband committed cruelty with her, so she was residing in her maternal home. Accused was her friend, so she moved at his own with the accused on 20.01.2015. Accused Kamalsingh committed no crime with her. In the light of the statement of the prosecturix (PW-13) no offence is proved against the appellant/accused. The findings of trial Court regarding conviction of the appellant/accused under Section 363 of IPC cannot be maintained. The conviction under Section 363 of IPC is set aside. The appellant is acquitted from offence under Section 363 of IPC. 8) With the aforesaid, the appeal is allowed and disposed off. soumya (GAJENDRA SINGH) JUDGE Signature Not Verified Signed by: SOUMYA RANJAN DALAI Signing time: 30-12-2023 15:10:37