NARHARI SAHU Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) FIR (Ex-P-4) lodged by Firanta (PW-2) - the grandfather of the prosecutrix discloses that on 09.09.2005, the accused-appellant removed the prosecutrix from her lawful guardianship took her to various places and kept her with him for number of days. FIR also discloses the date of birth of prosecutrix to be 18.04.1989 and, as such, she has been branded as minor on the date of incident. On the basis of FIR offences under Sections 363 and 366 IPC were registered against the accused-appellant. After the prosecutrix got back, she was sent for medical examination, her statement under Section 161 Cr.P.C. also recorded and after completion of investigation charge-sheet was filed against the accused-appellant under Sections 363, 366, 506-B and 376 IPC, and so also the charge was framed under the same sections.

(2.) Learned Court below vide judgment impugned dated 01.12.2007 passed in Sessions Trial No.72/2006 acquitted the accused-appellant of the charges under Sections 506-B and 376 IPC but held him guilty under Sections 363 and 366 IPC by imposing the sentence of R.I. for three years on each count. Hence this appeal.

(3.) Counsel for the accused-appellant submits that the prosecution has utterly failed to prove that the prosecutrix was below 18 years of age on the date of incident, but yet the accused-appellant has been convicted under Section 363 of IPC. He submits that learned Court below has ignored the fact that the prosecutrix herself has declared hostile and have not supported the case of the prosecution, but yet the accused-appellant has held guilty under Sections 363 and 366 IPC. According to the counsel for the accused-appellant, when the accused-appellant has been acquitted of other charges, he should have been given the same treatment for other charges also, because no other evidence has been collected by the prosecution, on the basis of which, the Court below might have been persuaded to held him guilty under Sections 363 and 366 IPC. He submits that the grandfather of the prosecutrix Firanta (PW-2) and father ' Chandu (PW-1) though have tried to support the case of the prosecution to the effect that the prosecutrix was minor on the date of incident, they have not proved the origin of the date of birth recorded in the school certificates to be 18.04.1989, and, therefore, their statement to this effect becomes redundant. As record says that the prosecutrix herself has stated that she was above 18 years of age on the date of incident and so also the discloser was made by her before the Court at the time of her examination, where she has told her age to be 20 years.