SANJAY YADAV Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) THIS appeal is directed against the judgment of conviction and order of sentence dated 19. 1. 2007 passed by the Sessions Judge, Mahasamund, in Session trial No. 31 of 2006 whereby and whereunder learned Sessions Judge after holding the appellant guilty for the offence punishable under sections 363, 366 and 376 of the Indian Penal Code sentenced him to undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 500, in default of payment of fine to further undergo rigorous imprisonment for 3 months, rigorous imprisonment for 3 years and to pay a fine of rs. 500 in default of payment of fine to further undergo rigorous imprisonment for 3 months and rigorous imprisonment for 7 years and to pay a fine of Rs. 1,000, in default of payment of fine to further undergo rigorous imprisonment for 6 months.

(2.) JUDGMENT of conviction and order of sentence is challenged on the ground that without there being an iota of evidence, especially proof of age of the prosecutrix below 18 years, the Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality.

(3.) CASE of the prosecution, in brief, is that the prosecutrix (PW-1) was aged about 15 years on the date of commission of the offence i. e. 29. 3. 2006. She was student of class IX. She went to the school for appearing in the examination but did not return to her house. Bharatlal Sahu (PW2) (father of the prosecutix) searched and lastly lodged report of the missing person vide Ex P/12. On 26. 8. 2008 again the father of the prosecutrix Bharatlal Sahu submitted written report (Ex P/2) that the accused was committed rape after kidnapping and abducting the prosecutrix and has taken her at punjab. After inquiry upon missing report, finally FIR was lodged on 16. 7. 2006 vide Ex p/13. Spot map was prepared by investigating officer vide Ex P/1. Bharat Lal Sahu (PW2) father of the prosecutrix went to kathwa (Punjab) and took her daughter and accused from Kathwa and produced before the police station. Panchanama was prepared vide Ex P3. After taking consent/the prosecutrix was sent for medical examination. She was examined by Dr. Alka Pardal (PW7) vide Ex P8 and found pregnancy of 6 months. She was accustomed to intercourse. Her certificate of 8th Board was seized vide ex P5. The prosecutrix was given into custody to his father vide Ex P6. Slides of vaginal smear taken at the time of examination of the prosecutrix were recovered vide Ex p7. School admission register (Ex. P9) reveals the date of birth of the prosecutrix as 15. 5. 1991. The accused was also sent for medical examination vide Ex P18 where he was examined by Dr. N. K. Mandpe (PW11)and was found capable of sexual intercourse vide Ex. P19. During the course of evidence, father of the prosecutrix filed mark-sheet of primary school (Ex P/7) which bears the date of birth of the prosecutrix as 15. 5. 1991.