DILIP Vs. STATE OF M P

JUDGEMENT

(1.) The appellant accused has prepared this appeal under Section 374 of the Cr.PC being aggrieved by the judgment dated 25-2-1997 passed by Sessions Judge, Dewas, in Sessions Trial No. 86/1994 convicting the appellant under Sections 366 and 376 of the IPC for RI for 5 years in the earlier section while RI for 7 years in the later. The fact giving rise to this appeal in short are that on dated 16-1-1994 the prosecutrix Chandrakalabai was all alone at her residence as her parents went to field for the agricultural work from where they were returned in the evening. On their return they did not find their daughter Chandrakalabai at home on which they tried their level best to trace her out in the village and also the adjoining areas including her matrimonial family. When she could not get success to find her out for days together, then on dated 31-1-1994 the father of the prosecutrix lodged a missing person report at Police Station Bank Note Press, Dewas. The same was recorded in Rojnamcha Sanha (Exh. P-5). In the course of the enquiry of such report the prosecutrix was recovered on dated 17-2-1994 and after making the interrogation of the witnesses in the enquiry of missing person report the FIR (Exh. P-7) for the offence of Sections 363, 366 and 376 of IPC was registered at the same Police Station. In course of the further investigation the prosecutrix was sent to the hospital where after her medical examination the MLC Report (Exh. P-2) was prepared. The interrogating statements of witnesses were recorded and appellant was arrested. On completion of the investigation, it was found that the prosecutrix being minor was kidnapped from the lawful custody of her parents without their consent by the appellant and committed rape on her on which the appellant was charge-sheeted for his prosecution under Section 376, 363 and 366 of the IPC.

(2.) After committing the case to the Session Court, on evaluation of the charge-sheet, the charge of Sections 376 and 366, IPC was framed against the appellant. He abjured the guilt on which the trial was held after recording the evidence on appreciation of the same, the appellant was held guilty for the above mentioned offence and was punished with the above mentioned punishment on which the appellant has come to this Court with this appeal.

(3.) Shri Sunil Jain, learned Counsel for the appellant after taking me through the record of the Trial Court along with the impugned judgment by referring the deposition of the prosecutrix Chandrakalabai (P.W. 10) said that on proper appreciation of the testimony of the prosecutrix the impugned case was apparently the case of consent as she voluntarily went with the appellant at various places and also residing for days together and performed the alleged intercourse with him. As per available evidence during these days she did not complain to anyone on the way or to any person residing nearby where the alleged act was committed by the appellant with her. In continuation by referring the deposition of Dr. A.K. Vyas (P.W. 9) it was said that on carrying out the Ossification Test of the prosecutrix according to his report (Exh. P-8) based on X-ray plate (Exh. P-9) the age of the prosecutrix Chandrakalabai was found between 16 to 17 years and as per medical jurisprudence the principle of variation of two years either side is applicable to ascertain the approximate age of the person. In such premises, the Counsel has further argued that whenever on appreciation if two views or two approaches are probable from the evidence then out of them the approach which is favourable to the accused like appellant should be adopted by the Court and with these submissions, he prayed for extending the acquittal to the appellant from the aforesaid charge by setting aside the impugned judgment by allowing this appeal. He also placed reliance on some decided cases.