DILIP Vs. STATE OF M P

JUDGEMENT

(1.) This is an appeal of the year 1998 and by this appeal under Section 374 of the Cr.P.C., appellant Jagdish s/o Ambaram has challenged the judgment dated 17/1/1998 passed by the IV Additional Sessions Judge, Dewas in S.T. No.63/1997 whereby the appellant has been convicted for offence under Section 366 of the IPC and sentenced to undergo three years rigorous imprisonment and fine of Rs.1,500/-. In case of default of payment of fine, he was to undergo additional six months S.I. Brief facts of the prosecution case are that appellant was charged and tried for offence under Sections 366 and 376 of the IPC on the allegations that on 17/1/1997 at about 9 p.m. appellant had kidnapped Komal Bai from the lawful guardianship of her father, Kalyan Singh. It is further alleged that the appellant had committed rape with her, a report of this incident was lodged by Kalyansingh P.W.1 on 18/1/1997 at police station Bagli. After completion of investigation, the accused/appellant was dulycharged and committed to his trial. Accused/appellant abjured his guilt and stated that he has been falsely implicated in the matter. On the basis of the evidence on record, the trial Court has acquitted the appellant from the offence under Section 376 of the IPC, but convicted the appellant for offence under Section 366 of the IPC and sentenced him as herein above indicated.

(2.) Learned Counsel for appellant has urged that the appellant has been falsely implicated in the matter. Counsel further submitted that the conviction is contrary to the provisions of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witness, which have not been considered by the trial Court. Counsel further submitted that the conviction is on the basis of the age only. Counsel submitted that according to the ossification test, Dr. N.R. Pandey P.W.5 has categorically stated in the report that the prosecutrix is between 15 and 17 years of age and hence, the benefit of 2 years in approximation in the assessment of the Radiologist must accrue to the appellant. Hence, Counsel submitted that the conviction under Section 366 of the IPC is not made out against the appellant. Counsel further submitted that it was a matter of love affair and thus, it was a case of consent and the appellant has been falsely implicated inthe matter. Moreover Counsel submitted that the appellant has already been acquitted from the offence under Section 376 of the IPC. Hence, the appeal deserves to be allowed and the judgment of trial Court be set aside. Learned Counsel for respondent/State per contra stated that the judgment of the trial Court is in accordance with law and does not require any interference and the appeal filed by the appellant be dismissed.

(3.) On considering the above submissions, I find that it would be crucial to convict the accused for offence under Section 366 of the IPC since the conviction for the said offence is on the basis of the age of the prosecutrix and according to ossification report of the Radiologist P.W.5 N.R. Pandey, the prosecutrix was between 15 and 17 years of age at the time of the incidence and hence, the benefit of 2 years in approximation in the assessment of the Radiologist must accrue to the appellant. Then under these circumstances, it is trite to state that as has been directed by the Apex Court in several cases, suspicion however, strong, cannot take the place of proof and since there is no concrete evidence on record to convict the present appellants hence the accused/appellant deserves to be acquitted from the offence under Section 366 of the IPC and the impugned judgment is hereby set aside.