- (1.) HEARD Shri R.P. Mishra, learned counsel for the appellant and Shri Sharad Dixit, learned AGA for the State respondent. This criminal appeal has been filed challenging the judgment and order dated 16.1.2009 passed by the learned Additional Sessions Judge/Fast Track Court No.2, Gonda by which he has convicted the present appellant and sentenced him to undergo 6 years RI and fine of Rs.6000/ - under Section 366 IPC and also 10 years RI and fine of Rs.10,000/ - under Section 376 IPC. As per factual matrix of the case, FIR was lodged by Ayodhya Prasad in Police Station Kotwali Nagar, District Gonda on 10.7.2006 alleging that his daughter the victim, aged about 13 or 14 years was enticed away by Sabhajeet Pandey @ Kariya. He was seen by Shambhu Nath Ojha. On this, a case under Section 363, 366 IPC was registered. During investigation, the victim was recovered on 22.11.2006 from the house of accused. Her statement was recorded. She was sent for medical examination and after medical examination, charge sheet was submitted. After committal of case, charge under Sections 363, 366, 376 IPC was framed. The accused pleaded not guilty and claimed to be tried.
(2.) THE prosecution examined Ayodhya Prasad as PW -1, Shambhu Nath Ojha as PW -2, Ranjana Ojha as PW -3, Dr. R.K. Srivastava, Radiologist as PW -4, Dr. Vijay Laxmi Saxena as PW -5, Mangala Singh Yadav as PW -6, Suman Tripathi, Sub Inspector as PW -7, Bhagawati Singh, Sub Inspector as PW -8. After closure of evidence of prosecution, statement of accused was recorded in which she has stated that he was in love with the victim. On the pressure of victim they went away and married and were living as husband and wife in his house. She was recovered from his house. The court below, after going through the evidence and hearing parties, convicted the appellant under Sections 366, 376 IPC and directed him to undergo 6 years RI and fine of Rs.6000/ - under Section 366 IPC and also 10 years RI and fine of Rs.10,000/ - under Section 376 IPC. In default of payment of fine, he was directed to undergo 2 years additional RI. The appellant was acquitted under Section 363 IPC. Learned counsel for the appellant submitted that in medical examination the victim' age was found to be above 18 years. She was consenting party. From the evidence it is clear that she had gone on her own free will. At the time of recovery, she has stated before the police that she and accused are married. She has married on her own free will and she is pregnant, but later on, due to pressure of family members, while giving statement in the court she resiled from the statement given earlier before the Investigating Officer. Learned AGA has submitted that original TC of the girl has been produced and, according to date of birth, mentioned in TC, the victim's age is below 16 years, so her consent, if any, is immaterial. Before entering into the merits of argument of both the parties, determination regarding victim's age is necessary. Dr. R.K. Srivastava - PW -4 is Radiologist and he has performed the x -ray of the victim and proved x -ray report Ex.Ka.3. He has also performed ultra sound test of the victim and found that the victim was pregnant of 14 weeks 3 days. Ultra sound report is also proved as Ex.Ka.4. This witness has also proved x -ray plate, which is material Ex.1. Dr. Vijay Laxmi Saxena - PW -5 has, on the basis of x -ray report, prepared supplementary report, which is Ex.Ka.5 and has given opinion that the victim was above 18 years at the time of medical examination. There is no evidence from the side of prosecution regarding the age of victim, except this medical report. Though original TC has been filed by the prosecution and the Investigating Officer has taken statement of the principal of the school under Section 161 Cr.P.C., but it has not been proved by any witness, so the date of birth, mentioned in TC, cannot be taken into account for determining the age of the victim. In the case of Sunil v. State of Haryana, 2010 (68) ACC 279 the Apex Court has held that where school leaving certificate, on the basis whereof the victim's age was recorded, was not produced, it was unsafe to convict on the basis of approximate age particularly when she never resisted to be deflowered by the appellant repeatedly.
(3.) IN the instant case, PW -8 Bhagwati Singh, S.I. was the police officer, who had recovered the victim from the house of the appellant has stated on oath that when the victim was recovered, her statement was recorded, and at the time of recovery she had stated that she had gone with the appellant on her own free will and they had married in a temple and she is pregnant by appellant. She had further told that she had gone on her own free will and also she was having intercourse with the appellant with her free will. This witness has proved fard Ex.Ka.10, which contains the statement of the victim. PW -2 is a person, who, according to FIR, has seen the appellant accompanying the victim. He has stated in his examination in chief that on 9.7.2006, at about 7 or 7.30 PM, he has seen the appellant accompanying the victim. In his cross examination, he has admitted that he did not enquire from the victim that as to where are they going. He further stated that they were talking to each other and were having a mobile in their hands. He further stated that victim and appellant were acquainted with each other. They were in habit of talking on mobile and going places together. He has further admitted that when he say the victim accompanying the appellant, the victim was not objecting, so there was no doubt in his mind about some untoward happening.;