- (1.)This appeal is directed against the impugned judgment of conviction and sentence dated 16/12/99 passed by the Additional Sessions Judge, Bemetara, Durg (CG.) in sessions trial No. 431/96, whereby and whereunder the appellant has been held guilty of commission of offence under Section 363 of Indian Penal Code and sentenced to undergo two years R.I. and fine of Rs. 500/-. In default of payment of fine, further R.I. of two months. The prosecution story as unfolded from the records of the case is that the prosecutrix was missing from 20/07/96 and missing person report was lodged in the Out Post - Devkar on 22/07/96. While search was being made out, prosecutrix reported in the out post stating that when she had gone out in the field to respond to the call of nature, the appellant met her on the way and on the promise to marry her, she was kidnapped and taken to Durg where she was subjected to rape and then again taken to Dhamdha and kept in the house of one Shakun Bai and thereafter, he did not turn up. Next day, she came back to her village and reported the matter to parents. On this information, FIR in Ex. P/13 was registered in the out post Devkar for commission of offence under Section 376, 363, 366 of IPC. The numbered FIR, thereafter, registered in police station -Saajha under Crime No. 78/96 for alleged offence in Ex. P/23. During investigation, wearing apparels of the prosecutrix which included sari, petticoat etc. were seized in Ex. P/1. The prosecutrix was also subjected to medical examination and Dr. Smt. Shyamali Roy (PW5) examined the prosecutrix and gave report in Ex. P/6. The appellant's clothes were also seized and he was also subjected to medical examination. During investigation, the police also collected evidence with regard to the date of birth of the prosecutrix. Seized articles were sent for chemical analysis to Forensic Science Laboratory. The prosecutrix was also subjected to radiological test to find out her age and the report was prepared in Ex. P/23. Upon completion of usual investigation, recording diary statements, charge sheet was filed in the Court of Judicial Magistrate, 1st Class, Durg who in turn, committed the case for trial to the Court of Sessions and the case was received on transfer by the Additional Sessions Judge, Bemetara.
(2.)Learned Trial Court, on the basis of material contained in the charge-sheet, framed charges on 23/07/97 against the appellants. The appellant abjured guilt and was put to trial.
(3.)Relying upon the evidence led by the prosecution, learned Trial Court held that it was a case of consent and therefore, no case of commission of offence under Section 366 or 376 IPC is made out. Recording a finding that the prosecutrix was less than 18 years of age held the appellant guilty of commission of offence under Section 363 IPC and sentenced as described above.