MUKESH vs STATE OF C.G.

Conviction,Sentence

Under Section 376(1) of the Indian Penal Code (Two

Counts)","On each count, Rigorous Imprisonment for 10 years and

fine of Rs.5,000/- with default stipulation

Under Section 3(1)(xii) of the Act of 1989,"Rigorous Imprisonment for 5 years and fine of Rs.5,000/-

with default stipulation

Shatrughan (PW3), father of the prosecutrix, Rajendra Pal (PW4) and K.D. Singh (PW5) are residents of Village Bortalab where the prosecutrix",

was residing. All these three witnesses have stated that in the village meeting, the prosecutrix had taken the name of the Appellant responsible for",

making her pregnant, but the Appellant had refused about having any relationship with the prosecutrix.",

The apparent age of the prosecutrix (PW2) recorded by the Trial Court on the date of her examination in Court is 17 years. The prosecutrix has,

not made any statement regarding her age. In paragraph 4, she has categorically stated tht she was not aware of her date of birth. She has further",

stated that her grandmother resides in Village Pitepani, she took birth at Pitepani and she never resided at Village Jatkanhar.",

Chandravati (PW1), mother of the prosecutrix and Shatrughan (PW3), father of the prosecutrix have not been able to state about the date or year",

of birth of the prosecutrix. In paragraph 7, Chandravati has stated that birth of the prosecutrix had taken place in Village Bortalab. As per the Court",

statement of Kotwar Nathuram (PW9) and the entires of Kotwari Book, the date of birth of the prosecutrix is 2.4.1983 and her birth palce is Village",

Jatkanhar and the entires ere recorded by one Punit. As stated above, as per the prosecutrix, she had taken birth at Village Pitepani, but as per the",

statement of her mother, the prosecutrix took birth at Village Bortalab. Punit, who had made the relevant entries regarding the date and place of birth",

of the prosecutrix has not been examined by the prosecution. In these circumstances, the Kotwari entries made vide Ex.P4 are not acceptable.",

On minute examination of the above evidence, it is clear that the FIR (Ex.P1) was lodged 2 months after taking birth of the child and after 1 year",

of the alleged incident. From the evidence on record, 2 village meetings had taken place, but in both the meetings the Appellant had refused about",

having any relationship with the prosecutrix. Though birth of the child of the prosecutrix took place in the house of Dhanesh (PW7), Mama (uncle) of",

the Appellant yet as per the statement of Dhanesh (PW7), the prosecutrix was taken to his house for delivery of the child by the elder brother of the",

Appellant and the brother of the prosecutrix. It has not been stated by Dhanesh (PW7) that the Appelalnt had taken the prosecutrix to his house for,

delivery of the child nor has he stated that the Appelalnt was having any relationship with the prosecutrix. From the admission of the prosecutrix,

(PW2) and her mother Chandravati (PW1), it is clear that the FIR (Ex.P1) against the Appellant was lodged because they had been persuaded by the",

police officials that if the report is lodged against a non-tribal person, money will be given by the Government.",

From the above, it is not proved beyond reasonable doubt that the pregnancy of the prosecutrix was from the Appelalnt. Even if for the sake of",

argument it is considered that the Appelalnt was responsible for the pregnancy of the prosecutrix, the evidence on record establishes that the",

prosecutrix was a consenting party. At the relevant time, it is not proved that the prosecutrix was below 16 years. In these circumstances, the offence",

under Section 376(1) of the Indian Penal Code and Section 3(1)(xii) of the Act of 1989 are not proved beyond reasonable doubt.,

Consequently, the appeal is allowed. The conviction and sentence imposed upon the Appellant is set aside. The Appellant is acquitted of the",

charges framed against him.,

Record of the Court below be sent back along with a copy of this judgment forthwith for information and necessary compliance.,