a6t'"% '•!!,, tKtWl ll'';2-,,' ^) HIGH COURT OF CHHATriSGARH, BILASPUR SINGLE BENCH: HON'BLE SHRI R. L. JHANWAR, J. Crimmal Appeal No. 15/1992 APPELLANT Haldar Versus RESPONDENT State of Madhva Pradesh (now C.G.) JUDGM^E^J' PQSTON )<> NOVEMBER, 2009 Sd/- R.L. Jhasiwar t.^au'i^^ "^l ~'<i. "<- li4 '6; :.iffi5Il!ik S !ti& 1 ^ 'i''isa IMI HIGH COURT OP CHHATTISGARH AT BILASPUR SB: HON'BLE SHRI RAJESHWAR LAL JHANWAR, J. Criminal Appeal No. 15/1992 Haldar, S/o Ghasi Ram Paakaj, aged about 19 years, resident of Sariya, District-Raigarh Versus State ofMadhya Pmdesh (now C.G.) Appeal U/s 374(21 ofthe Cr.P.C. Appearance: Shri. R. P. Tripafhi, Advocate wifh Shri Wasim Miyau, Advocate for the appeUant. Shri Pradeep Singh, Panel Lawyer for the State. JUDGMENT (Delivered on \< .11.2009) 1. This cnminal appeal is directed agam.st the judgment of conviction and order of sentence dated 3rd Januaiy, 1992 passed in. S.T. No.181/90, whereby the learaed 2nd Additional Sessions Judge, Raigarh has convicted the appeUant under Sections 366 aad 376 of the IPC aad sentenced him to undergo R.I. for 3 years apd to pay a fiiie of Rs.500/- and R.I, for 5 years and to pay a fine of Rs.500/- respectively aad in default of payment of fiae to furfher undergo R.I for 3 months on bofh couiits. 2. Prosecution story ia briefis that on 11.6.1990, the prosecutrix told her mofher-Biranchi Bai fhat she wants to go her sister's house at Sarangarh. By sayirig fhis, she reached Saria Bus- stand in fhe uioming aud there she was waituig for bus. At that tiine, fhe appeUaiit came there aad allured for marriage with him aad told to elope with him. Upon which, fhe prosecutrix said that she will not elope with him but has to go to Saraagarh to visit her sister's house. Thereaftjer, the appeUant insisted her to accompaay wifh him ia fhe Kharsia Bu&. The prosecutrix seated ia fhe bus goiag froni Sariya to Kharsia: When fhe bus reached Baada-MaU, the appellant •K'SgS':'. '^ Uiai]!,.! agarn asked her to come wifh bun to Delhi. The appeUaat told her fhat after waadering fhere, fhey wiB retum after gettiiij man-iage. By sayiitg this, the appeUaat took the prosecutrix to Kharsia aad from fhere to Delbi where fhey worked togefher as labourers. In Delhl, fhe appellant repeatedly coiniaitted sexual mtercourse wifh her on the false promise of mamage. On 19.7.199 appeUaat told the prosecutrix to go to Raigarh for ^etting marriage. Thereafter ftiey reached Raigarh Station from Delhi aad on 20.7.1990 in the night at Raigarh also the appeUaat cointaitted sexual iutercourse with her. On 21.7.1990, the appeUaat told prosecutrix that he is going to Raigarh to inforai about fheir inarriage to his relatives aad left the prosecutrix at Bus-staad. The prosecutrix waited for him at fhe Bus-stand for long tune aud wben fhe appeUaat did not retura, she came back to her niatemal home at Sariya with Fagnu (P.W.7). 3. Information about missiag of the prosecutorix was sent to her father at Raipur. Her father after retuming from Raipur to Sariya reported tiie inatter in fhe PoUce Station Sariya Ex.P-9. After fhat, iavestigation took place to search whereabouts of fhe prosecutrix. In tbe ineaatime, when the prosecutcfac retumed to her luatemal honie at Sanya, sbe along wifh her mofher went to fhe Police Station -Sariya aad lodged a report, upon which F.I.R. Ex.P-15 was registered under Sections 363, 366 and 376 of the IPC against fhe appeUaat. After lodging of the F.I.R, investigation started. Seizures were inade. Statements of the witaesses were recorded aad fhe prosecutrix was sent for medical examiaation to fhe Govt. Hosnital, Saraagarh, where Dr. Jyoti Tripafhi (P.W.12) examiued fhe prosecutnx 'aad gave report Ex.PlS. Petdcoat of fhe prosecutrix was also sent for exauunation aad Dr. Jyoti • Tripafhi (P.W. 12) examuied it aad gave report vide Ex.P-14. To ascertaui fhe age of the prosecutrix, she was sent for radiological examination to Dr. M.D. Joshi (P.W.ll), Radiologist, after taking X-ray of the prosecutnx, subinitted her report Ex.P-10. AppeUaat was also sent for inedical . examiaation to fhe Govt. Hospital Baramkela. Underwear of fhe appeUan.t was sent for exainination and Dr. Kamleshwar .f,l»" )«»'"...»• Maravi (P.W.4) has examiued it aad submitted report of Ex.P- 7. After examination of private part of fhe prosecutrix, two slides were prepared aad seized. Spot inap was prepared. After coinpletuig the iavestigation, charge sheet under Sections 363, 366 and 376 was filed against the appeUant ia the Court of .Judicial Magista-ate First Class, Sarangarh, who, ia tum, conunitted fhe case 1p the Sessions Judge, Rai^arh. 4. The leamed Sessions Judge laade over fhe case to fhe 2nd Additional Sessioas Judge, Raigarh for trial. The leamed 2nd Additional Sessions Judge has fi-aiaed charge under Sections 363, 366 and 376 of the IPC agamst the appeUaat. Charges were read over aud were explained to the appeUaiit The appeUaut abjured the gzult aad pleaded ianoccnce aad his defence was that he has been falselv impUcated in the ofFence. 5. The leamed 2nd Additional Sessions Judge has, after evaluating fhe evidence avaflable on record aud hearuig fhe counsel for icspective parties, convicted the appeUant under Sections 363, 366 and 376 ofthe IPC, as mentioned above. 6. I have heard leamed counsel appearing for botti fhc parties at lengfh and also perused the inaterial available on record. 7. The learaed tnal Court convicted the appeUant on the basis of testiniony of fhe prosecutrix (P.W.8), Biranchi Bai (P.W.5), inother of fhe prosecutrbi:, Shyamlal (P.W.6), fafher of fhe prosecutrix aad Dr. M. D. Joshi (P.W.ll), Dr. Joyti Tripahti (P.W.12) & Investigatmg Officer- K. K. Sharma (P.W.13). 8. So far as fhe age of the prosecutrix is concemed, the learaed trial Court relyiug on the evidence on record found ffaat fhe prosecutrbc is below 16 years. The leamed Court below has disbelieyed fhe report of Radiologist - Dr. M.D. Joshi (P.W.ll). It is evident froiu the evidence of Biraachi Bai (P.W.5) that she did not kaow the age ofTlie prosecutrix. Shyamlal (P.W.6), her father stated that age ofher daughter is 13 fo 14 years, but in his cross examination he stated that he is not ia a position to state his daughter's age. He farther stated that he has not produced any certificate in support ofage ofher daughter. The prosecutrix (P.W.8) also did not know her age. In para-4 ofher wr ^.. 1 J'2- ^ss".^ cross examinatioD., she stated fhat she is aot in a position to say her date ofbirth. 9. Now tiie onlv evideace which remams to be considered is of Radiologist-Dr. M.D. Joshi (P.W.ll) who after examiaatiou of fhe prosecutrix found her age to be between 14 to 16 years aad opined that there inay be niargui of error of 3 yeara. Thus, it is clear froin fhe stateinent of Dr. Joshi (P.W. 11) fhat the age of fhe prosecutrix was above 18 years. The prosecution could not adduce aay ofher evideuce to ascertaau fhe age of fhe prosecutrix, except the report of Radiologist. 10. The leamed trial Court has erred ia ascertaming ttie age ofthe prosecutrix below 16 years oaly on fhe basis of testimony of her fafher, fhough ttte evidence given by her father and prosecutrix herself is not supported by aay ofh.er documents or evidence. The report of the radiologist itself estabUshed the age offhe prosecutrix as above 18 years. II. Biranchi Bai (P.W.5), mofher offhe prosecutrix has stated that wheu her daughter asked her to go to her sister's house at Sarangarh, she denied. On the next day in the monung whcn she went outside for work, at (hat tmie, her son aiid dauKhter were in fhe house. When she retumed to hoiae ia fhe evening her daughter was not present. She weat to PoUce Station Sariya aad lodged iiussuig report of her daughter. She caUed her husbaad Shyamlal (P.W.6) who was at Raipur at ttie relevant tune. After that fhey reported the inatter to fhe poUce. She further stated fhat after one montli when the prosecutrix came back, she came to kaow froin her that fhe appeUaut took her to DeUu forcibly and there he coninutted sexual iatercourse with her. However the prosecutrix (P.W.8) ia her stateDy;nt did not narrate this fact fhat the appeUant took her . forcibly. 12. Shyamlal (P.W.6), father of the prosecutrix has stated that when fhe uiatter was iaformed to hiin by his wife, he was at Raipur. After retumuig fi-oin Raipur he reported the raatter to police. •iitA:S-f'-^:^~ . ^r^ -••m 13. Dr. Jyoti Tripafhi (P.W.12) who exeuniaed fhe prosecutrix has stated fhat duruig fhe exainiaation of private part of fhe prosecutrix, she did not coruplaiu about pam. There were no scratches on her body. She has opiaed fhat fhe prosecutrix was habitual of sexual intercourse. 14. It is evident from. the evidence of the prosecutrix fhat she wanted to visit to her sister's house at Sarangarh and she asked her m.0fher to go to Sarangarh but her inother refused. Even then she left the house on her own to visit her sister s house aad came to Sanya Bus-Staad where she met wifh the appellaat who told her "^s^ ^gr^ ^f" (let us go for roamin^. Upon which she, on her own Iree-wiU, accoinparued with the appeUant went to Raigarh and froni there to Delhi. Even duriag joumey to Raigarh in bus aad then in Train to DeUu wifh the appeUaat she did not disclose this fact aaybody nor raised hue aad cry that fhe appeflant has taken her forcibly to Delhi. In DeUu, they lived togefher and worked as labourers. !n DeUu she lived wifh fhe appeUant for one monfh aud used to do daily routine work but even fhen she did not narrate the incident to auy ofher ne^hbour. This also shows her consent. It is also evideat fhat after returaing to Raigarh wifh ttie appeUaat soinehow she inaa^ed to reach her house wifh the aid of Fagnu to whoin also she did not narrate tiie iacident. 15. Froni perusal of fhe stateinents of the above witaesses, it is clear fhat at fhe tune ofiucident ftie prosecutrix was above 18 years. She eloped with the appeUant on her own free wiU. They lived ia Delhi for one month aud during this period she did aot narrate fhe incident to anyone. Even when she retumed to Raigarh she did not disclose aayone about the iacideiit. When the appeUaat took her forciblv from Sariya Bus-stand she never coniplauaed to aayone nor raised aay hue aad ciy. Duruig joumey to DeUu by Tram, she never attempted to escape nor iafonued aayone ia the traui or in Delhi fhat fhe aouellaat has taken her forciblv with him. The inanner in which the prosecutrix lived wifh the appeUaat for about 1 inonth wifhout nnmplnming aayone beconies the story of use of force doubtful. The evidence aad the circumstances clearly iQ-: niake out a case of consent. Further, the prosecution. has failed to estabUsh that the prosecutrix was below 18 years of age at flie tixne ofiacideiit. 16. For fhe foregoirtg reasons, I am of the considered opinlon that the leamed Court below has erred in couvicting the appeUaat for the offence puiushable under Sections 366 aad 376 of fhe IPC. The conviction of fhe accused/appeUant caanot, therefore, be sustamed. 17. In the result, fhe appeal succeeds. Conviction for ofFence punishable under Sections 366 and 376 of fhe IPC recorded by fhe trial Court aad sentence passed by fhe tnal Court for coiamittmg fhe said offence are set aside. The appenaat is acquitted of the charges under Sections 366 aad 376 of the IPC. He shaU be set at Uberty, forthwith. Fiae, if paid, shall be refunded. Sd/- R.L. Jbaiswar Judge