i: aiiii N IN:THE•EI8H COUET:10? MADH& ;PHADSSHl AtF': JABAI,PUfi •="t.u*<lmill«j|l-a,|ttl|hapllli»L^^hitt*Na hft^hi -Gr. :.A. "M^ Q^'-199T -I- .Johat Saa^Qn ^of :Sal3.fcraa;l%ifflar,' ,.: :; -..'':,, :'.' -,: aged aboat |3^'6a^8,,,'ree,i'd:eflt of • yiUage/' ,'..? ; •'•' •' .Kolar, P.S.-Ab]iaBpur,.S.st;t. .gaa.par. .^. j.s.pBliaBt ^ ./: ', ^ •' ': , 1 , 'Aceused' •. TgTBUS ! ; " ' ! ' :; , ;;. : Tne^ S1:ate..Qf Madhya.Praaesa , : : ':•'•'•.':, :: ::,.•..; 'i'hTGugh'; Police 'StatBoa. Bajiua, .: .. ,. . 1: .,.::• ' ^' , :. :: ,:! W.stFtct -. BaipyF.',..,<_._;^ ^: •,^; ^: .|..,Rea]iond®^;i( 17^'1-:' /":':: ''/';^;' •-':^~"~:~^ :Appesi3. .ander .swfeiQB(3^^ 6f the:::Code af: Cnaiaal '. ti"m-at K K rf:iS::;^,, ja',(iUEi. 1, -^•n 22^^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 908 of 1991. APPELLANT RESPONDENT VERSUS Johat Ram s/o Salikram Dhimar State of Madhya Pradesh. R:i!:»'ig|8sBt, Shri Vinod Tekam, couhsel for appellant. Shri Neeraj Mehta PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (23.03.2010) This appeal is directed against the judgment dated 5.8.1991 passed by Additional Sessions Judge, Raipur, in Sessions Trial No. 198/1989 convicting the accused/appellant for the offence punishable under Section 363 IPC and sentencing him to undergo rigorous imprisonment forthree years. 2. Case of the prosecution in brief is that on 25.2.1989 FIR (Ex. P-1) was lodged by the prosecutrix (PW-1) aged about 15-16 years alleging that 15 days prior thereto she was living alone in her temporarily erected hut in the University Campus, and when on the date of incident she was shifting the construction material in University building, the accused/appellant caught hold of her and committed sexual intercourse with her. On an alarm being raised by her, she was threatened by him and for this reason she did not disclose the incident to anyone. Thereafter on 14.2.1989, she was allured away.'-by the accused/appellant and accused Kamlu Ram and / taken to the house of sister-in-law of the accused/appellant at Santoshi Nagar where the'accused/gppellant committed sexual intercourse with her thrice. Thereafter, both the accused persons took her to Abhanpur in a truck and then to village Arand on bicycle where she was kept for three days and was subjected to sexual intercourse by both of them. According to the prosecutrix, from ^village Arand, she was taken to the house of the sister of accused ;Ul :1i ;i| l'1^' '."'.:SR'-s^~ ;"i ;?FH?''3^^iS3 B*.^ 1 '„. "y ·in.Il ^ ^ ~-2- Kamlu Ram at village Chhanta where both ofthem committed sexual intercourse with her twice during her stay there for three days. Then she was taken to the house of brother of the accused/appellant at Rajim where also she was subjected to sexual intercourse during her stay there for 3-4 days. 3. So as to hold the accused/appellant guilty, prosecution has examined 12 witnesses in support of its case. Statement of the accused/appellant was also recqrded under section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. This apart, one Chandulal (DW-1) has also been examined by the defence in support of its case. Both the accused persons were prosecuted for the offences punishable under Sections 363, 376/34 and 506-11 IPC 4. After hearing the parties the trial Court has acquitted co- accused Kamlu Ram of all the charges levelled against him. Accused/appellant has been acquitted of the charges under sections 376 and 506-11 IPC but has been convicted and sentenced for the offence under section 363 IPC. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the accused/appellant submits that there is no concrete evidence available on record in respect of the age of the prosecutrix. He submits that as per the statement of Mohan Singh Diwan (PW-10) - Assistant Teacher in Primary School, Ghoghra, in the admission register Ex. P-21 which has been seized by Ex. P-6, date of birth of the prosecutrix is 20.6.1971. He submits that there is nothing o,n ^ecord to show as to on what basis this date of birth of the prosecutrix was recorded in the said register. Other piece of evidence, according to this witness is the certificate Ex. P-4 issued by the Head Master of the School which also shows the date of birth of ttie prosecutrix as 20.6.1971. He submits that the document issued by Mohan Singh Diwan (PW-10) regarding date of birth of the prQsecutrix has no evidentiary value as the origin on the basis of 'which this date of biri:h ofthe prosecutrix has been recorded in it has ,.)€'M:'^. i.fs'%: ^., t """ * a 1» i"! '^fe- ••«<^S »:!3SE:!tg"S& i^Kgf^ -3- not been proved by the prosecution. He submits that father of the prosecutrix namely Padum Nath (PW-2) has not disclosed the age of the prosecutrix nor any ossification test has been done and even the lady doctor who had medically examined the prosecutrix has not been examined by the prosecution. He submits that even if the date of birth of the prosecutrix is taken as 20.6.1971, on the date of incident her age comes to be 17 years and 08 months and that from the conduct of the prosecutrix and her physical built-up makes it clear that she was in a position to exercise her discretion. 7. On the other hand, supporting the judgment impugned counsel for the respondenVState submits that on the date of incident the prosecutrix was below 1 8 years of age and therefore conviction of the accused/appellant under Section 363 is just and proper. He submits that the Court below has already been lenient to the accused/appellant in acquitting him ofthe charge under sections 376 and 506-11 IPC. 8. Prosecutrix (PW-1) has stated in her evidence that at the relevant time she was working as a labourer in the construction site of Ravi Shankar University and living in a hut temporarily erected in the university campus itself. She has stated that at the relevant time, accused/appellant as also the co-accused namely Kamlu Ram were working as mason in the said site. On the date of incident when she had gone to the terrace of the building to shift the construction material to the ground floor, both the accused persons dragged her to the terrace of the university building where accused/appellant ma.de her lie on the ground and after removing the clothes worn by him committed forcible sexual intercourse with her. On cry being raised by ^ier, accused/appellant threatened to kill her. After commission of the offence by accused/appellant, accused Kamlu Ram also did the same act with her. She has stated that even after subjecting her to sexual intercourse, both of them threatened to kill her if she disclosed the incident to anyone and for this reason she did not disclose theincident to anyone. She has stated that when 8 days after the incident she had gone to work in the University 'building; accuged persons met her and asked to drop her in her fft ^ la ~'ih j KT ,r/ '"!• .-ii--'^ m^S9 ^ -^/- house. They tookher to Bhatapara and then to Santoshi Nagar where after keeping her in a house for one night they committed sexual intercourse with her 2-3 times one by one. From Santoshi Nagar she was taken to village Arand where she was kept for two nights and subjected to sexual intercourse by both the accused persons. From Arand she was taken to the house of some relative of accused Kamlu Ram at'village Chhanta where she was kept for three nights and subjected to sexual intercourse by both of them. From Chhanta she was taken to Rajim where she was kept for two nights and subjected to sexual intercourse by both of them. On the third day two police personnel, her maternal uncle and brother reached there in the presence of both the accused persons and when she showed her desire of accompanying them, accused persons were not permitting her to do so but she somehow managed to get back with them. In cross examination, the prosecutrix did not remain firm and gave somewhat different story. This apart, there are material contradictions and omissions in her statement. 9. Father of the prosecutrix namely Padum Nath (PW-2) has stated in his evidence that he came to know from his son-in-law that the prosecutrix was missing and with the help of villagers she was searched at various places and ultimately was found at Navapara. He has stated that the prosecutrix was handed over to him on Supurdginama Ex. P-5. Guharam (PW-3) has made almost similar statement as that of Padum Nath (PW-2). Rambai (PW-5), Phul Singh (PW-6) and Punau Ram (PW-7) are the witnesses in whose houses the prosecutrix and the accused persons are alleged to have stayed. Mohan Singh Diwan (PW-10) who had brought the school register &X./P-21 showing the date of birth of the prosecutrix as 20.6.1971. He is also the author of certificate Ex. P-4 showing the date of birth of the prosecutrix as 20.6.1971. In cross examination 'this witness has stated that on what basis the date of birth of the prosecutrix was recorded, he was not aware. He has stated that normally it is recorded on the basis of information given by the Kotwar. Thus from the statement of this witness.it is not clear as to 1,)»Ik. ^, 1 <rE ;!.«.''* tit8i;i''''""t 'i,, :^$'^ l;i;ss:isasia--. E?^^'; on what basis the date of birth of the prosecutrix was mentioned in the school register as 20.6.1971. 10. Thus if the statement of the prosecutrix is seen closely, her conduct in visiting several places along with the accused/appellant and also the co-accused Kamlu Ram and permitting them to have sex with her for a considerable period, she prima facie appears to be the consenting party. As regards her age, the prosecution has not brought on record any concrete material showing that on the date of incident she was below 18 years of age. Though Mohan Singh Diwan (PW-10) had brought school register and a certificate (Ex. P- 21 and Ex, P-4 respectively) showing the date of birth of the prosecutrix as 10.6.1971, in the absence of any solid clue as to on what basis said date of birth was recorded, has no value in the evidence. The prosecution has thus utterly failed to prove the fact that on the date of incident the prosecutrix was below 18 years of age and this being the position, benefit of doubt has to go to the accused/appellant. 11. Appeal thus succeeds. Judgment impugned dated 5.8.1991 convicting and sentencing the accused/appellant as above is set aside. Appellant is acquitted of the charge levelled against him. Appellant is on bail. His bail bonds stand discharged. - - -Sd/- Pritinker Diwakar Judge