r'.GK-iVi u.sgA'i"' '-.S..^fSS"i yr^'\ I 1 ^t ^'sytE ^ HI6H COU%T GF CHHATriSSARH AT BILASPl» Criminal Appeai No.265 of 1991 (SB: Hon'bie Mr. T.P.SHARMA. J] and anot+ter V3. The State of Madhya Pradesh (Now Chhatti^arh) POST FOR PROUNCEMENT OF THE JU&6MENT ON 16/7/20l0 al; ss. '%. ?iSi-<- ~1S t 'fte-i-;,. B i ^'Sj^ Sl ^?.- ... ^^-, -,,^-,'. AppeSlants HI6H COURT OF CHHATn^ARH AT BILASPUR Crimmai Apoeal No.265 of 1991 1. Dileep Son of Sem Nath 6anda, aged about 26 years, Driver, resident of vi!!age Selegaon, Polics Stctisn and Tahsil Chanxma, District Bastar (M.P.) (now C.6.5 (S.T.No.200/89) Shambhoonm son of Raisingh Gond, aged about 22 years, Agricuitur'ist, resident of yiliage Chichgaon, f'oiiee Station Bhcnupratappur, &istrict Bast&r (M.P.) (Now C.6.) (S.T.No.202/89) Versus-^-t ' The^S'tate "of Madhya Pnalesh CMiatfisgarh) (Criminoi Appeai under Section 374 (2) of Gr.P.C.) Hon'ble Mr. T.P. Sharma.J. (Now ^. Present:- Mr.Sondeep Shrivastava with Mr.Amit Vernw, eounsel for the appeiiants. Mr.Rakesh Kumar Jha, Osputy 6ovsrnment Adwcate for the 5tate. JUD&MENT (Deiivemd WR 16 Juiy. 2010) 1. Chailenge in 1+iis appeai is to -Hie judgment of conyiction &. erder of sentence dated 16.1.1991 passed by the Additional Sessions Judge, Kanker, in Sessions Trial Nos. 200/89 d 202/89, whereby & ddiereunder learned Additionai Sessions Judge after holding the qapelicaiTs guilty for The offence punishable under Sections 363, 366 & 375 of -Hie Indian PenaS Code sentenced them to undergo rigorous imprisonment for thre®years, rigorous imprisonment for four years and rigorous imprisonment for f'we years, respectively. '% ~.'~'~>.. '^ 2. Conviction is challenged on the ground that without there being any iota of evidence, the triai Court has eonvicted & 9e.ntencedi the appetiants as aforementioned ond thereby committed illegality. - 3. Case of -riie prosecution, in brief, is thaton 12.5.1989 at earty part of the night tiie prosecutrix (PW-1) aged about t4 years (name not mentioned) was picying in her Viitage Chichgaon, Police Station Bhanupralappur where appeilant Shambhoo niet her and toid to accompany him which she refused, then appeiiant Shombhoo dr-agged her, hs took her to his houss where he committed forcefully intercourse with her and told her that he will iriorry with her. At momin9 at about 4 a.m. they woke up, then they wepe boarding in truck with other labourers which was driwsn byco-accused biieep, they went to Sambhaipur ond again they proceeded for Dhamtari where they unloaded bags. Co-accused Diieep took the prosacutrix towards bus stond and conimitted rape with her. A|^)e!bnt Siambhoo topk her ih different ptaces ond firiafly she was recovered. Kanhaiyc (PW-2), father of the prosecutrix, lodged the F.I.R. vide Ex.P/6. Ttie prosecutrjx was sent for medicai examination, she was examinad by br.Smt.R.Yasiu (PW-6) vide Ex.P/7 and she wos found that -the prosecutrix was accuslpmed te sexual inter-course. buring the course of investigation, nwrksheet 6f the prosecutrix Ex.P/1 wss seized along with ietter Ex.P/3 <md underwear vide Ex.P/2. Spot map was prepared vide Ex.P/4. Truck was sei^d from Santosh vide Ex.P/S. Accused Shambhoo was axannlned by Dr.S.yadu (PW-7) vicse Ex.P/10 and was found that he was ccyabie for coniinlti-ing sexual intercourse. Undergarment of accused Shambhoo was seized vide Ex.P/12. Numberi F.I.R. was iodged vide Ex.P/17. Accused Dileep was also exaniined by the doctor v'ide Ex.P/21 and he was found cspable for committing sexuai intercourse. 4. Statements of 1+ie wfitnesses were recorded under Section 161 cf fne Code of Crimincl Procedure, 1973 (in short 'the Code') and after completion of investigation, charge sheet was filed before the Judicial Magistrate First Ciass, Bhcnupratappur, who in turn committed the case to the then Court 'l of Sessions, Bastar, from where learned Additional Sessions Judge, Kanker mceived the ca on transfer for trial. 5. In order to prove the guiit of •the accused/oppellants, the prosecution has examined as many as 9 witnesses. The accused/appelloyits were examined under Section 313 of the Code where they ctenied the circumstanees appearing agoinst them and pteaded innocenea and false impliffition in •tfce crime in question. 6. After providing opportunity of hearin9 to the parties, iaamed Additiorw! Sessions Judge convicted i& sentenced the cppeiktnts as crforemantioned. 7. I have heard leamed counsel for the parties, perused the judgment impugned and record of the triai Court. i. Learned counsel for the appettants vehemently argued •t'hat as per evidence of the prcsecutrix and other witnesses, the prosea.itrix was consenting party. The Court has assessed the age of the prosecutrix as 14 years. In case of mcrginaj age of 1& years, the prosecution is under obligation to prove 1+»e age of the prosecutrix betow 16 years by adducing cogent and reiiabie evidence, but in the present case, the prosecution has not proved the age of the prosecutrix beiow 16 years. As per medical evidence, the proacutrix was accustomed to sexual intercourse, she was abie TO understand what is good «sndwhat is bad she herself has left her parentai shelter and has accompanied -fhe. oppeliants, therefore, conviction uf the appeStcmts under Sections 363, 366 & 376 of the Indioin Penai Code is not sustainable under the bw. 9. Learned counsel piacsd reliance in the matter of Sudhsri aiias Shivadhflri /( ^* 1 Sirgh v. Std'e of C.6.'1 in which this Court has h®ldthat father of the y prosecutrix could not tell the dcte of birth of the prosecutrix, radioiogicci examination of the prosecutrix for confirnsation of her age wos not done, Kotwari register was also not produced, prosecutrix admitted in her statement recorded on 25.7.2001 that she was aged 17 years, the 12006(2)C.6.L.J.328 possibility that the prosecutrix was aged 16 years or mors on the dute of oceurrence cannot be ruled out. Learned counsei further placed reiiance in the matter of Sunil v. State of Haryana in which the Apex Court has held thot in the absence of coqent evidence and statement of fatiier giving age of prosecutrix only approximateiy, convlction of the accused on such evidence wouU not be proper. 10. On the other hand, lesrned State counsel supported the jydgment impugned and wysd that -rtie prosecution has proved the age of the pro^cutrix beiow 16 years on the da-te of alieged commission of the offence. Even otherwise, -rtie prosecutrix has specifiailSy deposea that she has never consented for sexual intercourse and both the appeilqnts haye committed forcefully intercourse with her which is punishable under Section 37& of the Indian Penai Code. Leamed counsel further argued that both the oppeilonts have kidnapped and abducted the prosecutrix for iliicit intercourse, ti. In order to appr-eciate the arguments advanced on behatf of Ihe porties, I have examined the evidence adducsd on behaif of the prosecution. 12. In the present case, age of the prosecutrb< oand consent is matsriGi. Whiie excmining the prosecutrix in the Court as PW-1, the Court has assessed her age as i4 years. She hersetf has deposed in her eyideneie that her cge was 14 years on the date of examination. Kanhaiya 0>W-2), father of the prosecutrix, has deposed in his evidence that age Qf the prosecutnx is 14 years. He has further deposed -riiat at the time of admission of his daughter he has informed the school authorities about the date of birlh after csking the saine from Kotwnr who has recorded the date of birth of the prosecutrix. In para 4 of his cross-examination, he has specificctly deposed •that at •the time of birth of his daughter he has informed KoTwcr and Kotwar has recorded her dcte of birth, but he has fited any document rehting to entry of date of birth of the prosecutrix by Kotwar. br.Smt.R.V'adu ff'W-6) hos assessed the age of the prosecutrix as 13 ZAIR 2010 SC 392 v / "^••^^/ years. She has deposed •that dte has examined the prosecutrix vide Ex.P/7. Her medica! examination report Ex.P/7 reveais that msnstruai cycle of 1+ie prosecutrix has startsd one year back. Pubic hairs were scanty. These show that the prosecutr-ix was not physicuiiy matured womon. , 13. The pro^cutrix yW-l) has deposed in para 9 of her evidencs that her marksheet Ex.P/1 has been seized vide Ex.P/2. Marksheet reveals •Ae dcte of birth of the pro^cutrix os 25.1.75 and if her dcte of birth is considered as 25.1.1975, then at the time of eommission of Ihe offenee her oge would be fourteen years and four months. befence has cross-examined the prosecutrix in detaii. In para 13 of her cross-examination she has admitted that she has told her age .4.Kanhaiya (PW-2), father of the prosecutrix, has specificalSy deposed in paras 1 and 4 of his evidence that age of his deughter is 14 years and he has informed the school authorities at the time of admisaion of his doughter after asking dats of biri+i frorn Kotwar. br.Smt.R.Yadu (PW-6) who has examined the prosecutrix has also assessed the age as 13 yeays. l5.In the present case, the proseaition has not produced primary document, but father of the prosecutrix responsible person for proving the age of his dcughter has specifically deposed tha? at the time of admission of his doughterin school he has informed the school authorities reiating to date of birth of his daughter on tiie bosis of Kotwari entry after asking the same fron"i Kotwar, aithough birth r-egister is conciusive proof for determining the age of the person, but if the saffle is not found sstisfactorily, then age may be ascert-ained on •the basis of other relevant factors iike physique as ascertained by father, mother ond other persons, age as deternnined by -the doctor, date of birth recorded in the sehoo'l register <md age as cscertained by the Couri' during examination of the prosecutrix. While dealing with 1+ie question of determinoition of age, the !tS •^-^ Apex Court in the matter of Stote of H.P. v, Margo Ras^ has held that age of the prosecutrix shdt be determined on 1+ie basis of ali relevant factors, includmg physicai features. Paral2 of -Hie said judgment reads as under:- "12. As regards the age of the prosecutrix, there is evidence of PW 2 &r. Veena Sehgal who examined the proaecutrix <md ; after taking note of •the physicai features stated ;that thea ' prosecutrix must be of the age between 13 t& 14 years. PW ' 3 Dr.'-okender' Badotra. who examin&el the prosecuTrix aiso supported this version. This view is more streng'ftened by the famiiy history which showed that she was bwn in the year 1979. Therefore, in ai! probabslity, -Hie age of the prosecutrb< at the time of the occurrence was about fourteen years. The certificate of PW 13, -rtie Medical Officer-cum-Radiobgist, also 9ives <m!y the probabie age of •rtie prosecutr-ix. Therefore, tte finding of the Seamed Sessions Jud9e that the prosecutrix wss above •ttie age of sixteen is based on fau!ty reasons and is unsupported by evidence. 16. At the time of excmination of the prosecutrix. the Court has assessed her age as 14 years. The doctor has aiso assessed her age as 13 years. Her physique reveals that pubic hairs were scanty and her menstruai cysie has started oniy one year back. i7.It these Circuiflstances are censidered together, especiaily apewf'K evidence of Kanhaaya pVi/-2), father of tke prosecutrix, ajpported by documentary evidence Ex.P/1 marksheet, then it would be safeiy inferred that at the time of incident, the age of the prosecuti'ix was below 13 years. The prosecutrix (PW-1) has specificaiiy deposed 1+iat while she was coming back after ptaying with the ehiidrsn to her house, cppellant Shambhoo met her and toid to accompany him which she refused, thai he caught hoid hsr hands and took her with him in his house, he took her inside the room, then die started weeping, thereafter, the oppeliant Shambhoo commrtted forcefully sexuai intercourse with her, at •that time she WQS weeping. In para 7 of her eyidenee, ahe has ^secificaily deposed •that <^peliant Shambhoo has committed sexuol intereourse with her. She has furriier depose-d that at 4 a.m. appellant Shambhoo took out her from •< 3(2000) 7 SCC 224 [W ^?--s^ his house; and took her towcrds Bhonupnrtappur by truck which was driven by appeiiant Diieep, finaliy they reached to bhamtari and at •rtie time of unloading of truck at bhamtari, appellant biieep took her towards fieid where he committed sexuai intercourse with her. Ctefence hos cross-examined this witness in detail. She has admitted in her cross-examination that appellants took her in different piaces but she hos not told 1-he incident or has not raised alarm beccuse appelkmt Shambhoo has directed her not to tell anything to any person. 5he is a solitary witness retating to the aforesaid offence, lodging of the F.I.R., her medical exammation and seizure of the ciothes corroborarted Dy other evidence. 18. Normaiiy in case of sexuai offence, the Court is required to consiaer the evidence of the prosecutrix. A prosecutrix of c sax offence cannot be put on a par with an accompiics. She is in fact a victiw of •the crime. Whiie deaiing with the question of corroboration, the Apex Court in the mctter of State of Mflhorashtra v. Chondraprakash Kewaichand Jain has heid that the prosecutrix cannct be put on a par with on Qccowptice. She is in fact a yictim of -the crime. Para 16 of the said judgmen? reads as under:- "16. A prosecutrix of a sex offence cannot be put on s par with cn dccompiice. She is in fact a victim of the crime. Jhs Evidence Act nowhere scys that her evidence eanrsot be - accep-ted uniess it is corroborated in material partkulars. She is undoubtediy a competent wstness under Sectton 118 ond her evadenoe must r^ceivs the saine weiqht ss it attached to an injured in cases of physical violence. The same degres of ca.rs ond caution must ettuch in the evaluation of her evidence as in the caae of an injured complainant or witness and no more. V/hat is necessary is that the court must be aiiva to and conscious of the fact thut it is decling wi-tfi the evidence of c person who is interested in the outcome of the charge leyeSled by her. If the court kesps this in mind cnd feels satisfied tiiat it can act on the evidence of The prosecutrix, there is no rule of !aw or practice incorporatad 'm the Evidence Act simiiar to i!!ustration (b) to Section 114 wAich requires it to look for corroboration. If for some reason 1tie court is besitant to piace impti'cit miiance on -the testiinony of the prosecutrix it / 990) 1 SCC 550 moy iook for evidence which may tend assumnce to her testimony short of corroboration required in the case ef an aecomplice. Ths nature of evsdence required to !end assurance to the testimony of the prosecutrix must necessarily depend on the facts and circuniStances of each case. But if a prosecutrix is an aciult and of futt understanding •Hie court is entitled to base a eonviction on her svidence uniass the same is shown to be infirm (md not trustworthy. If 1+te totaiity of the circumstances appearing on fhe record of the cass discbse fnat the prosecutrix does not hwe a strong motive to falseiy invoive the persori chorged, •the court' shouid ordinariiy have no hesitation in accepting her evidsnce................" 19. As heid by this Court' in the matter of Sudhflri (supro), in absence of eny other circumstances cnd statement of the prosecutrix reieri-ing to herage as t7 years, it cannot be ruied out that •the aige of the prosecutrix was 16 years or more •than 16 years, but in -tiie present case, the prosecutfix and her fother have specifically deposed -that -the age of the prosecutrix wos 14 years. The facts involved in Sudhari case areclecriy distmguishQbie froni the facts of the present case. 20.As held by the Apex Court in the matter of Sunil (supra). 'ni •the absence of any other factor-s and evidence of the father for determining the age of •t+ie prosecutrix, conyiction would not be proper. But, m the present case, statement of the prosecutrix, her father, age ascertained by the doetor, physique of the prosecutrix mentioned in Ex.P/7 aid mnterial eyidence are sufficient for drawin9 inferenoe relating to dge of the prosecutr-ix. The facts involved in Sunii case are clearly distinguishabie from •the facts of the present case. 21-The evidence of •the prosecutrix 0;>W-1) cleariy reveats thet 14 '^ars aged girl who was not mentatly ma+ured was pbying with olher-diildren and whiie she was going to her house, she was enticed by cppeliant Shambhoo, thereaifter he cought hold her hands iand took her m his house where he comnnitt-sd forcefulty sexual intercourse with her. Evidence of the prosecutrix cteariy reveais -riiat at -the time of commission of intercourse siind prior to commission of wte.rcourss. she was weeping. SSefinitely tha prosecutrix has accomponied wi-tii -riie appelkmts ttll bhamtari. Co-<K:cused WW^. !; :-1.^.-''/' bileep who wos drivin9 the vehicle at Dhamtari took the pposecu-trw from pkce of reloading of Truck on the pretext that they wilt wdk and ofter taking benefit of loneliness at field, he also committed sexin! intercourss with her. The prosecutrix again came near the truck and she was weepin9 even she narrarted the incident to appellant Shambhoo. This shows'that the prosecutrix VMS wi-Hiin clutches and grip of -the oppeltants and fhey have enjoyed by ttieir ravish act. The evidence of the prosecutrix (PW-1) does not whisper about ony consent or wiilingness, she wns helpless within ciutches of the appeSlants, the oppeilants have kidnapped and abduc-ted her for iiiicit inter-course and they committed sexuai intercourse with her without her wil! and consent. The eyidence adduced on behalf of the prosecution is sufficient for conviction of the oppeiiants under Sections 363, 366 &. 376 of the Indian Pena! Code. The triai Court has rightiy convicted •the dppellants. 22.As regards tiie question of sentence, the trial Court has sentencsd the appeiianTs to undergo rigorous imprisonment for three years, rigorous imprisonment for four years and rigorous imprisonment for five years. Considering the age of the prosecutrix ond the manner in which the appellants have committed the offence, -the trial Court has not awarded adequate sentence ond at the time of awarding the sentence the triai Courf' was iiberai ond has not taken care of ininimuin punishmwit at iaost which is necessary. The Stcte has not filed any cppea! for enhancement of the sentence. 23.For the fore9oing reosons, I do not find any nnerit in the qspeal. The appeai being deyoid of nnerit is Itable to be dismissed cnd it is hereby dismissed. The appellcnts are on baii, they shail surrender immediateiy before the Additional Sessions Judge, Kanker or its successor in office for serving remaining part of sentence imposed upon them in 5essions Trial Nos.200/89 & 202/89. ——_ Sd/-;, .^ T. P. Sharnia Judge