HIGH COURT OF CHHATTISGARH AT BILASPUR - Criminal Appeal No. 816/2006 Sudhu Das S/o Lakhma Das, caste Panka, aged about 21 years R/o Dongarsilati, Police Station Makdi, District Bastar (C.G.]. APPELLANT VERSUS RESPONDENT State of Chhattisgarh through Police Station Makdi, District Bastar. CRIMINAL APPEAL UNDER SECTION 374 OF THE CRIMINAL PROCEDURE CODE. (SB :Hon’ble Mr.T.P. Sharma J.) Present:—. Miss Sharrnila Singhai, Advocate for the appellant. W. Sushil Dubey, Govt. Advocate for the State/respondent. t ORAL- JUDGEMENT (Passed on 14/7/2009) 1. This appeal is directed against the judgment of conviction and order of iii) sentence dated 21/7/2006 passed by the Special Judge under AScheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, Bastar at Jagdalpur in Sessions Trial No.147/2006 whereby learned Special Judge after holding the appellant guilty for the offence 1 punishable under Section 376 of the Indian Penal Code convicted and 1 sentenced the appellant Rigorous Imprisonment for 7 years and fine of Rs.500/- in default additional rigorous imprisonment for 3 months. 2. Judgment of conviction and order of sentence is challenged on the ground that even according to the case of the prosecution the age of th prosecutrix was not below the age of 16 years and she was consenting party._,therefore no offence punishable under Section 376 of the Indian //, Penal Code was made out against the appellant but Court below has \ cOnvicted and sentenced the appellant aforementioned and thereby ‘ committed an illegality. \ e Brief facts 'of the case:- The prosecutrix PW2 Sukhdai daughter of Bhakalqram aged about 15 years was residing with her father at Village Dongarsilati accused was also residing near the house of prosecutrix and after some dispute with his parents between he left his house and started residing in the house of prosecutrix. He was also friend of brother of the ~ prosecutrix Jugdhar. On 16/8/2006 at about 4 to 5 P‘M. accused took ‘ he prosecutrix to village Chipawad on the’pretext of marriage and finally took to Jamguda (State of Orissa) where he kept the prosecutrix in the hoilse of his elder mother prosecutrix stayed with accused at Jamguda for 8 days where accused used t0 commit intercourse with the \ prosecutrix daily. On 1/4/06 prosecutrix and accused came back to their village where she narrated the incident to their mother and father and finally She lodged the report by EX. P-l. She was examined by PW4 t Dr. Smt. Kumud Kawar and found her hymen ruptured and vagina admits two figures. Her ossification test was conducted by PW6 Dr. Govind Singh Vide EXs.P-4 85 P-4A and her age was ascertained between 12 to 15 years. Numbered First Information Report was registered by PW5. Spot map was prepared vide Ex. P—6. One underwear was seized Vide EX. P—7. Seized articles were sent for chemical examination Vide EX. P~9. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class Jagdalpur who in turn sent the case to the Court of Sessions Judge. :) ‘4. In order’ to prove the guilt of the appellant/accused prosecution examined as well as 8 witnesses statement of the accused was recorded v # 3 V, ‘ t under Section 313 of the Code where he denied the circumstances appearing against him and innocency and false implicatidn is pleaded. 5. Learned counsel for the parties are heard. Judgment impugned and record of Court below perused. 6. Learned counsel for the appellant submits that according to the case of the prosecution and finding of the court below this is a case of consent d only on the ground that age of pros'ecutrix was below the age of 16 years, Court? below has convicted and sentenced the appellant as mentioned above. 7. Learned courfSel for the appellant further submits that age of the prosecutrix was ascertained on the basis of ossification test. As held in case of Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and anotherl by the Apex Court variation of 2 years in both side is permissible in the: age ascertained'by ossification test. 8. Learned counsel for the appellant also submits that if 2 years is added in the upper side of the age ascertained by ossification test then it would be 1’7 years and in the case of consent is consider then no offence is made out against the present appellant. Prosecutrix herself has admitted that shewas consenting party. On the other hand, learned counsel for the respondent State/opposed ‘ the appeal and submits that court below has rightly COnVicted and sentenced the appellant on the ground of age of prosecutrix, which was admittedly below the age of 16 years at the time of commission of the offence lO. In order to appreciate the contention of the parties, I have examined the evidence adduced on behalf of the prosecution PW2 Sukhdai prosecutrix \ 1 (2007) 6 sec 528 t i i ,‘L/f/ has deposed that on the date of incident accused forcefully took her from her house to village Jamguda (State of Orissa) where he kept her for one month and committed intercourse with her. In Para —3 of her statement she has deposed that she has not stated in her First Information Report that accused has enticed her on the ground of love and marriage but in ‘ her cross—examination she has specifically admitted in para-5 that 3‘“ a’ccused was residing in her house. Sherhas denied the suggestion that she herself has accompanied the accused. PWI father of the Bhakhalu h‘as deposed that When- his daughter and accused were not present in the house then hé doubted~that his daughter has gone with the accrued. k Finally prosecutrix has lodged the report in which it has been mentioned that present appellant enticed to the complainant on the pretext of love and marriage and he took her. {. ll. On the basis of statement and documents court below has arrived at a 'K finding 1n . Para-l3 of the Judgment . that prosecutrlx . was consenting . party and they were residing as husband and wife but has convicted on the ground of her age. Ossification report P-4 reveals that the age of the ‘prosecutrix was between 12 to 15 years. Prosecutrix has examined by the :PW4 Dr. Smt. Kumud Kawar who has deposed that secondary sexual :character of the prosecutrix were well developed shows that on the basis fof her physic it is difficult to ascertain her age below 16 years in case of Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and another reported in_(_2007) 6 SCC 528 Apex Court has held that Court can take judicial notice, that margin of error in age ascertain by such radiological examination is 2 years on either side. If 2 years is added in upper side i.e. 15 years then it would be 17 years and if age of 2 years is reduced in lower side then it would be 10.years. It is settled position of the law that / e 1 ’ ‘ FE (—5V if 2 views is possible then View, in favour of the accused should be accepted. 112. In the instant case, secondary sexual characters was well developed which is substantive of the fact that her age was between 15 to 16 years except the age ascertained by radiological examination no other material )evidence relating to the age of the prosecutriX has been adduced on Wkhalf of the prosecution. In the light of the decision in case of Dilip S. Dahanukar (Supra) if the error of 2 years is considered in the age ascertained by ossification test on higher side which is 15 years then the age of the prosécutrix would be 17 years (more than 16 years). Statement of the prosecutrix is substantive of the facts that she was consenting party and court below has also arrived at a finding that prosecutrix was consenting party. Considering the age of prosecutrix which is more than 16 years on the date of incident and the case of consent any act of intercourse by the appellant does not falls under the purview of rape defined in Section 375 of the Indian Penal Code and punishable under Section 376 of the Indian Penal Code. . Learned Additional Sessions Judge has considered the evidence relating to the consent but has not considered the age in the light of the decision of Dilip S. Dahanukar (Supra) therefore committed material illegality a conviction and sentence imposed by the learned Additional Sessions Judge is not sustainable under the law. . For the foregoing reasons judgment of conviction and order of sentence is not sustainable and liable to be set as1de Consequently, the appeal is allowed and Judgment of conv1ction and order of sentence impugned is hereby set as1de. Appellant is at liberality instantaneously he be released if not required in any other case. Sdl— T. P. Sharm,a