y < -'^ ft . .^/ ^.ff: ^/^L BS TH3.HISH COUBT %• H6DH?a PRMtSSH AT jaB&LHJ R. CaiMlHAt, apPEALHO./"°)S OF 1991. apEELLSBT 8- "°gra»ens en of Cbandaraeii Vind (eorreet . nacae Cbhedum) aged afeCBt 38 yeaiy, Eesident o£ villags Gadi, Tbaa SJpatt, Ojstr.ict Bilaspar (M.P.). VSISOS. ^gPOSDmT s- S:fcate ~ -6f M a3h?a prsdesb throagb ThanaS'i^at,, olstrict •Bilaspar to.P.) &^LSV -*> y C RmmAl>_ SPPES^UH DER_SaCTIM_374' (2)_OP THE _COD'E Q? CSEMISSL_P':OeEE@BSu_1973. \ ^.F-R. U^lll/o HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 968 of 1991. APPELLANT RESPONDENT VERSUS Ugrasen son ofChhedyram. State of Madhya Pradesh (now Chhattisgarh). .?.-• Shri D.K. Vishwakarma counsel for appellant. Shri Pankaj Shrivastava PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (21 OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (19.01.2010) This appeal is directed against thejudgment dated 12.10.1991 passed by Additional Sessions Judge, Bilaspur in Sessions Trial No. 234/1990 convicting the aceused/appellant for the offence punishable under Section 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 5000, in default of payment of fine to further undergo rigorous imprisonment for one year. 2. Case of the prosecution in brief is that on 25.5.1990 FIR (Ex. P-1) was lodged by the prosecutrix (PW-1) alleging that somewhere in the month ofJanuary, 1990 when she was all alone in her house, the accused/appellant who happens to be her brother in law, committed forcible sexual intercourse with her by putting her under threat of life if she disclosed the matter to anyone. It is alleged that even tMereafter she was subjected to forcible sexual intercourse uhder threat of her life wben she used to be alone in her house. Ultimately, in the month of May when she became pregnant the matter was reported to the police. 3. So as to hold the accused/appellant guilty, prosecution has examin.ed Q7 witnesses in support of itscase. Statement of the accused/appejlant was also recorded under section 313 ofthe Code •«E!S -2.- of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused / appellant for the offences as mentioned above. 5. Heard counsel for the ^arties and perused the material available on record including thejudgment impugned. 6. Counsel for the appellant submits that even if the entire case of the prosecution is taken as itis, present case appears to be one not beyond consent. He submits that according to the un-exhibited report of the radiologist, the age of the prosecutrix at the relevant time was 16 to 17 years and thus according to him on the date of incident she was major. He further submits that from the statement of Kotwar Hiradas (PW-5) it appears that an attempt has been made by the prosecution to show that on the date of incident the age of the prosecutrix was about 14 years and 6 months. According to him, the evidence of this witness is wholly unreliable as theoriginal Kotwar register has not been produced before the Court. He submits that even the photocopy of the same which was produced before the Court and exhibited as Ex. P-4-A appears to have certain manipulations. Photocopy of the Kotwar register shows that first it contained the name of the prosecutrix but later it was scored and in its place name of younger sister of the prosecutrix namey Bhagwati was mentioned and against her name the date of birth was shown as 16.9.1976. Tbus according to the counsel for the appellant entire case of-th^ prosecution appears to be fabricated and the trial Court h-as commifted a grave illegality in basing its findings of conviction on a shaky piece of evidence led by the prosecution. 7. On the other hand counsel for the respondenVState supports theimpugned judgment and submits that the findings recorded by the Court below are based on proper appreciation of the evidence ^.Biit-ig^^ < ^,-^ ^. f .'^^^' :'P^It^':- -3 - available on record and no interference with the same is required in this appeal. 8. From the FIR and the evidence of the prosecutrix (PW-1) what emerges is that the incident had taken place in the month of January, 1990 whereas the report has been lodged on 25.5.1990 when the prosecutrix had become pregnant. The record further reveals that the prosecutrix was^subjected to sexual intercourse by the accused/appellant on many occasions. Though the prosecutrix has stated that for the first time she was subjected to rape by the appellant when shewas alone in her house and after commission of rape the appellant had threatened to kill her if she disclosed the matter to anyone, she has admitted' that subsequently on many occasions she had physical relations with him and when she became pregnant the matter was disclosed to her mother and sister and thereafter report was lodged to the police. Triveni Bai (PW-2), the mother of the prosecutrix has stated that after the death of her husband, the appellantwas living in her house for about 10 months along with his wife Ramkumari. She has stated that when her daughter had informed her about the pregnancy, matter was reported to the police. However, in respect of the age of the prosecutrix she has not made any positive statement. Hiradas (PW-5), the kotwar of the village has stated that he had made an entry in the Kotwari register after the birth of the prosecutrix and as per the said entry her date of birth is 16.9.1976. If age of the prosecutrix is calculated on the basis of date of birth recorded by this witness, on the date of incident the prosecutrix was aged about14 years and six mpnths. From the statement of this witness it is also clear that Vfte original register was not produced nor it was exhibited before the Court and only the photocopy of the same was produced before the Court and exhibited as :Ex. P-4-A. Perusal of the photocopy of the register goes to show that there is some interpolation in the same because initially against the column meant for date of birth, name of the prose'cutrix was recorded but sybsequently it was scored and just below it name of Bhagwati who Kappens to be the younger sister of the prosecutrix has been written. '-—^:_^ -</- Thus it can be said that this document cannot be safely relied upon for holding the.accused/appellant guilty for an offence punishable under Section 376 IPC. Moreover, this wifness has also admitted in paragraph 8 of his cross examination that the entry made in the Kotywari register was in respect of Bhagwati who was born after the prosecutrix. Even according to the un-exhibited report of the radiologist the age of the prosecutrix at the relevant time was 16 to 17years. 9. Having undertaken a minute scrutiny of the entire evidence available on record, what fits to the judicial firmament is that after first subjection of the prosecutrix to sexual intercourse by the accused/appellant, may be under threat, there was ample opportunity for her to bring the mafter to the notice of her family members but instead of doing so, she went on obliging the appellant by surrendering herself to him and it is when her pregnancy became visible to all, she disclosed his name as the person responsible for the same. Secondly, the prosecution has not adduced any cogent and clinching evidence to show that on the dateof incident the prosecutrix was minor. Even the photocopy of the Kotwari register produced by the prosecution though legally inadmissible in evidence, does not show that it was the prosecutrix who was minor on the date of incident. What is more astonishing to note that though initially name of the prosecutrix was of course mentioned in it, later it was scored and just below it name of Bhagwati, theyounger sister of the prosecutrix was mentioned. Not only this, even the Kotwar namely Hiradas (PW-5) who had made the entry in the Kotwari register, has stated in his evidence that the date of birth recorded in the KOtv^ari register pertains to Bhagwafi who was born after the prosecutrix. The report o(J,he radiologist, though not exhibited before the Court, shows that the prosecutrfx was aged about 16-17 years on the date of incident. The other fatal blow to the case of the prosecution is that, the report of the incident itself is delayed by about five months. The cardinal principle remains undilutedthat in a eriminal case the. prosecution has to prove all the ingredients of the ^ offence beyond reasonable doubt but in this case it has utterly failed to do so. 10. Thus, the foregoing factual discussion tested on the legal touchstone leads this Caurt to observe that the evidence adduced by the prosecution does not inspire confidence to record conviction of the accused/appellant. The Court below has Gommitted a grave legal error in basing its findings pn the faulty evidence led by the prosecution convicting and sentencing the accused/appellant as mentioned above. 11. Consequently, the appeal is allowed. Impugned judgment dated 12.10.1991 is hereby set aside. The appellant is acquitted of the charge levelled against him. He be set free if not required in any other case. ', S(t/ Pritinker Giwaker Judge ^"'f