\ •%] ^A HIGH COURT OF CHHATTISGARH. BILASPUR (Sinale Bench: Hon'ble Shri Sunil Kumar Sinha, J) APPELLANT RESPONDENT APPELLANT RESPONDENT Criminal Appeal No. 632 pf 1993 Suresh alias Ravi, son of Itwari Lodhi, aged 17 years, Resident of Kohaka Road, Bhilai Versus The State of Madhya Pradesh (Now State of Chhattisgarh) And Criminal Appeal No. 835 of 1993 Vishnu, son of Itwari Gadariya, aged 18 years, resident of Baba Faridnagar, Kohaka, Bhilai, District Durg Versus The State of Madhya Pradesh (Now State of Chhattisgarh) (Appeals under Section 374 (2) of The Code of Criminal Procedure. 1973) Appearance: Mr. Neeraj Mehta, Advocate for the appellant in Cr.A. No. 632/93. Ms. Nirupama Bajpayee, Advocate for the appellant in Cr.A. No. 835/93. Mr. R. Tripathi, Panel Lawyer for the State in both the appeals. JUDGMENT (27.09.2010) Syni! Kumar Sinha, J. (1) These appeals are directed against the judgment dated 30.6.93 passed in Sessions Trial No. 47/90 by the Second Additional Sessions Judge, Durg. "/3 BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.07 12:55:29 +0530 ^-" s:.""-'~ ^•" ^•-^, .^:m"- Cr.A.^o. 632 of 1993 & 835 of 1993 (2) By the impugned judgment, the appellants have been convicted u/ss 363 & 366 IPC and sentenced to undergo R.l. for 3 years & R.l. for 5 years. Appellant- Suresh @ Ravi has been further convicted u/s 376 IPC and sentenced to undergo R.l. for 7 years. It has been directed that all the sentences shall run concurrently. (3) The facts, briefly stated, are as under:- The prosecutrix (PW-1) was missing since 13.3.87. A missing report was lodged by her father Sukhlat (PW-2). On investigation, it was found that she was abducted by the appellants, who took her to village Ramkundum in Andhra Pradesh, where she was residing with appellant- Suresh in the house of his sister. After recovery of the prosecutrix, she disclosed that she was subjected to sexual intercourse by appellant- Suresh. On 21.3.87, the prosecutrix was sent for her medical examination and was examined by Dr. Sobha Rajput (PW-3), who prepared her report Ex.-P/3. She found that the prosecutrix was habitual to sexual intercourse. No marks of injuries were present over the body. Hymen was absent. No injuries were there on vagina. No definite opinion was given about the recent intercourse. For confirmation of age, she advised for ossification test. Ossification test was conducted by Dr. G.N. Tiwari (PW-4). The report is Ex.-PM. X-ray plate is Ex.-P/4-A. In the ossification test, the prosecutrix was found in between 14 to 16 years of age. During the investigation, a certificate (Ex.-P/S) was collected from the Head Master of Indira Gandhi Middle School, Ramnagar on 31.3.87. According to the said certificate, the date of birth of the prosecutrix was 7.7.1973. Cr.A. No. 632 of 1993 & 835 of 1993 The school register was also seized for entry of date of birth of the prosecutrix. According to the copy of school register Ex.- P/9, her date of birth mentioned therein was 7.7.1973. (4) The learned Sessions Judge held that the prosecutrix was a minor, she was abducted by the appellants and she was subjected to forcible sexual intercourse by appellant-Suresh. (5) Learned counsel appearing on behalf of the respective appellants argued that there was no material to hold that the prosecutrix was a minor, therefore, the Sessions Judge erred in law in recording the finding that the prosecutrix was minor on the date of incident. They also argued that the prosecutrix was in tove with appellant-Suresh; many love letters of the prosecutrix have been proved to be written to appellant-Suresh; the matter appears to be oneof consent; therefore, the conviction is bad-in-law. (6) Mr. R. Tripathi, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (7) I have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (8) Firstly, I shall examine the finding relating to the age of the prosecutrix. .y""...^-4'. -' ^r ^:^s^ ^^M^ ^. JJ ^•^^f^ ha» 6? Cr.A.No. 632 of 1993 & 835 of1993 (9) Sukhlal (PW-2) is the father of the prosecutrix. He was in some service in H.S.C.L. He deposed that on 13.7.87. when he returned from the duty, he found that the prosecutrix was missing. A search was made, thereafter a report was lodged in the police station. During the course of investigation, he stated to the police that brother of Suresh has told him that perhaps the prosecutrix has been taken to village Ramkundum. Thereafter he went to Ramkundum along with the police party and elder brother of Suresh and found that the prosecutrix was residing there in the house of brother-in-law (Jija) of appellant- Suresh. The appellants were also present there. The police brought back his daughter and she was handed over to him. He deposed that the birth of the prosecutrix was of the year 1973 and she was studying in Class-7th. In the cross-examination, he admitted that the prosecutrix born in village Dhanhara, District Sitamani. She was married after the incident. The prosecutrix had studied in Bokaro Steel City which is in the State of Bihar. He admitted that her date of birth was told in that institution, for her admission, on the basis of medical card of the prosecutrix. (10) Shivdhari Singh (PW-8) was the Head Master of Indra Gandhi Middle School, Ramnagar, Vaishalinagar, Durg. He issued the certificate dated 31.3.87 in which he mentioned the date ofthe birth of prosecutrix as 7.7.1973 (Ex.-P/S). He deposed that according to the admission register of his institution, the prosecutrix was admitted in his institution of 3.7.87 in Class-6th and her date of birth in the (@ ^ ^^^^".f.'y. ' ^ '*:^:L-. ''v "^"''-'-irf.u..^.*"- '' Cr.A. No. 632 of 1993 & 835 of 1993 admission registered has been mentioned as 7.7.73. The original register was also produced in the court as Ex.-P/9-A. The copy has been retained on record as Ex.-P/9. In the cross-examination, he, admitted that the aforesaid school is not a government school. The entry in serial No. 738 was not made by him. Ordinarity the entry in the admission registered in such manner is made on the basis of entry made in 5 pass certificate. He could not produce any such document on which the aforesaid entry was made. He categorically admitted that after making entry of date of birth in the admission register, he use to put his signature at the relevant place. 1 have seen the copy of the register in which there is no column for the signature of the person making such entry in the register. The last column is blank. There is no signature of the person who made the entries of Serial No. 738 of the admission register. He very specifically admitted that he cannot tell as to whether at present the prosecutrix is studying or not. He also admitted that when a student takes the transfer certificate from the school then his name is deleted from the admission register of the schoot. (11) We find that the evidence of father retating to date of birth of the prosecutrix is vague. He was in service. He only stated the year of the birth of the prosecutrix but he has not stated the date of her birth. He admitted in cross-examination that her daughter has studied in Bokaro (Bihar) but no document from the institution of Bokaro has been filed by the prosecution. On the contrary the ^•^ Cr.A. No. 632 of 1993 & 835 of 1993 documents relating to local private school have been filed. In the above facts and circumstances, no reliance can be placed on the entry made inthe admission register. There is no evidence that on what basis the said entry was made in the admission register Ex.- P/9-A. Even there is no signature of the person making such entry in the admission register. It has also not been stated by PW-8 - Shivdhari Singh that the said entry was made on what basis. The prosecutrix may be reading in Bokaro and later on she may have been admitted in the said institution, but no documents have been filed to show that what was the date of birth mentioned in the records of earlier institution, where she was studying, and the transfer certificate of the earlier institution or other records of that institution containing such date of birth of the prosecutrix were the basis for making entry in the school register (Ex.-P/9-A). Therefore, the Sessions Judge erred in placing the reliance on the certificate issued by Head Master as also on the unsigned entry of the school register proved as Ex.-P/9 which wasalso the basis of the certificate Ex.-P/S. ^th (12) In Modi's Medical Jurisprudence (20ln Edition), it is stated that too much reliance should not be placed on the table showing the age and year of appearance and fusion of some of the epiphysis as observed by different authorities as it merely indicates the average and is likely to vary in individual cases even of the same province owing to the eccentricities of development. It is further stated that 6S Cr.A. No. 632 of 1993 & 835 of 1993 recent work has shown that the range of error may be upto three years on either side. (13) Except the above, there is no other evidence of age of the prosecutrix. On due consideration of the entire evidence led by the prosecution to prove the age of the prosecutrix, we find that the prosecution utterly failed to establish that the prosecutrix was below 16 or 18 years of age on the date of the incident. Therefore, the learned Sessions Judge erred in law in holding that the prosecutrix was minor on the date of the incident. (14) Now we shall consider the conduct of the prosecutrix (PW-1). (15) The prosecutrix deposed that appellant- Suresh @ Ravi was residing near their house. He used to send love letters to the prosecutrix through his nephew. On 13.3.87, the appellants came to her school in the recess. Thereafter a girl namety Nirmaljeet came to her and took her to a place near bank. The appellants met there. Appellant- Suresh offered her for going out of Bhilai. When she denied, the appellants threatened her, therefore, she accompanied the appellants. They went to power house railway station on a tempo. They missed the train at power house station. Thereafter they went to Durg railway station by another tempo. They boarded a train and got down at Nagpur station at night. They stayed in Nagpur and thereafter they boarded a train for Hyderabad. From Hyderabad they went to the house of sister of Suresh which was in village Ramkundum. They resided in the house of sister of Suresh for 4 Cr.A. No. 632 of 1993 & 835 of 1993 days. During this period Suresh committed sexual intercourse for 3- 4 times. Appellant- Vishnu did nothing against her. Thereafter police party came there and she was brought back to Bhilai. In the cross- examination, she admitted that she had written the tetters Ex.-D/2, D/3, D/4, D/5, D/6, D/7, D/8 and D/9 to appellant Suresh but they were written before her marriage; She further admitted that Suresh used to send letters to her through a girl namely Anita and she also used to send reply through Anita. The prosecutrix did not raise alarm to any one in the way from Bhilai to Hyderabad and Ramkundum. Even she did not make any complaint to anybody during the period she resided with the appellants. The above conduct of the prosecutrix and the contents of the letters which she admitted in her cross-examination would show that she was a consenting party with appellant- Suresh and in the facts and drcumstances, an offence u/ss 363, 366 & 376 IPC would not be made out. (16) For the forgoing reasons, the appeals are allowed. The conviction and sentences awarded to the appellants u/ss 363,366 & 376 IPC are set-aside. The appellants are acquitted of the charges framed against them. The appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. Sd/- Sunil Kumar Sinha Judge vatti