APPELLANT In Jail BILASPUR ‘C.G.[ Criminamppeamo. 3% [2009 s3 Durgéf‘Prasad @ Babla S/o Shreer Gorelal Jaiswal, aged 22 '7 years, R/o Village; Baramp5i11r, Police station Khadgawarf‘ District; Koriya (Ga) US State of Chhattisgarh Through; District Magistrate RESPONDENT : District; Koriya' ( C.G.) / CRIMINAL APPEAL Elgo 3‘74 €21 QF THE CODE OF CREMENAL ?RQ€$EDURE IN THE HON’ELE HIGH COURT GF CHHATTISGARH AT VERS HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 381 of 2009 Durga Prasad alias Babla APPELLANT VERSUS RESPONDENT State of Chhattisgarh. Smt. Hamida Siddiqui counse! for the appellant. Shri Vaibhav Goverdhan PL for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. J U D G M E N T (27.01.2011) This appeal is directed against the judgment dated 6.5.2009 passed by the Special Judge Korea (Baikunthpur) in Special Case No. 06/2008 convicting the appellant under Sections 363, 366 and 376 (1) of the lndian Penal Code‘and sentencing him to undergo rigorous imprisonment for five years with fine of Rs. 3000 u/s 363, rigorous imprisonment for seven years with fine of Rs. 5000 u/s 366 and rigorous imprisonment for ten years with fine of Rs. 7000 u/s 376 IPC, plus default stipulations. 2. Case of the prosecution in brief is that on 6.1 1.2007 a missing report Ex. P-23-C was lodged by Ram Prasad (PW—12) — the father of the prosecutrix alleging that his daughter was missing from 4.11.2007. lt is alleged that on 7.11.2007 the prosecutrix returned home and on 19.11.2007 a complaint Ex. P-16 was filed by the prosecutrix through her father before the competent Court under Section 156 (3) of the Code of Criminal Procedure. After direction of the Court investigation was done and ultimately on 14.12.2007 FIR Ex. P-17 was registered by the police against the accused/appellant under Sections 363, 366 and 376 (1) IPC and Section 3 (ii)(v) of the Scheduled xCaste and SCheduIed Tribe (Prevention of Atrocities) Act. According to the case of the prosecution, on 14.12.2007 itself the prosecutrix was medically 42, u. 1_ examined vide Ex. P-8 by Dr. Swati Bansharia (PW-5). In case diary statement it is alleged by the prosecutrix that for last 5 years therefrom she was performing dance in the group of one Ambika Singh with the consent of her parents and was getting Rs. 500 per performance. It is alleged that the appellant herein had also formed a dance party and asked her to accompany him. As asked by the accused/appellant and after receiving the advance money of Rs. 100 from him she went to Sidhi.(M.P.) in his company by obtaining consent from her mother where she stayed in the house of one Raja. However, in the evening the accused/appellant took her to an isolated place on a motorcycle, offered her some drink and then committed forcible sexual intercourse with her. After investigation, challan was filed on 26.4.2008. 3. So as to hold the accused/appellant guilty, prosecution has examined as many as 16 witnesses in support of its case. Statement of ‘ the accused/appellant was also recorded 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. 4. After hearing the parties the trial Court has acqutted the accused/appellant of the charge under section 3 (ii) (v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act but convicted and sentenced him as mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the appellant submits that present appears to be case of false implication because of rivallary between two dance parties, on being run by the accused/appellant and the other by one (i Ambika Singh. While arguing the case she referred to the statement of ‘ Ku. Sabnam (PW-16) head mistress ofthe school. She submits that a ‘ very improbable story has been put forth by the prosecution about the commission of rape because the medical evidence of the prosecutrix i a I‘ _g~ does not support the case of the prosecution. Counsel for the appellant referred to the statement of Dr. Swati Bansharia (PW-5) according to which no external or internal injury was noticed by her on the body of the prosecutrix and that her hymen was intact. She submits that FSL report of the prosecutrix also does not support the case of the prosecution. As. regards age of the prosecutrix at the relevant time, counsel for the appellant submits that Smt. Gita (PW—1 1) and Ram Prasad (PW-12) - the parents of the prosecutrix, have categorically deposed that she was aged about 19 years. She submits that as per the x-ray report of the prosecutrix, her age at the relevant time was assessed between 15 and 17 years and if a margin of two years is taken it can safely be said that she was aged about 19 years at the time of incident. Statement of Sabnam (PW-16) who had exhibited the certificate issued by her (Ex. P—18) is also unreliable because in the said certificate date of birth of the prosecutrix is shown as 5.7.1994 and the said certificate is based on the entry register Ex. P-24-C in which some over-writing ‘is apparent and the date of birth is ‘ visible as 9.9.1990. Lastly, counsel for the appellant submits that there is an inordinate delay in making the complaint and the FIR which has not been satisfactorily explained by the prosecution. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that a minor girl aged about 13- 14 years was forcibly taken by the accused/appellant to Sidhi where taking advantage of her helplessness, committed rape on her. He submits that age of the prosecutrix has been duly proved by their/f " i prosecution on the basis of Ex. P-18 and P-24-C. He submits that " minor discrepancies in Ex. P-24-C have to be ignored in view of the statement of Sabnam (PW-16). In addition to this, counsel for the respondent/State submits that as per the X-ray report the age of the prosecutrix comes to between 15 and 17 years and thus the judgment impugned convicting and sentencing the accused/appellant under Sections 363, 366 and 376 (1) IPC is strictly in accordance with law. @ . 8. Prosecutrix (PW-1) has stated in her evidence that when she was in her house along with her mother, accused/appellant came there and by giving Rs. 100 as advance money requested her to go along with him to Sidhi for giving a dance programme on which she asked him that she could go along with him if she would be taken proper care of by him. Thereafter, on the next day the accused/appellant again came to her and asked her to accompany him for the said purpose but she refused to do so without informing her -q_ parents who at that time were not at home. However, on persistently being asked by the accused, she accompanied him without bringing the same to the notice of her mother who at that time had gone in the neighbourhood. According to this witness, before leaving for Sidhi, she had asked one Santosh to inform her family members about her departure with the accused/appellant. After-reaching Sidhi on the next day and staying there for a while, she went to Sarai Market along with the accused/appellant- to buy the items meant for make-up where he made her drink some lemon-like juice as a result of which she slipped into the state of intoxication. He then took her to the fruit shop of his brother, put off her clothes and in spite of protest being made by her, he threw her on the ground and committed forcible sexual intercourse with her. Then, according to this witness, she was brought back to the place where the dance programme was to be done but she could not participate in the same. According to her, after staying at Sidhi for . three days, she returned home on 8.11.2007. According to her 2-3 days thereafter she disclosed the incident to her mother after she felt i pain in her stomach. Thereafter, she was sent for medical examination ‘ vide Ex. P-1 and the underwear worn by her on the date of incident was seized by the police under Ex. P-4. This witness has admitted in her cross examination that before she returned home, missing report was already lodged by her family, members and that at the time of making statement before the police she had not disclosed the factum of rape on her. She has stated that she was not aware as to the contents of the complaint or even the author thereof. According to this witness, her father had told her that the money would be paid to her @ £1 g i §_ from the Government only if she made the statement according to what is written in the complaint. In paragraph 23 of her deposition she has stated that before she left for Sidhi along with the accused/appellant, one Ambika Singh had objected to the same and that there existed some dispute between the accused/appellant and said Ambika Singh. Ambikeshwar Singh (PW-2) is the witness to seizure of underwear of the prosecutrix made under Ex. P—14. Dal Pratap (PW- 3) is the witness to spot map Ex. P-3 and seizure of caste certificate of the prosecutrix made under Ex. P-6. Ashish Kumar Saxena (PW-4) is the Naib Tehsildar who had issued caste certidcate Ex. P—7 showing the caste of the prosecutrix as Chamar. Dr. Swati Bansharia (PW-5) is the witness who had medically examined the prosecutrix and given her report EX. P—8 stating the no internal or external injury was noticed by her on the body of the prosecutrix, her hymen was intact and two fingers could not enter her vagina. According to this witness no definite opinion regarding rape on the prosecutrix could be given. In cross examination this witness has admitted that she did not tind any sign of intercourse with the prosecutrix. Salomi Toppo (PW—6) is the Patwari who had prepared the spot map. Dr. R.P. Singh (PW-7) is the witness who had medically examined the accused/appellant. According to this witness, the accused/appellant was capable of performing sexual intercourse. Banshilal (PW—8) is the witness to seizure of underwear of the accused/appellant made under Ex. P-11 and that of the arrest memo Ex. P-13 but he has not supported the case of the prosecution and has been declared hostile. Prem Sahu (PW—9) is the inspector who had done part of the investigation. Police constable namely Sandip Bagis (PW-10) had done part of the investigation. Smt. Gita (PW-1 1 ) — the mother of the prosecutrix has not supported the case of the prosecution and has been declared hostile. In respect of age of the prosecutrix, this witness has stated that she was aged about 19-20 years at the relevant time. Ram Prasad (PW-12) — father of the prosecutrix too has not supportedthe case of the prosecution and has been declared hostile. As regards age of the prosecutrix, this witness : @ has stated that at the relevant time she was aged about 19—20 years. Sub Inspector namely Gopal Dhurve (PW-13) is the investigating officer who has supported the case of the prosecution. Town Inspector V.P. Sharma (PW-14) had done part of the investigation. Motiram Shandilya (PW—15) is the witness who had made entry in the Rojnamcha Sanha. Sabnam (PW—16) has stated in her evidence that at the time of incident she was the In—charge Head Mistress of the school and had issued the certificate Ex. P-18 showing the date of birth of the prosecutrix as 5.7.1994. This witness has stated that she had brought the originai entry register before the Court and at S.No. 441 thereof name of the prosecutrix has been mentioned and her date of birth has been shown as 9.9.1990. According to her, when she had issued the certificate Ex. P-18 after verification from the entry register, neither any whitener was applied nor any over—writing was there in EX. P-24-C. However, she admits that at S. No. 226 of the said register name of girl has been shown as Banmati and her date of birth is recorded as 9.9.1990. In paragraph 6 of her evidence she has admitted that certificate EX. P—18 was issued by her on the request of one Ambika Singh and police people never approached her to collect the same. 9. Having thus made a detailed analytical survey of the evidence of the Witnesses particularly that of the prosecutrix, this Court has n hesitation to say that while deposing against the accused/appellant she did not adhere to the standard of consistency. Her deposition contains several contradictions and omissions on material particulars. Even the medical report does not confirm the factum of rape on her as according to the doctor giving such report there was no internal or external injury on the body of the prosecutrix and even her hymen was found to be intact. Moreover, the prosecutrix herself has stated that after taking the lemon-like juice offered by the accused/appellant she slipped into the state of inebriation and therefore also the statement made by her of having been subjected to rape cannot’be accepted because having lost mental equilibrium she cannot be supposed to have stated as to What in fact had happened to her. This being the #Q_ o @ _')_ factual position, accused/appellant cannot be convicted under Seciion 376 IPC. As regards her age, her mother (Smt.) Geeta and father Ram Prasad (PW-11 and PW-12 respectively) have stated that at the relevant time the prosecutrix was aged about 19 years. According to the X—ray report EX. P—14 age of the prosecutrix has been assessed to be between 15 and 17 years Whereas according to the certificate Ex. P-18 though her date of birth has been shown as 5.7. 1994, in EX. P- 24-C which was the basis for preparation of certificate EX. P-18 at one place it is shown as 9.9. 1990. This Ex.‘P-24-C shows that while writing the age of the prosecutrix as 9.9. 1990 some whitener has been used. In these circumstances it can safely be said that the prosecutrix has not been able to adduce any concrete evidence with regard to the age of the prosecutrix and in this view of the matter the provisions of section 363 and 366 IPC are also not attracted to the case in hand. In addition to this, there is inordinate delay in lodging the FIR which has not been satisfactorily explained by the prosecution. In this case the incident had taken place on 5.11.2007, prosecutrix returned home on 8.11.2007 but for the first time the complaint was made by her in the Court on 19. 1 1.2007. As per the contents of the complaint, for the first time effort was made by her to lodge the report on 13.1 1.2007. Even if this date is taken into consideration, there is no satisfactOIy explanation as to why the report was not lodged till that date i.e. 13.11.2007. Even otherwise, the evidence of the prosecutrix reflects that there was some dispute between the accused/appellant and one Ambika Singh. Sabnam (PW-16) has stated in her evidence that certificate Ex. P-18 was issued by her at the behest of said Ambika Singh and if all these things are taken into consideration, story put forth by the prosecution becomes doubtful and benefit of the same has to go to the accused/appellant. 10. In the light of what has been discussed above, this Court is of the considered opinion that the trial Court has not taken care of the deposition of the witnesses in its proper perspective and that being so @ _g,~ the judgment impugned is liable to go. Accordingly, the appeal is a!l0wed. Judgment impugned is set aside. Accused/appeiiant is acquitted of the charges Ievelled against him. He is in jail. He be set free at once if not required in any other case. aker ‘ l Sdl- \ Pritinker Diw l V, Judge l