@ @ IN THE HIGH COURT OF JUDICATURE AT BILASPUR Singia 3emh Cr. Appeal No. 43 /2006. RESPONDENT Kanhaiya, S/O— Phool Singh Yadav, Aged about 19 years, R/O— Village Pandar, P.S. Patan Distt.— Durg (CG) VERSUS The State of Chhattisgarh through P.S. Patan, Durg. gg ,1 CRIMINAL APPEAL UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROSEDURE’1973. iimuw HI A NR I 044/ Kqnhqiya -Ve rsus— Sfa‘l'e of ChhaTTisgar'h Sdl- Dilip Raosaheb Deshmukh Judge 6H COURT OF CHHATTISGARH AT BIL SPU C . -Versus- Stafe of Chha‘rrisgarh ORAL JuneMENT (Delivered on 'Z/OZ/ZOOQ 1. This appeal is direcfed againsf fhe Judgment dafed 25.10.2005 delivered by 51m AK. eaakvmi, 4*“ AddL Sessions Judge in special Case No. 146/2004 Whereby me appeilan'r Kanhaiyn was convicfed U/s 376 I.P.C. and was sen‘reneed to undergo rigorous imprisonmanf for 7 years and a fine of Rs. 100/- and in defauh’ of payment 1'0 undergo rigorous imprisonmenf for 7 days. 2. If is not di$ufed Hint the prosecu‘trix P.W. 1 is the dmlgmer of Hemiui kw. 6 and sukhbna P.w. 1s. 3. Briefly shied The prosecui-ion sfory is that on 22.4.2004, fhe prosecutrix had gone 10 amnd wedding of her friend Adria in village Sonpuri. After fhe wedding ceremony, while she was returning home with Gom‘i'i P.W. 4, near The river, They me'i' fhe appellani and 3 other co- accused namely Yeman Kumbhkar, Ramed‘i 9 Rameshwar and Narendra Kumar. The appellam forcibly wok The Present:- Appellanl’ by 5hr: D K 6mlere Advocate Sfa'l’e by Shri Ashlsh Shukla Govf Advooa'le/Addifional Public Prosecutor proszoufrix *owards fhe river and oommifwd mpe on her while The above men‘rioned co-accused shod guard. Afier being raped, fhe proaarrrix re'rumzd 'ro fhe village wifh Gom'ri P.W. 4. &x¢ informed abouf the occurrence fo hcr mother Sukhbni P.W. 13 and brofher Chandra Shekhar P.W. 5 aged about 19 years. However, Firsf Information Report was lodged after considerable delay on 29.42004 mentioning that since father of the prosecutrix had gone out of the village, the delay had occurred in lodging the FIR. 4. The prowrutrix was sent for medical examination. Dr. Smt. S. Sawant P.W. 14 examined the prosmitrix and found that die was a fully developed lady with all 32 teeth erupted. During internal examination of the prosecutrix, Dr. Smt 5. Sawant P.W. 14 did not find any mark of injury on any part of the body. Two fingers could be en1ily admitted in the vagina. On the basis of the above findings, vide Ex.P‘15, no definite opinion about the commission of rape on the prosecutrix could be given by Dr. Smt. 5. sewant P.W. 14. The appellant Kanhaiya was also examined by Dr. $.K. Agarwak P.W. 15 and found that the appellant was capable of performing sexual intercourse. 5. Ossifioation test for determining the age of the prosecutrix was conducted by Dr. A.l(. Sahu P.W. 8 who opined vide Ex.P- 9 that the age of the prosecutrix was about 15 years. The School Admission Register EXP—11 was seized from teacher Janaklal P.W. 9 wherein the date of birth ofthe prosecutrix was entered to be 6.8.1988:/, e / / ~ ” 6 A‘H’er oomple-rion of invesfigafion, the appellam along wifh 3 other co-ccwsad manfioned above was prosecufed under Section 376 (2) (9) of I.P.C. The appellanf abjured the guilt The prowcu‘rion examined as many as 16 witnesses. The frinl Court in pom 14 of 1he Judgment observed 'rhaf +he defence of 1he accused/appellant that he had commimd sexual intercourse wifh the consenf of fhe prosecufrix was plausible in View of ihe evidence led by The prosecution. If relied on ossificafion fes'r reportvide EXP- 9 and ihe dafe of bir‘ih recorded in 1'he School Admission Regisfer vide EXP-11 (C) 'ro conclude fho'i’ ‘ihe age of fhe proseoufrix on 1he dafe of 1'he occurrence was less than 16 years. On These grounds, The Trio! Judge convicted and sentenced the appellant as aforesaid in para 1 while acquitting the other 3 co-acoused. 7. Shri DJQ Gwalere, learned counsel for the appellant made a two-fold submission. Firstly, he argued that the evidence led by the prosecution clearly diowed that under a pre-arranged plan, the prosecutrix had gone to meet the appellant near the river along with Gomti P.W. 4 and that sexual intercourse by the appellant, if any, was committed with the consent of the prosewtrix. Secondly, learned counsel for the appellant contended that oonsidering the legally permissible margin of error under law even on the b usis of the Ossification report vide EXP-9, it could not be ruled out that the age of the prosecutrix on the date of the occurrence was more than 16 years. He further contended that the evidence of Hemlai P.W. 6, the father of the “r, proseau‘h-ix relating fo The bimh of the prowcuh-ix in para 6 was as vague as 51’ could be. I? was also argued fha'l' the evidence of Jmaklal P.W. 9 in para 2 of 'lhe cross- examinafion clearly revealed no basis for enfering 1he dafe of ‘rhe bir'lh of the prosecu‘l'rix 'l'o be 6.8.1988 in lhe 5ohool Admission Register which could no‘l be said ‘l'o be primary evidence of proof of bir'lh. On these grounds, learned counsel confended 'rhaf the evidence led by the prosecution could not form the hnsis for convicting the accus d under Section 376 of the I.P.C. On the other hand, Shri Ashish Shukla, learned Government Advocate argued in support of the impugned judgment. 8. Having heard the rival contentions, I have perused the record. In appears that Gomti P.W. 4 had an important role to play in the incident. The prosecutrix has in para 13 of her testimony, clearly admitted that Gomti had arranged for her meeting with the appellant, purmt to which she had gone with Gomti P.W. 4 towards the river. Que also admitted in para 14 that this plan was prearranged. In para 13 of her cross-examination, the prosecutrix again admitted the fact that in the marriage house die md the appellant had already planned to meet, therefore, she did not disclose this fact to Gomti Bai. She also admitted in para 4 that at the time when the accused committed sexual intercourse with her, Gamti P.W. 4 was standing with the co‘accused on the road. Gomti P.W.4 testified that while doe stood with other co-accused the prosecutrix left with the accused towards the river and on returning after 15 minutes the KW, y prosecufr-ix did no? fell her my'rhing. In para 8 she admiffed fha'r the prownm'ix had insisted upon her to arrange a meeting with the accused and on meeting Kanhaiya on way she quie‘Hy left wifh the appellant Hemlal, P.W. 6, fhe fa‘ther of +he prosecufrix in para 11 as well as Sukhbui P.W. 13, the mo'rher of the prosecutrix in pom 4 of the cross-examination have not denied that the prosecutrix was in love with the appellant. The testimony of Dr. Smt. 5. Sawont P.W. 14 also shows that there were no external injuries either on the person or on the private parts of the prosecutrix. Thus, the evidenoe led by the prosecution does not rule out the possibility that the appellant hd committed sexual intercourse with the prosecutrix on 22.4.2004 with her consent. << Wk? 1 9. The delay in lodging the F.I.R. has also not been explained satisfactorily. The prosecutrix has in para 5 of her testimony stated that she had narrated the incident to her mother on the night of occurrence and since her father did not return home for about a week, the report could not be lodged earlier. However, Hemlal Sahu P.W.6 has in para 1 of his testimony stated that he had returned home 2-3 days after the date of occurrence. The incident was dated 22.4.2004 and the FIR. was lodged on 29.4.2004 whereas the police station Paton was situated only 4 kilometers away from village SonpUr. Thus there is no satisfactory explanation for the delay in lodging the FIR. in this case. The proserntrix in para 15 has also admitted that the first inform?ion repori' was dicfa'red by her fa‘rher and she had only signed We report. € 10. The only poin'I' which requires considemion now is 1he age of ‘rhe prosecufrix on ‘the dn'fe of occurrence. Dr. Sm? S. Sowurrr P.W. 14 has sm'red 'rha'r on examination of \1 fhe prosecufrix, she found that all 32 feefh had erup1ed and the prosecu‘rrix was a fully developed lady. Learned counsel for the appellwrf has plaoed reliance on page 49 of the Medical Jurisprudence and Toxicology by Modi 22'“ edition to argue that the third molars or wisdom teeth erupt in the 17th to 25'“ years of age. This shows that the prowutrix was at least 17 years of age on the date of occurrence. The observation of Modi is of definite significance in this case. The Ossification test conducted by Dr. AK. Sahu P. W. 8 also shows that the estimated age of the prosecutrix was opined to be about 15 years. It is settled law that a legally permissible iaargin of error of 2 years on either side has to be given in the estimation of age given in the report of Ossification test. 11. Coming to the evidence of teacher Janaklal P.W. 9 to prove the entry in the School Admission Register vide Ex.P- 11 (C) showing date of birth of the prosecutrix as 6.8.1988, his testimony in cross-examination para 2 assumes importance. Janaklal P.W. 9 has stated that he was unable to state the basis on which the date of birth of the prosecutrix was entered in the School Admission Register as 6.8.1988. Reverting to the leeiimony of Hemlal P.W. 6 in para 6, he has admitted that Chandra Shekhar P.W. 5 his WV éigg eldes‘l' son was born on 15.8.85 meaning fhereby 'Hm‘t Chandra Shekhar P.W. 5 was about 18 ym and 8 months on 'rhe da'te of occurrence. His evidanae as +0 in: year of birth of fhe prosecu‘trix is contradictory since at one plnce he said that he did not remember the age of the birth of the prosecutrix and there could be a difference of a year or two in the date of birth narrated by him. Sukhbai P.W. 13 deposed that the prosecutrix was 4 yews younger to Chandra snekhar whereas Hernia! P.W. 6 sluied the difference to be ®out 3 years. The lesiimony of Hemhl P.W. 6 and Sukhbai P.W. 13 is vague. The prosecutrix has in para 8 of her evidence dmrpiy contradicted the above testimony by stating that her brother anandmsekhar was aged about 19 - 20 years and die was one and half years younger to him. The Register of birth maintained by the Kotwar in the viliage has not been proved by the prosecution in this case. ' 12. In view of the finding recorded by Dr. Smt. 5. $awant P.W. 14, the iegaily permissible margin of error in the report of Ossifioation vide Ex. P-9N, the contradictory evidence of Hamlal P.W. 6 $Jkhbai P.W. 13 and the prosecutrix and the observation by Modi in Medical Jurisprudence and Toxicology it cannot be mled out that on the date of occurrence, the prosecutrix was aged about 17 years or more. 13. Having considered the, evidence led by the prosecution in its entirety, I am of the considered opinion be ruled ouf 1ha+ on ‘H'Ie dn‘te of occurrence, the prosacutrix was aged abouf 17 years or more. 13. Having considered he evidenco led by the prosecution in its emire‘ry, I em of The considered opinion fhaf evidence led by 'rhe prosecufion does no? rule ou‘r fhe possibilify' fhnl' sexual infer-course, if any, commi‘ned by 'l'he appellon'r was with the oonsen? of line prosecu-rrix Thar The age of lhe prosecu'trix on fhe dm of occurrence was 17 years or more. In such a situation, convici’ion of lhe oppellon‘l’ under Section 376 and the sentence awarded thereunder deserves to be set aside . '//\. 14. In the result, the appeal is allowed. Conviction of the appellant under Section 376 I.P.C. and the sentence awarded thereunder are set aside. The appellant is acquitted. The appeilant dial! be set at liberty, if not required in my other cose Fine &§ee/\ dial! be refunded to the appeilont Sdl shm“kh / ~#\ \ Di“? Ra 3ud9e e/ \ heb \ )