HIGH COURT OF CHHATTISGARH AT BILASPUR SB: HON'BLE SHRI R.N. CHANDRAKARJ, J Criminal Appeal No. 285 of 2000 Appellant Ramchand l!Bit!>!S Respondents Vs. The State of Chhattisgarh through Police Station Jagdalpur, Dist. Jagdalpur CG. POSTFORPRONOUNCEMENTOF JUDGMENT Sd/- R.N. Chandrakar Judge Sd/- ^ J """-^ ,'*ff£ii~1' ^ -.J'^^ Appellant: HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No.285 of 2000 Ramchand, son of Pooran, aged about 23 years, resident of village Naganagar Chouki, Bastar District Jagdalpur. Versus Respondent: State of M.P. now Chhattisgarh through Police Station Jagdalpur, District Jagdalpur, CG. -^t^iS^it^J (Criminal appeal U/s 374 (2) ofth^ Code ofCriminal Procedure 1973) SB: Hon'ble Shri R.N. Chandrakar, J. Present: Mr. Satyendra Sahu, counsel for the appellant. Mr. Sameer Behar, Panel Lawyer for the State. JUDGMENT (Delivered on this^o-t^ day ofAugust, 2009) 1. This appeal is directed against the judgment of conviction and order of sentence dated 27-11-1999 passed by Special Judge, Jagdalpur in Special Case No. 13 of 1999, whereby the accused/appellant has been convicted under Section 376 of the IPC and sentenced to undergo R.l. for seven years and to pay fine of Rs. 3000/-, in default of payment of fine to further undergo Rl for six months. 2. The case ofthe prosecution, in brief, is that on 27-3-1999 at about 11.00 a.m. while the prosecutrix Ku. Sanmati Bai was returning to her house along with her friend Kanwal Dei, on the way, the accused/appellant stopped the prosecutrix, caught hold of her hands and after dragging her near Mango tree, forcibly committed rape on her. When the accused/appellant started dragging the prosecutrix, her friend Kanwal Dei ran away from the spot. Thereafter, when the prosecutrix raised lii,, alarm, the accused/appellant threatened her to kill. The friend of the prosecutrix narrated the incident to Jagat and Lakhmu, who are maternal uncles of the prosecutrix. Thereafter, Jagat and Lakhmu went to the forest to search out the prosecutrix where they found the accused/appellant and prosecutrix both near the Mango tree. They brought the prosecutrix to her house where she narrated the incident to her parents and on the next day the prosecutrix went to Outpost Bastar and lodged the report against the accused/appellant, on the basis of which S.N. Sharma, Assistant Sub Inspector (PW/9) registered the FIR (Ex/P/1) and the matter was investigated. Thereafter, the prosecutrix was sent to hospital for medicat examination. The Potice seized the petticoat and underwear of the prosecutrix and sent the samS to FSL, Raipur, for chemical examination. 3. After compteting the investigation, charge sheet was filed against the accused/appellant in the Specia! Court and the Special Court framed the charges against the accused/appellant under Sections 3 (i) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1985 and under Sections 506-B and 376 of the IPC. The accused/appetlant abjured the guitt. After due trial, the learned Speciat Judge convicted and sentenced the accused/appellant as mentioned in para 1 of the judgment. 4. After recording the evidence of witnesses, the statement of the accused/appellant was recorded under Section 313 of the Cr.P.C., in which he denied the circumstances appearing against him and pleaded his innocence and false implication. 5. Learned counsel appearing for the appellant submits that accused/appellant has been fatsely implicated by the prosecutrix and her friend Kanwal Dej. The testimonies of Sanmati Bai (PW-1), Radma .--'^ l'^:fi|l?i^ (PW/4), mother of the prosecutrix, Lakhmu (PW/3), Dashru (PW/5) are full of contradictions and omissions, therefore, their evidence cannot be relied upon for convictiori on the basis of such false evidence. The Special Court failed to consider the birth register (Ex.P/6 & Ex,P/6-A) produced by Kotwar. Though the mother of the prosecutrix namely Radma (PW/4) was examined but she has not supported the date of birth of the prosecutrix.- Learned counsel further submits that the Special Judge failed to consider that the prosecution has not established the case under Section 376 of the IPC' against the accused/appellant and also failed to consider that the prosecutrix was not less than 18 years of age. Learned counsel lastly submits that considering all the facts and circumstances of the case, the judgment of conviction antt order of sentence passed by the Special Court be set aside and the accused/appellant be acquitted ofthe charges. 6. Per contra, learned counsel appearing for the respondent/State argued the matter in support ofthe impugnedjudgment ofthe lower Court. 7. Having heard learned counsel for the parties, 1 have perused the records of the Special Court and also the impugned judgment. s. In order to prove the guilt against the accused/appellant, the prosecution examined nine witnesses. 9. PW/1 Sanmati Bai, the prosecutrix stated in her deposition that three months back in the morning at about 11.00 a.m., she along with her friend Kanwal Dei went to forest to bring wood. While they were returning to home, on the way, they met the accused/appellant, who forcibly dragged the prosecutrix near the Mango tree and committed rape on her. At that time, Kanwal Dei fled away from the scene of occurrence. The accused/appellant after committing sexual intercourse with her, "*"^, l!'nB threatened her to kill by showing the knife and told her to climb on the tree. Due to fear, the prosecutrix climbed on the tree and then the accused told her that he would kill her if she descends the tree. After some time, Jagat and Lakhmu came there and onseeing them, she shouted and descended the tree. She also stated that after seeing Jagat and Lakhmu, the accused/appellant jumped from the tree and fled away from the spot. Thereafter, a meeting was convened in the village where both the accused/appellant and prosecutrix were present. The prosecutrix narrated the whole story pf the incident in the Panchayat meeting in which the accused/appellant stated that the prosecutrix was going to become mother of his child, however, no compromise took place between the parties. Therefore, the prosecutrix went to Police Station and lodged the report on the basis of which FIR (Ex.P/1) was registered in which she admitted her signatures from "A to A" part.She also stated that the police seized her petticoat and she was sent to hospita] for medical examination where x-ray was done. 10. PW/2 Kanwal Dei stated in her deposition that she knew the prosecutrix and the accused/appellant. She also stated that 2 -3 months back she went to forest along with the prosecutrix to bring wood. While they were returning to home, on the way, they met the accused/appellant, who caught hold of prosecutrix and dragged her near Mango tree. Thereafter, due to fear she ran away from the spot and narrated the incident to Jagat and Lakhmu. 11. PW/3 Lakmu stated in his deposition that on the date of incident Kanwal Dei came to him and told that the prosecutrix and Kanwal Dei went to forest to bring wood where they met the accused/appellant on the way. The accused/appellant dragged the prosecutrix near the mango tree and due to fear Kanwal Dei ran away from the spot. Thereafter, he along with Jagat went to forest to search Sanmati Bai and found the •«$;.'':'*-..^^ ,..-'.% • -^ ;s"'ia 't ,y "'^ ^u-' Ee:lStS s^'^ ^•'.'f^'r ^S^s- :n^ accused/appellant and prosecutrix both near the Mango tree. He also stated that on seeing them, the accused/appellant jumped from the tree and started running. Theychased and caught him. He also stated that while they were bringing the accused/appellant, on the way, they met Ramsingh who asked them to leave the accused/appellant and assured that he would bring him. This witness also stated that the prosecutrix only told him that the accused/appellant dragged her, except this, nothing was told by her to him. This witness was declared hostile. 12. PW-4 Radma, stated in her deposition that the prosecutrix is her daughter and she also stated to know the accused/appellant. She stated that the age of the prosecutrix is 15 years, but she does not know the exact date of birth of the prosecutrix. She stated that Lakmu 'and Jagat are her bothers who told her that Kanwal Dei came to them and told that the accused/appellant dragged the prosecutrix. On receiving the information, her brothers Jagat and Lakmu went to forest to search out her daughter. At that time, the prosecutrix was on the tree and they got her descended from the tree and thereafter they brought the prosecutrix to her home. Accused/appellant had also climbed on the Mango tree along with the prosecutrix and on seeing Jagat and Lakmu both, the accused/appellant started running from the spot. After coming to home, the prosecutrix told her mother about the incident that the accused/appellant caught hold of her and when she raised alarm, the accused/appellant gagged her mouth with clothes. This witness was also declared hostile. 13. PW/5 Dashru stated in his deposition that Sanmati Bai the prosecutrix is his daughter. He does not know the exact date of birth of the prosecutrix. He deposed that the prosecutrix told his wife that the accused/appellant caught hold of her hands and forcibly took her. The prosecutrix also stated to his wife that the accused/appellant had gagged (S) 1 her mouth with clothes. He also stated that except this, nothing was narrated by the prosecutrix. This witness also turned hostile. 14. PW/6- Dr. Govind Singh stated in his deposition that on 15-4-1999 he conducted x-ray of right wrist, right elbow, right shoulder and the bones of right hips of the prosecutrix to ascertain the age of the prosecutrix. After conducting x-ray, he gave report Ex.P/2 and opined that fhe age of the prosecutrix to be above 13 and below 17 years. 15. Dr. Heena Ahmed (PW-7) stated in her deposition that on 28-3-1999 at 10.30 p.m., she examined the prosecutrix and found no injury on her body. She also stated that the hymen of the prosecutrix was old ruptured and her vagina was easily admitting two fingers and at the time of inserting two fingers in her vagina she was not feeling '-pain. She also opined that no definite opinion can be given about recent intercourse performed on her. She also stated that she prepared slides of vaginal fluidof the prosecutrix and the same was handed over to the Police for chemical examination. She also suggested for x-ray to ascertain the age of the prosecutrix. She gave her report Ex.P/4. She a!so stated in her deposition that on 28-3-1999 constable R. Laxminath No.116 brought yellow colour petticoat of prosecutrix for examination in which she found soil coloured spots at six places and gave her report Ex.P/5. She advised for chemical examination ofthe same. 16. PW/8 Domu, vitlage Kotwar stated in his deposition that theentry of birth and death is made in the Kotwari register (Ex.P/6). He also stated that when the Kotwari register is filled, the same has to be handed over to the concerned Police Station and it is not given back and the same can be obtained as and when required. 17: PW/9 S.N. Sharma, Assistant Sab Inspector, stated in his deposition that on 28-3-1999 the prosecutrix came to the Outpost and lodged the report against the accused/appellant on the basis ofwhich FIR was registered ^ (Ex.P/1). Thereafter he went to the place of occurrence and seized one petticoat of the prosecutrix vide Ex.P/10. During investigation, he prepared the spot map Ex.P/7. He also stated that he seized one sealed packet containing slides brought from the hospitat by constable Laxminath vide Ex.P/11. Thereafter, he arrested the accused/appellant vide Ex.P/12. He also stated that he seized the underwear of the accused/appellant vide Ex.P/14. He seized articles i.e., petticoat, underwear and sealed packet containing slides of the accused/appellant as well as prosecutrix and tha saine were sent to Forensic Science Laboratory vide Ex.P/15. He further stated that after chemical examination, report (Ex.P/16) from FSL, Raipur was received. 18. Considering all the facts and circumstances of the case and Gn perusal of the record, it is crystat ctear that almost alt the witnesses of the prosecution have turned hostileand have not supported the case of the prosecution, except the PW/1, prosecutrix & PW/9, Investigating Officer and even the report of the Doctor who examined the prosecutrix and also the report of FSL in which it was mentioned that no human sperm was found at the marked spots, do not support the prosecution story. The parents of the prosecutrix also failed to produce the exact date of birth of the prosecutrix and Doctor Govind Singh (PW/6) who conducted ossification test of the prosecutrix, opined her age to be between 13 to 17 years and admitted the same can fluctuate upto three years. Apart from this, the prosecutrix admittedin her cross examination in para 12 that it was stated by the accused/appellant in the meeting that he was having relation with the prosecutrix for the last so many years and he also stated that she was going to become mother of his child. The prosecutrix furthgr admitted that the report was lodged because the accused/appellant denied to give her maintenance. Thus, it is apparent on the face of record that on the date of incident the prosecutrix was not minor and was a consenting party. The report was lodged only to get maintenance from the accused/appellant. Thus, the prosecution has utterly failed to establish the case against the accused/appellant beyond all reasonable doubt. 19. Forthe foregoing, the conviction ofthe accused/appellant under Section 376 ofthe IPC and the sentence awarded to him by the Special Court is not sustainable in the eyes of law. 20. Accordingly, this appeal is allRwed. The impugned conviction and sentence are set aside and the appellant is acquitted of the charge under Section 376 of the IPC and he shall be set at liberty forthwith, if not required in any other case. His bail bonds shall also stand discharged. The fine amount, if paid, be refunded to the appellant forthwith.' Sd/- R.N. Chandrakar Judge ;-:£!!U