"Hwyymawx Single Bench (Crimina IN THE HIGH CUURT 3F JUmICATUQE AT JRBALFUR N Po hums. QMS or 1993 .panchrQx; Son "a? smi mania Sahu, aéad abdut 26 iiars, Rbsident of Village Kishanpuri P 5. Jahargaonfoi strict Bllaspur, M P . Appellant My; )}’/r7§ Jw u wan 'a 1m gmkmé Cw’fx A dvncak Vs. S tate of Madhya Pradésh through P.S. Jahargaon, Di$trict Bilaspur}/M}P. Respandent MEMHRkNDUM F‘APPE& UNDER SECTIGN 37d(2) OF THE caDE > ‘QF CRIM‘INAL mucEDURE AcAINST THE JUDGMENT AND ORDER DATED 19th/Kusuar 19/9/WA_$5£B:BY THE spEcEAL was; (X V (ATRUCITY) BILAsPUR, yo SPEEIAL cA5E_ Nd. 5/97 / CUNVIBTING THE ApPELLHNT UNDER SECTIQNS 376 366 AND 363 OF THE I.P C. AND $£NTENCING HIM THEREUNDER TO /~‘-~va ”w w»: ‘m m~ R I. FOR 7 YEARS PLU$ FINE OF RSQ. SOD IN DEFAULT FURTH£R R.1. FQR DNE'NDNTH, 5 YE“RS R.I. PLUS FINE OF R5 SUB IN DEFAULT R I. FUR DNE MBKTH AND 3 YENRS E I. FLU? FINE OF R5 20$ IN DEFAHLT FURTHER R I. FOR 15 DRY§ RESPECTIVELY. @ c ~ ’ HIGH COURT OF CHHATTI$GARH AT glLASPUR (Han. Mr. Justice Pritinker'Diwaker) Criminai Appeal No. 2419 0f 1998 APPELLANT Panchram VERSUS RESPOHDENT State of Madhya Pradesh Shri P. P. Sahu, counsei for thejappenant. Smt. Smita Gahf, P.L. fm' the State. CRIMINAL APPEAL UNDER $E‘FT10N 374 (2) OF THE CODE OF €RIMINAL PROCEDURE, JupGMENT (28.03.2011) Wis appeal is directed against the judgment and crder dated 19.08.19§8 passed by Special Judge (Atrocity), Bilaspur in Special Criminal Case No. 05 of 1997 convicting the accused/appeliant under Sections 37$, 366 and 363 of IPC and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs.50Ci u/s 376, rigorous‘ imprisonment for five years and pay fine of RS300 ujs 366 ‘ and rigorous imprisonmentfor three years and pa fine of R5200 u/s 363 of IPC, pius default stipulations. All the sentences were directed to run concurrently, 2. Brief facts of the case are that on 06.01.1g97 at about 5.45 p.m., a missing report Ex. P-2 was lodged by $ukhnandan (PW—2), father of the prosecutrix aiieging in it “ that on 05.01.1997 at about 9 p.m. the appellant came to his well to take water. He knocked his door and on the pretext of bucket took his daughter to the well and from there took her to his house. It is alleged that when her daughter did not return for a long time, he made a search for her. and upon hearing his daughter’s cry from the house of the appellant, he asked him why he had brought his daughter but in turn the y -Q, appellant started huriing abuses. He immediateiy went to the house of Satu and Jagula $atnami, mformed them about the incident and went back to his hause, In the morning, he narrated the incident ta his famiiy members and after ' conultig th them, the report was lod Bed on is > eport, ofence nder SSectis 363 36$ o IPC an 3 (1 (x f Schedule Castes d Sceduled Tribes (evention of Atr‘ciies).Act for short ‘the Act’) was registered ainst he apnt. he prosecutrix was ecovered on 8.01499? at bout 4 p,m. yid recovery memo x.P-12 rom the house of “one Samar wi whdm mother o te procutrix (—9) wa u th f h se PW s residing. Case diary stent of the rosecutri was recorded on 08.09,1997 and se was mediay examined by Dr. $mt. ahuka Sen (PW-6) on 101.97 vide Ex. P—9. After completin of nvestition Chaan was fid on 28.02.97 for the ofenc unde Sections 363, 366, 376 of IPC and 3 ( (x) & 3 1) (v of the Act whereas t Court below framed harg ainst hi under ectins 363 366,‘ 376 IPC and () (v & 3 (1) (x) Schuled Castes a Sceduled Tries (Prevention f Atrocitis) Act. 3. So s old the accusedlpelnt gut, precon hs examined itnesses in upport of its case. $tnent of the accuse/appellant was alo recorded under secin 313.- of the Code of Crimina rocedur in which he ed the chges levelled ainst m and pleaded s icence d false implication in the ca. 4. After earing the parties t ri Court ha acquitted the accused/appellant of the offence under Sections 3 (2) (v) & 3 (1) (xiiof Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act but convicted and sentenced him for the offences under $ections 363, 366, 376 of IPC. sn wi ged. as th r f u en , f d ) ) o d an h Pr ot ( ag t pella T r a e E f atem px h cll Mdli 0.19 o iga il le 19 fe r 1) ( ) he ce ag m So , of 3 2 ) i of ed nd h b o e a to h apla ily osuti a 11 w s ater l d s to l Pe deni ar ag hi hi nno an se h he tal s ,3” 5. Contention of the learned counsel for the appellantis that there appears to be a case of consent where as per thew ' own saying of the prosecutrix she spent the entire'night with the appenant without offering any protest and on the second day she accompanied the appellant on his bicycle without raising her voice. He submits that as per the medical report Ex.P—9 of the prosecutrix, no external or internal injury has been found on her person and her hymen was found old tom. It has also been argued that there is no concrete evidence K available on record in respect of the age of the prosecutrix to ‘ estabiish that on the date of incident she was below 16 years of age. tier 6. On the other hand supporting the impugned judgment it has been argued by the learned State counsel that as per the evidence, date of birth of the prosecutrix was 02.01.1983 Le. she was about 14 years of age at the time of incident. She submits that as per the radiologist, her age was about 16 years and thus it is apparent that at the time of commission of offence she was minor. She further submits that once the prosecutrix has been found to be minor, her consent become insignificant and therefore the conviction of the appellant is, fully justified. ’8. 7. Heard counsel for the parties and perused the material available on record including the judgment impugned. Prosecutrix (PW-1) in her Court statement has stated that she knows the appellant as he is resident of her viilage. On the date of incident at about 8 p.m. the appellant came to her house and demanded bucket to draw out water from her well. She has stated that when she had gone to fetch water from the well, the appellant gagged her mouth and took. her to his house which is about 30 feet away from her house. At g» ..l_l.— the time when she was taken to the house 0f the appenant; there was no one in his house. Thereafter the appetlant removed his and her ciothes and committed sexua! intercourse with her. After commission of offence, the appellant put on his ciothes hut she was lying on the cot and then the appellant iocked his house. She'has stated that appeiiant kept her in his house for about two days and during that period she was subjected to sexuai intercourse by him severai times and she was not permited to go out from his house. According to the prosecutrix after about two days the appellant making her sit on the bicycle dropped atthe place where her mother (Dasmat Bai) was residing and went to his house. She narrated the entire incident to her mother Dasmat Bai. In the meanwhile a report was lodged by her fathe‘ras a result the appellant was arrested. $he has stated that she was medically examined, her X-ray was done and her undergarments were seized by. the police. $he has categorically stated that she is not aware about her date of birth. She has stated that her mother Dasmat Bai after leaving her father had performed second marriage since last 6-7 years and was living separately in the village Gajiyanawagaon and prior to the date of incident she had never gone to her house. According to her the appellant had come to her house at the time when she was near the well of > her house which is duly surrounded by several rooms where her father, brothers, sisters, aunt and cousin brothers were residing. She has further clarified that at the relevant time her family members were taking their meals in the house and the door of the house was opened. In paragraph-15 she has categorically denied the fact that when the appellant came to her house, she was sleeping and the door of her house was closed. She has further denied the fact that the door of her house was knocked by the appellant. According to her the ,‘D’ appellant directly came to her house as the door was open. In respect of this aspect when she was confronted with her case diary statement she has deposed that she never made any such statement before thepolice. According to her she had informed the police. at the time of, her case diary statement that as her mouth was gagged by the appellant, she could not raise cry and if the same has not been recorded she cannot tell the reason. There appears to be material contradictions and omissions in her court statement from that In paragraph~21, she has of her case diary statement. stated that before the incident she was never subjected to sexual intercourse by any one. She has further admitted that ' she stayed in the house of appellant for about two days and. during that period she did not raise any cry and the appeilant after locking his house used to go out. $he has stated that as ‘ she was threatened by the appellant, she did not raise any cry. She has admitted the fact that the brothers of the appellant also residing in separate rooms near the room ti where she was kept by the appellant but she did not have any talk with them. She has clarified that when she was-being taken by the appellant to her mother's house on his bicycle, she did not make any attemptto get down from the bicycle as she was under fear of falling down. On the way she saw number of vehicles and bullock—carts but did not inform to anyone. Sukhnandan (PW-2), father of the prosecutrix in his evidence has stated that on the date of incident at about 8 P.m. when he was taking his food, the appellant came to his house and asked as to where the bucket was kept and then her daughter told him about the same. Thereafter he found his daughter missing and when he did not get her, he went to the house of the appellant and could hear her voice of weeping. He asked the appellant as to why he had brought i re’ her daughter to which the appellant teid him that he woutd keep the prosecutrix as his wife and thereafker abused and ,- threatened him. Upcn hearing his conversation with the appeliantL ‘one neighbour namely Satruhan came there to whom he narrated the entire incident. On the second day he lodged the report vide Ex.P-2, his case diary statement was recorded and prosecutrix’s birth certificate was seized vide Ex. P—3. In cross—examination this witness has stated that when the appellant came to his house, the other famiiy members were aiso present. There appears t9 he materiai contradictions and omissions in Paragraphs -8, 9 & 10 of the crossexamination of this witness. He has admitted that before the incident, family members of the appellant used to visit his house and vice verse. According to him, he has 6 wives and from the mother of the prosecutrix he has 8 issues but he is not aware about the exact date of birth of the prosecutrix and on the basis of assumption her date of birth was recorded by her teacher at the time of admission in the school. He has admitted the fact that he had received information from the police Station that if a ‘Harijan’ is l Subjected to rape, she gets money from the Governemnt and l i that iswhy he lodged the report in Harijan Police $tation but l l till date he has not received any amount from the Government and he cannot tell whether in future he will get the same or not. Dr. G. L. Arora (PW-3) who had medically examined the appellant vide EXP—6 has stated that he was capable of performing sexual intercourse. Ajit (PW-4) is, a seizure witness of Exs. P-1 & P—8 by which under garments of the prosecutrix and the appellant were seized. Malkham Das Banjare (PW-5) is a seizure witness of Ex. P-3 by which birth certificate of the prosecutrix was seized. Dr. Smt. Madhuiika ‘ Sen (PW‘S) Who had medically examined the prosecutrix vide /@ "7‘. EXP—9 has stated that no external or internal injury was found on the person of the prosecutrix and her hymen was otd I torn. According to this witness, no definite opinion regarding I commission of rape on her couid be given and for correct determination of her age she had referred the prosecutrix for x-ray. Dr. R. Jitpare (PW-?) is the radiologist who had taken X-ray ofthe prosecutrix and his report is EXP-11. According to him, on the relevant date the prosecutrix was aged about d ‘ 16 years which may carry a margin of 2 years on either side. Rajendra Kumar (PW-8) is a witness to the recovery of prosecutrix from the house of Dasmat Bai (PW—9) wide Ex.P- 12. Dasmat Bai(PW-9), the mother of the prosecutrix has stated that about two years back at about 8 a.m. the prosecutrix had come to her house and informed her that she was brought by the appellant. J. P. Jaiswai (PW-10), the Assistant Sub-Inspector had recorded the FIR Ex.P-2. H. R. Manhar (PW-11), the Investigating Officer has supported the prosecution case. 9. Minute examination of the evidence makes it clear that there is no concrete evidence availabie on record in respect of age of the prosecutrix. As per the school certificate, her date of birth is 02.01.1983 but the Head Master who had issued the certificate on 08.01.1997 has not been examined by the prosecution. That apart there is no evidence on record to show as to on what basis the date of birth of the prosecutrix was recorded as 02.01.1983 and in this respect father of the prosecutrix has categorically stated that the age of the prosecutrix was recorded on the basis of assumption and he is not aware about the exact date of birth of the prosecutrix. As per the ossification test, her age is about 16 years and the doctor has categorically stated that there may be variation of -2 years on either side. According to the Medical examination of the prosecutrix done by Dr. Smt. Madhulika Sen (PW-9), i. gay ' she appears to be a developed girl and from her statement it cannot be said that she was minor on the date of commission of offence. So far as statement of the prosecutrix is concerned there appears to be materiai contradictions and omissions. The prosecutrix has admitted the fact that the appellant used to go out after iocking the door from outside and she never raised any alarm to come out from the clutches of the appellant. Even for the First time when sheiwas % subjected to sexual intercourse, she did not raise any cry nor make any protest. The evidence reflects that had the prosecutrix been abducted or kidnapped with intent that she may be compelled to marry or forced or seduced to illicit intercourse against her will, she could have escaped at the time when she was kept for about two days in the heuse of the appellant and she was being taken to her mother’s house as she had ample opportunity to do so. According to the prosecutrix she was taken by the appellant on making her sit on his bicyCle to the house of her mother and during the said period neither she offered any protest nor raised any alarm. 10. So far as the statement of the father of the prosecutrix is concerned, after about five mindtes of the incident he couid hear the voice of his daughter from the house of the appellant but he did not bother to call her, on the contrary he went back to his house and in the next morning after consulting his family members he lodged the report after about 21 hours of i the incident. That apart there also appears to be material contradictions and omissions in the court statement of this witness from that of his case diary statement. - 11. Considering the entire evidence as adduced by the prosecution I find that prosecution has not been able to prove ' the charges against the appellant beyond all reasonable / (’7’ Kg” ,q— doubts. In this view of the' matter, the conviction of the appellant can’t be uphold. 12. 1n the result; this appeal is allowed. The impugned judgment and order of the Court below convicting and sentencing the appellant under Sections 376, 366 and 363 of IPC is hereby set aside and the appellant is acquitted. Since the appellant is on bail, his bail bonds stand discharged. l Sd/n l Pritinker Diwaker 1s Judge i