W:~8D “95- weilani:— in iail Kishm'e Bghmiur . sxo, Ewan 32mm Nep$ agad _ 25 yrs. Rm. Gm'g’a'nals ~ Rs. Mum, Dw- Sambalpur—ma I at, pram Rm. w Shivw - P.S.— mm 113g“ — {ism Kain C-G- vERSvs. I SmofCG. Ca / HIGH COWT OF CHHATTISéARH AT BILASPUR F Criminal Appeal No.801/2005 Kishore Bahudur Vs. Sm‘re of Chhaffisgnrh Pas? for orders : 30.03.2006 Sdl- Dlhp Raosaheb Deshmukh Judge ‘ J \ HIGH COURT OF CHHATTISGAkH AT BILAsPvR _ Cr. Appeal No.801/2005 Single Bench: Hon'ble Shri Dilip Raosahab Deshmukh. J. Kishore Bahndur Versus Stafe of Chha-Hisgarh Shri Abhay Tiwari, Iearned counsel for fhe appellant. 5hri Ashish Shukla, learned Govt Advocnfe for lhe S'ra're/responden-r. JUDGMENT (Delivered on 30K day of March, 2006) This appeal is directed against fhe judgmen'r dafed 31.10.2002 delivered by 5hri Lakhan Singh, learned Addl. Sessions Judge, Dis'H'. l 1 Korba in Sessions Trial No. 478/2001 whereby 'l'he appellanl' was convic‘l'ed under Seci'ions 376, 366, 363 and 342 IPC and was sentenced to rigorous imprisonment for 7 years and to pay fine of Rs. 500/- under Section 376 IPC, to RI. for 5 years and fine of Rs. 500/- under Section 366 IPC, to R‘I. for 3 years and a fine of Rs. 500/- under Section 363 and to RI. for 3 months under Section 342 IPC. In default of payment of fine, the appellant was sentenced to undergo 5.I. for one month each for offences under Section 363, 366 and 376 IPC; 2. The prosecution story in brief is that the prosecutrix, aged about 17 years and 2 months and a student of Class-IX, left for her school on a cycle at about 10.15 a.m. from her house. Near Polytechnic College, by the side of the road, the appellant Kishore Bahadur along wi'rh Ram Bhuvan lay in waif for her. Ram Bhuvan was driving fhe moforcycb while the appeHam' Kishore was The piHion rider. They blocked The way of +he prosecuh'ix by parking the mo1‘orcycle in from of her cycle. The associates of appellanf-Kishore i.e. Bhujan and Rnmu also arrived on a cycie. Thereaf’rer, *he appeiianf Kishore forcibly sea'red fhe prosecufrix on The moTorcycie and gagged her mouTh. Ram Bhuvan drove The moTorcycie Towards The Jambahar foresT. Leaving The appellanT and The prosecuTrix There, Ram Bhuvam reTurned. ThereafTer, The appellanT commiTTed rape on The prosecuTrix repeaTedly on 16w, 17*“ and 18*“ of August 2001 under consTanT ThreaT. On 18.8.2001, Ram Bhuvan came To The foresT on a moTorcycIe while Bhajan and Ramu came riding on The cycle. While The prosecuTrix was being broughT home, she fainTed since she had noT eaTen anyThing for 3 days. The appellanT lefT The prosecuTrix aT her home and wenT away. AfTer regaining consciousness, The prosecuTrix informed abouT The incidenT To her parenTs. The F.I.R. was lodged by The prosecuTrix on 24.8.2001 i.e. afTer six days aT abouT 8.05 p.m. aT P.5. Balco siTuaTed abouT 4 kms. away from The place of occurrence. emw 3. The prosecuTrix was senT for medical examinaTion. Dr. Veena Agarwal P.W. 6 examined The prosecuTrix on 25.8.2001 aT 12.30 p.m. and found ThaT There was no exTernal injury on her person. On inTerna'l examinaTion, she found ThaT There were mulTiple Tears in hymen membrane which were redxl congesTed and Tender. The vagina admiTTed one finger wiTh pain. IT was opined ThaT sexual inTercourse had been commiTTed wiTh The prosecuTrix wiThin 3' To 7 days prior To her examinaTion. The age of The prosecuTrix was opined To be beTween 16 and 17 years. Vaginal slides were prepared and sealed. Radialowcm examinaTion was advised To confirm her-age. memwm 4. One black Suzuki mofor-cycle bearing No. MP 26 K-O143 was seized from Ram Bhuvnn on 25.8.2001. One yellow coloured nylon underwear was seized from The prosecui'rix on 25.8.2001 vide Ex.P.2. One brawn coioured nylon underwear of fhe appeiianf was seized from him vide EXP-14 on 1.9.2001. Upon medical examina‘l'ion of fhe appellant Dr. AD. Kurena‘ P.W. 8 opined ‘rha‘l’ he was capable of performing sexual in'l'ercourse. The Forensic 5cience Labora'l'ory's examina‘lion repor'f, if any, of ‘lhe vaginal slides and The underwear seized from 1'he prosecufrix and ‘rhe appellan'l' was not filed by The prosecuTion. AfTer comple'rion of invesTigaTion, The appellanT was prosecuTed along wiTh co-accused Ram Bhuvan, Ramu and Bhajan. Ramu and Bhqjan were shown To be absconding. Ram Bhuvan was also declared absconding on 28.8.2002. The appellanT was charged under SecTion 363, 366, 376 and 342 IPC by The learned Addl. Sessions Judge. The appellanT abjured The guilT, pleaded innocence and led no evidence in defence. The learned Trial Judge relying upon The evidence of The prosecuTrix and The medical evidence, convicTed and senTenced The appellanT-Kishore Bahadur as shown in para 1 supra. 5. 5hri Abhay Tiwari, learned counsel for (The appellanT has assailed The convicTion of The appellanT on The ground fhaT The evidence led by The prosecuTion does noT esTablish The guilT under SecTions 363, 366, 376 and 342 IPC againsT The appellanT. He conTended ThaT ossificaTion TesT was noT conducTed To deTermine The age of The prosecuTrix. IT was also poinTed ouT ThaT The prosecuTrix P.W. 1 had in para 9 of her TesTimony sTaTed ThaT she had menTioned her age as 17 years in The reporT Ex.P-1 by mere guess work. IT was also argued ThaT Narayan Sahu P.W. 2, faTher of The prosecuTrix had in para 3 sTaTed ThaT age of The prosecuTrix was abouT 16 - 17 years and he Was noT aware of The daTe of birTh of The prosecuTrix since M .wWmM", “a éé There was no record. On fhis ma‘ferinl, i1' was argued fha‘f if cou!d n01 be ruled ouf fha'l' 'l’he age of The prosecuWix on 'l'he dofe of fhe occurrence, was more *han 18 year-s. 11 was furfhervconfended 1'ho1' fhe prosecufrix P.W. 1 was a whoHy unreiiable wi‘l'ness and was no? trustworfhy since her 1’es'rimony was highly exaggerated. If was also con'rended That fhe delay in lodging fhe F.I.R. was nor explained satisfactorily. Neither the cycle of the prosecutrix was seized from where it was alleged 'to have been left on the date of occurrence, nor was her testimony that she was forcibly taken away to-Jambahar forest by the appellant Kishore, reliable. Medical evidence of Dr. Veena Agarwal P.W. 6 did not corroborate the testimony of Smt Ram Bai P.W. 4 that when the appellant left the prosecutrix at home, she was drenched in blood. On these grounds, it was contended that it could not be ruled that the alleged sexual assault, if any, committed by the appellant was with the consent of the prosecutrix. On the other hand, Shri Ashish Shukla, learned Govt. Advocate argued in support of the impugned judgment. 6. Having heard the rival contentions, I have also perused the record of Sessions Trial No. 478/2001. It is not disputed that ossification test for determining the age of the prosecutrix was not conducted. EXP-2 is the seizure of the mark list of the prosecutrix showing her date of birth as 25.6.1984. However, the original mark sheet has not been proved by the prosecution. The entry in the Kotwari Register, which is the primary evidence relating to date of birth was not adduced by the prosecution. The prosecutrix had in para 9 of her testimony admitted that in the FIR. EXP-1, she had narrated her age as 17 years by sheer guess work. Narayan Sahu P.W. 2 father of the prosecutrix had also admitted in para 6 that he does v.WMQWV "WWHW / V r,» r no? kow +he exact da‘re of bir'rh of the prosecu‘frix, since fher'e was no record available wi‘rh him. Dr. Veena Agarwal P.W. 6 s also given a mere esfimalion of fhe age of The proaecufrix f0 be 16—17 years and sfa'rd 11m? she had advised examination of The prosecuh‘ix by 'l'he Radiologisf for deferminafion of her age Howeve ossification fes‘r was no‘l conduc‘f. In 'l'he above menfioned circumstances, if connoi- be ruled ou1' 'l’ha1' 'l'he age of 'l'he prosecu'l'rix on 'l‘he da'l'e of ourrence could have been 18 years or ev more. 7. The proseculrix P.W. 1 had sfafed in para 2 Tha'l' while she was going ‘l'o The school a‘r abouf‘ 10.30 a.m., fhe appellan'l' came on a mo-torcycle and blocked her way due fo which she fell down from fhe cycle. Thereaf‘l'er, 1’he appellan‘l‘ Kishore forcibly sea'l’ed her on ‘fhe mo‘forcycle and Took her fo fhe Jambahar forest She has admi‘rfed in para 19 'rha'l' fhe road on which she was intercep‘red by fhe appellan‘r is a public way and has +horoughfare. If was admi‘Hed by her fhaf she did no‘i shou'r while fhe appellan‘l' fook her 1’0 fhe Jambahar forest She did not sfafe in her testimony that Ram Bhuvan was driving the motorcycle while the appellant Kishore had forcibly seated her on it. In fact, the prosecutrix did not depose anything against Ram Bhuvan in her testimony. It § thereby sharply contradicts her assertion in the F.I.R. Ex.P-1 that Ram Bhuvan had blocked her way on a motorcycle while the appellant Kishore was seated behind. Even l though a specific question was asked to her in para 36 in this regard, she did not allege that Ram Bhuvan was driving the motorcycle. If, the appellant Kishore had taken the prosecutrix on his motorcycle to Jambahar forest, the prosecutrix had every opportunity to raise an alarm since it was a public way and it could not be possible for the n ha e . r, ed cc en appellanf Kishore To drive ‘H‘Ie moforcyclz as also To gag her mouth wifh a handkerchief. 8. In pom 3 of her Tes'rimony, 'rhe prosecu'rrix P.W. 1 had deposed Tho‘l' for 3 days, *he appehon‘t repeo'redly commi‘l'fed rape on her for \C/ obouf 9 fimes. In pom 24, she‘has sm‘red that during fhis period of 3 days, ehe had nofhing To ea+ bu'f 'the appeHan-r Kishore had brough? wafer for her fo drink. However, in para 23 again, The prosecufrix has admi‘Hed fha'i' while ihe appeilanf Kishore had gone 1'0 fe‘i‘ch wafer, she did no'r make any effort fo run away. She volun‘reered 1'haf ihe appellanf had Tied her To a Tree. However, she did noT narraTe any such Thing in her sTaTemenT under SecTion 161 Cr.P.C. In para 24 she sTaTed ThaT she could noT say wheTher for Three days in The jungle The appellanT had slepT or noT. she deliberaTely did noT answer since she would noT be able To explain why she did noT run away aT nighT while The appellanT was sleeping. 9. Ram Bai P.W. 4, The moTher of The prosecuTrix had deposed ThaT afTer 3 days, The appellanT had lefT The prosecuTrix aT her home and aT ThaT Time The prosecuTrix was drenched in blood. If whaT has been sTaTed is True, Then prompT FIR. would have been lodged by Narayan P.W. 2, faTher of The prosecuTrix. The cloThes of The prosecuTrix drenched wiTh blood would have been seized. Seizure memo EXP—2 also does noT show ThaT The under garmenTs of The prosecuTrix had any blood like sTains on iT. NQT only This, The TesTimony of Dr. Veena Agarwal P.W. 6 also does noT show ThaT she had found any blood like sTains on The prosecuTrix. In para 24 of her TesTimony she has sTaTed ThaT aT The Time of occurrence she was /. .m M ,a/nadewwaw 7 m , wearing a blue colopred Salwar suit However, her clo‘l’hes were n01 seized by 'rhe police, 10. The Firs? Informa‘rion Repor‘r abou‘r 'rhe occurrence was Iodged by 'rhe prosecufrix on 24.8.2001 i.e. 6 days uf1er 'rhe refum of 1'he prosecufrix 1'0 her house. The police s'rafion was sifua‘red of a disfance of abou‘r 4 Kms. No safisfacfory expiann‘tion is found in fhe fes-rimony of fhe prosecufrix P.W. 1, Norm/an P.W. 2 or Ram Bni P.W. 4 for The delay in lodging The F.I.R. Non-filing of The repor‘l‘ of fhe F.S. L also jusfifies on adverse inference ogainsf The prosecuTion ThoT The reporT of The F.5.L did noT supporT The prosecuTion. 11. A plea was Token by The oppellanT in cross-exominaTion ThaT The prosecuTrix was in love wiTh The oppellonT Kishore and had eloped wiTh him. KoTwor Sevarom P.W. 5 has sToTed ThaT Naroyon P.W. 2, foTher of The prosecuTrix hod informed him on The same night ThaT his daughTer had eloped wiTh a boy. IT clearly shows ThoT Narayan P.W. 2 knew ThoT his daughTer had eloped wiTh somebody explaining why he did noT lodge F.I.R. In cross-examinaTion para 11, Sevaram P.W. 5 has furTher admiTTed ThaT Ram Bai P.W. 4, moTher of The prosecuTrix had Told him ThaT The prosecuTrix was in love wiTh a Nepali boy while she was opposed To Their marriage. The facT ThaT Narayan P.W. 2 knew Tha‘l' his daughTer had eloped wiTh The appellanT renders The allegaTion in The F.I.R., ThaT while The prosecuTrix was going To The school on a cycle, she was inTercepTed by The appellanT Kishore and was forcibly Taken To The Jambahar foresT, unreliable. If such asserTion was correcT, iT is beyond comprehension why during invesTigaTion, The cycle of The prosecuTrix was noT seized from The place from where she was alleged To have been abducTed. Similarly, if The proseouTrix iWWwM/ £i A 4!“. % had fallen from The cycle on being infercepfed by fhe appellanf she would have susfained same injury. If she was fied with a rope To a free fhere wouH have been linear abrasions on her body. If she had offered any resisfonce while being mvished nine 'rimes by ‘rhe appellan‘l's in 1hree days she would have susfained some ex‘rernai injuries on The back or ‘rhighs e'ic. ‘If fhe prosecufrix had refurned home, drenched wi'rh blood, her blue Salwar sui'r and underwear would have 90+ sfained wi‘rh blood. The absence of any external injury or blood sTains on her underwear and The non-seizure of her Salwar suif show that her testimony is highly exaggerated and fails to inspire confidence. 12; - In para 27 of her testimony, the prosecutrix has stated that on her return with the appellant Kishore to her home, she did not inform anybody about the incident for a period of 2-3 days. This is sharply contradicted by Ram Bai P.W. 4 in para 1 by stating that appellant Kishore had brought the prosecutrix home while the prosecutrix was drenched in blood. In para 14, she further stated that the clothes of the prosecutrix were drenched in blood and she wasunconsaious for which she was treated by a Doctor. However, no such evidence has been adduced by the prosecution. It is also pertinent to note that although the prosecutrix was missing from her house from 16.8.2001, her parents did not lodge any report at the police station even after the expiry of six days after she returned with the appellant Kishore. The report was lodged after considerable delay i.e. on 24.8.2001. Considering the testimony of Kotwar Sevaram P.W. 5, it cannot be ruled out that Narayan P.W. 2, father of the prosecutrix, knew that the prosecutrix had eloped with the appellant. Age of the prosecutrix ‘M‘M Uq. M a‘mwwA/(amm t. 'I‘Lk M,“ being possibly over 18 years the offences under Section 342, 363‘, 366 and 376 I.P.C. are not established againsf fhe appellan‘f-Kishore y/ Bahadur. g 13. Huving thus, considered fhe rival submissions, ‘rhe following J fads emerge:- a. I'l' cannof be ruled ou‘l’ 'rhaf fhe age of 'l'he prosecufrlx on fhe date of occurrence was 18 years or more. The testimony of the prosecutrix that she was intercepted by the appellant Kishore on the road and was forcibly taken to the Jambahar forest on a motorcycle is unreliable. The testimony of the prosecutrix that she was repeatedly subjected to rape 9 times during 3 days is also unreliable since her testimony is not corroborated by medical evidence. The testimony of the prosecutrix is highly exaggerated W and is unworthy of credit. d. It cannot be ruled out that the prosecutrix had eloped with the appellant of her own volition and had consented to the sexual intercourse by the appellant with her. e. Long unexplained delay of six days in lodging the F.I.R. by the prosecutrix also renders her testimony unworthy of credit. f. Non-production of the report of the FSL also renders an adverse inference being drawn against the prosecution. g. Absence of any bloodstain on the underwear of the prosecutrix renders the testimony of the prosecutrix and her mother Ram Bai P.W.3 unworthy of credit. 14. In View of the above findings, the conviction of the appellant-Kishore Bahadur under Section 363, 366, 376 and 342 of IPC cannot be sustained in law. The appeal is allowed. Conviction of the appellant under Section 363, 366, 376 and 342' of IPC by the trial Court and the sentence awarded .m.... N/ WM r, i ‘fhereunder are Sef aside. The if not required in be refunded fo The appeHanf. forfhwifh , appellanf shall be Se‘f' a’f iiber'ly any ofher case. Fine if paid, shall J’i’l ‘ I Dilip Raosaheb Judge Sdl- Deshmukh r - j f : I / x ee.e. e