^' IN TKE HIGH COURT OF JUDICATURE CHIiATTI^ARH AT BILASrUR CRIMINAL APPEAL NO..D ^>-^ /2 00 2 APPSZ.LA^T (IN JAIL) Madan Lal S/o Ramlal Aged about 20 years^ R/o Sanjay'Nagar^Bhanupratapur^ PS & EehsilsBhanu^ratapur^ Distt. Kanker (0©). V&R§US R&SPQND^NT State of Chhattisgarh Throu.gh P»S* sBhanugDratapur ©istt» Kanker (CG)• ____A...- CRIMIN^L,,AP^EAL ,UNDER SECTION 374(2) OF TPIS CODE OF CRIMINAL PROCEDURE HIGH COURT OP CHHATllSaARH. BILA8PUR eal No. 267 ofl MadaaLal Vs. State of Chhattisgarii ^' .") y^ ^"..^' c^ JUDGMBMT Postfor 11.12.2006 Sd/- Sunil Kumar Sinha Judge HIGH COURT OP CHHATHSQARH. BILA8PUR Crlminal Aiweal Mo. 367 of2002 Madan Lal Vs. State of Chhattfsgarh Aiipearaaoe: Shri Adil MiDJsa] aad Shri KasifShakeel^ c^unsel for the appeUaDit Shri Sudhir Bajpai, Deputy Govt Advocate, for fhe State. (11.12.2006) SattU Kniaar SliAa. J. (1) This appeal is directed g^ainst tiie judgment of convictabn axid order of sentence awaxded to fhe appellant in Sessioiis Trial No.389/2001 on 13.2.2002 by tfae Special Judge, under the Scheduled castes and Scheduled Tribes (Prevexitfon of Atoocitiea) Act, 1989, Bastar at Ja^dalpur, whereby the appeBant has been convicted u/s 376(1) IPC aad section 3(l)(xii) ofSchedufcd Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereiaaflter referred to as the Special Act) aad sentenced to undergo R.I. for 7 years and to pay a fine of Rs,3000/-»ia defeiult ofpayxaentoffiiie to further undei^o R.L for IVa yeara and R*t for 3 years and fine of Rs.2000/- , m default of paymesxt of fiiie to ftirther uiidergo R.L for six moiifhs, rcspe^tivety. (2) The case of the prosecution is that fhe pro^utrix Ku. Javendri@ Push{ L, a girl aged about 15 years, was subjected to sexual intercourse by tfais appeUant for many times sayiiig that Iie would many her. As a result of fheir long sexual rclatioxis, fhe prosecutrix became pregaant on account of wliich^ a jaeetmg iti fhe vfllage was held and when nofhii^ jGruitfiil c^uae out fix>m tfae meeting, a firat mformation report was lodged by the prosecutrix ODL 18.6.2^)01. In fhis report^ she makes aUegatioaa fbat ahe was subjected to sexual iatercoui^e by fhis ^peUant for fhe fiirst tiaie one year prior to the lodghag ofreport. The F.I.R. faas been pnwed as Ex.P.3. Oi& fhis report, the iavest^ation commeficed and y ultimately after completfon thereof, chai^e sheet was filed imder the aforesaM section offhe IPC axid fbe Special Act On coxaclusion of trial, fhe appellaat was held guulty uader fhe said sectioii of IPC and Special Act and was dirccted to siiflfer tfae sentences, concurrexitly, rcfeared to above* (3) On the basis of conduct of tiie prosecutrix, Ku« Javendri @ Pu^shpa (P.W.3), fhe Special Judge, xecoiried a fuading vide Paxa 15 of fhe Judgment tfaat afl fhe tfcaies fhe sexual iatexcourses were done with the conseiit of the pxosecutdx aad she was a consentmg party which is also supported by the conteiits ofthe FJ.R, (Ex,P»3)< However, he also rccorded a fipriing fhat siac^ fhe age of fhe prosecutrix was proved to be below 16 yeara, therefore, her conduct showing her consent wffl have no meamng and the appeUant would be heM guilty ofoflTexice u/s 376(1) ofIPC. Pw fhe offence uoder fhe Special Act, the Special Jiidge said tfaat sixice fhe prosecutrix betoi^s to Gond caste which has beeai scheduted as a Scheduled Tribe for fhe purposes of tfae said Act and fhe apy^Uant, beiiig in a position to dommate the wiB of fhe pxosecutrix^has sexuaBy exploited her> thercjfore, he woiild also be guilly of am ofifence punisdiable u/s 3(l)(xi^ offhe Special Act (4) Learaed counsel for fhe appeflant ai^gued that fhe fmdiag m rclatioii to tfae age of the prosecutrix is not m accoidance wifh law aad, in fact, the prosecuttoii lia^ beexi faited to prove that the p3x>secutrix was below 16 years ofage on fhe date ofiacjKlent He secondty argued fhat m fhe &cts and circumsteiices of this c^se, when fhe piosecutrix was a coiisent&iig party wifh fhe appeMant and both had enjoyed fheir long se?cual rclatk^i^, fherefore> oaify because fhe prosecutnx happens to be thie member of Scheduled Tdbe, an offexice u/s 3(l)(xii) of fhe Special Act wouM not be made out (5) On fhe other hand, leamed State Coun^:! opposed these arguments. He supported fhe fmding of fhe age recorded by tfae Special Court and he also supported fhe coavictioxi and senteiices awanded under botfa fhe coiints, (6) I have beasd leamed counsel for the paities at lengtli and have also perused fhe xieconis oftfae special case. (7) For pioviag tfae ^ge of prosecutrix, fhe piosecutioa Iias examiaed Raja Rain (P.W.3)> fatfier of fhe pxDSc^ixtdx axid it has also exasnned ihe Headmaster of the Schood, Chamru Ram Gowde (P,W»5) ond has produc^d fhe age declaratfon fcorm, pioved as Ex.P.5 aiid copy ofadmi^sion register-Ex.P.6. Afiter piuvmg ffaese documents, fheir copies bave beeii retaiaed in fhe fite of Sesskxas Tnal as Ex.P.5(c) and P-6(c]. P.W.5 Chamru Ram Gowde deposes that the declaratfon fonn submitted to tihe sctMX>l at fhe tsme of admission of fhe pxosecutrix shows fhat her date of birtfa. was 20- 6-1986. He also deposes tfaat fhe same date of birtfa has beeix entered into the admissioii register (Ex.P.6). He abo deposes tihiat fhe girl has left the institution on 05.7.1993 after passing Ctesa-II. The contents offhe adxaission register Ex.p.6 would show tfaat fhe piosecutrix was adaxdttesd m the aforesaid mstitutfonoii 8.7.1992 in Class-I and accordmg to this documeiit, her date of birfh was entered as 20.6.1986. It comes in the evideiice of tfae fether, in parai-1, that fhe girl was aged about 15 years at fhe time of occurrcnce. However, he admits m paia 8 ofhis cxxres exaiximatfoB that when fhe girl was admitted to fhe school, sfae was aged about 7 yeara. Aboutfhebasisoffhe^ccificentrypertaixiliigtofhedate ofbirtli, ffsyen at fhc time of admissioiis»fbis witaess said that he is not educated^ but he had got some ediic^ion uader Prod Shiksha Scheme. He caxinot teU the date of his marriage. He camaot tell £he date of the death of his &ther and mofher but he says that one ofliis brothers, who is a Peon had wxitten fhe actual date of birtfi of the prosecutrix on a paper aaad had handted cwer the said paper to faim whfle he was gomg to admit the prosecutrix in school and he had handed over fhat vexy p^per to tlie scfaool If this part of evMlence of this witaess is tested ia light of the evidence of Head Afester Chfflnru Ram Gowde (P.W.5), thaA appears to be totalty fcdse as fhe Head Master admite vuie para 11 ia his C3X>ss examination tiiat it is true fhat whexi some iineducated person bxings soiae writfeen documeat with a noting of date of birfh on it, fhen, such paper is exiclosed wifh the declaration fomi, but, no such paper is exiclosed ia the register of ?f; declaxatiioai form biought by hini. Ttiis goes to show tfaat tiie father ia giving soiae ujausual evideace to any how suppMt his <x>ntexitioa tibat fhe girl was G^ged about 15 yeara 011 fhe date ofincideat When we look iato the evidence ofpiosecutrix, she straight way adimts ixi para-8 of her cxoss examination fhat she must be ^ed about 8 yeara on fhe date of her admission m the schooi It also comea m para 7 ofher evidence fhat her menses had began 8 yeaxs prtor ta the date of mcident Tfae lady Doctor Smfc Kiran Lata Thakur (P.W*4) has deposed fhat the giri was fuUy growa up aod her oecondosy sexual charactera were well developed, her vagma was easify adxxiittu^g two fixigers aiid sfae was canyiiig pregiiaxxcy of 20 to 24 weeks. She has admitted ia paia 4 ofher cross exaoimatfon that since it was written in the requisition slip fbsat the girl was aged about 15 years, therefore> she has also wnttea her age as 15 years, but sin<xi she has fouiid her secondaiy sexual characteiswett developed^ ihe girl caa be said to be a majon (8) In A 196S S.C. 383 - Srl/MMum. Sbiyh -w. Prlya Brat Nwvdn Sinfwt and others, it has been held by the Apex Court that ia actual Ufe, it oflea happens tikiat pereons give fedse age of fhe boy at fhe time of his admissaoxi to a school so tfaat later m I&fe he wouJd have an advantage when seekmg public seivice far wbscb a minimiim age for el^ibiHty is oflten prescribcd. The Apex Court ftirther said fhat tlie court of &ct canaot i^M>rc fliis fact white assessiag the value of the entry and it would be ioapioper for the court to base any conclusioit on the basis of fhe eiitiy, wlien it ia aHeged tfaat fhe entiy was made upon &lse mformatioa aupplied wifh the above motive. ^ While dealixig with the question of age iii a matter u/a 366 IPC, the High Court ofPunjab and Haiyana obseived in AIR 1970 P Ss B 4SO - Ravwki Sww^o -»s- <St<d» fhat it is a xaatter of coxamon laiowledge that tfae ages given at fbe time ofadmissioa of giris and boys in scliools arc fer fix>m beiag precise. More oflten fhaii not> attempt is xiiade by fhc parents axid giiardians of tfaeir wards, who get admission m fhe sch<x>ls, to imder state fheir ages aad to give a later date of birtfa thaa fhe yeal oiie. Thua, fhe s^ges given in fhe school certiJGfcates axe not depeiidable for _<«i '.. u^ detenxiiaatioii <rf tibe pi^ecise date ofbirtli ofa stddent^ to w^bom ffae enfay os to the date ofbirfh in tlie school recoids pertauis. (10) In view of tfae above facte and circumstances, it does not appear to me that ia light of fhe evideace of fhe fafher and fhe Headmaster and further in light ofthe evidence of pxoseciitrix axid the lady Doctor, the entiy xaade on the basis of declsffatioii gh?re3i by fhe fether should be held to be corr^?t so o^ to make it dependable for determimng the age of fhe girl for convictiiig liie appellaixt u/s 376(1) IPC. In appreciation of the entire evidence ted by the prosecutrix, I hold fhat flieprosecutfoxi could not establish, beyond rcasoxiable doubty fhat the gid was below 16 years of age on the date of iacident aad I Iiold it aocoxdmgty* Consequenfly, I also hoM fhat smas the girl was not pioved to be a mmor^ her conduct would show tfaat she was a coaseatiiig party with fhe appellaat^as has also been heM by fhe Special Judge. lai llie facte and circumstaiices oftihds case, fhe convictton u/s 376 (1) ofIPC canxiot be sustaiaed. The same is hercby set aside. (11) So far as coxiviction iinder the Special Act is coiicamed, it is siiffice to say fhat tfae miere fact that fhe victim happeiffid to be a girl betoxigmg to a Schi^duled Caste or Schcdiited Txibe does iiot attract the piovisions of the Special Act Apart J&x^m the fesct fhat the prosecutrix beloxigs to the Gond caste, tibere is 210 other evidence to record a fmdixig fhat the appellaat comimtted aa oflTence u/s 3(l)(xii) of tfie Special Act For an oflfence u/s 3(l)(xii) it must be proved fhat the €K?cusedwas ia a positioii to doaiiiaate the will of a woxxian belongmg to a Schediitad Caste or Scheduled Tribe, and uses that position to exploit her sexualty, to which she wozrid not have otherwise agrecd* In the present oase^ it dbes not come that fbe accused was ia a doaimiatmg positioxi. Rafher the conduct aad evidence of fhe prosecutrix would sliow tihat ahe has consented fi>r commission of sexual mteix^ourse aaad fhe sexual iritercourses were coiamitted ft>r so maxiy times on account of the febct fhat bofh had to marry wifh each ollier* If a gurl gives <2oaseat for rcpeated sexual iatercourae upto a veiy long duiation on fhe graund that fhey are going to marry recenffy and she happens to be a laeniber of Scheduled Caste or Scheduted Tribe, by chance, u Rao an oflfence u/s 3(l)(xii) of the SpeciEd Act would iiot be made out because it was her own will fhat she Goiisented, may be oa aoooiuxt oflove or fhe reasoxi to inany with fhe appeHaxit In fhe given &cts smd circuiastances, the convictton of the appellant u/s 3(l)(xi^ of the Special Act caoiiot be sustaiaed. (12) In the rcsult the appeal is allowed. The convictioxi ami sentence awaided to the appeUant are set aside» The appellant is acquitted ofthe chai^es feamed u/s 376(1) IPC 023d sectbn 3(l)(xi^ of fhe Schediited Caste aiid Scheduted Tribes (Prevention crf Atrocities) Act» 1989. It is rcported that liie appellant is ixi jail. He be released ibrthwitti ifiiot reqiiired ia any other cases. Sd/- Sunil Kumar Sinha Judge