HIGH COURT OF CHHATT!SGARH AT BILASPUR fSB: Hon'ble IVJr.T.P.Sharma^J.l CRIIVIiNAL APPEAL No. 1219/2002 APPELLANT/ ACCUSED VERSUS RESPONDENT Lekh Ram aged about 27 years, S/o Shri Lachhan Ram Kewat, R/o Viliage Pasaud, P.S. Gunderdehi, District Durg, Chhattisgarh. State of Chhattisgarti Shri Anand Ti\A/ari iearned counsel for the appeilant. Shri Ravindra Agrawai PL for the respondent/State. CRSMINAL APPEAL UNDER SECTION 374(21 OF THE CODE OF CRIMINAL PROCEDURE (ORAU JUDGEMENJ' (Passed on 4,8.2008) 1. This appeal is directed against the judgment of conviction and order of sentence dated 28.9.2002 passed by the Additional Sessions Judge, Durg, Jn Sessions Triai No. 181/2001 whereby the appeliant has been convicted for the offences punishable under sectsons 450; 376 and 506(1) IPC and sentenced him to undergo Ri for two years and pay fine of Rs. 500/- in default of payment offine to undergo R! for three months u/s 450, to undergo Rl for seven years and pay fine of Rs. 1000/- in default of payment of fine to undergo Rl for three months u/s 376 and to undergo Ri for one year under section 506 (1) IPC. 2. The judgment of conviction and order of sentence are chailenged on the ground that the triai Court has committed an illegatity by reaching the conclusion that the accused/appellant has committed sexuat intercourse with the complainant who was minor at the time of incident. 3. Heard counsel for the parties and perused the impugned judgment and the records of the trial Court. 4. Learned counsel for the appeiiant submitted that without: there being any conclusive proof with respect to the fact that complainant was below 16 years at the time of incident and without there being any clinching evidence on record with respect to the commission ofthe offence of rape by the appellant, the trial Court held him guilty for the offences mentioned above. According to the counsei for the appeliant the appeliant has rather succeeded in his defence that the compiainant was having physicai relationship with one Kamta Prasad and on account of the ^ <L ^. -t.. - ^ - animosity v^ith the present appeilant and Chacharam Kotwan the appellant has been falsety implicated in the crime in question. 5. On the other hand tearned counset for the respondent/State has supported the Impugned judgment of the trial Court. 6. According to the case of the prosecution the date of birth of the prosecutrix Ramkali Bai (PW-3) is 14.11.1985. She was iiving in her paternal house at village Pasoud and the accused/appellant used to visit her in the absence of her parents and brother and after threatening her he used to commit sexual intercourse with her on the promise of marriage. However, after she conceived and was carrying the pregnancy of about 8 months, she requested the accused/appellant to marry and when he refused to marr/, she disclosed the incident to her parents and thereafter matter was reported the matter in writing under Ex. P-4 on the basis of which FIR Ex. P-5 was registered. Subsequentiy, she was medically examined by Dr. (Smt.) P. Dani (PW~8) who vide report Ex. P-9 opined that complainant was aged between 14-16 years and she was carrying pregnancy of 30-32 weeks at the time of examination. Vaginal slides were prepared and sent for examination vide Ex. P-2. On examination of the vaginal siides no sperm was found on the same. 7. After completion of investigation the charge sheet was filed against the accused/appellant in the Court of Judicial Magistrate First Class, Durg, who in turn committed the case to the Court of Sessions from where learned Additional Sessions Judge, received the same on transfer for trial. 8. In order to estabiish the guiit of the accused/appeilant, the prosecution has examined as many as 10 witnesses. Statement ofthe accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he has denied the circumstances appearing him sn he prosecution case and pieaded his innocence. The accused/appellant has also stated that the prosecutrix was having physical relationship with one Kamta Prasad and due to animosity between him and Chacharam Kotwar he has been falsely implicated jn the crime in question. He has examined Gopa! Singh DW-1, Khamanlai DW-2, Chovaram DW-3, Dwarika Prasad DW-4 and Manthir Yadav DW-5, in his defence. A!I these defence witnesses have supported the case of the accused/appellant and deposed that compiainant RamkaSi Bai was having physical relationship with one Kamta Prasad of the same viliage and when the pregnancy was noticed by the father ofthe complainant namely Kanhaiyaial, a meeting was convened secretly in which the decision to implicate the accused/appeitant in a fatse case was taken. 9. First of all the evidence adduced by the prosecution for determination of the age ofthe prosecutrix at the relevant time, has to be scrutinized. ^m^^^ iNil^^^^lF^^;'.-..--,.1..^ ^. ^ --?- 10. PW-1 Kanahiyalal, the father of the prosecutrix has stated in paragraph 5 of his evidence that at the time of incident his daughter was 14 years of age. Prosecutrix herseif has stated in her statement recorded in the Court that her age to be 14 years. Dr (Smt.) Dani (PW-8) who medicaily examined the prosecutrix has stated that the age of the prosecutrix on the date of examination was betv^een 14 and 17 years. Moreover, the Kotwar examined as PW-10 has stated that he recorded the date of birth ofthe prosecutrix as 19.10.1985 vide Kotwar Register Ex. P-17. !n cross examination, this witness has admitted that he was informed about the date of birth of the prosecutrix by the grandmother of the comptainant namely Suderiya Bai as on that day the father ofthe prosecutrix was not available in the village. According to the defence version the appellant was having inimical relations with the father ofthe complainant but nothing like this has been stated in the cross examination to discredit the testimony of the prosecutrix. Kotwar PW-10 has proved the document of Ex. P-17 according to which the testimony of the prosecutrix is 14.10.1985. 11. It is argued on behalf of the appeilant that in the absence of any conclusive proof regarding the age of the prosecutrix, the prosecytion was required to estabiish the same by getting the ossification test ofthe prosecutnx done. 12. In this case the date of birth of the prosecutrix recorded by the Kotwar has been proved by him. Date of birth mentioned in the birth certificate is conclusive evidence and no further evidence is required for the same. Thus according to the birth certificate, the prosecutrix was below the age of 16 years on the date of commission of the offence. 13. As regards the question of sexual intercourse committed by the appellant on the prosecutrix, the prosecutrix herself has deposed that when she was alone in her house, the appellant came to her, used filthy language and forcibly removed her clothes and putting her under threat and also assuring of marrying her, he committed sexua! intercourse with her which he continued on 10 occasions. After she became pregnant, the parents were informed about the same and then the matter was reported to the Police. Her statement is supported by the statement of her father Kanhaiyaial PW-1. In the cross examination the complainant has denied her physical relationship with either Kamta Prasad or Bhagwat. Defence has not been able to elicit an^/thing in the cross examin^tion which discredits the testimony of the prosecutrix. The delay in lodging the report has been satisfactorily explained that when the accused/appellant refused to keep his promise of marrying her, she lodged the report. The defences witnesses namely Gopal Singh DW-1, Khamanlal DW-2, Chovaram DW-3, Dwarika Prasad DW-4 and ManthirYadav DW-5 have stated that a meeting was convened """"^^,. -^. V. '%^^/" "^^^^' <.. / <... -t/- secretary in which it was decided to implicate the accused/appellant in a false case due to the animosity between the appeilant and Chacharam Kotwar. However, they have also stated that they were not present in the said meeting. These witnesses have not stated anything that they informed about the secret meeting to the appellant. Without any knowledge of the secret meeting and the fact that these are the witnesses of secret meeting, it is difficult for the appellant to adduce them as defence witnesses. Apart from this, nothing has been asked to the witness Chacharam Kotwar regarding the inimical terms, therefore, it appears from the statements of the witnesses that they had no knowledge regardlng animosity between the appeltant and the father ofthe complainant or convening of any secret meeting. There is no rule that the testimony of the prosecutrix should be corroborated by the independent witnesses. In the case of rape, corroboration of the testimony of the victim by independent witnesses is not possible. There is nothing to suggest that the comptainant had any reason to falsely implicate the appellant or that she was not subjected to rape as it is an admitted fact that she became pregnant as a result of sexual intercourse with the appellant 14. Thus, it is established from the statement of the prosecutrix which has been supported by the statement of her father Kanahiyalal PW-1 that she was subjected to sexual intercourse by the appellant in her house. 15. As regards the question of threat, the prosecutnx herself has stated about the commission of sexual intercourse by the appellant when she was alone in her house. Not once but he repeated the said act of intercourse on 10 occasions. If the entire statement of the prosecutrix is seen, it appears that she was a consenting party and she was not subjected to sexual intercourse under threat. 16. The other question for consideration is whether the appeltant has committed the house trespass for committing the offence punishable with imprisonment for tife. The house trespass is defined in sections 441 and 442 IPC. According to section 441 whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property then it is said that the criminal house trespass is committed. In the instant case admittedly the accused/appeltant entered the house of the prosecutrix to intimidate or insult or annoy her father. The prosecutrix v^/as a consenting party but since the prosecutrix was less than 16 years of age, her consent is of no significance and the act attributed to the .appeilant squarely falls under clause 3 of section 375 IPC as the accused entered the house of the prosecutrix to commit an offence punishable with imprisonment for Sife. 17. After taking into consideration the evidence available on record, the tria! Court has convicted and sentenced the accused /appeliant as mentioned above. n^ -s~- 18. For the foregoing reasons, l am of the opinion that the act of the accused/appellant does not fall within any category of section 506 of the IPC but it squarely falls within the purview of section 450 and 376 ofthe IPQ 19. As regards question of sentence, it is argued on behalf of the appellant that the prosecutrix was a consenting party and that the appellant is in custody since 10.9.2004 and during trial aiso he was in custody for a period of 15 days and that the appeliant was aged about-27 years at the time of commission of the offence and therefore the sentence already suffered by him is sufficient. 20. In the instant case, the appellant has committed rape on the prosecutrix who at the relevant time was less than 16 years of age; therefore, he is not entitled for any leniency in sentence. 21. Consequentiy, the conviction and sentence imposed on the appellant under sections 450 and 376 IPC are maintained. However, conviction and sentence under section 506(1) IPC is set aside and he is acquitted of the said charge. 22. The appeal thus partly succeeds. Sd/- T.P.Sharma Judge