<<t~) H1GH COURT OF CHHATTISGARH AT BILASPUR SB: HON'BLE SHRIR.N. CHANDRAKAR., J Criminal Appeal No. 176 of 2003 '<- ^^^Ss^Sl Appellante- Mahajan Respondenti Vs. The State of Chhattisgarh. POST FOR PRONOUNCEMENT OF JUDGMEN' ^ Sd/- R.N.Chandrakar Judge Sd/- JUDGE 25> -9-2009 ^ ^ Appellant HIGH COURT OF CHHARTTISGARH AT BILASPUR Criminal Appeal No. 176 of 2003 Mahajan s/o. Udayram Gond, aged about 19 years, r/o. Adejhar, P.S. Mahamaya, Distt. Durg. .°\ Versus Respondent The State of Chhattisgarh, Police Station Mahamaya, Dist. Durg. Criminal appeal u/S. 374 (2) ofthe Criminal Procedure Code (SB: Hon'ble Mr. Ranganath Chandrakar, J. Present: Shri Ashok Vaishnav, counselforthe appellant. Shri A.V. Sridhar, PanelLawyer fortheState. JUDGMENT (Delivered on this^, day ofSeptember, 2009) The appellant has preferred this appeal against the judgment of conviction and order of sentence dated 14-1-2003 passed by the Additional Sessions Judge, Balod, Dist. Durg, in Sessions Trial No. 432 of 2001, whereby the appellant has been convicted under Section 376 (1) of the ]PC and sentenced to undergo R.l. for seven years and to pay fine of Rs. 500/-, in defaultofpaymentoffinetofurtherundergoR.I. forfive months. 2) Briefly stated facts of the case, as per prosecution, are that the appellant by promising to marry the prosecutrix Neema @ Purnima, persuaded her to have sexual relations and caused pregnancy. Consequently, the prosecutrix conceived six months pregnancy. The appellant accepted the pregnancy but refused to keep the prosecutrix as his wife, therefore, report was lodged against him on 25-11-2001 at Police Station, crime was registered under Section 376 ofthe IPC vide F.I.R. (Ex.P/9) and the matterwas investigated. K^ v»., ? '''^K.^, ^ ff /:• ' (3) After completion of investigation, charge sheet was filed in the competent Court which in turn committed the case to the Sessions Court from where the case was reeeived on transfer by the Additional Sessions Judge, Balod, Dist. Durg, who framed charge against the accused/appellant under Sections 376(1) of the IPC. The accused abjured the guilt. The learned trial Judge after due trial _ convicted and sentenced the accused/appellant as mentioned in para 1 of the judgment. (4) Learned counsel appearing for the appellant submits that the impugned order is illegal, unwarranted and against the requirement of law and procedure which cannot be sustained in the eyes of law. The appellant is innocent person and he has not committed any crime. He has been falsely implicated in the instant case. The learned lower Court raised inference in favour of the prosecution without there being any evidence in support of the same and hence the finding arrived at by the learned lower Court is perverse and vitiated. He further submits that court below has wrongly come to conclusion about the guilt of the appellant, whereas the prosecutrix was a consenting party, therefore, she did not report the matter to any body after the alleged incident. The statement of PW/7 Sagar Singh is relevant in this regard. There was no threat to the life/property of the prosecutrix though she kept silent for nine months which speaks about her consent. The appellant was willing to marry her but the parents of the prosecutrix refused only on the ground that the appellant belonged to the caste of Gond (ST). It is further argued that the trial Court erred in applying correct principles of appreciation of evidence and the judgment is against the material on record and the benefit of doubt should have been given to the appeliant and he could not have been convicted for offence under Section 376 (1) of the IPC. The prosecution failed to prove its case beyond reasonable doubt and the trial Court passed the judgment of conviction, despite there being conjecture and surmises which is bad in law. Learned c<\ °~1_\! ^ counsel lastly submits that considering all the facts and circumstances, the instant appeal deserves to be allowed, the judgment of conviction andorder of sentence be set aside and the appellant be acquitted ofthe charge. 5) Per contra, learned counsel appearing for the respondent/State argued the case in support of the impugned judgmentof the trial court. 6) Having heard learned counsel for the parties, 1 have perused the records of the trialcourt and also the impugned judgment. 7) The prosecution in order to prove the gyilt against the accused/appellant, examined as many as 11 witnesses. 8) In view of the submissions made by the counsel for the appellant, there are two points for consideration before this court; firstly whether the prosecutrix was under 16 years of age on the date of incident and secondly whether the prosecutrix was a consenting party. 9) PW/10 Neema @ Purnin"a, the prosecutrix stated in her deposition that one year ago at about 8-9 p.m. she had gone to the house of Pradhan for watching T.V. and while she was returning from there, the appellant dragged her to the verandah of his house and committed rape on her. After committing the offence, the accused/appellant asked the prosecutrix not to disclose the incident to her parents, otherwise, he would commit suicide by hanging himself. As a result, she was carrying pregnancy. She further stated that on the next day, a meeting was convened amongst the persons belonging to their community in which she and the appellant both were present. The appellant refused to keep her as his wife but agreed to pay the compensation. She further stated that as the matter was not decided in the said meeting, she lodged the report against the accused/appellant at Police Station Mahamaya which is Ex.P/9. 10) PW/11- C.S. Ladeshwar, Investigating Officer stated in his deposition that on 25-11-2001, he registered the FIR Ex.P/9 on the basis of oral report given by the prosecutrix Neema @ Purnima. Thereafter, he prepared spot map ^ Ex.P/10 at the instance of prosecutrix in presence of witnesses Amarsingh and Ram Murthy and after obtaining permission of SDM vide Ex.P/11, sent the prosecutrix for medical examination to Government Hospital, Balod, on 26-11- 2001 vide Ex.P/3-A. On the same date, he sent the appellant to Primary Health Centre, Chikhlakasa, for medical examination vide Ex.P/5-A. He further stated that on 3-12-2001, he seized the birth certificate of prosecutrix from Dinesh Kumar (PW/1) vide Ex.P/1 in which the date of birth of the prosecutrix was shown to be 19-4-1985. Thereafter, he recorded the statements of the witnesses and arrested the accused. 11) PW/2 Dr. Smt. P. Baghel, Community Health Centre, Balod, stated in her deposition that on 26-11-2001, she examined the prosecutrix Neema @ Purnima and found that she was carrying six months pregnancy. She gave her report vide Ex.P/3 and referred the prosecutrix to District Hospital, Durg for sonography test to confirm the pregnancy and radiology test for ascertaining her age. 12) PW/9 Dr. A.K. Sahu, Incharge, Department of Radiology, District Hospital, Durg, stated in his deposition that on 28-11-2001, he got done X-ray of the prosecutrix and opined that she was aged about 18 years. He admitted his report Ex.P.8. 13) The question of age of the prosecutrix is the first and foremost aspect that needs to be considered in the present appeal. On this question, the learned trial Court has rightly held that the age of the prosecutrix was 18 years at the time of incident. The prosecution seized the birth certificate of the prosecutrix from PW/1 Dinesh Kumar, the village Kotwar vide Ex.P/1 but the same is not a conclusive proof regarding the age ofthe prosecutrix as the finding reached by the trial court is based on the testimony of PW/9 Dr. A.K.Sahu and the X-ray report (Ex.P/8) in which the age ofthe prosecutrix was shown to be 18 years. It is also apparent from the deposition of PW/1 the Kotwar that the date of birth ^. f/!"%_ §- /'' "^!^'' ^^^sfS^ of the prosecutrix was registered in Kotwari register as per the declaration of the father of the prosecutrix. So, the father was the best witness to speak about her age but he was not examined by the prosecution. The defence counsel would have been in a position to question the father about the correctness of his declaration. Thus, there is no reason to disbelieve the medical evidence and to interfere with the finding of the trial court. 14) The next question is whether the appellant had sexual intercourse with the prosecutrix against her will (vide first clause of Section 375). The expression "against the will" seems to connote that the offending act was done despite resistance and opposition of the woman. On this aspect, the trial court did believe the version of the prosecutrix without much of discussion. In reaching this factual finding, the trial court failed to analyse and evaluate the evidence of PW/10, the prosecutrix. l should, therefore, scrutinise her evidence and examine whether it would, beyond reasonable doubt, lead to the conclusion of the accused having had sexual contact against her will. In the FIR, the prosecutrix stated that before nine months from lodging the FIR, the appellant committed rape on her at about 9 p.m. on the assurance of marriage and thereafter, he was having continuous relations with her due to which she was carrying six months pregnancy. On the next day of Diwali, the appellant took her to his house and on 16-11 -2001, he threw her out of the house by refusing to keep her as his wife. Thereafter, a meeting was convened in the village on 16-11-2001 in presence of her father Patiram, Sadaram Halba, Anjori Halba, Sagar Gond and others in which the appellant admitted that he caused the pregnancy but refused to keep her as his wife. 15) On perusal of the FIR and deposition, there are contradictions and omissions in the statements of the prosecutrix. In para 7 of her cross examination the prosecutrix admitted her signature in the agreement (decision of the meeting) Ex.D/1. She stated that in the meeting, the appellant denied to '^ / <. ".sfc'.- ..^ ''».. •°"ls"*'"<i6S ^..^^ V.:--'^' ^'.-y '\ i ^/ '•^^'^ marry her but agreed to pay Rs.700/-. She also admitted that the proposal was _ admitted by all the mennbers of their community including herself. She further admitted that her father was against their marriage as they were of different castes and for this the agreement Ex.D/1 was executed. On perusat of Ex.D/1, it is crystal clear that the appellant agreed to pay Rs.600/- per month to the prosecutrix upto 18 months towards the maintenance of the child. It is also apparent from Ex.D/1 that both of them were agreed to stop their further relationship. Ex.D/1 is also proved by PW/7 Sagar Singh who was a member of the meeting. In his deposition PW/7 stated that on asking the prosecutrix — and the appellant, it was stated that they enjoyed their physical relations voluntarily. He categorically stated that bothof them were agreed to marry but later on the prosecutrix refused to marry with the appellant. In his cross examination PW/7 admitted the suggestion that the parents of the prosecutrix refused to marry the prosecutrix with the appellant as both of them were of different castes. He also admitted that when the prosecutrix was asked in the meeting about the physical relationship with the appellant, she ctearly admitted that it was voluntarily and the appellant had never forced her for ~ sexuaf relationship. In view ofthe above, the testimony of PW/7 is trustworthy and the same cannot be discarded. 16) Thus, it is clear that the prosecutrix was a consenting party and the accused/appellant never forced her to have sexual relationship with him as she admitted in para 10 and 11 of her cross examination that when she was raped by the appellant for the first time, she did not disclose the fact to her parents because the appellant had threatened her to commit suicide. She clearly admitted that after ravishing her forthe first time, the accused had sexual relationship with her several times and he used to visit her house also which was not protested by her. In substance, what she deposed was that the first sexual intercourse took place against her witl, though she became a consenting party later on. She further admitted in para 14 of her cross examination that the •^ report was lodged after 8-9 days of the meeting. It is also admitted that the matter was disclosed to her parents only after she became pregnant and the report was lodged after about nine months from the date on which she was allegedly raped by the appellant. In any case, if the rape was committed by the — accused much against her will, she would not have volunteered to submit to his wish subsequent to the alleged first incident of rape. She admitted that the appellant used to visit her house which was not resisted by her. This statement also casts an element of doubt on her version that she was subjected to sexual intercourse in spite of her resistance. Above all, the version given by her in the court is at varianee with the version set out in the FIR. As already noticed, she categorically stated in the first information report that she "surrendered before him" in view of his repeated promises to marry. In short, her version about the first incident of rape bristles with improbabilities, improvements and exaggerations. It is a different matter that she became a consenting party under the impact of his promise to marry her. Thus, it is not safe to lend credence to the version of PW 10, the prosecutrix that she was subjected to rape againsf her will in the first instance even before the appellant held out the promise to marry. The finding of the trial court that the prosecutrix was raped forcibly on the first occasion and that the talk of marriage emerged only later, is wholly unsustainable. 17) Considering all the facts and circumstances of the case, l am of the opinion that the prosecutrix was major being aged about 1 8 years at the time of incident and not only she was a consenting party but was well aware of the consequence also. 18) For the reasons stated herein above, l am of the view that the learned trial Court erred in convicting the appellant for the offence punishable under Sections 376(1) of the IPC. In the opinion of this court, no charge against the appellant has been proved at al[. Thus, this appeal succeeds and is hereby allowed. The judgment of conviction and order of sentence passed by the learned trial Court is hereby set aside and the appellant is acquitted of the charge. His bail bonds shall stand discharged. The amount of fine, if deposited, be refunded to him. __ SdA ^ L R.N. Cjiandrakar ; Judge i