HIGH COURTOFCHHATTISGARH AT BILASPUR DB: Hon'ble Shri Justice T.P.Sharma, Hon'ble Shri Justice R. L. Jhanwar, JJ. Cr.A.No.681 of 1999 F' , . ^.. APPELLANTS (in iaill RESPONDENT Raj Kumar and another Versus StateofM.P. now Chhattisgarh JUDGMENT FOR CONSIDERATION /y».12.2010 l^- Sd/- ^ludge 12.2010 ^ HON'BLE SHRI JUSTICE T.P. SHARMA Sd/- T.P. Sharma Judge For Pronouncement of Judament \3 .12.2010 Sd/- R.L. Jhanwar Judge HIGH COURT OF CHHATTISGARH : BILASPUR DIVISION BENCH: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI R.L.JHANWAR. JJ. APPELLANTS (iniain Criminal Appeal No. 681 of 1999 1) Raj Kumar, S/o Bheem Satnami, aged about 20 years, R/o Aman Dula, P.S. - Malkharoda, Distt. Janjgir Champa. 2) Arjun S/o Darsu Ram Satnami, Aged about 25 years, R/o Village - Jampali, P.S. Shakti, Distt. Janjgeer-Champa (M.P. now C.G.) 1 "..•'.-- ^' 1 \ 4 ^/{'' -^VE^SUS RESPONDENT State 6f M.P nowChhattisgarh. 1 MEMO OF APPEAL UNDER SECTION 374 OF CRIMINAL PROCEDURECODE c'oo*''- ^.u Xppearance: Shri Abhay Tiwari, counsel for the appellant. Shri N.K.Mehta, P.L. forthe State. JUDGMENT (Passedpn (3.12.2010) PerR.L.JHANWAR. J. This appeal is directed against the judgment of conviction and order of sentence dated 27.02.1999 passed by the Additional Sessions Judge, Sakti, Dist. Bilaspur in Sessions Trial No. 435 of 98 by virtue of which appellant—Rajkumar was convicted under Sections 363, 366 and 376 I.P.C. and sentenced toundergo R.l. for2 years, 5 years and 7 years with fine of Rs.1000/-, Rs.2000/- and Rs.3000/- respectively and in default to undergo further R.l. for one year whereas appellant - Arjun was convicted under Section 368, 363 and 366 pf the I.P.C. and sentenced to undergo R.l.for2 years under Section 3G3 and 366 ofthe I.P.C. and 5 years with frpe Rf'R,s'.tQQO/-ARs,2000/- andRs.3000/- respectively and in default to undergo further R.l. for six months. 1 2. Prosecution case, ina nutshell, is that on 10.08.1998 at 5.00 a.m. the prosecutrix, aged about 15 years, went to attend natural call and when e^. [o un'deroo P.!. f.:-fi.2 ve:"'.' i\ she did not return a search was affected. It was alleged by the prosecution that appellant Rajkumar proposed the prosecutrix to elope with him and he was refused. Despite that the appellant - Rajkumar on the said date taking the advantage that the prosecutrix went to attend natural call threatened and took her aiong with him on his cycle. It was alleged that the appellant kept the prosecutrix in his uncle's house ofArjun situated at village Jaampali where, in the night, the appellant was alleged to have committedoffence of rape upon the prosecutrix. On 11.08.1998 Sawan Bai, motherof the prosecutrix, lodged a report at police station Malkharoda vide Ex.P.5. On the basis of which, offence punishable under Section 363, 366, 376 and 368 ofthe I.P.C. was registered agajnst the present appellants. Vide Ex.P.1 the prosecutrix was recovered vide Ex.P.1 and sent for medical examination vide Ex.P.25 to Community Health Center, Saktiwhere P.W.22 Dr. (Smt.) C.K. Singhexamined the prosecutrix vide Ex.P.26. Upon internal examination, P.W.22 Dr. (Smt.) C.K. Singh found that no marks of injury were seen over the back, breast, abdomen and other parts of the body. Secondary sex characters are found well developed and breast is soft. Upon internal examination, she .^.. ..^^;. ...•/. .................... ..;..• ... found pubic hair cut and no mark of injury was seen over external genitalia. Labia majora and minora were found healthy. On vaginal examination, hymen was found torn. Granulation tissue was seen and vaginal orifice was admitted two fingers easily without any difficulty. Uterus was found normal. Two slides of vaginal smear were prepared from posteriorvaginal and sent for examination. Though no definite opinion could be given by the said doctor regarding rape, but prepared vaginal smear slides and advised to send them chemical analysis for confirmation. The prosecutrix was also referred to Radiologist, Distt. •i .. . .' •; Hospital, Bilaspur for confirmation her age. Similarly, appellant was also sent for medical examination vide Ex.P.18 to Primary Health Center, Malkharoda where Dr. R.P.Kurre P.W.18, who, after examination found that appellant's external body was well developed and also found no external injury, penis was well developed and half portion of glans was seen. It was opined that the appellant is able to perform sexual intercourse. -•; il 3. Vide Ex.P.Sspotmapwasprepared. Vide Ex.P.4 Petticoat was seized. Underwear and seat cover of Hercules Cycle were seized vide Ex.P.7. Accused Rajkumar and Arjun was arrested vide Ex.P.10 & Ex.P.19. Upon examination, P.W.27 Dr. S. Chatterjee found head of radius, partly olecrenon process of ulna, iliac crest was just appeared and opined tnat the age of the prosecutrix was approximately 15 years. Report of Dr. S.Chatterjee is Ex.P.32. School certificate of the prosecution was seized and exhibited as Ex.P.17 wherein the date of birth of the prosecutrix was shown to be as 15.02.1986. Sealed petticoat and vaginal slides of the prosecutrix, and underwear ofthe appellant were sent forchemical examination vide Ex.P.12. 5. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed before the Court of Additional Chief Judicial Magistrate, Sakti, who in turn committed the case to'the'Court of Sessions, Bilaspur. 7The learned Additional Sessions Judge.Sakti, received the case on transferfor its trial. 6. In order to prove the guilt of the appellants, prosecution examined as many as 27 witnesses. Accused were also examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them and pleaded their false implication and innocence in the crime in question. 7. After affording opportunity of hearing to the parties and after appreciation of evidence available on record, the Court below convicted anclsentenced theappellants,a§taforementiQnedin paragraph 1 (supr?). ? 8. Shri Abhay Tiwari, learned counsel for the appellants and Shri N.K.Mehta, learned counsel for the State heard. We have perused the records ofthe Court below and also impugned order. 9. Learned cqunsel for.the appellants argued that the prosecution has not adduced cogent and clinching evidence regarding the age of the prosecutrix. According to evidence of mother, brother of the prosecutrix, they were not able to tell the date of birth of the prosecutrix but only on presumption they deposed about the age of the prosecutrix to be 13 years. So far as School Certifjcate is concerned, it is stated; bythe prosecution that the date of birth ofprosecutrix is 15.02.1986 but the witness who had deposed has not given any reason how he has written that date of birth withoutany affidavit. It shows he was not the writer of 4 •^ that register in which date of birth of the prosecutrixis mentioned. According to him, the Doctor who has examined the prosecutrix for determination ofage stated thatthe prosecutrix was aged 15 years atthe time of incident but there might be margin of 2 - 3 years on either side. Therefore, the evidence which is always in favour of the appellant should be adopted. Then only the age of the prosecutrix could be determined as 18 years. After considering the age of prosecutrix as above 18 years, then certainly, she will be consenting party and no offence will be made out. Therefore, accused is entitled for acquittal. He also argued that even if it is supposed that the age of the prosecutrix is above 16 years and below 18 years, then according tohim, compromise had taken place between the prosecutrix and the accused. Relying upon the decisions rendered in the matter of Phul Singh v. State ofHaryana, 1980 Cr.L.J. 8 and SukhwinderSingh v. State of Punjab, (2000) 9 SCC 204, he urged that the sentence awarded to the appellants may be reduced to the sentence to the period already undergone by them. 10. According to the learned counsel for the State, the prosecution has proved its case beyond reasonabledoubt and he supported thejudgment of conviction and stated that the date of birth of the prosecutrix is' proved by the School Register and supported by the evidence of Doctor who has taken X-ray for age determination. According to him, on the sdate of incident, the prosecutrix was minor; therefore, learned Court below has rightly convicted and sentenced the accused. <-^:-<.?:':' '-,: - • -•-••- -; -—--7-. - 11. First of all, we shall deal with the age of the prosecutrix. Prosecutrix P.W.1 has in her evidehce state that she was student of 4th class; even then she was not able to state her date of birth. SawanBai, P.W.2 is her rhother has also not stated the date of birth, only saying based on presumption that herdaughter is aged 13 years. She has also stated that entry with respect to date of birth of the prosecutrix was not got done in Kotwar register. According to her, when her daughter went to school, no date of birth certificate was produced before the school authority. The school authority has asked her daughter to catch her right ear by left hand over the head and thereafter they determined the age of the prosecutrix to be six years and endorsed her date of birth in the register onpresumption. This shows that correct age of the prosecutrix was not endorsed in the register but only on the basis of presumption, her ^-^ 5 , il date of birth was endorsed in the register and no affidavit to that effect wasproduced. Shyam Kumar P.W.5, brother ofthe prosecutrixalso does not know the date of birth of the prosecutrix. The only evidence on this pointis of Mandhir Das P.W.16, who is head master of Primary School; Amandula has stated in his statement that he has given the transfer certificate Ex.P.17 to the brother of the prosecutrix. According to school register, the date of birth of the prosecution is 15.02.1986. After seeing that register, he endorsed the date of birth of the prosecutrix in transfer certificate. In hiscross-examination, this witness has deposed nothing about the entry and how that entry has been made in that register because he was not the writerof that register. Therefore, his evidence is not reliable on the point of age. For determination of age, the only evidence is of Dr. S. Chatterjje, P.W.27, Radiologist has stated on 13.08.98 he took X-ray of the prosecutrix for determination of age because one Gopal Singh, Constable No. 832, belonging to P.S. Malkharoda brought the prosecutrix to him. According to him, the age of the prosecutrix was 15 years and he has given the report Ex.P.32 and X-ray is Ex.P.32A and Ex.P.32B. But in cross-examination, he stated that there may be^margin oftwo-threeyears in the age, which depends upon diet and atmosphere. Therefore, it is clear that the age of 15 years may go to 18 years. It is clear from the above evidence that the prosecution has not been able to prove the correct age of the prosecutrix at the time of incident and according to the evidence of Dr. S.Chatterjee, it is clearthatthe age may be 15 or 18. It is also clear that the evidence which is favourable to the accused should be taken because benefit of doubt always goes to accused. Thus, it is clear from above discussion that the age of the prosecutrix at the time of incident is above 18 years. Learned court below has wrongly considered the age of the prosecutrix as 15 years and } • ; . ;..' thereby committed illegality. 12, So far as complicity of the appellants in crime in question is cohcerned, the prosecutrix P.W.1 has deposed that Sawan Bai is her mother, Sunita is her sister-in-law, Nand Kumar and Laxmi Prasad are her brothers and they are residing in the same house. According to her, at 9.00 a.m. accused came to her house when shewas watching T.V. and tbld hertoel6pe'witti'himy'Qp6h'which,'stie reTused/ It ^ mention here that appellantthreatenedtokillher by knife. Thereafter, she .< narrated the incident to her mother. On the very next day, when she went to attend natural call, the accused came to her and told her to sit on bicycle; she refused to do the same but the appellant pointing the knife and forcibly took her to Jampali on his bicycle. Thereafter, the appellant took her to the house of accusedArjun, where she slept. On that night, the appellant came to her room and forcibly committed rape on her against her wish and willing. In this way, it is clear that on the date of incident of first time when she was watching T.V. and accused told her to elope with him in her house, even then she did not raise any alarm. If she would have raised aiarm at the same time, then the inddent would not have occurred when the prosecutrix went to attend natural call in the early morning. According to her, she narrated the incident to her mother, but her mother did not heed any attention on this. On the next day, the prosecutrix alone went tq attend natural call. At that time, accused came to her. This shows that the prosecutrix was preplanned otherwise how the accused carhe to know that the prosecutrix would come for attending natural call at 5.00 a.m. in the morning. Thereafter, accused told her to come with him on his bicycle. Even then, she did not raise any alarm and went to Jampali along with him by sitting rear side. Ifthe prosecutrix was notwilling to go with theappellant - Rajkumar, then she would have raised alarm and jumped from the bicycle and would have gone to her home. But the prosecutrix did not doso and went with him upto Jampali. This shows her clear-cut consent. Even after reaching Jampali, she had not stated anybody that the accused took her forcibly. Even in the night at the house ofArjun,when the appellant was committing rape on her she did i . ! not resist nor did raise any alarm. According to her statement, on the next day when her brothers came to the house of Arjun and asked about her, even then she did not raise any alarm and narrate the same to them. On third day of incident, when police came with her brothers, then she was recovered from the house ofArjun and report was todged. ^r'.-^r'" n4- 13. From the above discussion, it is clear that the prosecutrix was aged above 18 years on the date of incident and was willing to go with the appellant - Raj Kumar and was consenting party to the act of sexual intercourse and that she had willingly left her parents' house to be with the appellant and was ready forco-habitation. - [ 14. Sawan Bai P.W.2 has stated that Bhim Prasad, father of the accused, has informed her at 8.00 a.m. that he saw her daughter going with his son / appellant - Raj Kumar. She stated this matter to Het Ram, Sant Ram and Shyam Kumar. SunitaBai P.W.3, Laxmi Prasad P.W.4, Shyam Kumar P.W.5 also stated that the prosecutrix went to attend natural call but she did not return back, then the father of accused came and informed them that his son Raj Kumar has taken the prosecutrix with him. Then, they made searchof the prosecutrix and not reported the matter immediately to police. Nand Kumar P.W.6 has stated that when they went to the house of Arjun and asked about the prosecutrix, then they were threatened by the Arjun and then they returned back. This piece of evidence has not been stated by Laxmi Prasad P.W.4 who was also with him during search. Het Ram P.W.7 has turned hdstile witness. 15. It is clear from the evidence of above witnesses that on the date of incident, when the prosecutrix was eloped away with the appellant - Raj Kumar, father of Raj Kumar has seen them. At that time the prosecutrix may raise alarm if she did not want to elope with the appellant ~ Raj Kumar. The father of accused hasinformed the mother and brothers of the prosecutrixabout the incident,even then they did not lodge report immediately. This shows that appellant and the prosecutrix had made pre-plan to elope in the early morning on the date of incident. Therefore, it is clear that the prosecutrix was a consenting part:y and accused had not taken her forcibly from the lawful guardianship of the parents of the prosecutrix and had also not abducted her. Co-accused Arun has also not concealed the presence ofthe prosecutrix in his house. Prosecution has failed to prove that accused Raj Kumar had forcibly taken the prosecutrix from the possession of her guardians and kept her in the house ofArjun against the will of the prosecutrix. Prosecution has also not proved that Arjun concealed any fact regarding the presence of the prosecutrixin his house. Prosecution has further failed to prove that the accused committed rape on the prosecutrix against her will. Therefore, the learned lower Court has wrongly assessed the age of the prosecutrix below 18 years and has also wrongly assessed that the accused hadkidnapped the prosecutrix and Arjun had concealed the fact. 16. ; Frdm !the foregdihg' reasohsi'the'impughed judgment bf the Court below dated 27.02.199 is liable to be set aside and the conviction and ^s tf-%-^ 'X /^'"^ ^ Y-\ -•-..^:.^;^ ••".-.i,^^ ^,; .c^^' (^) sentence of the appellants - Raj Kumar and Arjun is also liable to be set aside. 17. Consequently, the appeal is allowed. Conviction and sentence of the appellants imposed by the Court below is set aside. The appellant - Raj Kumar is acquitted ofthe charge under Section 363, 366 and 376 of the I.P.C. so also appellant—Arjun is acquitted of the charge under Section 368, 363 and 366of thel.P.C. Fine, if any, deposited by them in the lower Court, be refunded to them. It is informed that appellant No.1 is in jail whereas appellant No.2 is on bail. In that view of the matter, appellant No.1 - Raj Kumar shall be released from the jail, immediately, if not required in any other case. Appellant No.2 Arjun is on bail, therefore, his bail bonds shall be discharged. i' Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge