N HIGH COURT OF CHHATTISGARH AT BILASPUR (SB: Hon’ble Mr. T.P.SHARMA, J'_.) Criminal Ag’geal No.232 of 2007 Mukesh Vs. Sfm‘e of Chha’rfisgarh JUDGEMENT P051“ for 27/7/2009 V \ Sdl— ,i * r: T. p. Sharma ” xx Judge ‘ 27/772009 HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Aggeal No’.232 a? 2007 Mukesh S/o ‘Fer'ur'am Sahu, Aged abouf 2O years, R/o Khur‘sipar, Bhilai, P.S.Chhaoni, Dhira Bhafha, P.$.Berla, af presem‘ Dubmpara, Bhilai—3, Districf- Dur9,C.G. Versus APPELLANT (In Jail) ESPONDENT Sfa‘l‘e of Chhaffisgarh g (Appehl under Section 374 (2) of fhe Code of Criminaf Procedure, 1973) (SB: Hon’ble Mr. T.P. sharma, J.) Through‘ P.S.Chhaoni, Disfm’cf-Dur'g, C.G PreSem: MnRajesh Kumar Jain, counsel for The appellant V r.$ushil Dubey, GovtAdvocaTe for fhe Sham/respondent JUDGMENT (Delivered on QlJuly, 2009) This appeuf is direcw‘ed againsf The judgment of convicfion and order of enfe’nce dated 19.3.2007 passed by the Second Additional Sessions Judge, .. rg, in Sessions Trial No.182/2005 whereby and whereunder fhe Ie‘arned Second'Addifionol Sessions Judge offer holding The appellani guilfy for The senfenced him To undergo er rigorous Secfions imprisonmenf 376(1) and 342 of fhe Indian Penal Code ' Rs.2000/-, offence punishable und for 7 years and fo pay a fine of fo furfher undergo rigorous men’r for 6 months. in defoulf of paymenT of fine imprisonmenf for 6 monfhs and rigorous imprison R ,,. :u 31.3.2005 a’r abouf 9 p.m. ’rhe prosecufrix was sfanding in from‘ of her' house and house of 'rhe accused is adjoining ‘ro the house of The prosecufr‘ix. Accused Mukesh was called her fo ossisf in cooking. When she wem‘ inside The house of The accused, The accused offer closing The door has commi‘r’red sexual infercourse wifh her- and also closed ’rhe door from fhe oufside and locked. Mother of fhe prosecufrix searched her daughfer'. When she came To know fhaf fhe prosecufrix is inside fhe room of fhe accused, Then Iock was broken. The rosecufrix was present inside The room who narra’red The incidenT To her Ther and oTher persons Then They lodged The FIR. aT ouTposT Chhaoni video R ExP/l. RegisTered F.I.R. was lodged aT Police STaTion Chhaoni vide EXP/8. Her undergarmenT was seized vide EXP/2. She was senT for medical examinaTion vide EXP/14. She was examined by Dr. PraTibha Dani (PW-3) vide EXP/3 who has ascerTained The age of The prosecuTrix beTween 12 To 13 years. BreasT was developed. Pubic hairs were presenT. Only 26 TeeThes were found over boTh The jaws. Vaginal admiTs one finger. Tenderness was presenT in The privaTe parT of The prosecuTrix. Two slides of vaginal smear were Taken and sealed. Her undergarmenT and skirT conTaining whiTe sTand were also examined. To ascerTain The age of The prosecuTrix, The prosecuTion has conducTed ossificaTion TesT and .A.K.Sahu (PW-4) has opined The age of The prosecuTrix on The basis of ssificaTion TesT vide EXP/5 beTween 14 To 15 years. Underwear conTaining whiTe sTand of The accused was also seized vide EXP/6. Slides were seized vide EXP/10. SpoT map was prepared vide EXP/17. Seized arTicles were senT for chemical analysis vide EXP/18. .‘ .AfTer recording The sTaTemenTs of The wiTh‘esses under SecTion 161 of he Code of Criminal Procedure, 1973 (in shorT 'Code') and afTer compleTion of invesTigaTion, charge sheeT was filed before The Judicial MagisTraTe FirsT Class, Durg who in Turn commiTTed The case To The CourT of Sessions, Durg from where learned Second AddiTional Sessions Judge, Durg received The same on Transfer for Trial. 5, In order To prove The guIlT of The accused/appellanT The prosecuTIon ha examined as many as 10 w1Tnesses STaTemenT of The accused was recorded p m d r 4 T s ner Sec’rion 313 of ’rhe Code where he denied The circumsfances appearing againsf him and innocency and false implication is pleaded. . 6 Learned Second Additional Sessions Judge affer‘ affording an opporTunify f hearing ‘ro The par’ries, convic‘fed and sen‘renced The appeHam‘ as aforementioned. . I have heard Shri Rajesh Kumar Jain, counsel for The appellanf and Shri ushi! Dubey, Governmenf Advocafe for ’rhe Sfa’re/respondem‘ and perused ’rhe ‘ju gmem‘ impugned and record of The courT below. \ \8. Learned counsel for The appellanT vehemenTIy argued ThaT The prosecuTion has noT proved The age of The prosecuTrix below 16 years aT The Time of commission of offence. The prosecuTrix herself has admiTTed ThaT she feels happy To Talk wiTh The accused and she used To Talk wiTh The accused. Her sTaTemenT is suggesTive of The facT ThaT she is consenTing parTy and The accused has noT commiTTed any offence wiTh her. He has been falsely implicaTed by The prosecuTrix. Learned counsel furTher argued ThaT she was examined by Dr.PraTibha Dani (PW—3) wiThin 24 hours of The alleged incidenT buT no injury was found over The body of The prosecuTrix or privaTe parT which is also of The facT ThaT she has noT subjecTed To sexual inTercourSe. Learned coun‘s‘el placed reliance in The maTTer of Jaya Mala v. Home §ecreTary, GovernmenT of Jamrn’u & Kashmir and oThersl, in which The Apex’ * é‘ourT has held ThaT There may be variaTion of Two years on eiTher side in The age ascerTained by ossificaTion TesT. Therefore, only in The lighT of ossificaTion TesT and possible variaTion, iT is difficulT To hold ThaT aT\The Time of incidenT, age of The vicTim/prosecuTrix was below 16 years. The prosecuTion has noT adduced any evidence To show ThaT The alleged incidenT has been commiTTed wiThouT will and consenT of The prosecuTrix and in The absence of prove ThaT iT was commiTTed wiThouT consenT and will of The prosecuTrix, The accused is noT punishable under SecTion 376 of The Indian Penal Code. Learned counsel also argued ThaT The prosecuTion has also collecTed cerTificaTe from The school (EXP/20) in which daTe of birTh of The prosecuTrix is shown as 14.1.1993 and sTaTemenT of The l 1 (1982) 2 scc 538 ud o 7 S wi‘ness T.R.Bansod (PW-10) oes not inspire confidence relafing To da‘re of bir’rh of The prosecutrix. 9. On The o‘rher' hand, Iear'ned counsel for fhe S'I’aTe/responden‘r suppor‘red The judgmem‘ impugned and argued fhaf The age of fhe prosecu’rrix has oscerfained as 15 years on The ground of her physique condiTion. Her age was below 16 years. The prosecuTrix has noT sTaTed anyThing To show The consenT or willingness, inTer alia, she has specifically deposed ThaT The accused has rcefully commiTTed sexual inTercourse wiTh her The prosecuTrix is aged abouT 12 years Therefore InJury found over The privaTe parT Is noT necessary Tenderness was found over The privaTe parT of The prosecuTrlx aT The Time of examinaTion and Dr.PraTIbha Dani (PW—3) has speCIfIcally deposed in para—9 of her evidence ThaT The prosecuTrix was noT permiTTing for vaginal examinaTion on The ground of Tenderness. DespiTe of The resisTance by The prosecuTrix, she has examined. Her vaginal admiTs one finger and she also complained The pain. She has specifically deposed ThaT Tenderness was presenT prior To examinaTion and as a resulT of examinaTion shows The commission of offence. On The basis of daTe of birTh recorded in The school regisTer i.e. 14.1.1993, on The daTe of ‘ ffence her age was only 12 years. 10. In order To appreciaTe The conTenTions of The parTies, I have examined The evidence available on record. As regards The age of The prosecuTrix is (concerned The CourT has ascerTaIned The age of The prosecuTrix as 12 years GeeTa Sahu (PW 1) moTher of The prosecuTrix has deposed In para 1 of her evudence ThaT age of her daughTer is 12 years. T.R.Bdnsod (PW—10) Head MasTer has deposed ThaT The prosecuTrix was sTudying in his school and according To The admission regisTer, her daTe of birTh is 14.1.1993. and he has issued The cerTificaTe (EXP/20). Copy of The school regisTer is EXP/21. In his cross-examinaTion, he has specifically admiTTed ThaT on The basis ofTnformaTion given by The faTher of The prosecuTrix he has recorded daTe of birTh of The prosecuTrix as 14.1.1993 buT he has noT Taken any signaTure of The faTher of The prosecuTrix Though he has noT made enTry buT he has specifically deposed ThaT aT The Time of making such enTry he was posTed in The same School. \ ‘a f d o 11. Defence has cross—examined Gee’ra Sahu (PW-1) on The quesfion of age of The prosecu‘rr'ix. Defence has nof suggested any’rhing To fhe prosecutrix r-ela’ring 1‘0 her age as ascerTained by Dr'. PmTibha Dani (PW—3). She has also recorded her physical condifion of fhe prosecufrix fhaf her breasf was developed. Pubic hairs were presenf and only 26 ’reefhes were found in bo’rh The jaWs. On fhe basis of ossifica’rion fes’r, age was ascer’rained befween 14 To 15 fhough dafe of birfh enfry was nof made by T.R.Bansod (PW—10) who was posfed in ’rhe same chool af The Time of recording such daTe of birTh For proof of The age or daTe of birTh, koTwari enTry is exclusive evidence and inThe absence of exclusive evidence’ The CourT has ascerTained The age on, The basis of ‘ocular evidence, age ascerTained by ossificaTion TesT, age ascerTained by The docTor who has examined The prosecuTrix and daTe of birTh recorded in The school admission regisTer. '13. In The maTTer of Sidheswar Ganguly v. STaTe of WesT Bengalz, The Apex CourT has held ThaT conclusive evidence of The girl's age may be The birTh cerTificaTe, if iT is available Then in conjuncTion wiTh such maTerial TesTimony as may be available and, conclusion has To be based on all The facTs and circumsTances Including The resulT of examlnaTIon of all physmal feaTures of The raped girl 3 _ 14. _ While dealing wuTh The quesTIon of deTermmaTion of age In The maTTer of* $TaTe of H P v Mango Ram The Apex CourT has held ThaT age of The prosecuTrlx shall be deTermmed on The basis of all relevanT fac‘Tor's, including physical feaTures. Para 11 a 12 of The said judgmenT‘reads as underzs “11.We carefully considered The rival conTenTions and also perused The records and The impugnedrjudgmenTs. The verdicT of noT guilTy has been enTered by The learned Sessions Judge mainly based on Two grounds ThaT The prosecuTrix was aged above SIxTeen years and If aT all There was any sexual acT IT musT have been WITh her consenT. BoTh These findings are erroneous land incorrecT. 12. As regards The age of The prosecuTrix, There is evidence of ‘ PW 2 Dr Veena Sehgal who examined The prosecuTrix and afTer ‘ MIR 1958 so 143 3(2000) 7 scc 224 s \ faking nofe of The physical feafur‘es s’rated fha‘r The prosecu‘rr'ix mus’r be of fhe age be’rween 13 ”r0 14 years. PW 3 Dr‘ Lokender Badofm, who examined ’rhe prosecu’rrix also suppor‘red fhis version. This view is more sfrengfhened by The family hisTory which showed ’rha'r she was born in The year 1979. Therefore, in ail probabiii’ry, the age of Ihe prosecufrix of The ’rime of The occurrence was abou‘r fourfeen years. The cerfificafe of PW 13, ’rhe Medical Officer—cum-Radioiogis’r, also gives only ‘rhe probable age of The prosecuTrix Therefore The finding of The learned Sessions Judge ThaT The'prosecuTrix’ was above The age of sixTeen is based on fauiTy reasons and is unsupporTed by evidence" 15. In The presenT case, moTher of The prosecuTrix has specifically deposed ThaT age of The prosecuTrix aT The Time of commission of offence is 12 years. The CourT has also ascerTained The age of The prosecuTrix as 12 years. Dr.PraTibha Dani (PW-3) who was examined The prosecuTrix has opined ThaT 26 TeeThes were presenT in boTh The jaws. She has ascerTained The age of The prosecuTrix beTween 12 To 13. Dr.A.K.Sahu (PW-4) has ascerTained The age on The basis of ossificaTion TesT. T,R.Bansod (PW-10) has also deposed ThaT daTe of birTh of The prosecuTrix is 14.1.93 on The basis of School regisTer and he was posTed aT The Time of such regisTraTion and daTe of birTh was menTioned on The asis of informaTion given by The faTher of The prosecuTrix. Defence has noT ass-examined The prosecuTrix (PW—2) on The poinT of age. If The sTaTemenTs of The wiTnesses, physical condiTion of The prosecuTrix, especially only 26 Teefhes were found over her boTh The jaws, daTe of birTh recorded in The school hegisfer and The resulT of ossificaTion TesT are considered conjoinTly Then age of I The prosecuTrix may be safely ascerTained beTween 12 To 13 years. The CourT below has ascerTained The age of The prosecuTrix on The basis of The aforesaid maTeriaI available on record. The CourT below has neiTher commiTTed any V illegaliTy or infirmiTy in ascerTaining The age on The basis of maTerial available on record. i 16. ‘As regards The quesTion of commission of sexual inTercourse by The accused/appellanT is concerned, prosecuTrix (PW-2) has specifically deposed in \ her evidence ThaT when she came ouT from her house To see her broTher, The \ accused asked her To help in cooking. When she wenT inside The house of The accused, Then afTer someTime The accused fell down her on The bed and afTer \ i b ‘i re clothes a inseed his ale gan in ’rhe pri par‘f of e moving nd rf m or vate Th prseu’rr'ix ees p and ried. r omsin o ’he nc he oc. She fl ain c Affe cmiso f r offee, T a’r e awa fm u and loc The doo f he ouTside. e ppeliun wm‘ y ro The hose ked r rom T Hr mhr searched her d las e came nd ene The door eTa ahu (P-1 moThe of T rosecuTri s corrooraTed Th TmeT of e rcT he exnT ThaT e e sechd e ughTer an IasTr sh pOSeurix To T Te whn sh are hr da d ly e wa ond i Th r f Te d dauhT Ted The incidnT aT s s iTT l se irdra Kma -6) brofher The psuTrix has alo suporTe The sTaTemenT he . Dr.Pbh Dan -3) wa exained roseuTr as o ThaT on 1.405 she s emne The precrix an fond depsed .20 ha xaid osuT d u ederness pe pr an ad fng I e Tl Tn over her rivaT aT d vaginal miTs one ier. n hr deai coss-exmi e a specly se , 0 12 and 13 Ta Tenderness was presenT over privaTe parT of The prosecuTrix, Therefore, she refu3ed for examinaTion and Tenderness was noT as a resulT of inserTing finger. she has specifically admiTTed in para—13 of her cross-examinaTion ThaT if male organ is inserTed in The privaTe parT of The girl of Tender age forcefully, Then siTuaTion found in The body of The prosecuTrix i.e. Tenderness over The privaTe arT, may occur. The age of The prosecuTrix has ascerTained beTween 12 To 13 years. She is noT nubile girl (maTured for sexual relaTion) and in case of commission of sexual inTercourse wiTh The girl of Tender age, Tenderness may <6ccur insTead of Torning of hymen. Dr.PraTibha Dani (PW—3) has virTually supporTed The case of prosecuTion and commission of sexual inTercourse wiTh The prosecuTrix. s fu nside e oom o h accuse and her ger narra ' e Th The accued ha commed sexua inTercour wiTh her. Ven ur (PW of roec s pd of T prosecuTrix raTia i (PW who s m The pcix h runaTion, sh hs ifical depod in para-9 1, hT 17. Defence has cross—examined The prosecuTrix. He has Tried To suggesT ThaT The prosecuTrix like To The appellanT and she used To Talk whenever she made. The prosecuTion has also suggesTed ThaT when The accused fell down The prosecuTrix in bed, even she has noT cried for help or noT resisTance. By These suggesTions, The accused has Tried To show The case of consenT aT The Time of /,’ commission of offence. The sTaTemenT of The prosecuTrix is supporTed by The medical evidence, sTaTemenT of her moTher, broTher and prompTly lodged FIR. are sufficienT for drawing inference ThaT The accused has commiTTed sexual oTe an Tly polic a opd . Ge S W) r he px ha b e sTaen Th o l @ im‘ercour‘se wi‘rh The prosecufrix who was aged abouf 12 f0 13 year's m” The Time ‘of commission of such offence and after commission of the offence the appeHant has closed the door and thereby confined the prosecutrix. 18. After appreciating the evidence availabie on record, the Court below ha convicted and sentenced the appeilant as aforementioned. Conviction and sentence of the appellant is based on credible and clinching evidence inspire confidence and sustainable under the law. Learned Second Additional Sessions dge has sentenced the appellant rigorous imprisonment for 7 years and fine of . lRs.2000/— for the offence of ra X‘ the offence of prosecutrix, sentence is neither excessive nor unjust. I do not find any pe and rigorous imprisonment for 6 months for illegal confinement. Taking into consideration the age of the ‘ substance in this appeal. 19. For the foregoing reasons, the appeal has no merit, same is liable to be dismissed and is accordingly disse. \W‘Mm‘sijp "'“Ww A T. P. Sharmaan” sx§v Judge ’1 s misd i