: h.;.»^" i JJLS&AK!"! A1_B;ALA&B^K (SB: HonbleUr. T.P.SHARrtA. J] 6(ri3rel Vs. Ths State cf ^edhycs Pradssh POST PQR PROUNCEAENT OF THE JU&6.WNT ON 30/6/2010 Sd/- T.P. Sharma Judge ~^ / '(ililRA] f«ri"'!%l ^y^''%. 1 C'v^9 ] v^tjy Appelia'rt' Respor'dent IS5ARH AT Cr'm'n9l__ABPcal No',965 of 1991 6t»re.f swi of Budhram Ekka, flgsd about 24 yeara, resictent of Uudcpara. PoiJce Stetion Pcrt'ha^iaon. bistrict Raiqat'h. Versus The Stcte of ^ccihya Pradesh through The Police Station Pathaigaon, E)istrtct Raigarh. ^ (Cr'imina! appea! under Section 374 e>f Cr.P.C.) »B; Hon'bto#.r-T.P. Shanna.J. Present:- Miss Sharmita Shlnghai, counssi for th< appsj!<snt. Mr'.Sushil bubey, ©ovt.Advocatefor tte State/raspondent. (beiiwed an 30 Jw«. 2010) 1. ChalSenge in this appeat is ts the juc^ment sf conviction A order of sentsncs datsd 3.10.1991 passed by ths l Additional Sss^lona Judge. Rcigarh, jn Sessions Trial N0.1.60/90. whereby A whersyndsr Isanwd 1 AddltioRal Sessions Judge afte" hafding the appeilant gui'ty for the offsnce punishabte under Sectiong 363. 366A A 376 of the Ind'an Psnsl Code sentsncsd him to undergo rigsrous imprfeor'msnt for thres years, rigorous impriswiment foF thres year's and rgopous impr'isQnnwnt for five years. / 2. Convlct'on ia chattengs^ on the ground thot the trioi Court' has not consjdsred the age of the prosecutpi^ end the fect that she is a consenting pwty a"d there-by committeci ifegaiity. 3. ' -Case of the pr&secution, >n bftef. is thfl^ ths prosecutrix (PW-t) (nams . - n"f mentioned) was aged about 1S ysoij's on 6.7.90. On 6.7,90 whiis if .'•.7: :-• ' :^.- "- . ^ , the prosecutrtx. wss coming from m<ir(<st at about 12 at noon the (613 '"f*-,.. /^:^\ '-^.OlAS;^; ^ 'fe.,.-' t: "^ 4. •appeilant caught hofd hsr and commttted r-ape with her, he threatened the prosecutrlx emt took her w'th him to S<ii9arh arsd committed intercourse regutariy w'th her without her w'll cnd consent ond as & pgsutt of such mtsrcourss, she conceivsd arsd gaye birt'h of chHd. Her father Sukhna (PW-2) lodged the F.I.R. viite Ex.P/2 rststing tg kktna; &"d obduction of his daughter, On 2S.7.90, ths prosecutrix was recQyered from the house of the appsltant vide Ex.P/10. Ste was sent for medical exaroination. She was examined by Dp.Smt.Lata Sarneu! vide Ex.P/19.4 and found that shc ws hnviriy pregnancy gf about three months, Her x-ray was cenductsd by &r,#,.&.-J(»h'(PW-6) victe Ex.P/6 and her ags was opir-ed bstwecn 16 * to 18 years. Qecument rcloting to wy of thc prosecutrix wi»seized vi.de Ex.P/3 and was given m Supurdnana vide Ex.P/4, Document reiating to ag®of the prosecutrix was also sei'ssd vide Ex.P/S. The accused/appeiicnt was examined by &r,0.K.Verma (PW-7) and was found capdbte for comn'ijtt'ing semsl JRtercour'se. bocument rslctlrg to ogs of ths prosecutrix Ex.P/12 was siso seizsd from Chr'st'a" .ft'sswnary \4de Ex.P/ll, Admission registsr of the prosscutrix was ssi»d vids Ex.P/13 tS Ex.P/14.4. Copy of transfer cerfif'cnte w Exf/iSA, Spot map was •sd vide Ex.P/18. prs STatsments <?f the witoesses wcre. rseordeci unde- Ssction 161 of the Code of Cr'iminaf Procedure. 1973 (in short 'the Cede') and aftsr completion of invsstigation. ehoiry-sh^st was fited bcfor® the Judicial cgistrote First Ctass. bhoiramjnigarh, who in tum commit?sd ths cass to Ae Coyrt sf Sessrons, Raigarh, from whers learned 1 Additlonc! Sessions Judy, Rgigarh receivsd ths caae on transfer for tcial. .. j 1 In order to prpve the guiit of the acciaged/appsliant, ths prosecution hos exnmined os many as 17 witnesses. The accuged/appellcnt was under Sectis" 313 of ths Code whsre he denied the ^ liiiiiaiiuiiiis ^ *..^ -^- circumstences appsaring against him and ciaimsd innocence nnd faiss implicationjn the cr'irae in question. Ths appellant has toten specific defence thst the prosscutrix whsae age wss mers than !8 ysars on Ths date of The alfegsd incldsp.t hsrsajf has teft her parental house and we"T to ths house of th®appeltant. she rssided with the appe!lant as his wifs, she has iodged-the report' sgainst her fathcr Ex,t>/l and e?®cutedaffidavit vide Ex.D/Z. Tne qipellant has a!so exammed defence witness Rctiram in support of his evidencs. 6. After- providing opportuntty of hsaring to the part'ses, leamed 1 Additionat Sessions Judge, Ralgfirh hns convicted & ssntsnced the sppeltat as aforemsntioned. 7. I have heard iearned counsei for- th®pcrt'es. perussd the judgmerit impugnsd and record of the trial Court. 8 9. Learned counssl for the sppeticnt vehemsntly ar^usd that in tte pressnt cass the appeiStmt has not djsputed the rsfation with the compiainmt/prosecytrix. The prosacutrix heraelf hos teft hsr parenta! house and went to the hoyss of the appeliant and resided with him as his wfs. When her father lodged ths rs.port -^ginst the prosscutrix, thsn shs olso lcdged the rsport' ^ainst her fathsr vide Ex.D/1 to poiice station Poithdgaon. She has a!so sxecutad the cgreemsRt which shows th.at she has married with the appeltant. On the dat®of mcider't, the flge of the prosscutrix wcs not bstow 16 years. but at that time shs was raor®than 18 years, T1ie presecutjon has not prwsd ths fact that nt ths tims of incidsnt <sgs of the prosecutrix was bsiow 18 ywys. ' Leoimed counsel placed reliance in thte mattBr of Stet®of Himechal Pradssh v, Saresh KiiR'.ssr a'iiss Chhotu in which ths Apex Ccurt hsss hetd that in cass, the iiQe of the pro^ecutrix was not found bslow 16 l<g08S)!05CC.104. --f- years a"d she was o consenting party. offsn<» undsr Sectiong 363, 366 & 376 of the Indian fenai Code net made oiff. Lewned counse! furt'her plawd rel'ance in the mattsr of Shyam and anothtr v. State of Maharashtra in which the Apax Court hos hsld that in case. the prosecutrix not putting up st''uggte or raising alarm at the time of alisged obduction arsd pros&cutrix appears to bs wiiling party to 90 with accused on her own. then culpab'iity of sccused not egtablishsd snd conviction not sustoinoble. 10. On ths oth.e.r hand, tecrrwd Stats counsel supported the judgment impu9"sd arsd ar9ued that by adducing cogent and reilAle evidenee the prosecution hcs proved the cosg that age of the. prosecutrix was bctew 16 years on ths dats of commissron of the offence. therefors. tjuestiw of wjjl and consent is ir'lmatsrial, The prosBCUtrix was found in th.e house of the oppellant and she has besn subjscted interceurss by the ^peilant, The prosecution hgg proved its cas®beyor'd atl shadow of doubt and the trrot Court- hcs rightly cQnvictsd & ^ntenced the appeltant for the offe.ncs punishabte tinder- Section^ 363, 366A & 376 of th.e Indian Pena! Co<te, U. In ordsr to appreciate the aryments advancsd on bshslf c'f ths part'ws. I havs examined the moiterial avaiisbte on rgscord, 12. As regards ths question of age of the prGsecutrix. while sxamining th.8 prosscutrix (PW-1) on 27,5,1991. ths Court has assessed her SQS ss i5 years. Sukhna (PW-2), fatiisr of +hs prgseaitrix. hos also - • depossd in.h'^ evidsnce thst ^e of ths pre.se-cytrlx is 15 years and at that time shs wgs studying inc'ass-VI, t>ocum®ntr%jati"g to school rs>.srt-ificate has been seized, Raj^sh, 0>W-3), brothsr of the prosecutr'x, h% aiso depowd in h(s svidsncs that ege sf the prosecutr'tx is 1S )'ears, As psr the e-^kferice of Dr.rt.&.Josh' (PW-6) srid.x-pay reprt, her cy was betweeri 16 i to 18 vse.rs cnd variation SMR 1995 SC 2169 . -f-r\ ' fc " % I 1 I ,,""s"t%i 1 vtt^J'./ !t*as'2rf"' - <r-- of 3 years not posslbie, Ths prosecution has a!so exammed Satyananc! (PW-12), Hesdmssfer Sukra Ram (PW-13) and Hsadmaster Pmcham La! Namdeo (PW-14) and documents relaTin9 to <ge i.e, E»B.P/14A and P/15A which reveal thc date of birth of the prosecutrix <ss 10.4.t97S. Headmsster Pancham Lal Nonideo (PW-14) bas admitted in para 5 of his cross-exflroination thst +is has not rscorded the oge of the prosecutrix in Ex.P/14A iand dat®of birth of the prosecutrix was rscorded OR the baais of cert'ificats of 5tk Bcard ••'••hich shcws that Ex,P/l4A is secondary evideRcs and dats of bipth was recorded on ths bosis of board cert'ificate. The prosecution hss not cellected the sojd docurnent. The prosecution h®also sxamined tf.orkush Kujur (PW-tO) and Silwanush Beag (PW-il), Fcther of Catholic Aahram. PattQlgaori relat!n9 to seteurs of Ex.P/12 vids seizurs memo Ex.P/11. As psr svidence of Silwanush Besg (PW-11), Ex.P/12 is prsparsd by this w'Tness which rswais thot date of birth of the pposscutr-ix is 15.4.1972. Investi9ating offlcer R.P.Pendey (PW-15) has depossd in his evldence that hs has seized decumsnt rslating to gg» of the prosecutrix from S.K.Becg viefs Ex.P/11. In pcu'o 9 of his cross-exammQtten. he hos speciflcatiy cdmitted that h.s has n&t wiuntwily writt'sn da'te of birt'h of ths prose.cuti'ix as 19.4.i992 fl"d re3'ster No.72/229 which finds ptaes •n Ex.P/10, Sukhng (PW-2) has depgsed in para S ef his evidsnce thst at ths cgs of 6 year's. ths prosscutr'ix was adm'tted in schooi. He hos further deposed m para 9 of his eyklence that he has nswr mtjmated dote of bjrt-h sf h»ddughter to church, As per Ex.P/12 date of birth gf the presecutrix is 15.4.1972 and e».persecondary evidence E?cs.P/14A and P/WA, dats of bjrrh of the proseeutrix is tO,4497B. She wos admitted in schoot st ths ags of 6 y^srs. As psr evidence of thfe prosecutr'ix (PW-1), at ths tims of (ncidsnt ahe wcs studying in clcss-VI ari'd the incident took ptece m Jiuly. 1990, '•^' .<?c'^~^ "*iy.: t' 1 3. """% I \^.-. t' ff S4. If this ev'dsncs is consictered, thsn the age of the prosscutrix on the date of mcident would be 6 ysar.s (on th®date of admission in scho"* •i- 6 ysws because she wes studying in ctass-VI = 12 yeors). but as per schooi document on the dste of incjdsnt her cye was S5 ysars csnd 3 months. The cforesajd eyidencss are cQntradjctory to each othsr. Ths prosecution has cotfected the documsnt relctmg to sQe i.e.Ex.P/12, As pcr Ex.P/12, hsr date of birth is IS.4.1972 and on the dcts of inctdsnt hsr o^®was about mors than 18 yeta's. 15. In case of mar^insi age or 'm coee of rape ond offencs with the person beiow the oge of 16 ye.ars. the presecutten <s required to provs the fact &y adducing cogsnt evidsnce that on the dfft'e of incfdent The prosecutrix was minor i,e, bslow the oge of 16 yeers and not above the age of 16 years, Rscson best knowr'.thsrsfore, ths prosecution hcs net filsd pnmary documsnt re!sti!^ to egs liks birth registsr (kcitwari panji CT>.d primary schoo! register), but ratted up" the sscondary evidenee and eiso relied upon Ex.P/i2, Dr.W.D.Joshi (PW-6) has aiso examined the prosscutr'x. As per his s'/idence, 'ge detsrmined on the b<isis of radioiogicaf te-st is between !6 4 to 18 years with v'driation of 3 ysars <?n each, side. 16. In these ctrcumstances. it is dtfficuit to hofd that OR the date of incictent oge of ths prosecutrix was betew 16 years. Ths evictences of ths prosecutrix (PW-1). ctefsnce witness Rctiram (DW-1) and Ex.D/2 affkisyit sre sufficient for drawing inferencs that the pp®ss"t appetfsnt has committed ssw.'fl! JRtercour^ with th®prosecutr'x GR the pretsxt of marricgs^ they wsrs residing at Raigarh and she concsivsd and oaw bir^h, 1 .. 17. Sukhna (PW-2)< fothsr of ths pro^eutrix. himsetf has edmitted in para 7 of his cross-exammfltioR that his daughtsr herself usec! to say , that shs wilt marry with the Qccussd,|Ex.b/'l report todged by ths •pfwsecutrix'gs'rist her fQther. Ex.&/2 affidsn'it also reveals thct th« ^^-/i: ~7- prosecatrix was a consenting pcrty, she was rssiding with the appailant os a wifs and she had mnrrted with ths appetlar't which fi?Kls support by the evidence of Ratiram (DW-1). 18. In case of rope. abductjo" and kidnap. the prosecytfon is requ'rsd to provs th®fact that without any wil! and conssnt the accused has committed intercourse with the prosecutrix whose ags is beiow 16 years, TTie ppssscutrix is s!so required to preve th®fact that the sccused hos kidnapped and csbducted the prwecutr'x from the parentai sheltsr and from custody of her parsnts, but ths evidences of ths prosecutrix. Sukhna (PW-2), repert Ex.D/1 and cffidwit Ex.D/2 re\«a! that the prosecutr'ix hsrsslf has teft her pareirfa! shsSter and had gons with thc gccused and msrr'ied with the accuaed. The accused has not commifted any sexua) intercourse en the pretexT of mm'r'ioQe with the prosecutrix aid subse.quentiy, he hos not cheated her. but has committed sexuQf intercourse os h's wife. 19. As hetd by the Apsx Court' in the matter of Suresh Kuasr a'tes Chhotu (suprs). accornpany'Ftg of presecutrix with Gccu^d whe is obovs 16 years Is not a offence of kidnapping or dfoduGtion and factum of consent con bs safeiy inferrsd. Para 13 of the ssid judgment reads oe under;- "13. We f'nd that the Hr@h Court woe justified in its conciusions abosjt the prasecutrix havlng acconiptmied tte accused on her own and being a consenting party to th® ssxuai acts. As rightiy contended by isarned counsel for ths State. if ths ^e of the prosscutrix was below 16 yearfi', the consent would bs of no consequenc»- But the High Court's firsdings as regards the ags of the (»Tosscut"ixcannot tse said to| be without ony basis. The High Court has anaiyssd tjpe, ora! evidenee and ths documentary svidsnce to come te a conclusion that the date of birth of the proseGutrix CB cfaimed by the pFOsecution has wt been estabiish&d. That being so, we flnd no msrit in this appecl which ss sccordingiy [!j|WsiIl"|^IB!li3Bap ^— £0. Whife deaisng with th®sams question, the Apex Court in ths mattsr of shyem snd anothsr (supra) has heid thcit m the Asence of any struggte or atarm at ths tirae ef taking ths prosecutrix by ths accussd, wil!Jr>9ness of the -accused may be inferred. 21. In the prssent case, no such struggls sr alarm has bsen raised by the prosscutrix. she was residirg with The accused, she has Soetged rsport <gainst her fathsr and has exscutsd affidflvit, but when rsport wce lodgsd by her> fathsr, thsn the entirs scenario of the cose wes turned. 22. In this C<K®,considering the case of wili. c'msent CTid e.y. of ths pr-osecutrix, ths act of the appeliant does not faH within th®admit of the offence puriishabte under Sections 363. 366A & 376 of the Indian Penal Code. 23. Wh'.te convicting the eppeilant under Sections 363. 366A & 3J6 of the Indian Penai Cod< iec"Rsd 1 Additionat 5sssions Judgs. Raigarh has not considersd the evidence relsting to d'sence of pressncs of wiit cnd consent. tivlr^ of the prosecutrix with tha accused without ony res'stance, to<igin9 of report to the pollcs wher-s ampts opport'unity was ava'tabie to her at police stat'on and thereby coromit'ted iilegaliTy. 24, For the foreying reasons, conviction & sentencs of th»appsllsnt are not sustajneble under the taw. Consequently, th®appea! 's ailowed. Convlction &. sentsnce of the appsllcmt undep Sections 363, 366A <& 376 of the Indiam Penai Code ars hersby set eside. He be set at liberty nt once. / Sd/- T.P. Sharma Judge ^ifi-.^ii)U3gEK