7' \’ \ **’\\*\’\\*\’\\\\’\x\\’’\\\\\\\\\‘\\2\§\}\\\\\ C 000% \ ‘ ‘ “£jgwh293mgvmgRg.;iF~bi.a§§z§ug%2%mxi AEWJ'ABMJPLJ3_ Criminai Appeaal iufo -QE cf ’ 1996‘ @E §m~ lgiimig x, Abgell§gts g- 1g Lamar; Dag son of Jagama’cp Das Panika ageeé 26 yrs r/o Gar‘nbora, ChaukiJI-JmcBa Thane; mariur m st: sarguj a ”’ MA“ . 5ampuran‘ Das $011 of Mammy; ageé= 23 yrs. r/o §athraa$eh dqauki Lunc‘la‘ Thana Dhwrpu'éc, mi st“: r Sarguj a Mn? . 3&3 ggegt : The Statee of 34:9. V f ~ a CRIMINAL A1)? EiLwwbER awrxgggn gg 1 oygm&cga.?¢c. 7. ~.~. “up“: r‘ t: p HIGH COURT OF CHHATTISGARH AT BILASPUR Hcn’ble; Mr. Justice Pritinker Diwaker Criminal Apgeal No. 2311 996 APPELLANTS ‘ Laxman Das and another Versus State of Madhya Pradesh RESPONDENT :1 Dr Rajesh Pandey counsel for the appellant No 1 ‘ ‘ Dr Shallesh Ahuja counsel for appellant No 2 " Smt Smlta Ghal PL for the respondent/State CRIMINAL APPEAI UNDER SECTION 374 £2! OF THE CODE O a ‘ CRIMINAL PROCEDURE JUDGMENT (29.06.2011) This appeal is directed against the judgment and order dated 6.12.1995 passed by the Additional Sessions Judge Ambikapur, in Sessions Trial No. 235/1 994 convicting the accused/appellants undier Sections 363, 366 and 376 IPC and sentencing each of them to dndergo rigorous imprisonment for five years with fine of Rs. 500I- uls 363, rigorous imprisonment for seven years with fine of Rs. 700I— u/s 366 and rigorous imprisonment for ten years with fine of Rs 1000/- u/s 376 IPC, plus default stipulations. 2. ; Facts of the case in brief are that on 10.331994 an un— numbered report Ex. P-1 was lodged by the minor pf6‘secutrix (PW— 1) at police outpost l'_undra Police Station Dhourpur alleging that on 20 2 1994 at about 8 p m when she was gomg to Gersa for being exorcrsed as she was havmg stomachache accused/appellant No.2 - Sampuran and one Santosh met her near the house’lof‘one Mahinath Gond. It is alleged that on being asked by accused/appellant No.2”Sampuran, she took their company to Gersar‘and when they reached neat the house of accused/appellant No1 Laxman Das accused Sampuran asked said Santosh to go away, forcrbly took her mSIde the house of accused/appellant No1 Laxman Das bolted the door from inSide - l l -2‘ @ and when she tried to raise her cry, he threatened her to o away with; Then on the next morning at about 4 a.m. accused/appeilant Laxrnan Das took her to Belkota on foot from where after boarding the bus they went to Arhbikapur. From Ambikapur, according to the proeecutrix, the accused/appellant Sampuran took her to the house of his sister at Laterl by changing the bus. On being asked by his sister about the prosecutrix, accused Sampuran told her that she was his sister-in-iaw. it is the further case of the prosecution that the jprosecutrix stayed at Lateri for five days and during this period accused Sampuran had physical relations with her. According to the case of the prosecution, on the next day, accused Laxman Das had ieftttheir comgany and then on Friday accused Sampuran had taken her to Ambikapur Court where accused Laxman Das had also come with certain documents prepared by an advocate and took her thumb 'impression thereon. Thereafter, both the accused/appeiiants had taken her to Garhwira and there also accused/appeilant Sampuran had physical relations with her. Thereafter, her father and other persons reached Garhwira and took her back with them. Subsequently, on 1.3.1994 FIR Ex. P—14 was registered at police station Dhourpur for the offences under Sections 363, 366 and 376 IPC against the accused/appellants and on 12.3.1994 the prosecutrix was medically examined by Dr. (Smt.) Sushma Sinha (PW-7) who has given her report Ex. P-4A opining that she was habitual to sexual intercourse, there was no sign of recent intercourse with her and that no definite regarding rape on her‘ could be given. After completion of investigation, charge sheet was filed by the police on 13.7.1994 for the said offences. 3. l So as to hold the accused/appellants guilty, prosecution has examined 11 witnessesjn support of its case. Statements of the accused /appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded .their innocence and false implication in the case. w, ’1‘) i d ._3~. g 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellants as mentioned above in paragraph No.1 of this judgment. 5. Counsel appearing for the accused/appeiiants submit that even} if the entire case of the prosecution is taken as it is, none of the ‘offences mentioned above are made out against the accused/appellants. They submit that there is no conclusive evidence with respect to the age of the prosecutrix and therefore it cann‘o‘t‘be said that at the relevant time she was minor. Counsel for the appellants also drew the attention of this Court to the statements of proseeutrix (PW-1), her father Baleshwar Ram (PW— 2) and DF. Mukesh Kumar Jain (PW—9) who radiologicaiii/ examined the prosecutrix. fhey further submit that the prosecu'trix had accompanied the accused/appellants of her own without being pressurized or enticed by anyone for marriage. Lastly, they submit that as far as accused Laxman Das is concerned, there is no allegation of rape against him as he had left the company of. accused Sampuran just on the following day. 6. On the other hand, counsel for the ~-respondentlState supports the judgment impugned and submits that there' is very conclusive evidence regarding the age of the prosecutrix as according to Dr. Mukesh Kumar Jain (PW-9) who had performed 8 ossification test of the prosecutrix, at the relevant timg she was in between 14 and 16 years of age. State counsel thus submits that the conviction of the accused/appellants under sections 363, 366 and 376 IPC is based on the material collected by the prosecution and no interference is called for with the same in this appeal. 7. ‘ Prosecutrix‘(PW-1') though has initially stated that she did not know the accUsed/appellants, she in paragraph No.8 of her deposition has come to state that she knew them. She has stated that as she was suffering from stomachache, accused/appellant Sampuran along with other persons was taking her to his house for exorCism and when they reached near the house of accused G éD _q' Laxman Das, accused Sampuran asked one of his colleagues namel Santosh t part ith his company and forcibly tcok er ’ insidthe house of cused Laxman Das and bolted the door. Accoring to this witness, on the next day in t eariy hours, both the accused/appeiiants took her on fo to the house of sister of accusd Sampuran at village Lateri. On being asked by the ister sed Sampurn, he introduced her to e his sister—in—Iaw. This itness has further stated‘that the accused/appellant Sampran kept her at Lateri for five days and during this period he used ‘s‘ubject her to physical relations by putting her under the threat of life. Thereafter, he took the prosecutrix to Ambikapur and kept er in the hose of his brother-in-Iaw. According-t her, at Ambipur certain documents were also written. Thereafter, both the aused/appellants took her to village Garhwira and detained her in a room. Later on, according to this witness, o getting the l nfma an n d Thr apar certain contradictions in her court statement particularly in paragps 10 to 15 if compared to her case diary stateent. According to her, out of six, she is the second issue of her prent and that she was born after her brother Narendra. She hs sted that she is two years youger to his brother but she s not aare whether he is 24 years of ae. She has fuhe stated that, a Ambikapur she was made to sign certain documents in the presece of an advcate. She has stated that as while going to Abipur by bus she was in fear, she .had not made the discloure of her being forcibly ken away by accused Sampuran, to the e—passengrs of the said bus. Q) *'\ ' y o w h e- ac g d he 1 ot e s of accu a b W / u to h u o. ka cc n iortion, her parents reached there and when on hearing their voice she tried to get close to them, accused/appellt Sampura starte quarreling with them and also detained them in a room. ee pe rah m as a ta n i w g gr t n o mka s ta Ice Baleshwar‘Ram (PW-2) — the father of the prosecutrix has stated in his evidence. that on the date of incident while accused/appellant Sampuran along with some other persons including one Santosh was taking the prosecutrix’to Gersa for being exorcised as she Was suffering from stomachache, on the “1(: ‘ @3 ._5~._ way he asked said Santosh to get back and then he dragged her inside the house of accused/appellant Laxman Das falling in between, and threatened her to do away with in case she _raised cry.‘Thereafter, on thé next morning at about 4 a.m. both the accdsed/appeliants took the prosecutrix t Beikota on foot and from Beikota she was taken to Ambikapur and then to Lateri. According to this witness, at village Lateri, the prosecutrix was kept for five days and then after bringing her to Ambikapur certain documents were prepared after putting her under threat. Thereafter, she was broUght‘ to village Garhvira where some Saranram informed him that his daughter. (prosecutrix herein) was kept by accused/appellant; Sampuran in the house of accused Laxman Das, and then accordingly he along with his wife went there. According to this witness, when he entered the house of accused Laxman Das, the prosecutrix came to him weeping followed by accused Sampuran who had caught hold of her hand and bolted the exit door. Then, according to this witness, on the next day he along with Sarpanch of village Gersa namely Bhola Ram and several other persons went to the house of accused Laxman Das I and with their efforts the prosecutrix was taken out of his house and brought home. This witness has stated that the accused/appellant Sampuran had kept the prosecutrix with him for ten days. He has stated that the prosecutrix had informed him that the accused/appellants had made her captive and foreibly made her to Sign certain documents Thereafter according to this Witness after obtaining .her consent Ex. P-2, the prosecutrix was medically examined. This witness went on to state that at the time of incident the prosecutrix was aged about 12 years. This witness is stated to have six children and the eldest one is his son Narendra. According to him, after the‘ birth of Narendra, there was one miscarriage and then the prosecutrix was born. In paragraph 22 of his evidence he has stated that he is not aware about the dates of birth of his children and that he never sent them to school for studies. ln paragraph 23 of his deposition, this witness has stated that his marriage had taken place 30 years ago there-from and that his @ ,6* eldest son Narendra was born 5-6 years thereafter. According to him“ the prosecutrix is two years younger to Narendra. He has furth‘er tried to clarify thét at the relevant time his eldest son and the prosecutrix were aged about 15 and 13years respectively. Sartu (PWI—3) has stated in his evidence that the prosecutrix was recoivered by her parents from the house of accused Laxman Das and ‘after the Panchayat meeting she was permitted to accompany her iparents. Bachan (PW-4) has stated that in respect of prosecutrix being taken by the accused/appellants, certain facts were documented. Subsequently, this witness has stated that Panchayat meeting Was called because of the difference in caste of the prosecutrix and the accused. Sub Inspector - R.S. Pandey (PW-5) is the investigating ofhcer who has supported the case of the prosecution. imam Ali (PW46) is the witness to seizure of one sealed packet vide Ex. P-6. Dr. (Smt.) Sushama Sinha (PW-7) is the witness who has medically examined the prosecutrix and given her report Ex. P—4A. According to her, no external or internal injuries were noticed on the person of the prosecutrix, her 'secondary sexual characters were fully developed, her hymen was old torn, two fingers easily entered her vagina, and she was not complaining any pain on touch. This witness has opined that the prosecutrix was habitual to sexual intercourse and no sign of recent intercourse was noticed by her. Kamleshwar Sai (PW-8) is the Head Constable who had recorded the First lnformatigg'n Report. Dr. Mukesh Kumar Jain (PW-9) who had performed ossification test of the prosecutrix and given his report Ex. P-5A has stated in his evidence that at the relevant time she was aged about 14-16 years which may carry a margin of three years on either side. Rama Shankar Mishra ‘(PW—10)s—._..Assistant Sub Inspector is the witness who‘ had registered the First Information Report Ex. P-14 at police station Dhourpur on the basis of un-numbered report written at police outpost, Lundra. Nanka Ram\(PW—11) — cousin of the prosecutrix has not stated anything specific. i @ ’7, 8. Having thus discussed the evidehce- of the witnesses incl‘uding that of the prosecutrix it is revealed that the while going to an exorcist along with accused Sampuran and some other persons, she was taken by him inside the house of accused/appeilant Laiman Das and kept there for a night Thereafter on the next day at about 4 a m the accused/appeilants brought her to Village Lateri on foot where she stayed In the house of the srster of accused Sampuran for fve days and during her stay she was made to have physrcal relations wrth him. Record also shows that on the next day accused/appellant Laxman Das had got back. Evidence of the prosecutrix shows that on being asked by his sister accused/appellant Sampuran Introduced the prosecutrix to be his Sister—In law Record also shows that thereafter the prosecutrix was taken to Amblkapur by bus and kept In the house of brother-in iaw of accused/appeiiant Sampuran and that In the Court certain documents were also prepared. If the Court statement of this witness is compared to the First Information Report Ex. P-1 there are several contradictions and omissions in the two such as according to the FIR Ex. P-1 from the house of accused/appellant Laxman Das she'was brought to Bel Kota on foot from where after ‘ catching the bus they went to Ambikapur and then to Lateri by another bus but as per the Court statement from the house of accused/appellant Laxman Das she went to Lateri on foot and then to Ambikapur It Is a matter of surprise that even afte? staying In the house of srster of accused Sampuran at Lateri for tive days and being made a Victim of rape by him, she did not Inform the samevto anyone and kept quiet. Her act in not disclosing the incident to any of'the passers by or the inmates of the bus during her visit to everal places from 20 2 1994 to 9 3 1994 also creates doubt In the s mind of this Court regarding the Victimization of the prosecutrix Record also does not spell out even a single instance that the prosecutrix has ever tried to come out of the clutches of the‘ aCcused/appellants in spite of several opportunities available to her. This apart, the medical report of the prosecutrix ‘Ex. P-4A clearly goes to show that there was no external or internal injury on _g_ her body, her hymen was old torn and she was habitual to sexual intercourse. According to radiological report Ex. P-5A, the age of the prosecutrix at the relevant time was between 14-16eyears carrying a margin of‘three years on either side. Father of the prosecutrix (PW-2) has categorically stated that he had never sent hisi children to school for studies and he was not aware of their dates of birth. Thus the prosecution has not collected any conclusive piece of evidence on the basis of which it could be said tha‘t on the date of inc‘ident the prosecutrix was minor. Even none of the witnesses has stated that the prosecutrix was removed from the lawful guardianship after being threatened or enticed for marriage. 9. In these Circumstances It Is apparent that the Court below has not apprecrated the evrdence of the wrtnesses In the manner It should have and thereby committed an error In conVIctIng the accused/appellants under Sections 363, 366 and 376 IPC. ln this view of the matter, judgment impugned not being in accordance with the material available on record is liable to be set aside. Accordingly, the appeal is allowed. Judgment impugned is set aside. The appellants are acquitted of the charges levelled against them. The accused/appellants are already on bail. Their bail bonds Rizal, stand discharged. "’ Sd/- Pritinker Diwaker 6 "% Judge