&• f CF00060664'5'5 /} •sA,..^ iiiu ^&^.^ .s <u%aMa •^ IN THE HIGH COURT OF JUDZCATURE AT JABALPUR CR1MINAL APPEAL N0 « Nv\ <^>S~ OF 1996 APPELLANT? ^ J&U RESPONDENT; Mahetbardas son of Kewaldas Panlka^ ^aged 26 years^ resident of D&epika» P»S,Kusmundsa»Districfc Bilaspur, M»P. v/s Sfcafce of Madhya Pradesh fchroagh P<S^Kasmunda»Disbt^Bilaspu.r^ KKIMORANDUH OF CRIMINAL APPEAL TJNDER SECTTQN 374(2)i/t3F THE CODS OP CRIMTNAL PROCEDURE,1973 AGA1V1S T THE JUDGMENT AND ORBBR D&TED 20,8»96 »,^ -.. ^ -.- ..,^-.- . ,,- PASSED IN SESSIONS TRIM<.NO« 317/95 BY SHRT T»C. \-:; —^- YADU. SEVENTH ADDLS. ^SESSIONS JUDGB BTLASPUR \ CONVZCTZNG At-TD SENTBNCTNG THE APPELIANT AS UNDER? ^i \. HEGH COURT OPCHHATT.ISGAKH AT.BILASPIJR (Hon^ble Mr. Jasfeice Prifeiiiker CR.A. N0. 14SSf_1996 hNC APPELLANT versus Mah.ettar Das StaleofM.P. Shri P.P.Sahu, counsel for fh.e appe.Uaat Shii Praveen Das, Dy, G.A. &r the State, Post for pronoiincement ofthe judgmen.t dated. ^ /03/20'3.1. Sd/- Pritinker Diwaker Judge r HIGH C-OURT OF CHHATTISGARH AT'BILASPUR SB : HON»BLBMR. JXJSTICB DIWAKBR CR.A._NO.__143S,^19©6 '-"^ lairt APPBLLA'NT RESPONDENT versus Maliettar Das StateofM.P. Shri P.P,Sahu, coiiiisel for fhe appellaiit. Shri Pra^/een Das, Dy. G.A. for tlie State. APPBAL U/S 3T4|2| OF THB CmBSEIIAL PROCEDURE CODB JUDGMBKT (g.03.2011) The present appeal is d:kected agaixist the judgiiient axid oixier ds.ted 20.08.96 pa.ssed by th.e Vl.[th Additional Sessions Judge, Bite-spur io. Sessions Tiial No, 317/95 conv^'tm.g fhe accused/appe.Uan.t'ibr the olfence punishable under SectioB.s 363 & 376 oftD.e IPC aiid senteTiciug hiui to undergo RI for tliree years with fine of Rs. 1,000, iii default offiiie to farther undergo RI ibr oae year aiid to uBdergo RI for seven years witli ilo.e ofRs. 1000, iii default of flne to fu.rther uudergo RI for one year, i^spectively, 2. Brief facts of the ca.se are tliat on 19.6,95, FIR (Ex.P/5) was lodged by Rajarara (P.W.-7), father of'tfie prosecutrix aliegm.g fhat at about 8-8.30 p.ai. whesi h.e retu.nied. to his house, he saw his daiighter (prosecutdx) aged about 12 years, cookiB.g food. axid ailer' sonietixae, his son mfbnned him fhat Iiis sister (prosecutox^ wa.s not at home. It is fartlier aUeged tiia.1 on./heaxio-g this, h.e weut. to 033.0 Patiram (Patel) & Sarpan.ch. to io.form about th.e niissing of Bis daughter and thereafter ttiey. made a. se^irch iii- A.e rieaiDy places, Later on, Sarpanch & Patel iiifoiiiied him. fhat the prosecutiix was in the company of a.ccused/appe]lan.t who' was tiie son' of'Kanwal Das, viUa.ge Kotwar, It is al.so alleged tti.a.t his dau.ghter wiio . wa.s aged aboiit 1.2 years ha.s studied upto CIass I! at Kort^a and tb.at Meh.att.ar r -^ f 1. Das had alliired her.away from. hi.s Iawfi.il ·guam.iaai.shjp. Based on. th.is PIR, ofifence was registered agaio.st fee a<^cused/appellaD.t ujider Sections 363 & 376 of tlie IPC. On 20.6.95, case diarv statemeBt. of the prosecutrix was record.ed, she wa.s m.edically exaxoined on. 26.6.95 vide Ex.P/9 an.d affcer in:vesti.gation, on. 28.7.95, chaUao. was filed zrnder Sections 363 & 376 (l) ofthe IPC. 3. So as to hold fh.e accused/appellaat guilty, prosecutioxi has exaoim.ed as maay as 13 witn.esses ia. suppoil ofits ca.se. Slatements of the accused persons were also recoixled under Section 313 o.f the Code of Crim.ni.aI Procedure iii which he denied fhe -chai-ge levelled a.gaio.st. him and pleaded his io.ii.ocence aD.d false implicatlon m. ih^ case. \., —-1 '4,' . After heaiinp the parti.es, fhe trial Court has coBvicted tlie accu%ed/a]:)pella3it and sentenced hiBi as meutioned above, 5. Heard counsel for fh.e parties1 and . penised fhe -material available on recoixl., incl'iidiiig the im.pu.gB.ed. judgm.cnt. • 6. Contention of'Shri'SaIiu, couiisel fbr ttie appeUant is th.at tlie prosecutrix was haviag love afiair with. fhe acciised/appellaiit aiid she went atons^ with hioi of h.er owu. i-Ie fiirther suhmits th.at m.ere i.s no evid.ence on reconi to show that fhe accused /appeUant in axiy laanner had. enticed th.e prc^secutrix or taken. her from. lawfi.il guardianship of fhe coiaplaiiiaiit. He submits that so far as fhe oUeiice UB.der Section 376 of the IPC is conceiii.ed, the saiae is not m.ad.e out agaiast the accused./appell.ant beca.use tlie piDsecu'trix appears to be a consentiri-g party a.s she remained in •th.e co-m,paiiy of th.e accused/appellaiit for about 3-4 d.ays WHJiout raism.g eny hzie c-r -cry. It ha.s been ftiillier ai'gii.ed fiiat th.ei-e i.s B.O legalEy ad.m.issible evid.en.ee in respect of th.e age of th.e pT-osecutrix aiid nien'l^7' 011 tjie basis of ossiQcatiou test it.,cao:o.ot 'be held. that on tti.e dafce of coniniissiDn of ofieuce, fhe prosec-iitrix was less 'fhaii 16 or 1.8 years of age, He submits that the Co'art statenient of f33£; prosecutrix i.s wholly iini'eliable becaiise iii her 161. Cr.P,-C, statemeut she ha.s given ^'.^^; "".^ -5- altogether a diiTerent stoTy whercas while deposiag iii tlie Court slie has inade a difierent statem.ent. ^ 1—ft 7.. On the ofher haxid, counsel for fhe ^State supports 'the judgm.ent inrpugned aiid subinits fhat fhe case diary statement of fhe pposecutrix caiinot be given aiTv weightage becaase at fhe relevant time she was aboiit 13 years ofaRe and therefore her coiisent is ofno re.levaii.ee < He subxail.s that flie prosecutrix was taken away by fh.e accused/appellant froin fhe lawfiil guard.iaiisliip of Iier'-father aiid fhat itself estabMshes tlie case against fhe accused/appellaiit under Section 363 of fhe Ind:iaiiPeiial Code. He furfh.cr subm.its t'hat as per tlie ossificatbn test of th.e • prosecutri^: (Ex.P^iO) she was 13 years of age and even if the m.ai'gio, of 2 years is considered 011 -tjie -plus si.de she would be weU below 16 years of age. Shri Da.s submits tliat as per the medical report (Ex.P/9) of Dr. Siijata Shrivastava (P.W.-9), secondaiy sexiial. chai'acters were developm.g, pubic and aiixiliaiy hair very" scanty. breast wa.s developio.g aiid th.e clm.ical. age of tiie prosecutdx appears to be 14-16 years. He submits ^ that eveii ia abseuce of aay docum.entai.y ajid oral. evides^-ce io. respect of th.e a,ge of the prosecutrix, li.er zaedical exaxaiiiation an-d ossiS.cation. test clearly shows that on the date of commission oftlie oflence, she was miiior aad thus 'the accused/appellant has rightiy beea convicted. 8. KuBiai* Siogh (P.W.-3) the police coiistabte ha.s stafced th.at he knew the accused/appellant aad that he recovered the prosecutrix from. fhe house ofone Budhraim. who at that tmie was aged about 16- 17 yeai's. Dilip Kuniar (P.W.-4) is the Patwad who prcpared ih.e spot niap (Ex.P/1). Pradeep Kumar (P.W,-5) is th.e seizure wito.ess of Ex.P/2, P/3 & P/4 by whk^h the clofh-es of tfae prosecutdx aod one sealed sli.de wa.s seized. Prosecutrix (P.W.-6) has stated tiiat she knew the a.ccused/appell.ant aad on tiie date of ixicideiit a.t aboiit 8,00 p.m., when she came out of her Iioii.se to throw water, accused appellaiit gagged her m.outh, took her to the tbrest and, committed. rape on lier, She has furtlier ststed 'tlia.t wheii fhe accused/ appeUaii.t gagged her m.0utli, 'his- wife retum.ed to her house aiid t'hereafter he took her to vfflage Bhelwadili ,aad froiii fhere to village Chaifcma whcre she stayed with hiin ia. fhe house of ftie unc'le of accused^ aCT)el3aat -^- ^ I. v and in between h.er fa.ttier lodged a. report iii the poHce station ao.d she was taken by th.e poUce aiithorities. Slie has stated that she was inedically exaoiined • and her clofliin.g was sei^ed by fhe police autliorities. When this ^dtness was co.-o.fronted fronx her ca.se diary stMement, she has stated that she never iaa.de ajiv statem.ent t.o tlie potk^e fhat she was havm.g affair with the.accxised/appel.la.nt nor she h.as stated before th.e police that slie was tli.rowii out froiB, tlie ti.oiise. bv her father. She 'has further stated fhat she never info.i'med the police that she went witli tlie accused/appellaj^.t ofher ow.n. She has also stated that she had infomied the police aiithorities th.at when slie caoie out froin. her house, accused/appeltaiit gagged her inouth, took her to l±i.e forest aiid ifthis statemei.it has D.ot 'been recorded by the poUce she caiiiiot teH &e rea.son. S'he ha.®fi.i.rther stated that at vfflage Bhelwadili wliere she was kept by the accused/appellaiit in fhe ho"u.se of his ^ister-io.-lsw, he had never coic.ixiitted rape on, her arid if th.is stateineiit has been recorded .in her case diejy sta.tement she caiinot tell fhe reason.. Slie h.as al.so stated that a.t villa.ge Chaifcm.a. also sh.e was not subjected to rape by th.e accused/appeUan.t aiid she siever m.ade any statenieri.t to the police fhat she waiited to live with. th.e accused/appellan.t. Iri para 13, the prosecutr'ix has stated th.at'she h,a.s one elder sister also aged about 1.6 yeai's an.d she left tlie school about 4-5 yeai's back. 9. Rajaram. (P.W.-7) father of the prosecutdx in ; his court stateineiit lias stated' that on t'he date of nicideut after reachiiig home; when he asked hi.s dau.ghter (prGseciitiix:) to cook food as his wife was ill, she went outside caiiym.g water ia a vesscl. and th.ereafter he found to.er missm.g. Upon search, he came to k33.aw fhat the accused/appeUajrfc who wa.s his ii.eighbour was aiso missriig and then on tb.e second day, tlie report was lodged. (Ex.P/5) aiid on the next day he iaet his daagliter at th.e police statioB.. He has stated fhat wlieD.. h.e enqiiired fi-om the prosecutrix:, he was told by her th.at it i.s tlie accu.sed/^ppellan.t wlio took her io. the ft)rest ajid committed rape on. her aB,d thereail-.er fl^.e accused/appeUant took h.er to vfflage Bhelwadih aiid •th.eD. to tlie.house of his uucle, In pai-a. 2 of his examiiiatk>u, he has stated fhat fhe age of his dau.ghter is 1,3 years ancl. two iiiontlis and she 'had stu.died up1:o Cla.ss IV, In cross exaTniiiatk>n, he ha^ denied tlie feict that l>efore th.e iiicMent he had, scoMed Uie px'oseciiliiK aii.d on a.c-count of wliich she left tb.e house., He has stated tliat tiie house iii-whk'h he was IJyizig wa.s p-ai'cha.sed by him fiDra th.e accu^ed / appellsuit ajid. h-is sister ajid. after th.e date of ixi.cid.en.t,. on account of dispute Iie was thi-own oiit. irom. tlie said liouse aB.d now he is liviB.g :hi his village. He .has denied the fact th.at on account of dispute over 'the house he h.as falselv iLUpiicated th.e accused/appeBarit. In para 6 ofhis cross exam.in.slion h.e has. stated tfa.at he- got m.arried m the year 1980, he has four chilo.i-en aiid affeer about 2 % - 3 years of h.i.s ioaiTia.ge, first child. wa.s bom aiid. fSiereafter th.e prosecuti'ix was bom. He has nii'ttg.er stated fhat the school certificate of the j^Kjsecuti-ix wa.s gweu to the po'lice anrhorities by hiin,. Siibash S:mgh (P,W--"8) is the Sub Inspector who x^conled the FIR (Ex.P/51 aiid'had sent the prcsecutrix for inedical exaniinatioo. vi.de Ex,P/7 fis sent the a])peIJB.ut . for medical exaiiiina.tion vid.e 'Ex.P/8. 10, Dr. Sujata Shrivastava (P.W,-9) who had m.edk'aUy examiD.ed th.e prosecutrix .and given. her repoil Ex,P/9 has stated that on fh-e date of iacideiit, she exainiaed the prosecutrix who was. aged about 13 years. After p:hysical exaniiB.a;fion, she' liaa opm.ed that N0. of teeth 64-6/6-^6 T.No. 24, secoiidaiy sexual characters were developing, pubic and auxiliary' haii* were veiy scaiity, breast was developiji.g aiid on extenial exammation not fbund auy m.ark of inj'ury present over tiie exte;ra.al. part of body, on nitemal examin.afon not fouiid any sigu of fresh -liijuxy, fhe clniical age of fhe prosecutiix appears to be 14-16 years. She has farfher stated fhat^no defiuit^ opiiiion caji be given about the coiiimission of rape as she was habitiial to sexual mtercourse. She has also stated fhat she had I'eferred' tbe prosecutnx for ra.d.iological. test an.d clioicaUy she was 14" 35 years of age. Thoiigh- m para. 7 of h.er cross exam.iiiation, certain questions were put to this witoess m respect of den.ture. formation of fh.e prosecutiix but fhere was no specific qiiestioB iii relation to the age of th.e prosecutrix. Patiraoi (P.W.-10) has been declared hostiie, Viin.al Kum.ar Dubey (P.W.161 is the Sarpanch has stsled that on ttie date of nicid.ent, Rajaram. (P.W.-7) cam.e to bis hou.se suid m.foi'm.ed. b.tm th.at his daughter i.s mi.ssm.g and tfci.en iifoon @ -Y. (\. 1 enquiiy, village Kotwas' Kamal Das had mformed biisi that his son (accused/a.ppeUant) is also missiag ajid later on he caxiie to kiiow that fiie prosecutiix was iii fhe coinpaziy.of the accused/appeliaiit at viUage Depga.oii, M.P.Taadon (A.S.I) (P.W.-12) has done fhe part of the investigation. Dr, S. Chatterjee is fhe radiologist who took the x-ray of the prosecutiix aiid had given his report Ex.P/10. According t-o' this witiiess, the prosecutrix was aged about 13 years aiid in cross examiiia.tion he has stated that the sajiie cozild 'be iwo vears on e.tther side. 11, The importao.t questioii t.o be decided by tliis Court is whether ou tlie da.te ofiricidexit.Le. 19.6.95, the prosecutiix was less thaii 16 or 18 yeai's of age. Rrosecutrix (P.W.-6] in. para 13 of her cross- e.xamin.ation has categoricaUy stated that tliey are three siste.rs, her elder sister whose .maiiiage was perfonned about 9-10 nionfhs back is aged aboiit 16 yeai's. She has further s-tated that she had left fhe school about 4-5 years back. In paj'a 2, Rajm'am (P,W,-7) faflier ofthe prosecutrix has categorically stated fhat age of her daughter is 13 yeai\s & 2 monfhs aad she liad studied upto CIass IV, Dr. S.Clj.atte-rjee (P/W.-13) who had perfoiTaed the ossi&ca.tioii test ofthe prosecutrix sjid has given his report Ex,P/IO, has categorically deposed that tlie a.ge of 1±ie prosecutiix a.t tlie relevant. time was :13 years. Accordiag to him, t'he proseciitrix was caiiy-iiig a m-arg-ixi ofto/o yeai's 011 eiflier side aiid the age ofthe prosecutrix comes to 15 yeaTs. Dr, Sujata Shrivastava (P,W.-:9) who medicaily exaiiiined f3ie prosecutrix has categoiically stated fhat she was aged about 13 years aiid her secondan^ sexu.al chsracters were developiiig, pubic aiid aiixiliai^7 hair were ven^ scan.ty, breast was developiiig. However, fhe cliaical age of fhe prosecuti'bc has been opm.ed.by tb-is witness to be appears to be 14-16 years. P3veu ilu fhis report is . tsJ<:en iiito consideration, it is appai'ent that on the date of mcident, the prosecutrix was inirior. 12. Consideriiig the eB.tn:e evMeiice in respect of the age of the proseciitrix, it caii be safety held tb.at on the date of commission of the ofience.. she was less fhaa 16 yeaTS of a^e aiid oiice on t'he date of c' ^ .r'^€ :^f\ \ ^^s^"'' commissioii oftlie offence, the proseciiti'ix wa.s ininor and below 16 yeai's of age, even assumiB.g ftiat she was. a conseBting pa.rty, she went along with fhe acciised/appeUaiit of her own, her so called consent becomes miniaterial. \: 13. The overall scrutmy of the evidence 3iialces it clear fiiat tlie accused/a-ppellajit has coinmitted flie offeiice uuder Section 363 & 376 of the IPC. The statement of the prosecutorix insprre ftill confidence ofthis Court and tlierefore I aia ofthe considered opnuon th.at th.e conviction & sent-ence of the accused/a.ppeUan.t recorded by the trial Coiirt is in. accordao..ce with law aiid tliere is no in.finnity. iii, the sam.e. Appeal. beio.g lifeless is dismissed, Accused./appeUan.t i.s reported to. be on bail.; his bail. bonds stand canceUed. He be dispatched to jadl to serve out the remmnixig part of the seiitence imposed upou him.. Sd/- Pritinker Diwaker Judge ^^'