gairaiag;.éQEgéLQaéga.§2§‘2é9t2.§1&£21-9f._tlzs.§§z2&g_, FWmnmnmmmm ' \ ' g k CFooooosos25 J iaiéaliigt;_§2t;£t.2f__%§Q}32§-E£§é§§§_2’2i§éam£. Criminal Appeal No. ‘ Q <3 (g of l996t \Cvj‘ / x} ‘ éeagggai : Ashraf A”nsari/S’o’n of ‘ (In Jail) Pkwo’f/Mohamad, aged 20 years, Residén‘t of House‘ef Dilip’Kumar r ' J'am'til, NoJl/nA Pandey, Henge 'Stree No.3, Nandiai,’Police ._ ré" i l station Mandini, district Durg,M.P. Versus. x2 xc v as. §§§E9r2ésa§ = I /«State of Madhya Prad‘esh. ' @ HIGH COURT OF CHHATTISGARH: BILASPUR Criminal Appeal No.1208 of 1996 Shri Viprasen Agrawai, counsel for the appellant. Shri U.K.S. Chandel, Panel Lawyer for the State/respondent. JUDGMENT (Delivered on 119 September, 2011) Prashant Kumar Mishra, J. 1. The appellant has challenged his conviction under Sections 363, 366 and 376 (1) of the IPC and imposition of sentence of R.l. for 3 years, 4 years’and 5 years respectively. He has also been awarded fine of Rs.1,000/—, Rs.2,000/- and Rs.5,000/— respectively for each of the offence, in default to further undergo imprisonment for 3 months, 4 months and 6 months respectively. 2, Allegation against the present appellant is that on 28—5-1995, he abducted the prosecutrix with intent to commit sexual intercourse and took her to Nagpur, Delhi, Nainital and then came back to Dondilohara on 8-6-1995. She was recovered from the house of Vinod Soni on 11-6- 1995. Missing report was lodged by her father Bharat Bhushan Sao on 29-5-1995. After completion of investigation, charge sheet was filed. Al 3. The prosecution examined Bharat Bhushan Sao as PW—1, Dr. S.A. Mandge as PW—2, the prosecutrix as PW—3, Om Prakash Sao, brother of the prosecutrix, as PW—4, Patwari Tukaram as PW-5, Dr. R.N. Turre as APPELLANT: Ashraf Ansari (In Jail) -Versus- RESPONDENT: State of Madhya Pradesh (now Chhattisgarh) Present: PW—6, MS. Pareshwar (l.O.) as PW-7 and Dr. Smt. S. Sawant as PW-8. On the basis of her date of birth, 21-2—1981, she was found to be 14 years and 3 months of age on the date of the incident, however, even after observing that she was a consenting party, the triai Court ignored the consent and has convicted the appellt as mentioned above. an 4. The victim’s fater states that date of birth of the prosecutrix is 21—2- h 198. He has proved the progress card of the prosecutrix of the 1 Government Middle School. In this document, her date of birth is mentioned as 21-2-1981. There is o other evidence regarding date of n birth, as neither her birth certificate nor Kotwari register etc. has been filed by the prosecution. PW—2 Dr. S.A. Mandge is the Radiologist, who has submitted his report Ex.-Pl7. According to this repor the t, Radiologist has found approximate age of the girl as 17 years. The prosecutri has been examined as PW-3 and she has stated her age on the date of the incident as 14 years. either the person who made N entries i the progress report has been examined nor date of her entry n in the school is mentioned in Ex.-P/1. 5. ln the matters of Birad Mal Singhvi Vs. Anand Purohit1, Vishnu alias Undrya Vs. State of Maharashtraz and Satpal Singh Vs. State of Haryanaa, the Hon’ble Supreme Court has held that entry in the hool register is not reliable evidence unless the person who has made entry is examined. However, in the present case, her father, PW—1 has categorically stated that he has informed the school management r garding date of birth of his daughter and there is nothing in his cross- 2 1 1988 (Supp) Supreme Court Cases 604 3 (2006) 1 Supreme Court Cases 283 (2010) 8 Supreme Court Cases 714 x sc @ examination to cull out a different finding raising doubt over date of birth mentioned in the progress report. Thus, on the basis of statement of father and the prosecutrix, this Court is satisfied that finding regarding age of the prosecutrix recorded by the trial Court is correct and dn the date of the incident, the prosecutrix was aged 14 years and 3 months. 6. From the case :‘diary statement as weii as Court statement of the prosecutrix, PW~3, it would appear that the accused, aged 20 years on the date offthe incident, and the prosecutrix were known to each other. From the contents of Roj Namcha Sanha (Ex.—P/11), it appears that the prosecutrix and the appellant are neighbours. The prosecutrix was engaged as a photographer and as per her statement, she was in the habit of going out in connection with photography. As per her statement, she had taken Rs.8,500/- with her and went to the shop of the appellant to take him along and thereafter they hired one auto rickshaw and went to Durg, Rajnandgaon and from there to Nagpur by boarding a bus. From Nagpur, they went to Delhi, stayed there and further went to Nainital and Aldwani, Muradabad and came back to Dondilohara. After coming back to Dondilohara, they stayed in the house of one Soni and according to her further statementat Nainital the appellant committed sexual intercourse. ln para-4 of her examination in chief, she has narrated in detail as to how she herself undressed and consented to sexual intercourse. She has denied even lodging of any report and has further denied the suggestion that she never consented to sexual intercourse. She has denied her case diary statement about forceful sexual intercourse. From her statement, it clearly appears that :7: @ she was a consenting party to the entire episode right from the moment she left her house on her own till sexual intercourse was committed. 7. In the matter of Ram Das Vs. The State of Madhya Pradesh", it has been held that when there was friendship between the appeiiant and the prosecutrix and allegation of taking away and enticing has not been proved, offence under Section 363 of the IPC is not made out. . In the matter of Shyam and another Vs. State of Maharashtra5, the Hon’ble Supreme Court, after finding that the prosecutrix was a willing party to go with accused on her own, set aside conviction under Section 366 of the IPC even when the girl was less than 18 years of age, as according to Hon’ble Supreme Court, there was no “taking out” of the prosecutrix from the lawful guardianship of her parents. . In the matter of Hari Ram Vs. State of Rajasthana, the Hon’ble Supreme Court set aside conviction of the accused under Section 366 of the IPC on finding that the prosecutrix after being taken away, stayed at various placed for a period of 1O days, however, at no point of time, she complained to anyone that she is detained against her will and after finding that she was a consenting party. .In the matter of Lalta Prasad Vs. State of M.P.7, the accused was acquitted of the charges under Sections 361, 366 and 376 of the IPC after finding that the prosecutrix left with the accused of her free will and wrth the consent of her mother Though in this case age of the \,p(osecutnx was found to be more than 16 years of age however With 4 1970 (3) Supreme Court Cases 211 AIR 1995 SUPREME COURT 2169 6 1991 Supp (2) Supreme Court Cases 475 (1979) 4 Sapreme Court Cases 193 regard to offence under Section 366 of the IPC the fact of her consent has been considered for acquitting the accused under Section 366 of the IPC. 11. In the present case also‘ there is clear evidence that the prosecutrix started from her house with an amount of Rs.8,500/— showing definite intention of Ieaving the town and thereafter went to the shop of the appellant, took him and hired an auto, went to Durg and thereafter to Rajnandgaon and from there, they boarded a bus to go to Nagpur, Delhi, Nainitai etc. She has categorically stated that she was a consenting party to the act of sexual intercourse. Thus, placing reliance on the above judgments of the Hon’ble Supreme Court, this Court is of the considered opinion that charge under Sections 363 and 366 of the IPC has not been proved against the appellant and he deserves to be acquitted of these charges. Insofar as charge under Section 376 of the IPC is concerned, this Court has already found that the girl was less than 16 years of age on the date of the incident, therefore, her consent is of no consequence and is of no help to the accused/appellant with regard to offence of rape. His conviction under Section 376 (1) of the IPC is thus upheld. 13. In the present case, the appellant remained in jail from 14-6-1995 to 20-11-1995 during trial and from 12-7-1996 to 2-12-1996 after his conviction. Presently he is on bail. At the time of commission of offence, the accused was aged about 20 years and the offence has l taken place about 16 years back. . l l «.m‘ f ‘ u 2% 14. in the matter of Sukhwinder Singh Vs. State of Punjabs, the Hon’ble Supreme Court, while dealing with a case where admittedly the prosecutrix was a consenting party but Iess than 16 years of age, reduced the sentence to the period already undergone, after observing in paragraphs 3 to 6 of the judgment thus:- “3. The Iearned Single Judge of the High Court noticed the compromise as also the attendant facts of the case i.e. that the prosecutrix was a consenting party, but expressed helpiessness in the matter of awarding of sentence on the ground that under Section 376 IPC, the sentence to be awarded could not be Iess than seven years. It appears that the High Court overlooked the proviso to Section 376 IPC, which reads thus: “Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of Iess than seven years.” 4. That the prosecutrix has since got married and she did not want the matter to be carried any further so as to lead a happy and healthy married life with her husband and had tiled the compromise petition to that effect was an adequate and special reason to invoke the proviso (supra). While maintaining the conviction, the High Court ought to have for the reasons aforesaid, reduced the sentence to the period already undergone by the appellant. Such a course was in the interest of the prosecutrix herself. 5. In the peculiar facts and circumstances of this case, as noticed above, in our opinion, this matter should be now given a quietus particularly, when the alleged offence is stated to have taken place almost a decade i ago. l / . 8 (2000) 9 Supreme Court Cases 204 6. We, therefore, while maintaining the conviction of the appellant for the offences as recorded by the courts below, reduce the sentence to the period already undergone by him. The appellant is on bail. His bail bonds shall stand discharged." 15. ln the present case, the appellant has undergone about 11 months ofjail sentence. As noted earlier, he was 20 years of age at the time of occurrence, about 16 years back and the prosecutrix in no uncertain terms and rather candidly admitted the entire episode to have happened at her instance, this Court considers the present to be a fit case, in view of its peculiarity, where the appellant deserves less than minimum punishment and, therefore, sentence imposed upon the appellant for offence under Section 376 (1) of the IPC is hereby reduced to the period already undergone by him. The appellant is on bail. His bail bonds are discharged and he need not surrender. 16. The appeal stands partly allowed. Sd/— Prashant Kumar Mishra Judge ,,’_ .i‘ 5:W