CF000005889? "y.^^! \1 i3S ••;;/^': £B-SIiE;:HlG@ GOma? 0?j 2^H^,TajU)SBy^^^ \?r~^~~ ~~~~~~r^~l Oriminal Appear£!o.-~J^.1:/1992 ^' .^ . ..•' ;1'';,; ^" • - ! - " • :. '--•' APHjIOASiSl;- . Soshaa £al;S?0 Sar,]u,±>casael Gupta Aged about;' 25 yeai?s, r/o Bbaneii Bis-bt;^ Sai:piar'.(H.P.)1, , ;. .- ^...'. .V ^E £:H 5 : : '1 :;-. . • . ' :.: ' f. ::". •r" •,:".;.' • • . : ;/ \ ,, .7 '.! ': ".^: /-': .'^:;^ BSg.EiQKBEiffl^-,'l:;S't;:afce^of''Hadh7a^rad-esb- . '. • •: ,'-:^l.,-.ll.-:v;/;::.:- GEXN3MJO; APFM^ 'B/S' 3?^ 3 ;,;:^;0?_rf}H35_ qoES :Q3? :GaB.Sia&I.-;IEOG2ff[J%3 ^Ft w HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. nflr. Justice Pritinker Diwaker) Criminal Appeal No. 435 of 1992. APPELLANT RESPONDENT VERSUS Roshan Lal. State of Madhya Pradesh. Post for pronouncement ofjudgment on ^-4-20'\0 Sd/- Pritinker Diwaker Judge ^ '<S>ar.,-»0>< .,,,.@ ^ll^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 435 of 1992 APPELLANT Roshan Lal s/o Sarju Prasad Gupta VERSUS RESPONDENT State of Madhya Pradesh Shri P.K. Verma learned Sr., counsel with Shri Suresh Tandon for appellant. Shri Pankaj Shrivastava PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 12} OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT ( S".04.2010) This appeal is directed against the judgment dated 3.4.1992 passed by Additional Sessions Judge, Raipur, in Sessions Trial No. 154/1991 convicting the accused/appellant for the offences punishable under Sections 363 and 376 IPC and sentencing him to undergo rigorous imprisonment for two years u/s 363 and rigorous imprisonment for five years and fine of Rs. 500 plus default stipulation, u/s 376 IPC. 2. Case of the prosecution in brief is that on 24.1.1991 at about 12.30 p.m. FIR Ex. P-1 was lodged by the prosecutrix (PW-1) aged about 13 years alleging that pn the previous date i.e. 23.1.1991 at abut 9 p.m. she was returning from the house of the accused/appellant after watehing TV programme called as "Chittrahar" and when on the way she sat for urination, all of a sudden accused/appellant came from behind, dragged her to the thrashing field of^one Roop Chand Satnami, threw her on the ground and after r^moving his as also that of her undergarments committed foreible sexual intercourse with her. When she raised cries, her mouth was gagged with shawl. After commission of the offence, she reached her house and narrated the entire incident to her mother. On the basis bf this report, Police registered the offence under Section 376 IPC. However, the trial Court framed charges against the accused/appellant under sections 363 and 376 IPC. "'^ 1 '~'^^— 3. So as to hold the accused/appellant guilty, prosecution has examined 22 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant for the offences as mentioned above. 5. Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the appellant submits that the present appears to be a case of either consent or false implication. He submits that in the Court statement the prosecutrix has categorically stated that the place where she had sat for urination is 5-10 steps away from the place of incident and at the relevant time it was dark. According to thecounsel for the appellant the prosecutrix has further stated that while she was urinating, someone came from behind and caught hold of her and in the sitting posture itself he lifted her away to the nearby thrashing field. He submits that according to the prosecutrix, there was no conversation between them and when she tried to cry, her mouth was gagged. Thereafter, she lay on the ground and the said person committed sexual intercourse with her. Subsequently, on hearing the vojce of her mother, the accused/appellant ran away from the spot. She has admitted that at the time of incident it was dark-and when she asked her mother as to the identity ofthe person who had run away,'she told her that it was the present appellant. Counsel for tHe appellant submits that mother of the prosecutrix namely Kunti Bai (PW-2) has stated that it was the prosecutrix who had, informed her that the accused/appellant had committed rape on her. He submits that in respect of age of the prosecutrix, there is no cogent and clinching material available on record on the basis of which it can be s.aid that on the date of incident she was below 16 years of age: Hesubmits that ossification test of the prosecutrix was done by Dr. T.K, Banerjee (PW-13) who vide report Ex. P-11 has ^l 'S^SSiK!' opined that at the relevant time the prosecutrix would be aged 15-16 years. He submits that this witness has stated that there may be variation of three years on either side of her age and she might be aged about 18-19 years also. According to the counsel for the appellant, the other piece of evidence regarding her age is the school leaving certificate Ex. P-15 which has been filed by Manrakhan Lal (PW-14) but the same cannot be believed for the reason that this witness has categorically stated that he was not aware as to who got the said entry recorded in the school register in respect of date of birth of the prosecutrix. He submits that in the absence of correct origin of the date of birth of the prosecutrix, evidentiary value of the said school leaving certificate goes. He placed strong reliance on the decision of the Supreme Court in the matter of Birad Mal Sinahvi v. Anand Purohit reDorted in AIR 1988 SC 1796. In respect of the offence under Section 363, counsel for the appellant submits that at no point of time the prosecutrix was taken away from the lawful guardianship and therefore as per the definition of kidnapping given under Section 359 IPC and as per the definition of kidnapping from lawful guardianship given under Section 361 IRC, the accused/appellant, cannot be convicted under Section363 IPC. He submits that once the age of the prosecutrix has not been correctly proved by the prosecution, it cannot be said that on the date of incident she w.as even below 18 years of age. 7. On the other hand counsel for the respondent/State supporfs the judgment impugned and submits that on the date of incident the prosecutrix was minor as her date of birth is 23.5.1977, her age on the-date ofincident i.e. 23.1.1991 comes to 13 years and 08 months. He submits that a very prompt report was lodged by the prosecutrix which shows/that she was neither a consenting party nor did she impllcate the accused/appelleiot in a false case. He submits that according to Dr. T.K. Banerjee (PW-13) who had conducted ossification test ofthe prosecutrix, she was 15-16 years ofage at the relevant time. He submits that according to FSL report Ex. P-23, semen was present on the underwear of the prosecutrix. He thus submits that the conviction and sentence of the accused/appellant ^'•5'^ii. :;^"^., '^ llt< -<y- under Sections 363 and 376 IPC is just and proper and does not call for any interi'erence in this appeal. 8. Prosecutrix (PW-1) has stated in her evidence that on the date of incident at about 8.40 p.m. she was returning from the house of the accused/appellant after'watching a TV programme called as "Chittrahar" and on the. way when she sat for urination, accused/appellant came there, lifted her away to the nearby thrashing field, made her lie on the ground and after removing her as also that of his own undergarments, committed forcible sexual intercourse with her. She has stated that when she was crying, accused put a shawl on her mouth. After hearing the cries, her mother came there and on seeing her, the accused/appellant left the spot. She has stated that her underwear and frock were seized under Ex. P-2 and then her X-ray was also done. In cross examination, this witness has stated that when she was returning from the house of accused/appellant afterwatching a TV programme called as "Chittrahar" and on the way she had sat for urination, someone came from behind and caught hold of her and in the sitting posture itself he lifted her away to the nearby thrashing field. According to this witness, there was no conversation between them and when she tried to cry, her mouth was gagged. Thereafter, she lay on the ground and the said person committed sexual intercourse with her. Subsequently, on hearing the voice of her mother, the accused/appellant ran away from the spot.She has admitted that at the time of incident it was dark and when sheasked her mother as to the identity of the person who had run away, she told her that it was the present appellant. She has stated that on being told by her mother, she came to know that it was the accused/appellant who had committecT sexual intercourse with her. Thus her deposition partietilarly paragraphs 5, 6 -^nd 7 of the same, is replete of contradictions and omissions. Mother of the prosecutrix namely Kunti Bai (PW-2) has stated that on the date of incident the prosecutrix had gone to the house of the accused/appellant for watching TV and when she did not return home, after hearing her cries she came out ofthe house but as she could not see anyone, shewent to the:house of the accused/appellant where his wife told ^l W6S& i J/ •'w'^y 1 -<T- her that the prosecutrix had already left for her house. This witness has stated that while she was coming back to her house, she again hegrd the cries of the prosecutrix and then the prosecutrix came out of the thrashing field and informed her that the accused/appellant had lifted her away to the thrashing field and committed forcible sexual intercourse with her. Kumbhlal alias Chirai (PW-3) has stated that he had heard the voice of .Kunti Bai (PW-2) and she had informed him that accused/appellant had taken her daughter. Setar (PW-6) has stated that after hearing the shouts of Kunti Bai (PW-2), he came to the spot where he was informed that the prosecutrix was taken by the accused/appellant. However, this witness has not stated anything about the rape having been committed on the prosecutrix by the accused/appellant. Pramod (PW-7) has not supported the case of the prosecution and therefore has been declared hostile. Smt. Revti (PW-8) and Cheitibai (PW-9) have also not supported the case of the prosecution and therefore, they have also been declared hostile. Saklu Ram (PW-10) is the witness of seizure of Ex. P-6 to Ex. P-9, Abhayram (PW-11) is the witness of seizure of Ex. P-2, and Udhodas (PW-12) is the witness of seizure of Ex. P-10. Dr. T.K. Banerjee (PW-13) who had conducted the ossification test ofthe prosecutrix has given his report Ex. P-11 and stated that at the time of incident she could have been 15-16 years of age. He has further stated that her age may vary to three years on either side and thus her age on the date of incident could be 18-19 years also. Manrakhan Lal (PW-14) is the witness who had proved the school leaving certificate of the prosecutrix vide Ex. P-15 in which her date of birth is recorded as 23.5.1977. In cross examination this witness has stated that he was not aware as to on whose information Rer date of birth was recorded as 23.5.1977 at the time of her admission in the school. Biharilal Nayak (PW-15) is the Patwari who had prepared the spot map Ex. P-16. Soukilal (PW- 16)'js the head constable who had recorded statements of some of the witnesses. Inspector S.R. Yuvne (PW-19) - the Investigating Qfficer has supported the case ofthe prosecution. Dr. Sachiddanand (PW-20) who.had medically examined the accused has stated that •he^'-was capable pf performing sexual intercourse. Dr. (Smt.) S. i? '• «:,, •y 'S' -". Goyal (PW-22) who had medically examined the prosecutrix has stated that no injury was found on her body and that her vagina entered two fingers easily and no recent tear was noticed on the hymen of the prosecutrix. 9. Thus the evidence'of the prosecutrix (PW-1) and her mother Kunti Bai (PW-2) is contradictory to each other as according to the prosecutrix she had come to know about the identity of the person who was allegedly running away after commission of the offence, as the present appellant, only on being told by her mother Kunti Bai (PW-2) whereas according to Kunti Bai (PW-2) the prosecutrix herself had informed her that it was the accused/appellant who had lifted her away to the nearby thrashing field and committed sexual intercourse with her. On the contrary, Kunti Bai has specifically stated that the prosecutrix did not ask her about the identity of the person coming out of the thrashing field. Even otherwise, it appears to be quite unnatural on the part of the prosecutrix that though she was taken by the accused/appellant to the nearby thrashing field and subjected to sexual intercourse by him, she could not see him during all this time period. The entire story put forth by the prosecutrix appears to be a cooked up one and therefore does not inspire confidence of this Court for convicting the accused/appellant under Section 3761PC. 10. As regards conviction under Section 363 IPC, the prosecution has not collected any material to show that on the date of incident the prosecutrix was below 18 years of age. Even as per the report of ossification test, age of the prosecutrix, at the relevant time, has been assessed as 15-16 years. Accordingto the radiologist, there may be a yariation of three years on either side, and this way her age could be 18-19 years also. The other corroborative piece of evidence in respect of her age is the school leaving certificate of the prosecutrix but Manrakhan Lal (PW-14) has stated that he was not aware as to who got her date of birth recorded at the time of admission in the school. Source of exact age of the prosecutrix is CQmpletely missing in this case. This apart, the prosecution has not been able to prove the fact that the accused/appellant has removed 'i' r' , ir: H NJ: '^. ^ •/ / the prosecutrix from her lawful guardianship which is one of the basic ingredients for convicting the accused under Section 363 IPC, rather according to the case of the prosecution itself, while she was returning after watching TV in the house of the accused/appellant, the appellant took her to the nearby thrashing field and committed sexual intercourse with her. In these circumstances, conviction of the appellant under Section 363 IPC cannot hold the ground. 11. Having thus undertaken an arduousexercise of scrutinizing the facts of the case in hand in the light of the evidence adduced by the prosecution, this Court does not find it proper to endorse the view taken by the Court below. Appreciation of evidence has not been done wholeheartedly. The findings of the Court below in recording conviction and sentence as above, warrant dislodgement. 12. In the result, the appeal is allowed. Impugned judgment dated 3.4.1992 is set aside. Appellant is acquitted of the charges levelled against him. Appellant is on bail. Bail bonds so furnished stand discharged. i~~ Sd/- Pritinker Diwaker Judge 't