HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble ShrilRajeev Gupta, C.J. & Hon’ble Shri'Sunil Kumar Sinha. J. Criminal Appeal No. 575 of 2001 Motilal Vs. State of Chhattisgarh JUDGMENT For consideration Sd/- \ 0 Sunil KumarSinha W x Judge,’ / / I HON’BLE SHRI JUSTICE RAJEEV GUPTA N3W Chief Justice Q§ /09/2008 K‘_ a Post for Judgment :4109/2008 i Sd/- J \ SUNIL KUMAR SINHA i ‘ i Judge 2 Criminal Appeal No. 575 of 2001 disclosed this fact to ‘Shyam Kumar Sahu (PW-2), Tejram (PW-8) & Jalkunwar (PW—7), then, a First Information Report (Ex.-P/1) was Iodged in the concerned police station by Parwati Bai on the same day at about 10.30 a.m. The prosecutrix was sent for her medical examination and was examined by Dr (Smt.) Tara Agrawal (PW-10), who prepared her report EX.—P/11. She did not noticeany external injury on the body of the prosecutrix. in vaginal examination, she found that the lower part of labia majora and labia minora were reddish and there were tenderness and swelling, hymen was not ruptured but it was red, tendered and swollen and vagina was not admitting even little finger. She opined that it may be a case of attempt but was not a case of complete penetration. The appellant was also sent for his medical examination and was examined by Dr. Jogilal Shrivastava (PW-11), who found that the appellant was capable to perform sexual intercourse. He gave his report Ex.-P/9. tau (3) ln further investigation, birth/death register (Ex.-P/6-C) was seized showing the date of birth of the prosecutrix as 17.7.88. The prosecutrix was sent for her ossification test, which was performed by Dr (Smt.) Alka Pardal (PW-12), who prepared her report Ex.-P/17, according to which, the age of the prosecutrix was in between 10—11 years. (4) After completion of usual investigation, the charge-sheet was filed in the Court of Additional Chief Judicial Magistrate, Mahasamund, who in turn committed the matter to the Court of concerned Sessions Judge, from where, it was received on transfer by the Second Additional Sessions Judge, Mahasamund, who conducted the trial and convicted and sentenced the appellant as aforementioned. (5) On trial, the prosecutrix completely turned hostile. She did not support the case of prosecution. She deposed that even in her 161 statement, she made false allegations against the appellant, however, the learned Sessions Judge relying on the testimony of mother of the prosecutrix, Pan/vati Bai (PW-1) towhom the prosecutrix is said to have // //"r‘ narrated the story and further [,elying on the testimonies of Shyam 3 Criminal Appeal N0. 575 of 2001 @ Kumar Sahu (PW-2), Jalkunwar (PW-7) & Tejram (PW—8) to whom the mother of the prosecutrix had stated all this, convicted the appellant u/s 376 (2) (f) l.P.C; by recording a tinding that the prosecutrix was below 12 years of age on the date of incident. (6) Mr. Anant Bajpai, Iearned counsel for the appellant, tirstiy, disputed the finding of the age of the prosecutrix. Secondly, he argued that the prosecutrix has completely turned hostile. Even she deposed that her poiice statement is faise, therefore, the Iearned Sessions Judge erred in law in convicting the appellant on the basis of evidence of mother of the prosecutrix and other supporting evidence. (7) On the other hand, Mr. Praveen Das, learned Dy. Govt. Advocate, for the State, opposed these arguments and supported the judgment passed by the Sessions Court. We have heard the Iearned counsei for the parties atVIength and have also erused the records of the sessions case (8) (9) So far as finding of the age is concerned, the same is based on the evidence of mother of the prosecutrix (PW—1), entries in birth & death register and the result of ossification test. The mother of the prosecutrix, PW-1, has deposed in Para-3 of her evidence that the age ‘ of the prosecutrix, on the date of incident, was 12 years. She has neither deposed about her. date of birth nor, has given any further ciaritication. Therefore, in appreciation, the outcome of her evidence would be that her daughter had compieted 12 years of age on the date of incident. (10) The entry Of the birth register has been proved by Kotwar, Chamraram (PW-3), who deposed that at page No. 190 of the said register (Ex.-P/6—C) an entry has been made that a female child was begotten by Pan/vati Bai on 7.7.88. The entry of the register would show that in fact, the date‘ 'of birth entered therein was 17.7.88.‘ That means, according to the said document relied» by the prosecution, the prosecutrix would be more than 12 years on the date of incident as the incident took place on 17.8.2000.” p . Ci 4 Criminal Appeal N0. 575 of 2001 (11) Aboutvossification test, suffice it to say that it only determines the range of age and the age group but the same is not conclusive proof of age and much reliance cannot be/placed on such evidence of age. In Modi’s Medical jurisprudence (20th Edition), it is stated that too much reiiance should not be placed on the table showing the age and years of the appearance and fusion of some of the epiphysis as observed by different authorities as it mereiy indicates the average and is Iikely to vary in individual case even of the same prOvince owing to the eccentricities of development. It is further stated that recent work has shown that the range of error may be upto three years on either side. Dr (Smt.) Alka Pardal (PW-12) has opined that the prosecutrix was in between 10-11 years and her such opinion was based on the observation of ‘fusion of bones’. Therefore, Iooking to the possibility of error on either side, it cannot be said that according to such report, the prosecutrix cannot be more than 12 years of age. In view of the foregoing discussions, it is apparent that the learned Sessions Judge erred in law in recording the finding that the prosecutrix was below 12 years of age on the date of incident. Therefore, we set aside such finding being perverse on the face of record. 4m (12) Now we come to te evidence of the prosecutrix (PW-6). She deposed that “On the fateful day, when her mother had gone to fetch water, the appellant asked her to bring water and Gudakhu (a local paste for mouth wash), which she did not bring, on which, she was beaten by the appellant. When her mother returned back, she narrated it to the mother and then both decided to lodge a report. She received injury on her cheek". On her such evidence, she was declared hostile by the prosecution and was allowed to be cross examinatioh by the Public Prosecutor. When she was faced with her 161 statement, and was asked about omissions, she replied in the following manner: “ ...........tamaaasmmmwrfathw 2m Er} Erma—claimatzmmmfra’sremaa WwWWW$%WW%@W ftp-err [mmmamhaaawrtaspmsfrr............ ” h ‘ 1a;- :‘M c; 5 @ In further cross examination, she admitted that presently, she is residing with her maternal grand-mother, Jalkunwar (PW-7) and has come aiong with her to give evidence. She denied the suggestion that she is deposing on tutoring by somebody and has further denied that since the appellant is her father, she is giving false evidence in the Court and has Iastly asserted that the appellant did nothing against her. Criminal Appeal No. 575 of 2001 (13) Learned Sessions Judge has given much importance to her case diary statement. It is well settled that a statement recorded u/s 161 of the Code of Criminal Procedure cannot be treated as evidence in the criminal trial but may be used for the limited purpose of impeaching the credibility of a witness. The Sessions Court erred in Iaw in giving undue importance to the 161 statement leaving apart the consideration to the deposition made by the prosecutrix in the Court. The statement recorded u/s 161 Cr.P.C. is not substantive evidence and the inconsistency between the two versions is obvious from the fact that the prosecution had to declare the witness hostile. Moreover, when the witness herself is telling that she had given false statement before the police regarding commission of rape against her by the appellant, then, in fact, there was nothing on record to be considered as such to believe the testimony of the prosecutrix. (14) PW-1, Parwati Bai, depose that when she returned after gs? fetching water, her daughter told that the appellant has committed rape against her and thereafter, she narrated this incident to the other witnesses namely - Shyam Kumar Sahu (PW-2), Jalkunwar (PW-7) & Tejram (PW-8). These witnesses have supported PW—1 by deposing that the mother of the prosecutrix had narrated such story to them. In appreciation, we find that when the prosecutrix herself did not support that she has narrated such story to the mother, then, the evidence of the mother as also the evidence of other villagers including maternal grand-mother of the prosecutrix, namely Jalkunwar (PW-7), are not of mUCh importance. The Sessions Judge clearly erred in law in giving much importance to the evidence of these‘witnesses and holding on d ‘‘m.. Q: 6 Criminal Appeal N0. 575 of 2001 the strength of the evidence of these witnesses that the appellant has committed rape against the prosecutrix. (15) It was argued before us that the prosecutrix must have been tutored by her maternal grand-mother with whom she was residing, but, this argument does not appear to be appealing because the maternai grand-mother of the prosecutrix Jalkunwar (PW-7) has not turned hostile and has supported the case of prosecution that her daughter i.e. mother of the prosecutrix had narrated her that the prosecutrix was ravished by the appellant. lf she was keeping an intention to get the appellant acquitted by tutoring the prosecutrix to not depose against the appellant, she herself would not have deposed against the appellant. Therefore, this argumentcannot be accepted. (16) ln view of the above, the finding recorded by the Sessions Court regarding commission of rape by the appellant is not based on cogent, clinching and reliable evidence. The evidence of the prosecutrix has completely demolished the case of prosecution and on the face of such evidence, it was not possible to hold the appellant guilty of commission of offence of rape against the prosecutrix. (17) _ In the result, the appeal is allowed. The conviction and sentence awarded to the appellant are set aside. The appellant is in jail since 27.9.2000. He be set at liberty, forthwith, if not required in any other case. Sunil Kumar Sinha‘ Judge._flip // Sd/— vatti