HIGH COURT OF CHHATTISGARH AT BILASPUR [§B: Hon’ble Mr.T.P.Sharmg,J.] Criminal Aappeal No. 465/1 990 Basant Appellant Versus State of Madhya Pradesh. JUDGMENT BE POSTED FOR PRONOUNCEMENT ON -8-2008 Respondent Sd/- T. P. Sharma Judge HIGH COURT OF CHHATTISGARH AT BILASPUR [SB: Hon’ble Mr.T.P.Sharma,J.] CRIMINAL APPEAL No. 465 of 1990 G APPELLANT ‘ Basant, aged about 18 years, son of (lN JAIL) Chandra Bhan Satthi, Resident of ViHage — Sithra, P.S. Dharamjaigarh, District Raigarh, M.P. (Now CG) VERSUS RESPONDENT State of Madhya Pradesh (Now CG) Shri P. Diwakar, Sr. Advocate with Shri Ashish Surana. Advocate . forthe appellants. Shri Pankaj Shrivastava, PL for the State/respondent. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE ~ a J U D G E M E N T (Passed on7 .8.2008) 1. This appeal is directed against the judgment of conviction and order of sentence dated 2.4.1990 passed by the 2”" Additional Sessions Judge, Raigarh, in Sessions Trial No. 28/1 990 whereby the appellant has been convicted for the offence punishable under sections 376, 366 & 363 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and pay fine of Rs.50/-, in, default of payment of fine to further undergo simple imprisonment for one month, on each count. 2. The judgment of the trial Court is challenged on the ground that the trial Court has failed to appreciate the evidence available on record which is sufficient to draw an inference that the prosecutrix was not below the age of 16 years and was a consenting party to the act attributed to the present appellant. 3. Heard Shri P. Diwakar, Sr. Advocate with Shri Ashish Surana, Advocate for the appellants and Shri Pankaj Shrivastava, PL for the State/respondent. 4. According to the case of prosecution, when prosecutrix Budhwara Bai who t was below 16 years of age on the date of incident i.et 10-12—1989 was going to the river, the accused/appellant along with co-accused Devcharan forcibly made herto board a bus and took her to village Chhal. Thereafter, he took her to village Nawapara, then to village Minga and then to village Kachhar and daily he used to commit sexual intercourse with her till she remained with him on the promise of marriage. When the prosecutrix did not return home, her father Nanhiram P.W.8 lodged the missing report EXP-8 on 17-12-1989. On search being made by her father she was found in village Kachhar. Thereafter, she was sent for medical i examination to District Hospital, Raigarh vide Ex.P-4 where Dr. (Smt) Madhu Dubey (P.W.-2) examined her and assessed her age between 14 and 16 years on t the basis of following features. (1) Menstrual cycle of the prosecutrix haul started one year before her Q examination, 14 teeth were found in her lower and upper mandible. (2) Secondary sexual characteristics were fully developed. auxiliary and pubic hair were yet to develop. Vaginal slides were prepared. Document relating to her date of birth was seized vide Ex.P-13; spot map EXP-15 was prepared, Undergarments ofthe prosecutrix were seized vide Ex/P-17. The accused/appellant was also medically examined and the sealed articles were sent for chemical examinations I 5. After completion of investigation the charge sheet was filed in the Court of Judicial Magistrate First Class, Dharamjaigarh, who in turn committed the case to the Court of Sessions, Raigarh from where learned Additional Sessions Judge received the same on transfer for trial. 6. ln order to prove the guilt of the accused/appellant prosecution has examined 18 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the material appearing against him in the prosecution case and pleaded his innocence and false implication in the case. 7. After affording opportunity of hearing to the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned above. However, c 8. lt is argued on behalf ofthe‘appellant that there is no conclusive evidence to the effect that on the date of incident the prosecutrix was below 16-18 years of age, and she was a consenting party to the act of the accused/appellant. There is not even an iota of evidence to show that the appellant kidnapped the victim who was below 18 years of age with an intention to marry her or seduced her for illicit intercourse. From the evidence it appears that she willfully left her paternal home. 9. To establish the offence punishable under Sections 376, 363 & 366 of the l.P.C. the age of the prosecutrix is material. 10. The prosecution has placedueliance upon the school certificate, medical examination report and assessment of her age by her father, step mother and the Court. The Doctor who medically examined the prosecutrix has stated in her evidence recorded by the Court that the age of prosecutrix was between 16 and 17 years. Father of the prosecutrix - Nanhiram (P.W.-7) has stated that on the date of incident the age of her daughter was 12-13 years. He has stated in his cross examination that his daughter was born in the village and he informed the o—accused Devcharan has been acquitted of the charge leveled against him. U We; same to the Kotwar but no horoscope etc. was prepared. According to this witness, he is not in a position to say about the year and month of his daughter’s birth. P.W.-8 Shaneero Bai, step mother of the prosecutrix has stated in her evidence that the age of prosecutrix at the relevant time was 13 years. P.W.-16 Prassan Mukherjee, Assistant‘Teacher in Primary School, Sithra has stated in his evidence that the prosecutrix was admitted in the School in class-l and her date of birth rorded in the school register is mentioned as 1.3.1976 . The said entry is said t be made by one Top Singh vide EXP/11 who then was posted as the Head aster. School leaving certificate EP/12 was seized under Ex.P/13. No kotwaegister was produced by the proseution. This witness has admitted in his cross xamination that the school register EXP/11 bears the signature of the person who recorded the entry. ’ 11. it is further argued on behalf of the appeiiant that in the absence of ay conclive proof regarding the age of the prosecutrix she ought to have been put to the ossification test. ‘He piaced reliance in the matter of 1 it has bee‘n held that if the basis for the entry of date birth in he school register is not brought on record, such entry would not be of much value and in determining the age on the basis of ossification test, the error in age varies up to 3 years on either side. 12. In the instant case, the date of birth of the victim is 1-3-1976 as mentioned in the scho register. However. the basis on which the said age was mentioned in the rester is not shown by the prosecution. Father of th prosecutrix who got his daughter admitted in the schoo has stated that he did not inform the date of birth of the prosecutrix to the schol authorities. Thus, no reliance can be piaced on the registe maintained by the school authorities. In this case, o ossification test of the precutrix was conducted. In the matter of Kashmir, d of error in age ascertained by the Radiological examination is 2 years on either e‘ us ol gi e l o r n os Jaimala v. State of Jammu & z it has been held that ossification test is not conclusive an the margin Lrr side. But, in the matter of Sidheswar Ganguly v. State of West Bengala, in which it has been held by the Apex Court that the age of the victim may be ascertained on the basis of oral testimony and physical features of the raped girl. ln this case, the oral testimony of the father of the prosecutrix regarding her age is not worthy of any credence. However, the oral testimony of step mother Shaneero Bai (P.W.-8) shows that on the basis of age of her son Ghurau she has stated the age of the prosecutrix is 13 ye‘ars,~on the date of incident. Nothing has been asked by the defence in the cross examination of this witness which discredits her testimony. I 2007 (3) com. 41 z (19S2)2 SCC 538 3 AIR 1958 SC 143 ec oi M X r‘r c e n us Mukesh Kumar v. State of C.G, of t 13. In the absence of any conclusive evidence regarding age of the prosecutrix, her age can be ascertained from the ocular testimony of the parents, her physique such as development of secondary sexual characteristics, development of auxiliary and pubic hair, beginning of menstrual cycle, presence of teeth in mandible. 14. In the case of State of H.P. v. Manqu Ram“, it has been held by the Apex Court as under:- "12. As regards the age of the prosecutrix, there is evidence of P.W2 Dr. Veena Sehgal who examined the prosecutrix and after taking note of the physica/ features stated that the prosecutrix must be of the age between 13 to 14 years. PW3 Dr tokender Badotra, who examined the V e prosecutrix also supported this version. This view is more strengthened by the family history which showed that she was born in the year 1979. Therefore, in al/ probability, the age of the prosecutrix at the time of the occurrence was about fourteen years. The certificate of PW 13, the Medical Oflioer~cu;n- Radiologist, also gives only the probable age of the proSecutrix. Therefore, the finding of the learned Sessions Judge that the prosecutrix was above the age of sixteen is based on faulty reasons and is unsupported by evidence." While dealing with the age of the prosecutrix it has been held by the Apex Court in the matter of Vishnu v. State of Maharashtras, that in case of determination of age of the victim, the best evidence is the statement of the parents. Normally the age recorded in the school certificate is considered to be correct provided the parents furnish the correct age of the ward at the time of admission and it is authenticated. 15. ln the instant case the date of birth of the prosecutrix recorded in the school Certificate is not supported by any cogent evidence. Dr. (Smt.) Madhu .Dubey (P.W.‘2) who medically examined the prosecutrix has categorically stated about the physical features of the prosecutrix and opined her age‘between 14 & 16 years. Though the prosecution has failed to establish the date of birth of the prosecutrix i.e. 1.3.1976 as mentioned in the school register on the basis of any definite information given by her father or any other person who got her admitted in the school, gets support from the medical evidence on the basis of her physique and ocular evidence of the step mother of the prosecutrix. Thus, on the basis of physique of the prosecutrix, statement of her step mother and the entries made in the school register, it can safely be inferred that at the time of incident the prosecutrix was between 13 and 14 years of age. 16. The second point for consideration is as to whether the appellant has committed the rape on the prosecutrix. P.W.-7 Nanhiram, the father of the 4 (2000) 7 scc 224 5 (2006) i scc 283 prosecutrix has stated that when his daughter was not found for a sufficient time, he made a search for her whereabouts and ultimately found her in village Kachhar in the company of the appellant and subsequently the F.l.R. EXP-8 was lodged. Prosecutrix (P.W.3) has stated in her evidence that while she was going to siver, ’on the way the appellant and co-accused Devcharan met her and the appellant made her to board a bus and took her to various places where the appellant subjected her to sexual intercourse. in her cross examination she has specifically stated that the appellant committed sexual intercourse with her. The defence had put a suggestion to her that she went with the appellant willingly which was denied by her. Another suggestion put by the defence that the appellant has not committed sexual intercourse with her as he being younger to her was not capable of having sexual intercoursemas also been denied by her. According to the evidence‘of the father of the prosecutrix, his daughter remained with the accused/appellant for 7 days and during this period he was subjecting her to sexual intercourse. lf regular intercourse with a woman is committed, the sign of first intercourse like ruptur‘e of hymen or any internal injury cannot be possible Statement of prosecutrix P.W.-3 inspires confidence as far as commission of sexual intercourse with her by the appellant is concerned. 17. On the date of incident, the prosecutrix was below 16 years of age, therefore, question of willingness or consent on her part loses significance. As regards kidnapping by the appellant, the prosecutrix who was below 16 years of age has stated that the appellant forcibly made her to enter the bus and took to various villages but she has not told this to anybody. Prosecution has adduced the evidence of P.W.-4 Goran Singh who has stated in his evidence that while she was going to the river, the appellant and co-accused were present there and when the bus came, the appellant forcibly made her to board it and the bus went away. This is not a case in which the appellant went to the house of the 18. a prosecutrix and forcibly took her away or enticed her. lt appears from the statement of the prosecutrix that she herself left her paternal shelter and went to the company of the appellant. Thus, the appellant cannot be said to have kidnapped or abducted the prosecutrix. 20. After appreciating the evidence available on record the trial Court has convicted the accused/appellant under sections 376, 383 and 366 of the IPC and \ sentenced to undergo rigorous imprisg'rtment for seven years and pay fine of \ Rs.50 -,,-in default of payment of fine to further undergo simple imprisonment for one month, on each count. As regards conviction under sections 363 and 366 IPC, it has been held by the Apex Court in the matter of S. Varadarajan V State of Madras 6 that if the l 21 . l 5 AIR 1965 sc 942 \ t \ girl leaves her paternal home without being threatened or induced by the accused, it cannot be said that she has been kidnapped or abducted. 22. Whiie appreciating the evidence available on record the trial Court has rightly arrived at the conclusion that the prosecutrix was below 16 years of age on the date of commission of offence and she was subjected to sexual intercourse by the accused/appellant. However, as regards kidnapping or abducting is concerned, the trial Court has lost sight of the fact that the prosecutrix herself left the paternal home and went with the accused/appellant. There is not even an iota of evidence on the basis of which the accused/appellant can be convicted for the offence under sections 363 and 366 IPC. 22. ln view of above, l am ofthe opinion that the impugned judgment so far as it relate‘s ‘to conviction and sentence imposed on the accused/appellant for commission of offence punishable under section 376 IPC does not call for interference and the same deserves to be maintained. However, conviction and sentence imposed on the accused/appellant for the offences punishable under sections 363 and 366 IPC is liable to be set aside. s 23. Consequently, the appeal partly succeeds. Conviction and sentence under section 376 IPC are sustained and conviction and sentence under sections 363 and 366 IPC is set aside and the accused/appellant is acquitted of these charges. Accused/appellant is said to be on bail. He is directed to surrender immediately to undergo the sentence under section 376 IPC Sd/— T. P. Sharma Judge ‘x G