.i^'i"^.^^-^ ^•-•""^n .•€-t"' ..t-^ n ^' e<t;'»c'' '"' 'ett -• Single Bench IN THE HONBLE HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL APPEAL N0. / 2008 "•^:^-^^"^^^i^ 3 ~- Appellant (In Jail) Moh. Maksopd Ansari, S/o Nijain Ansari, Aged about 21 years, Occupation - Agriculturist, R/oVillage Kalyanpur, P.S. - Surajpur, Distt. Surguja-(C.G.) !3'5B(S;3!|SH!ia '"'- i^!S%3; Respondent State of Chhattisgarh Through : Station House ^T<UpuT^<Si)& Officer;l*Distt: Sarguja-fC.G.) CRIMINAL APPEAL U/S 374 (2) OF THE CODE OF »!!(» ^•^^••'°~-^'Y. ^ '*•, 1 'i!;fc-, '^"'I^^ 71^-7> :t.S3.Sl«g iw HIGHCOURT OFeHHATTlSGARH AT BILASPUR (Hon. IMr. JusttCe Pritinker Diwaker) Criminal Appeal No. 631 of 2008 Moh. Maksood Ansari APPELLANT RESPONDENT VERSUS StatedfChhattisgarh Post for pronbuncement of the judgment on3..^.2013 Sd/- Pritinker Diwaker Judge <£? • €E?S» ^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 631 of 2008 APPELLANT RESPONDENT VERSUS Moh. Maksood Ansari State of Chhattisgarh Shri Jitendra Shrivastava counsel for the appellant. Smt. Smita Ghai PL for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT () .(3.2011) This appeal is directed against the judgment and order dated 27.6.2008 passed by the Additional Sessions Judge Surajpur in Sessions Trial No. 367/2007 convicting the accused/appellant under Sections 363, 366 and 376 (1) of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for three years with fine of Rs. 200 u/s 363, rigorous imprisonment for five years with fine of Rs. 300 u/s 366 and rigorous imprisonment for seven years with fine of Rs. 500 u/s 376 IPC plus default stipulations. 2. Case of the prosecution in brief is that on 4.7.2007 a missing report was lodged by the father of the prosecutrix alleging that his daughter went missing since that day. This was entered into Rojnamcha Sanha at S. No. 14/2007 and subsequently on 6.7.2007 she was recovered from the possession of the accused/appellant vide recovery Panchnama Ex. P-1. Case diary statement of the prosecutrix was recorded on 6.7.2007 itself in which she has stated that the accused/appellant had forcibly taken her away and subjected her to rape also. Based on this statement of the prosecutrix, FIR Ex. P-15 was registered against him under sections 363, 366 and 376 IPC. After completion of investigation, challan was filedon 1.9.2007. •'y .;•'-•• fc'. l:'^ -u^^':t; ^ %-. ^.-^:'./ ^.~..7:^F &•'/ / —'2-— 3 . So as to hold the accused/appellant guilty, prosecution has examined 10 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 herein as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the accused/appellant submits that in the Court statement the prosecutrix has not made any allegation against the accused/appellant under Section 376 IPC and therefore, under no circumstances he can be convicted for commission of rape. He submits that the prosecution has utterly failed to establish the fact that on the date of incident the prosecutrix was minor and that being so the conviction of the accused/appellant under Sections 363 and 366 IPC is not in accordance with the provisions of law. He submits that the evidence adduced by the prosecution with respect to the offence under Section 363 IPC being not clinching in nature cannot be made a basis for his conviction under that section. Lastly he submits that the appellant is in jail since 6.7.2007 itself and thereby he has completed more than three.and a halfyears ofjail sentence. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the Court below being based on due appreciation of the evidence available on record are just and proper and need no interference in this appeal. 8. Prosecutrix (PW-1) has stated in her evidence that at the relevant time she was a student of class VII but she did not know her date of birth. According to this witness, the accused/appellant happened to be her brother-in-law in village relation and that on the date of incident at about 4 p.m. after the school time was over, he had called her behind the school. She has further stated that the "^. %.^"y wife of the accused/appellant used to suspect her of sharing company of the accused/appellant and on that account she had asked the accused/appellant as to why he did not make his wife understand. According to her, the accused/appellant had also told her in the school that as her image was already maligned because of him who else would marry her, and then asked her to accompany him. Then, according to her, they went to Kalua on foot and then to Ambikapur by catching bus where she was kept in the house of someone. According to her, at Ambikapur the accused/appellant had tried to have sex with her in the night but due to arrival of the police he could not succeed in it. Subsequently, she was medically examined, her underwear was seized vide seizure memo Ex. P-2 and the spot map Ex. P-3 was prepared by the Patwari. At this stage, the prosecutrix has been declared hostile. In paragraph 10 of her cross-examination this witness has however made it clear that the accused/appellant had inserted part of his penis into her private part and in the meanwhile the police had appeared on the scene. Tess Mohd. (PW-2) - the father of the prosecutrix has stated that on the date of incident the prosecutrix was studying in class VII but he was not aware of her date of birth. This witness has stated that he had no idea even regarding his date of birth or that pf the other family members. According to him, out of his four children the prosecutrix was the second one. He has stated that after getting back from the field, he came to know that the accused/appellant had taken away his daughter. Thereafter the matter was reported to the police and on 6.7.2007 the prosecutrix was recovered from the possession of the accused/appellant. According to him, mark-sheet of the prosecutrix was handed over to the police and the same was seized under seizure memo Ex. P-6. This witness was also declared hostile by the prosecution. In cross-examination, this witness has stated that the prosecutrix had not disclosed to him regarding her being subjected to rape by the accused/appellant. Gajadhar Prasad Pandey (PW-3) is the school teacher from whose possession school register was seized vide Ex. P-8. Radhika Prasad Thakuria (PW-4) is the Patwari who had prepared spot map Ex. P-3. Dr. R.S. Singh (PW-5) is the witness who had medically i/ —^- examined the accused/appellant and given his report Ex. P-10 stating that he was capable of performing sexual intercourse. M.S. Rathia (PW-6) is the witness who had made entry in the Rojnamcha Sanha at S.No. 14/2007 regarding the prosecutrix going missing. Jagnarayan Singh (PW-7) - the head master of the school who had proved and exhibited the birth certificate of the prosecutrix Ex. P-11 which was prepared on the basis of entry register of the school Ex. P-12. On the basis ofthese two documents this witness has stated that date of birth of the prosecutrix is 1.11.1992. In cross examination he has stated that the entry in register was made on the basis of the mark-sheet of class V. Dhirendra (PW-8) is the witness to seizure of mark-sheet of the prosecutrix made under Ex. P-6. Dr. R.V. Tirki (PW-9) who had medically examined the prosecutrix and given her report Ex. P-13 has stated that she did not find any injury on the body of the prosecutrix, her hymen was intact, she was a fully grown up girl and that no opinion regarding rape on her can be given. She has stated that for determination of age the prosecutrix was referred for radiological test which was not done. As the prosecutrix was not subjected to radiological test, adverse inference has to be drawn against the prosecution. Sub Inspector D.K. Sharma (PW-10) is the investigating officer who has supported the case ofthe prosecution. 9. Careful perusal of the evidence of the witnesses including that of the prosecutrix does not make it clear that on the date of incident prosecutrix was minor. Even Jagnarayan Singh (PW-7) who had produced the birth certificate of the prosecutrix prepared on the basis of entry register of the school Ex. P-12 has stated that the said entry was made in the register on the basis of mark sheet of the prosecutrix of class V but the fact as to on what basis the date of birth of the prosecutrix was recorded in the mark sheet of class V, has not been proved by the prosecution by adducing any cogent and reliabte piece of evidence. Prosecution has not even bothered to get the prosecutrix radiologically examined though the doctor medically examining her had referred for the same. Thus the prosecution has utterly failed to prove its case beyond reasonable doubt as far as offences under Sections 363 and 366 IPC are concerned. -.£"- 10. As regards conviction under Section 376, the prosecutrix did 'not remain consistent while making the statement in her case diary statement and the statement made in the Court. Even in the court statement somewhere she says that the accused/appellant had only made an attempt to commit sexual intercourse with her but it was not done and somewhere she says that intercourse was half done by him. Even the father of the prosecutrix h^s stated in his evidence that his daughter had not informed him about being subjected to rape by the accused/appellant. Moreover, the medical report of the prosecutrix also does not support the case of the prosecution according to which her hymen was intact and no injury was found on her body. In these circumstances when nothing specific has been brought forward by the prosecution in support of its case, accused/appellant has to get the benefit of doubt. 11. Accordingly, the appeal is allowed. Judgment impugned is hereby set aside. Accused/appellant is acquitted of the charge levelled against him. As accused/appellant is in jail, he be set free forthwith if not required in any other case. _ __^——— Sd/- pritinker Diwaker Judge