..‘.~,M‘~W¥ IN THE HON’BLE HIGH COURT OF BILASPUR [C.G.l RIMINAL APPEAL NO.‘ K Amy; gmaiki CHHATTISGARH AT C 1 APPELLANT \\ (In Jail) \ RESPONDENT C Police Station District—Jashpur RIMINAL APPEAL UNDERTSECTION 3’74” (2g OF c @ Manjhanu Ram, S/o Roktc Ram, Caste—Pahadi Korwa, aged about 25 years, R/o Kerapath, P.S.—Bag1'cha, DistrictJashpur (C.G.) VERSUS State of Chhattisgarh Through Bagicha, (C.G. \ RIMINAL PROCEDURE CODE A“W\ a H i g OF 2009 ) HIGH COURT OF CHHATTISGARHVAT BILASPUR DIVISION BENCH: Coram: HON’BLE MR.T.P.SHARMA & HON’BLE MR.R.L.JHANWAR, JJ. APPELLANTS L,w (x Criminal Appeal No.998 of 2004 1. Aetwari Bai W/o Mohar Sai. By Caste Pahadi Korwa, Aged about 35 years, Village Bendopani, P.S. Bagicha, Dist: Jashpur (C.G.) 2. Mohar Sai S/o Konda Ram, By Caste Pahadi Korwa, aged about 45 years, R/o Bendopani, P.S. Bagicha, Dist : Jash‘pur (C.G.) 3. Mangairam S/o Sundraram, By caste Pahadi Korwa, Aged about 22 years, R/o Bendopani, P.S. Bagicha, Dist : Jashpur (C.G.) Versus State of Chhattisgarh through Police Station Bagicha, Dist :‘ Jashapur RESPONDENT (C.G.) And Criminal Appeal No.435 of 2009 APPELLANT (In Jail) Manjhanu‘ Ram. S/o Rokto Ram, Caste-Pahadi Korwa, aged about 25 years, Rlo Keparath, P.S.—Bagicha, District-Jashpur (C.G.) Versus State of Chhattisgarh Through : Police Station Bagicha, District— Jashpur (C.G.) (Criminal Appeals under Section 374(2) of the Cr.P.C.) RESPONDENT Mr.Rahul Mishra, counsel for the appellants in Cr.A.No.998/2004. Mr.Abhay Tiwari, counsel for the appellant in Cr.A.No.435/2009. Mr.R.R.Sinha. Panel Lawyer for the respondent/State. JUDGMENT (Delivered on 5‘“ April, 201 1) The judgment of the Court was delivered by T.P.Sharma, J.:- “‘. 1. Criminal Appeal Nos.998(2004 and 435/2009 flied against the judgment of conviction and order of sentence dated 5.10.2004 passed by the Second Additionai Sessions Judge (F.T.C.), Jashpur in Sessions Trial No.46/04 are being disposed of by this common judgment. 2. By the aforesaid judgment of conviction and order of sentence, the Second Additional Sessions Judge after hoiding the appeilants guilty for commission of offence of kidnapping and gang rape convicted ail the appellants under Sections 363 of the l.P.C. and sentenced théjm’ to undergo R.l. for five years and fine of Rs.1000/-, in default of paym‘ent of_ tine to further undergo R.l. for one month. The Second Additional Sessions Judge has also convicted appellants Mohar Sai, Manjhanu Ram and Mangalram under Section 376 (2)(g) of the l.P.C. and sentenced them to undergo imprisonment for life and nne of Rs.5000/—, in default of payment of fine to further undergo S.l. for five months. 3. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality. 4. As per case of prosecution, prosecutrix (PW-1) (name not mentioned) was below the age of 16 years. On 22.11.2003 she was enticed by appellant Aetwari Bai and took her from the house of her mother Smt.Salo Bai (PW—2) and took her to village Bendopani whereiishe resides. Other appellants Mohar Sai i.e., husband of Aetwari Bai, Mangal Sai and Manjhanu Ram came to the house of Aetwari Bai and forcefuiry committed rape with the victim one by one from 22.11.2003 till 30.11.2003. Her mother searched the victim and finally on 27.11.2003 father of the victim Gon Sai (PW-3) lodged missing report vide Rojnamcha No.937. During the course of inquiry of missing report, parents of the victim went to the house of appellant Aetwari Bai from there they took their daughter. On the basis of inquiry of missing person finally F.l.R. EXP/16 was recorded.’ Stained cloth of the victim was seized vide Ex.P/1. She was sent for medical examination vide Ex.P/2. She was examined by Dr.Smt.Vinodni Bakhla (PW—6) and found that she was accustomed to intercourse. Two slides of vagina! smear were taken. Her stained petticoat was examined vide Ex.P/5. Mohar Sai was examined by Dr.T.K.Sahu (PW-7) vide Ex,P/7 and was found capable for committing intercourse. Mangal was also examined by Dr.T.K.Sahu (PW-7) vide Ex.P/9, he was also found capable for committing intercourse. Manjhanu was also examined by same doctor vide Ex.P/11 and he was also found capable for committing intercourse. Spot map was prepared vide Ex.P/12. Ossification test of the victim was conducted vide Exs.P/14 and P/15 by Dr.P.C.Jain (PW—9) and her age was ascertained as 18 years. Sealed slides were seized vide EXP/22. Sealed slides of appellants Manjhanu and Mangal were seized vide Ex.P/21. Spot map was prepared by investigating officer vide EXP/28. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short ‘Code’) and after completion of investigation, charge sheet was tiled before the Judicial Magistrate First Class, Jashpur, who in turn committed the case to the Court of Sessions, Jashpur, from where learned Second Additional Sessions Judge (F.T.C.), Jashpur, received the case on transfer for trial. . ln order to prove the guilt of the accused/appellants, prosecution examined as many as elevenT witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code where they denied the circumstances appearing against them and pleaded innoCence and false implication in crime in question. The appellants have also examined defence witnesses Chamru (DW—1), Kandru Ram (DW-2) and Jodha (DW-3), who have deposed that the prosecutrix was having love affection with appellant Manjhanu and at his instance she left her parental shelter and accompanied Manjhanu, even parents of the victim tried for calling back the victim but she refused to return. Thereafter, parents of the victim forcefully took her back. . After affording an opportunity of hearing to the parties, learned Second Additional Sessions Judge (F.T.C.), Jashpur has convicted and sentenced the accused/appellants as aforementioned. . m1 H We have heard Mr.Rahul Mishra and Mr.Abhay Tiwari; counsel for the appellants and Mr.R.R.Sinha, Panel Lawyer for the respondent/State, perused the judgment impugned and record of the trial Court. 9. Learned counsel for the appellants vehemently argued that in order to convict the appellants under Sections 363 and 376 (2)(g) of the l.P.C., prosecution is required to prove the fact that at the time of alleged kidnapping and committing rape age of the prosecutrix was below 16 years and without her will and consent. Appellants Mohar Sai, Mangalram and Manjhanu have committed rape with her and same has been abetted and instigated by appellant Aetwari Bai. The appellants have also taken the victim from lawful guardianship of her mother and father without their consent, but in the present case prosecution has utterly faiied to prove the aforesaid fact. Prosecution has not proved the exact age of the prosecutrix. that too below 16 years. She was consenting party and has married with one of the appellant Manjhanu but on the ground that both members are different castes marriage was not possible and it was not consented by parents of the victim, therefore, false report has been lodged. Learned counsel further argued that victim has not clearly deposed against other appellants except Manjhanu that they have committed rape with her. ln absence of such fact, other- appellants are not liable for commission of aforesaid offence and ‘ Manjhanu is not liable for commission of offence on the ground of consent and age of the victim. 10.0n the other hand, leamed State counsel opposed the appeals and argued that prosecution has proved the age of the prosecutrix below 16 years. Evidence adduced on behalf of prosecution is sufficient for drawing inference that all the appellants have committed aforesaid offence and the trial Court has rightly convicted and sentenced the appellants as aforementioned. 11.ln order to appreciate the arguments advanced on behalf of the parties. we have examined the evidence adduced on behalf of the parties. 12. In the present case, virtually by examining defence witnesses and taking defence by suggesting the prosecutrix and other witnesses appellant Manjhanu has taken specific defence that he was having love affection . 4 with the prosecutrix and at the instance of the prosecutrix he has taken the prosecutrix with him and has committed rape with her under her consent and as husband and wife. 13‘As regards the age of the prosecutrix, the Court has assessed the age of the prosecutrix between 16 to 17 years. Smt.Salo Bai (PW-2), mother of the prosecutrix and Gon Sai (PW—3), father of the prosecutrix have not stated anything about the age of the prosecutrix. As per evidence of Dr.Smt.Vinodni Bakhla (PW-6), she has ascertained the age of the , ‘\ prosecutrix as 15 years. Ossification test has been conducted by Dr.P.C. Jain (PW—9). As per x—ray report Exs.P/13 to P/1 5, he has ascertained the age of the prosecutrix as 18 years. Prosecution has not collected evidence relating to kotwar panji and death and birth register certificate. 14. ln absence of any kotwar panji or other conclusive documents, same can be assessed on the basis of age assessed by the Court, physical feature of the prosecutrix and other circumstances. As held by the Supreme Court in the matter of Sidheswar Ganguly v. State of West Bengal1, in absence of conclusive proof of age recorded in the birth register, age can be ascertained on the basis of other relevant facts. 15.While dealing with the question of determination of age, in the matter of State of H. P. v. Mango Ramz the Supreme Court has held that age of the prosecutrix shall be determined on the basis of all relevant factors, including physical features. Paras 11 & 12 of the said judgment read as under:- “1 1. We carefully considered the rival contentions and also perused the’ records and the impugned judgments. The verdict of not guilty has been entered by the learned Sessions Judge mainly based on two grounds that the prosecutrix was aged above sixteen years and if at all there was any sexual act, it must have been with her consent. Both these findings are erroneous and incorrect. 12. As regards the age of the prosecutrix, there is evidence of PW 2 Dr. Veena Sehgal who examined the prosecutrix and after taking note of the physical features stated that the prosecutrix must be of the age between 13 to 14 years. PW 3 Dr. Lokender Badotra, who 1AIR 1958 SC 143 2 (2000) 7 SCC 224 éxamined the 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 all probability, the age of the prosecutrix at the time of the occurrence was about fourteen years. The certificate of PW 13, the Medical Ofhcer—cum- 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.” 16.As per report of Dr.Smt.Vinodni Bakhla (PW-6) Ex.P/3, her secondary sexual characters were well developed. ln these circumstances, only age ascertained by ossification test was remain for consideration which reveals that age of the prosecutrix assessed as 18 years, therefork, in absence of any other evidence, it-is difficult to hold that age of the prosecutrix was below 18 years at the time of commission of offence. 17.As per evidence of the prosecutrix (PW-1), appellant Aetwari Bai took her from her house to village Bendopani, other appellants met her in a way, they took her to the house of Mangal, then they again took her to village Kerapath where after removing clothes appellants Manjhanuram, Mohar Sai and Mangal Sai committed rape with her one by one. In para 1 she has further deposed that they kept her for eight days and finally she was taken out by her parents. With a view to clear the evidence prosecution has asked question to her and she has answered in para 4 that appellant Manjhanu has inserted his male organ in her private part. ln para 5 she has further deposed that other appellants Mohar Sai and Mangal Sai have also inserted their male organs in her private part. 18.Defence has cross-examined this witness in detail. in paras 6 and 7 of her cross—examination she has deposed that the appellants have compelled her and have taken her and they were regularly watching her. in para 9 she has specifically deposed that she was pregnant through Manjhanu who forcefully used to compel her to sleep with him. ln para 12 she has denied the suggestion that other accused persons have not committed any intercourse with her. 19.Smt.Salo Bai (PW-2) and Gon Sai (PW-3) have substantially corroborated the evidence of the prosecutrix (PW-1) and have deposed ” that the prosecutrix was taken by appellant Aetwari Bai, thereafter she did not return back, they lodged the report and thereafter, they found their daughter with the appellants. Defence has cross-examined these witnesses in detail. They have denied the suggestion that victim was having illicit relation with appellant Manjhanu and on the ground of different castes it was not possible for them to marry, therefore, they have lodged the report. Defence has also suggested to Smt.Salo Bai (PW-2), mother of the prosecutrix that after discussion Aetwari Bai has taken her daughter Which she has admitted as true. 20. Defence has substantially suggested these witnesses and has also taken defence by examining defence witnesses Chamru (DW-1), Kandru Ram (DW—2) and Jodha (DW—S) that on account of love affection of the victim with appellant Manjhanu, victim herself has left her parental shelter and has accompanied appellant Manjhanu with whom she resided as a wife and Manjhanu has committed rape with her after her consent. Marriage between two castes was not possible, therefore, parents of the victim has objected and lodged false report and have made false accusation against the present appellants. Smt.Salo Bai (PW-2) has specifically admitted in para 5 of her cross-examination that after some talk appellant Aetwari Bai took her daughter with her, thereafter they made search of her daughter. If she would have been taken by appellant Aetwari Bai for her marriage with appellant Manjhanu after discussion and knowledge of Smt.Salo Bai (PW-2) and Gon Sai (PW-3), then there was no occasion for making search of their daughter or lodging of missing report or taking the daughter back from the possession of appellant Manjhanu and if marriage between two castes was not possible, even then there was no occasion for permitting their daughter to appellant Aetwari Bai for the purpose of marriage with appellant Manjhanu. 21.This is not a case in which the prosecutrix herself has left her parental shelter and has accompanied appellant Manjhanu with the help of other appellants and when this fact came into knowledge of parents of the prosecutrix, then they have lodged report. As per case of defence, parents were having knowledge and even after discussion in presence of mother of victim, victim has accompanied appellant Aetwari Bai. This evidence is sufficient to establish the fact that when appeHant Aetwari Bai took the victim, mother of the victim was not having knowledge that appellant Aetwari Bai was taking her daughter for the purpose of marriage of her daughter or for commission of sexuai intercourse with her danghter. 22.Victim (PW-1) has specincaliy deposed that Mohar Sai, Mangalram and Manjhanu have committed rape with her at Kerapath one by one and thereafter appeiiant Manjhanu took her towards Sanna for eight days where he has committed regularly intercourse with her. She has specincally denied the suggestion that she was having love affection with appellant Manjhanu. ln case of love affection with appellant Manjhanu, there was no other occasion to depose against co-appellants relating to such offence. She has also not deposed that all three male appellants were accompanying her for eight days towards Sanna and have committed continuance sexual intercourse with her. Her evidence clearly deposed that on first occasion all three persons have committed Manjhanu has committed sexual intercourse with her. 23.This is a case of gang rape and as per provisions of Section 114A of the Evidence Act in case the prosecutrix stated in her evidence before the Court that she does not consent, then the Court shall presume that she did not consent or was not consenting party. 24.ln the present case‘ the prosecutrix has clearly deposed that all three male appellants have committed sexual intercourse with her and she has not consented. She is rustic villager resident of remote forest area‘and member of Scheduled Tribe. As per her evidence, she has been subjected to rape by three persons on mst day one by one and anotlfér person for eight days. Her detailed evidence reveals that she was helpless woman and was victim‘of the offence. By taking benefit of her helplessness the appellants have committed aforesaid offence. Appellant Manznu has committed sexual intercourse with her for eight days, therefore, no positive sign of recent intercourse with virgin was possible in her medical report. Evidence of the prosecutrix inspires c’onndence and trustworthy and is sumcient for drawing inference that the present appellants Mohar Sai, Mangalram and Manjhanu have committed sexual intercourse with her without her wiH‘ and consent along with appellant Aetwari Bai. AII the appeliants have kidnapped the victim from her lawful guardianship for the purpose of commission of rape and thereby. appeiiant Aetwari Bai is abetted and instigated for commission of rape. 25.As perrevidence of the prosecutrix, she was taken out from the custody of her mother by appeliant Aetwari Bai for viiiage Bendopani. Appellant Aetwari Bai, Mohar Sai and Mangalram are residents of village Bendopani. Other appellants met in a way and all the appellants took the victim to the house of Mangal i.e., at-Bendopani where they confined her, thereafter again they took her to village Kerapath where appellants Mohar Sai, Mangalram and Manjhanu committed sexual intercoutse with her. Evidence of the prosecutrix reveals that first time rape has been committed upon her at Kerapath by appellants Mohar Sai, Manjhanu and Mangalram. 26.Appellant Aetwari Bai is wife of appellant Mohar Sai. Normally it was not possible to commit rape by her husband with the victim in presence of appellant Aetwari Bai. The prosecutrix has also deposed that at the time of commission of rape with her at Kerapath, appellant Aetwari was not present or she has accompanied the other appellants from her village Bendopani up to Kerapath. These evidence show that after kidnapping the prosecutrixappeliant Aetwari Bai has left the company of other appellants from village Bendopani and rest appellants took her from village Bendopani to Kerapath where they have committed rape with her. This shows disassociation of appellant Aetwari Bai from other appellants. 27.After kidnapping the victim from her house to village Bendopani the appellants have confined the victim at village Bendopani in the house of appellant Mangal. They were. having sufficient opportunity to commit intercourse with the victim at village Bendopani but they have not committed rape with the victim further supports disassociation of appellant Aetwari Bai relating to commission of offence of gang rape. 28.After appreciating the evidence available on record learned Second I w Additional Sessions Judge (F.T.C.), Jashpur has convicted all the ‘ appellants under Section 363 of the l.P.C. and sentenced them to \ undergo R.l. for tive years and tine of Rs.1000/-, in default of payment of 4‘7 10 fine to further undergo RJ. for one month. The 'Second Additional» Sessions Judge has also convicted appellants Mohar Sai, Manjhanu and Mangal Sai‘under Section 376 (2) (g) of the l.P.C. Whiie convicting the appeilants for commission of aforesaid offences, the trial Court has not committed any iiiegaiity. 2.As regards the question of sentence, considering the circumstances of the case, sentences require reconsideration. 30.For the foregoing reasons, Criminal Appeal Nos.998/2004 and 435/2009 are partly allowed. Conviction of the appeiiant Aetwari Bai under Section 363 of the l.P.C. is hereby maintained. However, considering thegage and the fact that appeiiant Aetwari‘ Bai is a woman and ‘her disassociation after Bendopani i.e. specific part of commission of offence, sentence of appellant Aetwari Bai under Section 363 of the l.P.C. i.e. R.i. for frve years and fine of?R5.1000/— is altered into R.l. for the period already undergone i.e. since 6.12.2003 till 23.12.2004, for about 1 year and 17 days and fine of Rs.5000/—, in default of payment of tine to undergo R.l. for six months. Considering the complete kidnapping and gang rape by the’other appellants, conviction of appellants Mohar Sai, Mangalram and Manjhanu Ram under Section 363 of the l.P.C. and sentence to undergo R.l. for five years and frne of Rs.1000/—, in default of payment of fine to undergo R.l. for one month are hereby maintained. Conviction of appellants Mohar Sai, Mangalram and Manjhanu Ram under Section 376(2)(g) of the l.P.C. is also hereby maintained, howdVer, instead of imprisonment for life and nne of Rs.5000/-, they are hereby sentenced to undergo R.l. for ten years and nne of Rs.5 00/-, in default of payment of fine to further undergo’RJ. for five mopgs. Sdl— Sdl- T. P. Sharma \ A 4 R.L. Jhanwar Judge Judge 9