§maza @ww URT OF CHHATTISGARH 1N THE HON’BLE HIGH CO AT BILASPUR / "26$ OF 2009 Anand Ram, Son of Kariman Panika, aged about 5 1 SECL CRIMINAL APPEAL NO, APPELLANT ‘ (IN JAIL) years, o "‘W Occupation employee, Resident of Village , \\R0\:\?Q \V . ....... — Gorakhnathpur, éééxybva oa. DiStrict : Surguja—(C‘G') .9‘ ¢ $4. ‘ "’. Station Bishrampur, H . A / VERSUS State of Chhattisgarh ESPONDENT the Police Station : R : Through Bishxampur, Distt : Surguja /‘ ' MEMORANDUM OF APPEAL (CG) UNDER SECT10N 374 (2) _ W W1.”,... \ 4, ifjK HIGH COURT OF CHHATTISGARH AT BILASPUR , Hon’ble Mr. Justice Pritinker Diwaker ' Criminal Appeal No. 203/2009 APPELLANT Anand Ram Versus ESPONDENT State of Chhattisgarh Shrl V K Pandey counsel for the appellant Smt Smlta Ghal PL for the State RIMINAL APPEAL UNDER SECTION 374 11! OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT (26 04 201 1) This appeal Is directed agamJ the Judgment and order dated 1 622009 passed by SpeCIal Sessmns JJdge Sarguja In Specyal Case 09/2008 conwctmg the accused/appellant for the offences pumshable imprlsonment for seven years With fine of Rs 200l~ u/s 376 (1) I V'ifmpnsonment for three years wrth fne of Rs 200/— uls 450 plus defa txstlpulatlons Facts of the case m bnef are that on 21 6 2008 FIR Ex P 1 was lodged by the prosecutnx (PW-1) aged about 14 years at the relevant time alleging that as her mother used to go to the market on every Sunday, the accused/appellant used to have sexual Intercourse wrth her smce the month of March Aprll lt rs alleged that the Incrdent was Wltnessed by her youngersrster namely Santoshl (PW-6) and that on account of the act of the accused/appellant she had become pregnant and a day before lodging the report she narrated the meldent to her parents Based on this FIR offences under Sections 376 and 506 B were reglstered against the accused/appellant and after completlon of investigation challan was filed by the police on 12.9.2008 for the offences under sections 450, 376, and'506-B IPC. However, the trial Court framed the charges against him under Sections 3 (2) (V) of the’ Scheduled Caste and Scheduled Tribe (Prevention of Atrocmes) Act in alternative 376 (1) ‘ IPC and 450 and 506 (part—ll) thereof R C 8 s -2— 3. So as to hold the accused/appellant guilty, prosecution has examined 11 witnesses in support of its case. Statement of the accused/appeHant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges ievelied against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the trial Court has acquitted the accused/appeiiant of the offences under sections 3 (2) (v) of the Special Act and 506 (Part—ll) IPC but convicted and sentenced him as mentioned above in paragraph No.1 of thisjudgment. Counsel for the appellant submits that the prosecutrix was a consenting party to the act of the accused/appellant where though she had physical relations with the accused/appellant on about four Sundays and did not disclose the same to anyone. He submits that there is no legally admissible evidence available on record in respect of the age of 5. ‘the prosecutrix and that looking to her conduct and physical appearance, 7 it can be said that on the date of incident she was major. He submits that > the appellant has already remained in jail for about two years and nine months and thereby suffered a lot. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that taking advantage of loneliness of the prosecutrix, the accused/appellant subjected her to rape which was even witnessed by her younger sister Santoshi (PW—6). She submits that as per the documents of Ex. P-9 and P-13 date of birth of the prosecutrix is 5.10.1993 and thus she was less than 14 years of age on the date of incident. 7. Prosecutrix (PW-1) has stated in her evidence that on the eveof Ramnavmi at about 4 p.m. as her mother had gone to the market, being all alone in her house when she was cooking food, the accused/appellant entered her house in an intoxicated condition, removed her as well as his own clothes and committed sexual intercourse with her. Subsequent to this also, on four Sundays the accused is stated to have repeated the said act with her as a result of which she became pregnant. She has .—«Z_ further stated that as the appellant had put her under the threat of Iife, she did not make a disctosure of the incident to anyone. According to this witness, on being enquired by her mother as to through whom she became pregnant, she told her that it was through .the accused/appellant. Thereafter, according to this witness, she along with her mother and sister Santoshi (PW-6) went to the police station and Iodged the report Ex. P-1. Thereafter, she was medically examined and spot map Ex. P-3 prepared. In cross examination, this witness has stated that her mother used to visit the house of the accused/appellant to watch TV and that her parents used to call him uncle. In paragraph 13 of her evidence, this witness has further stated that when the accused/appellant had sex with her, she could not run away from the spot nor could she raise an alarm as the appellant had threatened her of her Iife if she did so. According to her, she had informed the police about the accused/appellant entering her ‘ house in a drunken state and if the same is not mentioned in her case diary statement, she could not tell the reason for that. Dr. Rashmi Kumar (PW-3) who had medically examined the prosecutrix and given her report Ex. P-7 has stated in her evidence that she was pregnant, no external or internal injury was present on her person, she was fully a developed girl, her secondary sexual characters were fully developed, two fingers easily entered her vagina and that she was habituated to sexual intercourse. According to this witness, ossification test of the prosecutrix was not done. Smt. Basanti (PW-2) — mother of the prosecutrix has stated that the prosecutrix was aged about 14 years and she had studied up to class IV. She has stated that entire incident was narrated to her by the prosecutrix and that the date. of birth of the prosecutrix was recorded in the school register only on the basis of assumption and further that she was not aware of her correct date of birth. Amritlal Kerketta (PW-4) - father of the prosecutrix has stated in her evidence that her age at the relevant time was 14-15 years and that he was informed by his wife that his daughter (prosecutrix) was carrying pregnancy as a result of the sexual intercourse by the accused/appellant. In cross examination, this witness has stated that he had been residing at Vishrampur for 15-16 years and then he resided in a rented house at Shivnandanpur for one year and when he had gone to Shivnandanpur to _(( _ live, the prosecutrix was aged about 2-3 months. According to this witness, the date of birth of the prosecutrix is 5.10.1993. Thereafter, this witness has stated that birth certificate of the prosecutrix was not prepared and her date of birth has been disclosed by him on the basis of the noting in the diary maintained by him. However, admittedly, no such diary has been produced by this witness in the Court. Smt. Kalista Khalko (PW-5) the teacher of the school where the prosecutrix was admitted has stated that as per the admission register of the school name of the prosecutrix is mentioned at S. No. 447 where date of birth of the prosecutrix is recoded as 5.10.1993. ln cross examination, this witness has stated that at the time of admission of the prosecutrix in the school, no birth certificate was submitted and that as at that time she was not working in the said school, she could not tell as to who got the prosecutrix admitted in the school. Other material in respect of the age of the prosecutrix is the evidence of K. Toppo (PW-7) C.S.P. who had exhibited the mark sheet of the prosecutrix of class lV but he has not stated anything as to on what basis her date of birth was recorded in the documents. Ku. Santoshi (PW-6) - younger sister of the prosecutrix has stated in her evidence that on the eve of Ramnavmi her mother had gone to the market and her father to his workplace and when she came to her house to take food, she found that one of the rooms was locked and when she went to the other room, she saw that the accused/appellant was committing sexual intercourse with the prosecutrix. According to this witness, even after Ramnavmi, she had again seen the accused committing sexual intercourse with her sister. J. Toppo (PW-7)} City Superintendent of Police is the witness who had done part of the investigation in the case. S. Lakada (PW-8) is the Naib Tehsildar who has issued caste certificate Ex. P—16 in favour of the prosecutrix. Daya Shankar Sinha (PW-9) is the Patwari who had prepared spot map Ex. P- 3. B. Kujur (PW-10) — Sub Inspector is the investigating officer who has supported the case of the prosecution. Dr. l.D. Bhatnagar (PW—1 1) is the witness who had medically examined the accused/appellant and given his report Ex. P-20 opining that he was capable of performing sexual intercourse. it @ ,_ _.‘&__ 8. Minute examination of the evidence available on record makes it i clear that though the prosecutrix was subjected to sexual intercourse by the accused/appellant from the month of March—April 2008 onwards, she l never made any protest there—against and in these circumstances it can be said that she was a consenting party to the said act of the accused/appellant. Though as per the documents of Ex. P—9 and P-13 date of birth of the prosecutrix appears to be 5.10.1993, there is no i legally admissible evidence in that regard making the said date of birth ‘ acceptable because the entry in the school register was made on the basis of the information given at the time of her admission but even the parents of the prosecutrix have not deposed authentically about her exact date of birth. According to the father of the prosecutrix, date of birth of his children is entered into the diary maintained by him but unfortunately the said diary has not been produced in the Court at the time of recording of I [ ’ evidence. 9. In view of the aforesaid factual discussion and the material available on record, this Court is of the considered opinion that the prosecution has not been able to prove its case beyond reasonable doubt and the trial Court thus has gone wrong in ignoring the fact that for such a long span of time the prosecutrix went on to allow the appellant to have sex with her without offering any resistance on her part and it is when she became pregnant, she chose to disclose the incident. The Court below has also fallen in legal error by holding the prosecutrix as minor though there is no legally admissible evidence to prove the same. Thus, in these circumstances the appellant has every entitlement to receive the benefit of doubt. 10. Accordingly, the appeal is allowed. Judgment impugned is hereby set aside. Accused/appellant is acquitted of the charge levelled against him. As the appellant is reported tobe in jail, he be set free forthwith if not required in any other case. Pritinker Diwaketf] ’ Judge l y