t.; IN THEHIGH COURT OF JUbICATURE AT BILASPUR GRIMINAL APPEAL N0. s?^>0 /2009 APPELLANTS: (In Jail) ^ ^ '^ \<^ «.-;-. <? ^^ >7.\- ra^ ^-^' '^^^ - '£>" w Vs RESPONDENT: 1. Ranjeet Maitry, son of Satish Chandra, aged 26 years, Occupation-Labour, resident Of Bhupdevpur, P.S. Bhupdevpur, District Raigarh (c.e.) 2. Sanatan Chouhan, son of Babulal, aged 28 years, Occupation-Labour, Village Bilaspur, P.S. Bhupdevpur, Distr-ict Raigarh (C6) Stateof Chhattisgarh, through Police Station Bhupdevpur, District Raigarh. ^' NIGH COURT OF CHHATTISGARH AT BIL&SPUR (Hon. Mr. Justice Pritmker Diwaker) , Criminal Appeal No.220 of 2009 APPELLANTS RESPONDENT VERSUS RanjitMaitry and another State of.Chhattisgarh ShriVivek Sharma counsel fbrthe appellants. , Shri Vaibhv Goverdhan PL for the responden;t/State. CRIMINAL APPEAL UNDER SECTION 374 QF THE CODE QF CRIMINAL PROCEDURE. JUDGMENT (05.03.2011) This appeal is directed againist the judgment and order dated 27.2.2009 passecf.by AdditiQrtal-Sessions^Judge{FTC) Raigarh, in SessionsTrialNo. 07/2008 cQnvictingtheaecused/appelSantNo.1 under sections 506-B, 363, 342 and 376 IPC and sentensing him t6 undergo rigorbus imprisonment for seven years u/s 506-B, rigoroys imprisonment for seven years wifh fine of Rs. 500 u/s 363, pay fine of Rs. 100U u/s 342and rigorous imprisonment for ten years with fine ofRs. 1000 u/s 376 IPC; ahd convicting appellant No.2 u/s 506- A, 363 and 342 IPC and sentencing him to payfineofRs. 1000 u/s 506-A, undergo rigorousimprisonment for seven years with fine of Rs. 500 u/s 363 and pay fine of Rs. 1000 u/s 342 IPC plus default stipulations. 2. Case of the prosecution in brief is that on 31.8.2007 at about 12.30 p.m. FIR Ex. P-1 was lodged by the prosecutrix (PW-1) aged about 14 years at the relevant time stating that on 24.8.2007 she had gone to village pond along with her aunt Kalavati (PW-5) and when her aunt was taking bath in the said pond, she was sitting in the bathing ghat. At that time accused/appellant No.1 Ranjit came there and asked her to accompany him to Raigarh andwhen she refused for that, he started abusing her. Thereafter, accused/appellant No.2 Sanatan Chouhan also came there and asked her to accompany him but she refused his offer also. On this, he also abused her and threatened of her life. Thereafter, it is Va!' ''<•''"•'' ,-s'y' —2-— : : : alleged that both the accused/appellants started dragging her and when she raised an alarm, they pressed her mouth and took her to a vacant house of some old man and after dumping her there they locked the room from putside and told her to get back at 9.30 p.m. Then at about 9.30 p.m. both of them got back ttiereto and took her to Bhupdevpur railway station and made her board the train. Thereafter, accused/appellant No.2 Sanatan left the place whereas accused/appellant No.1 Ranjit took her to his sister's house at Raigarh where his sister Mona and brother-in-law Sant Lal were there. It is alleged that in the night after his sister Mona and brother- in-law Sant Lal went to sleep, accused/appellant No.1 Ranajit committed forcible sexual intercourse. It is alleged that in the morning she requested him to take her to Bhupdevpur and when he refused to do so, she asked him to leave at her aunt's house at Baroudh. Thereafter, at about 6 a.m. she and the accused/appellant No.1 went to bus stand on foot and by catching bus they reached Baroudh at about 8.30 a.m. It is also alleged that as the accused/appellant No.1 had asked her not to disclosethe incident of rape to anyone, she introduced him to her aunt to be her uncle and that after taking breakfast he left the house of her aunt. It is alleged that she stayed at her aunt's house at Baroudh from 25.8.2007 to 27.8.2007 and on 28.8.2007 she came back to village Bhupdevpur and on 30.8.2007 she disclosed the incident to her sister Maya and aunt Charanmati and then the report was lodged. Based on this FIR, offences under sections 294, 506, 324, 363 and 376/34 IPC were registered against the accused/appellants. After investigation, challan was filed by the police on 28.10.2007. 3. So as to hold the accused/appellants guilty, the prosecution has examined 19 witnesses in support of its case. Statements of the accused/appellants were also recorded under section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellants as mentioned above. /-./—». -3- 5 . Heard counsel for the parties and perused the material available on record including thejudgment impugned. 6. Counsel for the appellants submits that so far as appellant No.2 Sanatan Chouhan is concerned, the only role assigned to him is that first he had met the prosecutrix near the pond and asked her to accompany him and when she refused, he along with accused/appellant No.1 Ranjit took her to a nearby vacant house and in the night both of them took her to Bhupdevpur railway station and then he left the place. He submits that, in these circumstances, conviction of the accused/appellant No.2 under sections 506-A, 363 and 342 IPC is not sustainable in the eye of law. In respect of accused/appellant No.1 Ranjit, eounsel for the appellants submits that the prosecutrix was a consenting party as she visited several places along with him but did not raise any alarm. He submits that the prosecutrix kept quiet for about 7 days which itself shows that she was a consenting party to the act of the accused/appellant No.1. He submits that the report was lodged by the prosecutrix at the behest of Mohor Singh (PW-3) and Charanmati (PW-2) who are her uncle and aunt with whom she was residing. He submits that on 30.8.2007, there was some dispute between Mohor Singh and the accused/appellants and based on the report lodged by Mohor Singh (PW-3) accused/appellants were arrested though released on bail on personal bond on that day itself. He submits that on the second day i.e. 31.8,2007 a false report in this case has been lodged by the prosecutrix. He submits that there is no legally admissible evidence on record so as to prove the correct age of the prosecutrix. He submits that as per the report of the radiologist Dr. R. Jitpure (PW- 16), the prosecutrix was aged in between 15 and 17 years which may have a margin of two years on either side. He submits that so far as the entry made in the school register is concerned, it has not been proved either by the school teacher, parents of the prosecutrix or any other person who might have got her admitted in the school. He submits that in the said school register, father's name of the prosecutrix is mentioned as Kanahaiya Lal whereas admittedly his name is Jhaduram. \\ ^•^ ^'J'' -Q- 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that medical report of the prosecutrix clearly suggests that she was subjected to sexual intercourse. Moreover, conduct of the prosecutrix is also very natural because she has categorically stated that as the accused/appellant No.1 had put her under threat, she could not raise her voice from 24.8.2007 till 30.8.2007. He submits that age of the prosecutrix mentioned in the entry register of the school is duly corroborated by the report of the radiologist and thus submits that it can safely be said that on the date of incident the prosecutrix was minor. 8. Prosecutrix (PW-1) has stated in her evidence that she had studied up to class V and left the school last year to the date of incident. According to her, they are three brothers and sisters and her elder sister after marriage was residing at Korba. According to this witness, on the date of incident she had gone to village pond along with her aunt Kalavati (PW-5) where accused/appellant No.1 came and started abusing her. Then both the accused/appellants took her to a vacant house of one old man and dumped her there. At about 9 p.m. they took her out and took her to Bilaspur station and made her board the train. Thereafter, according to this witness, accused/appellant No.2 left the place. Accused/appellant No.1 then took her to his sister's house at Raigarh where in the night when her sister and brother-in-law went to sleep, she was subjected to forcible sexual intercourse by him. She has stated that though she raised an alarm, there was nobody to hear her and she became unconscious. According to her, then she woke up early in the morning and started weeping on which sister ofthe accused/appellant No.1 namely Mona came to her whom she requested to drop her at her house. When sister of the accused/appellant refused her to drop her at Bhupdevpur, she requested her to drop her at her aunt's house at Baroudh. Then she was taken by the accused/appellant No.1 to Baroudh by bus and at that time also he had threatened her not to disclose the incident to anyone otherwise he would kill her. After reaching Baroudh, when her aunt asked her about the accused/appellant No.1, she introduced him to be her uncle in relation. Thereafter, accused/appellant No.1 took breakfast and left ..'/" —^— for Bhupdevpur. This witness has further stated that even after being repeatedly asked by her aunt about the accused/appellant No.1, she did not disclose the incident to her. Thereafter, on 27.8.2007 her aunt had come to Bhupdevpur to drop her. Even thereafter, she did not immediately disclose the incident to anyone but disclosed the same after two-three days after her getting back home to Charanmati (PW-2) Mayabai (PW-6), Mohor Singh (PW-3) and Dilip Kumar (PW-7) and then the report Ex. P-1 was lodged. In cross examination, this witness has stated that name of the father of her elder sister is Jhaduram who is her real sister. She has stated that when on the first day she was taken by the accused/appellants she was sitting in the bathing ghat and had any abuse been hurled, it coutd have been heard by her aunt Kalawati. She has stated that the house where she was dumped by the accused/appellants, nobody resided therein and it had only the beat but not door or window. When she was kept in the said house, her mouth was stripped and her hand and leg were tied with the rope. According to her, she had disclosed all these things to the police but if they are not mentioned therein she could not tell the reason for that. She has stated that from the vacant house where she was dumped by fhe accused/appellants, she went up to the railway station on foot but she did not disclose the incident to anyone. She did not disdose about her being taken away by the accused/appellants even to the passengers of the train. According to her, in the train she saw the police people, but did not disclose the incident to them also. She saw the police people even in the bus stand but did not disclose the incident to them. She has admitted that she stayed in the house of her aunt at village Baroudh for 3-4 days but did not disdose anything about her subjection to rape either to her aunt, any of the relatives or any villager. This witness has however admitted that her elder sister Maya had telephoned to her aunt seeking to know her whereabouts and she had informed about her presence at Baroudh and then she was taken by her aunt to Bhupdevpur. She has admitted the fact that there was some dispute between her uncle Mohor Singh (PW-3) and aunt Charanmati (PW-2) for which a case under Section 107/116 Cr.P.C. was registered against them and they were arrested on 30.8.2007 and released on personal bond on the next day i.e. 31.8.2007. She has admitted that while lodging the report she had not read the same and merely put her signature on that. She has stated that neither she was aware of her date of birth nor that of her elder sister. In paragraph 18 of her deposition she has stated that her father is Jhaduram. Charanmati (PW-2) has stated in her evidence that the prosecutrix was residing with her and when she returned home from her workplace, the prosecutrix was not there. Thereafter she was searched in the village and on the next day an enquiry was made from her relatives and on the third day she came to know from the elder sjster of the prosecutrix that she was in the house of her aunt namely Sumitra (PW-14) at Baroudh and about three days thereafter said Sumitra had come to her house along with the prosecutrix. Two days thereafter, the prosecutrix is said to have informed her that she was subjected to forcible sexual intercourse by the accused/appellant. This witness has also stated that name of the father of the prosecutrix is Jhaduram. She has admitted that on the report lodged by her husband a case under Section 107/116 Cr.P.C. was registered against the accused/appellants on 30.8.2007 and on the second day i.e. 31.8.2007 they were released on personal bond. According to this witness, the prosecutrix was taken to police station by her, her husband and her sister to lodge the report and signature of the prosecutrix was obtained on written report made by her husband. This witness has not made any allegation against the accused/appellant No.2. Mohor Singh (PW-3) has made almost similar statement as has been made by his wife Charanmati (PW-2). In paragraph No.2 he has admitted the fact that the repori: was lodged by him and his brother. He has also admitted that two days after the prosecutrix reached home, a report was lodged by him against the accused/appellants under sections 107/116 Cr.P.C. in which they were released on personal bond and after their release the accused/appellants had asked him as to why he had lodged a false report against them. Thereafter, on the second day a report of the present case was lodged against the accused/appellants after obtaining the signature of the prosecutrix. He has admitted that signatures of the prosecutrix were obtained on number of papers and likewise the thumb impressions of his wife were also taken. He has stated that name of the father of the prosecutrix is Jhaduram. Jhaduram (PW-4) has stated in his evidence that the prosecutrix is his daughter but he cannot say anything about her date of birth. Kalavati (PW-5) - the aunt of the prosecutrix with whom she had gone to the village pond has not supported the case of the prosecution and has been declared hostile. Maya Bai (PW-6) has made almost similar statement as has been made by Charanmati (PW-2) and Mohor Singh (PW-3). She too has admitted that she was not aware of the date of birth of the prosecutrix or that of herself. Dilip Kumar (PW-7) - the brother-in-law of the prosecutrix has made similar statement as has been made by Charanmati (PW-2), Mohor Singh (PW-3) and Maya Bai (PW-6). However, in cross examination he has stated that till that day he had not enquired anything from the prosecutrix about the incident nor had she disclosed anything to him. Mona Dehri (PW-8) - the sister of the accused/appellant Ranjit has not supported the case of the prosecution and has been declared hostile. Sant Lal (PW-9) - the husband of Mona (PW-8) has also not supported the case of the prosecution and has been declared hostile. Roop Singh (PW-10) has not made any specific allegation against the accused/appellants. Ghurau Ram Sidar (PW-11) is the witness who had prepared Nazri Naksha Ex. P-8. Yashwant Singh Thakur (PW-12) is the Patwari who had prepared spot map Ex. P-7. This witness has admitted that the house where the prosecutrix was first kept by the accused/appellants, had no door or window except the beat. G.R. Bareth (PW-13) is the witness to seizure of the articles made under Ex. P-18 and P-19. He has stated that at S. No. 5820 of the admission register name of the prosecutrix has been shown but her father's name has been shown as Kanahiya Laland her date of birth is shown as 4.11.1994. In cross examination this witness has admitted that father's name of the prosecutrix is Jhaduram and Kanahiya Lal is her foster father. Sumitra Bai (PW- 14)- the aunt of the prosecutrix with whom the prosecutrix lived for 3-4 days has stated that the prosecutrix did not inform anything to <-*, <^y -g' her about the incident and that she had brought her to Bhupdevpur. This witness has however been declared hostile. Rajesh Kumar Sahu (PW-15) has not supported the case ofthe prosecution. Dr. R. Jitpure (PW-16) is the radiologist who had taken x-ray of the prosecutrix and given his report Ex. P-22 stating that she was aged between 15 and 17 years at the relevant time which might carry the margin of two years on either side. M.R. Kashyap (PW-17) has not stated anything against the accused/appellants. R.B. Singh (PW-18) is the investigating officer who has supported the case of the prosecution. Dr. (Smt.) Lalita Rathia (PW-19) is the witness who had medically examined the prosecutrix and given her report Ex. P- 25-A has stated in her evidence that she had noticed some injuries on the left leg and right knee of the prosecutrix and her hymen was ruptured, clotted blood was present there and two fingers entered her vagina with difficulty. She has further opined that the prosecutrix had sexual intercourse within 7 days there-from. 9. Material available on record thus goes to show that though in the school register the date of birth of the prosecutrix is mentioned as 4.11.1994 but the prosecution has failed to prove the same by examining the school teacher who made the entry therein or the parents of the prosecutrix. Until and unless the origin on the basis of which the date of birth is recorded in the school register of the prosecutrix is not substantiated, the entry made in the school register in this behalf has no value in the eye of law. Moreover, there is discrepancy in the name of the father of the prosecutrix as somewhere it is written as Jhaduram and somewhere as Kanahaiya Lal. Radiological report goes to show the age of the prosecutrix as in between 15 and 17 years and if a margin of two years as stated by the radiologist is kept on plus side, undisputedly the prosecutrix was major at the relevant time. Moreover, the prosecutrix herself has stated that after studying up to class V, she teft the school in the year 2000 and if this thing is taken into account, at the relevant time the age of the prosecutrix can safely be assessed to be about 18 years. Thus as regards her age, the prosecution has utterly failed to prove that on the date of incident the prosecutrix was minor. The record further shows that after being taken to the vacant house -^— without door or window, the prosecutrix had enough opportunity to get away there-from. Secondly, from the said vacant house she went up to the railway station on foot but she did not disclose the incident to anyone she might have come across. The prosecutrix herself has stated that in the bus stand and railway station she saw the police people but she did not botherto disclose the incident even to them. Not only this, she did not disclose the incident to the inmates of the train. Record further goes to show that the prosecutrix stayed at her aunt's house at village Baroudh but there also she did not disclose the incident of rape to her aunt or the relatives. Even after her return to Bhupdevpur she disclosed the incident two days thereafter. Record also shows that the report was lodged at the behest of her uncle who was having some dispute with the accused/appellants for which a case wgs registered under Section 107/116 Cr.P.C. More so, the report was just signed by the prosecutrix without going through the contents ofthe same. 10. Thus a composite reading of the entire evidence available on record goes to show that the prosecution has failed to prove the fact that at the relevant time the prosecutrix was minor. Secondly her conduct in not raising any hue and cry while being taken by the accused/appellants and not disclosing the incident of rape to her aunt at Baroudh where she stayed for 3-4 days and then even at Bhupdevpur she kept silence for two days, shows that she was a consenting party to the act of the accused/appellant. The Court below appears to have not given thoughtful consideration to the evidence of the witnesses while convicting and sentencing the accused/appeirants by the judgment impugned. That being so, the judgment.impugned is liable to be set aside. 11. Accordingly, the appeal is allowed. Judgment impugned is hereby set aside. Accused/appellants are acquitted of the charges levelled against them. They are in jail and be set free forthwith if not required in any other case. ___^--^—— Sd/- Pritinker Diwaker Judge ,^