HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Raieev Gupta‘ C.J. & Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 391 of 2001 The State of Chhattisgarh Vs. Dhannalala & others JUDGMENT For consid ' Sdl- Sunil Kumar Sinha Judge V“ f 3 '7’1’172009 HON’BLE SHRI JUSTICE RAJEEV GUPTA .3 5L Sdl- ‘ chief Jusu'ce Post for Judgment :4 /1 1/2009 Sd/— a ii @ HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’ble Shri Raieev Gugta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 391 of 2001 APPEjLLANT The State of Chhattisgarh Versus RESPONDENTS 1. Dhannalala, aged about 22 years, s/o ACC‘ D Dhashrath Yadav 2. Kaushal Prasad, aged about 32 years, s/o Ratnu Nishad 3. Keshav Prasad, aged about 35 years‘ s/o Kartikram 4. Chintaram, "aged abou‘tv 30 years, s/o Ramadheen Nishad All residents of village Kachlon, P.S. Simga, Distt. Raipur, Chhattisgarh. (Criminal Agpeal under Section 378 (1 1 The Code of Criminal Procedure) . A earance: ! Mr. D.K. Gwalre, Govt. Advocate for the appellant/State. Mr. Awadh Tripathi, Counsel for the respondents/Accused. JUDGMENT (4.1 1 .2009) Followtng judgment of the Court was delivered by eSuniI Kumar Sinha,‘ J. (1) Being aggrieved with judgment of acquittal dated 16.11.2000 passed in Sessions Trial No. 146/99 by the Second Additionai Sessions L 0 2 Criminal Agpeal No. 391 of 2001 Judge, Baloda Bazar, District Raipur (C.G.), the State has preferred this appeal with the leave of this Court. (2) The facts, briefly stated, are as under: Respondent no.1 Dhannalal was charged u/sS 363, 366, 376(1) & 368 IPC and other respondents were charged u/ss 363 & 366 IPC. The allegations were that on 23.02.1999 at about 9 p.m. the respondents abducted the prosecutrix rand thereafter she was t‘brcibly taken to different places. It was also alleged that respondent Dhannalal committed sexual intercourse against her.“ The prosecution came with a case that the prosecutrix was aged about 14-15 years, she was forcibly taken by the respondents and was subjected to sexual intercourse by respondent no.1 Dhannalal, therefore, they were liable for punishment under the aforesaid sections of IPC. ‘ r ‘t‘. a The learned Sessions Judge recorded a finding that the prosecution could not establish that the prosecutrix was below 18 or 16 years of age on the date of incident. On the conduct of the prosecutrix, it was further held that she was a consenting party with respondent no.1 and ultimately the: respondents were acquitted of thecharges framed against them. (3) Mr. D.K.Gwalre, learned Govt. Advocate, appearing on behalf of :the State argued that the learned Sessions Judge erred in law in holding l that the prosecution could not establish that the prosecutrix was below 18 c ‘ 3 Criminal Appeal No. 391 of 2001 or 16 years of age. In fact, the prosecutrix was a minor girl; therefore, the respondents would have been convicted under the aforementioned sections of IPC. (4) On the other hand, Mr. Awadh Tripathi, Iearned counsei appearing on3 behalf of the respondents opposed these arguments and supported the judgment passed by the Sessions Court. ‘ r 4 (5i $ ‘We have heard learned counsel for the parties at length and have also perused therecords of the Sessions Case“: £ (6)‘ So far as .the age of the prosecutrix is concerned, a transfer certificate has been filed as Article ‘A’t‘. This Certificate was seized by the Police from the possession of father of the prosecutrix during the course ofi investigation. This certificate contains the date of birth of the prosecutrix as 23.7.1982. The prosecution has examined the headmaster of the concerned school namely ltwari Ram Sahu (P.W.6). ltwari Ram has deposed that on 06.03.1999 he was working as headmaster, Primary . School Kachlon and has issued the transfer certificate of the prosecutrix (Article ‘A’) in which her date of birth has been shown as 23.07.1982. ln the cross examination, he admitted that he had not made the entries in the Dhakila/Kharige register of the school and he cannot say as to who had made entries in the said register. He has further admitted that he cannot say that on whose declaration the entries were made in the school ' register. He made an entry in the transfer certificate on the basis of entry already made in the school register. 4 Criminal Appeal No. 391 0f2001 @ (7) Fekuram Yadu (P.W.10) is the father of the prosecutrix. About the age of the prosecutrix, he deposed that one school certificate of his daughter was seized by the po‘lice vide seizure memo Ex.P.5. He further " deposed that he told the age of his daughter as 14-15 years at the time of lodging the report. In cross examination, he admitted that he has six children but he cannot tell the date of birth of his children. He further deposed that the entries regarding‘birth of children are made by village Kotw‘ar and he had told the Kotwar to make the entry. Ekcept the above evidence, there is‘no other evidence regarding the age of the prosecutrix. V? (8) 1 Wé note thatin the medical examination report of the prosecutrix (Ex.R—6), her age has been shown as 15 years but it appears to have been: mentioned on the basis of requisition made by the Police for the examination of the girl. We may further note that the lady doctor Ku. Meena Samvel (P.W.15) who examined the prosecutrix referred her for X-Ray examination for determination her age, but we do not find any report of ossification test in the matter. It is in these circumstances, the learned Sessions Judge held that the prosecution could not establish that the prosecutrix was below 18 or 16 years of age. We do not find any infirmity in such finding recorded by the learned sessions Judge. (9) Now we shall examine the conduct of the prosecutrix. The (prosecutrix has been examined as P.W.9.: She deposed that “on the fateful nightgat about 9 p.m., when she was returning from the house of one Rishi after watching television, she was forcibly taken by the .y respondents. The respondents took her firstly to Akolaha and thereafter she was taken to‘Kachhar Dahar. Then the respondents took her to l. l / i 5 @ Criminal A eal N0. 391 of 2001 Bagicha of Keshav, respondent no.3, There she was pu‘t in a room alongwith respondent no.1 where he forcibly committed sexual intercourse against her. In further examination, she deposed that she travelled in Bus along—with respondent no.1 and visited many places. They had also visited to the house of maternal uncle of respondent no.1 who lhad given them shelter. However, she could anyhow reach to the house of her maternal uncle. She also admitted that she had travelled in a Jeep and she had met with many persons while travelidg in Jeep & Bus 1 a f but she did not m‘ake complaint to anybody.“ On a careful scrutiny of the evidence£ of the prosecutrix and the fact that she remained with respbndent no.1 for reasonably long period and she visited many places with'him by traveling in Jeep & public bus and 'even after meeting many persons in between this period, she did not make any complaint, it is apparent that she was a consenting party with respondent no.1. ln our opinion, the learned Sessions Judge has rightly taken this view that the conduct of the prosecutrix would show that’she was a consenting party and the finding recorded in this regard cannot'be interfered. .. (10) In Budh SingLand others -Vs.- State of U.P. (2006) 9 SCC 731, the Apex Court held vide para 9, that in a matter of appeal against acquittal, the High Court does not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view of the ' Appellate Court is a more probable one. However, while’dealing with a {Judgment 0t acoiuittal, it is free to consider the entire evidence on record so as to arrive at a nnding as to whether the views of the trial Court were perverse or otherwise unsustainable. It is also entitled to consider as to hether in arriving at a finding of fact, the trial Court has failed to take into \ \l.\ J \ . \‘\' V \ _ \ X, 6 Criminal Appeal N0. 391 of 2001 consideration admissible evidence and has taken into Consideration evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may alsovbe a subject matter of the scrutiny of the Appellate Court. (11) It was further held by the Apex Court in V.N. Ratheesh —Vs.- State f Kerala AIR 2006 SC 2667 that there is no embargo on the Appellate Court reviewing the evidence upon which an order of ac‘duittal is based. Generally. the order of acquittal shall not be interfered with because the Wé§fg _' wee? ‘ t presumption of innocence of the accused is further o strengthened by acquittal. The Apex‘Court said that the golden thread which runs through the Web of administration of justice in criminal’cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. The Apex Court further said that the paramount. consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilt is no less than from the conviction of an innocent. ln a case where admissible evidence is ignored, a duty is cast upon the Appellate Court to re—appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The Apex Court referred to the decision rendered in the matter of Bhaqwan sSinqh and others —Vs.- State of Madhya Pradesh (2002_L2) Supreme 567). It was further held that the principle to be followed by Appeiiate \ Court consideringthesappeal against the judgment of acquittal is to 7 \{nterfere only when there are compelling and substantial reasons for ‘ ¢ ‘\ 7 Criminal Appeal No‘ 391 of 2001 @ doing so. if the impugned judgment is clearly unreasonable a‘nd relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. (12) We have gone through the entire evidence on record with a view to find out as to whether the views of Sessions Court were perverse or otherwise unsustainable. After going through the entire evidence available on record, we do not find any compelling and substantial reasn§ 40 interfere with the judgment of acquittl. lt is not a ase in which the judgment may be said to be unreasonable or a cse in which relevant and convincing materials have been eliminated in the process of apprciation. e e (13) We do not find any force in the State appeal. The appeal is liable to be dsmissed and is hereby dismissed. i ""’ - Cie Jtc Sdl- hf usie o a c a l 17 i