^* lsocfr <S ::m '.• THE • HIGH : COURT! OF I.IADrEfA PSADESH , SS— • Si Criminal .Appea-l No."^^'-'' Of £996 Mohar .Sal S/o Bucfiu 'Ram aged aboufc -^: ^ •'••••• .. .'.,".••:_•;•; 2,3-y<sars,~residentof Village .: i:l, KuricurJ-ya^Polic", Stati.Qn Bagicha:' dlstrlct Raigarh (MP) • Versus ' ; State of Madhya Pr-a<3gsh,thr0tlgh Dtstrict Magistrate, Ris.l.garti. , MEMMQ OF APPEAL;UNDBR SECSION 374- (2) ©5".<Cr'.;P. Sentence "•Ei-ie •G&ai»T-siS^E'KN?^i:;:W5^|ljf|fsBI SlftBJS^M ^9; ^ Present: AAr. Aditya Tiwari, Adv'ocate for the appeilant. Mr. Ashish sSupta; Ponel Lawyer for the State. (Deliversd on 29th March, 2011) 1. This criminot appeal is directed against the Jud9ment of conviction and order o-F sentence dated 09.01,1996 passed in S.T. No. 220/95 whereby iearned Addi+ional Sessions Judge, Jashpurncgar, District Raigar-h (CQ') hss convicted the appeltant under Sections 366 &. 376 of the IPC and sentenced to undergo R.I. for 3 years for the each offence a"id to pay a fine of fts.500/- A Rs.l OOO/- respectiveiy, ir' cefault of payment of fine to further uridergo additionai S.I. for 2 mon-i+is 4 mon1+is respectively. 2. Ca.se of the prosecution, in brief, is -mat on 29.6.1995 at 6.00 p.m. the comploinant Phoolpctiya lodged a report in the police station to the effect that on 28.6.1995 after taking dinner. she and her husband were sleeping in the verandah whereas her daughter and son were sleeping in a room inside the house. At about 2.00 a.m. in the night upon hearing the yoice of jackaf, they woka-up and found that the prosecutrix was not in tlie room where she and her brother were sieeping. ^ccording to the cose. of prosecutiorf when even ofter search she couid not be traced, they visited house of the accused/appellant who too was found missing from his house and tharefore Phoolntatiya Bci, mother of the prosecutrix, hod lodged "eport In the poiice station to the effect that the Gccused/appeliant had run Qway with her winor doughter on the pretext of marrying her. Based on thls report, the offences under APPELLANT Mohar Sai ; Vs RESPON&ENT State of AAadhya Pradesh (now C6) i '7 ^•^"%. iisl&^ S ^/ 'la. Sections 363 <S. 376 of -Hie IPC were registered against the accused/cppeiiant. In 1+ie evening of 28.6.1995 itself, 1tie pro'secutrix was recovered from the company of the accused/appeilant nec" Village Lodra and thereafter hw case diary statement was recorded on 30.6.1995 in which she has stated that on the date of incident she and her youn9er brother Jaiprosad (PVI/-45 were slesping 'm the room of her house and doors of the "oorr. '/••ere not closed. At about 1.00 a.m. in the nlght the accused/appelhnt came thsre and after gagging her mouth took her outside the house and asked her to accompany him on the pretext that he would nwrry her. When -ne prosecutrix refused +o go with him, he threatened her with life and thereafter took her outside 1+ie vi!la9e and after thr'owing he" on the ground coininitted rape on her. TTiereafter the accused/appeilant took her to Village Dumardih and from 1+iere they went to Viliage Lundra and m viliage Lundra while they were waiting for bus to oo to Chir-miri, her fa1+ier ond uncle Shaukilai reached there whom she narrated entire iricident. 3. C>urin3 tr-ial, the prosecutrix was sent for medical examination to Primary Heaith Centre, Bagicha where Dr. (Smt.) R. Toppo examined her and gave her report Ex.P-8. Wearing appareis of the prosecutrix as also the accused/appeljant were token into possession during investigation and the same were sent to For-ensic Science Laboratory, Raipur for examinotion rsgarding confirmation of presence of semen and 1+ie FSL report is Ex.-P-15. The accused/appeltant was atso sent for medicoi examination and as per opinlon of the doctor, he was capcble of per'for'ming sexual intercourse. 4. After compieting necessar/ inve-stigation, charge sheet under Section 363,366 &. 376 IPC wns fiied against tiie accused/appellant in 1+ie Court of Judicial Mogistrote Jashpurnagar, who, in tum, comrr.itted 1+ie case to the Court of Sessjons J'udge, Raigarh from where leorned Additionci Sessions Judge has received the case on transfer for trial. Learned Addit'orid! Sessions Judqe rramsd cho.ra.es under" Sections 363. 366 & 6v 376 of IPC against the accused person, who abjured his gui't. The prosecution in order to estabiish charges agoinst the accused/appeliQnt examined eight witnesses in aii. Thereafter statsment of accused/appeiiant was r'ecorded under Section 313 of Cr.P.C. in which he denied the circuinstances appearing against •t+iem in the prosecution case and Dlectded innocence <& false imolication. 5. The triai Court after hear-ing learned coun^l for the respective parties vide impugned judgment convicted and sentenced the accused/appetiunt herein under Sections 366 & 376 of the IPC, however, acquitted him of the charge under Section 363 IPC. 6. Contention of AAr. Tiwari, tearned counsel for the appetlant is that )resent appears to be o case of consent because -t+ie prosecutrix went aiong with the appetiant of her own. l-1e submits that sven while the prosecutrix wos being subjected to rcpe by the appellant, no resistence was offered by her. He further submits that in her cese diary statement the prosecutrix has nowhere stated thot on the point o~ knife the accused had 1+ireateneci her, whereas in the Court evidence making improvements, she has stated that the accused threateneci her by showing knife. He further submits that there is no ie9al!y admissib'e evidence in respect of the age of the prosecutrix aid even the triai Judge has recorded a categorical finding that it is not estabiished that +he prosecutrix was below 16 years of age on the date of incident. Even otherwise in the ossification test, the prosecutrix was found in between 16 to 18 years. 7. On the other hand, iearned Panel Lawyer for the State supporting the impugned Judgment argued that 1+ie occused/appellant took the prosecutrix with him on 1+ie Doint of knife ond committed rape on her. He further submits that medical report of the prosecutrix is positive and thsrefore conviction of the accused/appelltmt under Sections 366 & 376 of the IPC is in accordance with law. i. I have heard lear-ned counsel for the parties and also perused the record of the trial Court mcluding the impugned judgment. ^. 9. Phooimatiya 8oi (PW-1), who is motiier of the prosecutrix and lodger of the fir-st information report, has stated in her deposition tha- on the date of incident tiiey were sleeping in their house md doors of the room where her daughter <&. son were sleeping were open. On hearing voice of Jackai, entire family woke up cmd when they found that the prosecutrix wcs not in the house, they searched for her cuid having failed to trace her whereabouts, 1+iey lodged 1+ie report in the police station on the next aay. On the date of lodging the F.I.R. itself at about 12.00 noon, the prosecutrix was recovered from the company of the accused/appetlont and informed tbat in the ni9ht of the incident the accused kidnapped her on the point of knife. In the cross-examination she has stated that in her diary statement of Ex.&-2 she informed the police that the accused had kidnapped her daughter on -rtie point of knife but if the some is not mentioned in it, she coutd not tsll the reason thereof. She hcs admitted the fact that eorlier a land related cispute was pending between the accused/oppeiiant and her husband. but subsequentiy the matter wo.s compromised. 10. The prosecutr-ix (PW-2) in her court statement hcs stated that she knew the accused. On the date of incident she wns steeping in her r-oom doors of which were open. At about 12.00 'm the midnight the accused come to her house and on the point of knifs asked her to accompany him or eise he would asscult her with knife. At that time her younger brothe" wcs otso sleeping with her whereas her par'ents were sleeping in the verandah. Thereafter the accused took her to the forest where he, ofter undressing himself & her, taid her on the ground and commiti'ed sexuai intercourse wi'rti her due to which she started bleadmg. Thereafter the accused /appeliant asked her to accompany him to Chirmiri and 1+ien first he took her to Villcge Dumardih and ttiereafter to Vitlage Lodra where she met her father. She returned with her fafner cnd lodged the report in 1+ie Poiice Station Bageecha- In the cross-ex.amination by the learned Assi.stemt fiovemment Pleader she hcs stated that as the accused/TOpellant first gogged her mouth with cioTh and thereofter threatened he" with knifs, she could not shout. 5he has (^•- further stated that at 1+ie time of recording of diary statement she had told that the accused took her towards the forest on tiie point of knife and if the sawe is not mentioned in her diary statement, she could not tell its reason. 11. Sanpat yadav (PW-3), father of the prosecutrix, has stated in his deposition that on the date of incident at about 1.30 a.m. upon hearing yoice of Jackal when he and other family members woke up, 1+iey found that the prosecutrix was not in the house. He has further stated that having faiied in their attemDts to trace the whereabouts of the prosecutrix, a raport was lodged in 'the Police Station Bagicha. When he olongwith others reached Viilage Lundr'a in search of the prosecutrix, the accused/appeilant ond the prosecutrix were found standing near the rood waiting for bus. He asked 'nis doughter as to where she was going whereupon she replied -rtiat the accused was forcibly takin9 her to Chirmiri. Thereofter they brought the dppellant and the prosecutrix to potice station Bagicha in a vehicle and todged the report. He has further stated tiiat report has already been lodged by his wife. TTiereafter the police handed over their daughter to them. In the cross-examination he has stated that all the facts were disciosed by him at the time of recording his diary statsment and if somethiri9 is missing in it, he could not tell the reason for the same. 12. Jaiprasad (PW-4), brother of the proseeutrix, has oniy stated that 2-3 months pr'vor thereto his sister eloped with the accused/appellant. R.L. Sidar- (PW-5), who is the Patwari, has prepsred the spot map of Ex.P-3. Radheshyam Yadav (PW-6) is the witness of seizure of Ex.P-1 & Ex.P-4 to P-7. Dr. (Smt.) R. Toppo pW-7) had medically exnmined the prosecutrix on 1.7.1995 and given her report of Ex.P-8. buring examination, she found reddishness & scrotches on her private part, hymen is absent and vagina was admitting two fingers easily, surface of vaginal orifice is inflained and there was swelling on ber private part. As per her opinion, the prosecutrix must hwe been subjected to sexual intercourse for the first time. Fur-ther she has advised for x-ray examination for —,._i confirmation of age of the prosecutrix. B.N. Singh (PW-8), who is the Investigating Officer, has supported the prosecution case and stated that during inyestigation he seized a bir'ft certificate (Ex.P-13) according to which date of birth of the prosecutrix is 14.6.1978. He has further stated that he has atso seized 1iie birth re9ister reiating to date of birth of the prosecutrix from 1+ie school concerned. 13. On the minute examination of the evidence of these witnesses, it is observed that tiiere is no concrete evidence cvailable on record to the effect that at the time of incident 1+ie prosecutrix was below 16 years. Even the prosecutrix, her motiiei- and father have not stated anything in their evidence in this respect. Even -rtie documents seized by the Investigating Officer in respect of the age of the prosscutrix i.e. Ex.P-7 A Ex.P-13, show two different dates of birth of tiie prosecutrix i.e. 12.4.1979 & 14.6.1978 whereas os per the report of ossification test, age of the prosecutrix is between 16-18 years, however, 1-hia report has not been exhibited nor any witness to thls effect has been examined by the prosecution. Therefore, findin9 of the trial Judae that it is not established that ot the time of incident 1+ie prosecutrix was below 16 years appears to be justified. 14. So far as -t+ie statement of the prosecutrix based on which the trial Judge has convicted the accused/appellant is concerned, after close scrutiny of the evidence of this witness, there appears to be material contradictions in her statement as in the diary stotement she has not stated that she was kidnapped by the accused/appeliant on the point of knife, whereas in the Court statement she has deposed that while taking her away the accused threatened her- on 1+ie point of knife. Shs has fur'ther stated that when the accused was taking her" towards the forest, she did not resist. Her evidence oiiso reflects that the prosecutrix accompqnied the accused/appel'ont from one viltage to another and when she was about to board the bus for Chirmiri olong with 1+ie accused, her father reached there and took her to police station and lodged the report. Though in the medical evidence the doctor has opinsd e F Roshan/- that the prosecutrix was subjected to sexual intercourse for the first time the medical report reveals that there was no sign of abrasion or injury on the body of the prosecutrix which goes to suggest that the prosecutrix was a consenting party because had 1+ie prosecutrix not been a consenting party, she must have resisted the said act of the oppellant. Further, the prosecutrix was recoyered from a pubtic place where she along with the accused/ appeliant was woiting for the bus to go to Chirmiri. Had the appellant abducted the prosecutrix, she might have raised voice in a public place so os to come out from the ciutches of the accused/appellant, but instead of doing so, she silently waited there for arrival of bus. Even the evidence of mother ond father of the prosecutrix is also not very conclusive. The obove facts and circumstances would show 1+ie conduct of the prosecutrix that she was not abducted but voluntorily cccompanied the oppellant from one village to mother. 15. On the basis of aforesaid analysis, it would not be safe to convict the appellant under Sections 366 & 376 of the IPC solely on -fhe basis of testimony of the prosecutrix as the possibility 1+iat she voluntarily accompanied the appetlant cdnnot be ruled out and the tria! Judge ought to have given the flppellant benefit of doubt. That being so, the judgment impu9ned convicting and sentencing the accused/appellant, as mentioned above, is liable to be set aside. 16. ftesultantly, the appeal preferred by the appellant succeeds. Impugned Judgment of conviction and order of sentences are hereby set aside. The appeilant is acquitted of oll the charges. It is stated that appeliant isonboil. His baii bondsstand dischar9ed. - Sd7- Pritinker Diwaker Judge