IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH CRIMINAL APPEALNCgc]27 2005 ^^APPELLANT ^\ y(nsr JAIL) ^ ^::-^.^ -\ VA-C^ \^ c-i"< ^.^TV^"-' LEKH RAJ SAHU, Aged - 22 Years S/o Shri Ram Charan Sahu f" ^•'•T'; 'r^ t^--- '.. ^^ ^-•' ..^-"^ ^^' " °^^ -^ RESPONDENT R/o- DaldaFsivni, Mowa, P.S. Pandari, Raipur(C.G.) VERSUS STATEOFCHHAmSGARH Through The Police Station Pandari Thana, Raipur (C.G.) APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. 1973 T^: HieH COURT OF CHHATTIS^RH AT BILASPUR Cr. Ap&ed No.392/2005 Single Bench:Hon<bleShriDil?p Raosahcb Deshmykh^ X Lekhraj Sahu Versus State of Chhattisgarh Shri Jitendra Nande, Coun^I for the appetlant. Shri Neeraj Mehta, PanelLawyer for the State. JUD@MENT (Deiivered on this 06th day of May 2006) TTiis appeltant is aggrieved by the judgment dated 21,4.2005 deiivered in Sessions Case No.363/2004 by Shri N.&.Ekka, 10th Addjtional &ssions Judge, Raipur (C<S,) whereby he was convicted under Section 363/366 and 376(1) of the I-P.C/and sentenc^d to imprisonment for three years. five years and seven years respectively and a!so to fine of Rs.lOO/- for each offence, in defautt to undergo RJ, for one month for each offence, 2. BriefSy stated the factual matrix is that on 8.3.2004 while the pro^cutrix, a gir! aged about 15 years (Date of Birth : 14.12.88) wos going for work, the appe!!ant met her on way. dbducted and took her on a bicycle to Chsmdro^ur. There the appeShnt rcguhrly committed sexual intercour^ with 1fie prosecutrix without her consent After staying in Chanctrapur for two months, the appelbnt took her to viltage Darripar to stay there for a day. Thereafter. the appetJant sent the prosecutrix to her home. In the meanwhite, on 13.3,2004, Chohalram, father of 1+ie prosecutrix, lodged a missing person's r^port at P.5. Pandri. The pro^cutrix is ,shown to have returned to hsr maternaS horne on or about 9.5.2004. Sinee there was a marriage function, the ~ &-. ,< :) — prosecutrixdid not inforiti 1iie incident to her parents. On 11.5<2004, on being informed by 1+ie prosecutrix, Chohalram P.WJ lodged FJ.R* at P.5. Pandri vide Ex.P.5. 3. Dr. Neela Kumari P.W.17 examined the prosecutrix on 12.4.2004 and found no evidence of any violence ei-Hier on her parson or on her private parts, Hymen had an old ruptur^ whichwas healed. Vaginal slides were prepared and were seated. TTie accused-appefjant was examined by Shri V.Dutt-a P.W.12 who found tiiat the appetSant was capable of performing sexual intercourse, Jhe progr^ss report of the prosscutriK was seized from the Sovernment Higher Secondary School, Mowa vide Ex.P<6 showing her date of birth as 14,12<88, A copy of the schoo! admission register ExP.lO-C was aEso during the investi9ation showing the date of birth of the prosecutrlx GS mentioned above, For determining the age of the pro^cutrix, Radio!ogical Examinatlon was performed by Dr Anand Jaiswal P<W<23 who, vide report Ex.P.16, gave an estimation of 1+ie age of the prosecutrix to be bebw 18 years of age but above 14 years. One underwear worn by the oppellont was seized on 20th AAay 2004 vide ExP<2, Vaginal slides and the underwear were sent for chemical analysis to the Forensic Science Laborator/. Vide report Ex.P.18, semen ond human spermatozoa were not found on the vaginai slides as a!so on the underwear of the appeSbnt. After comptetion of investigation, the cppellant was prosecuted- 4. The appeJiant abjured theguilt/pleaded innocence and led no evidence j"n defence* The prosecution examined as many as 23 witnesses* Relying upon the evidence led by the pro^cution, the learned trial Judge convicted and sentenced the oppeSlant as aforesdd in paragraph 1 (supra)< 5* Shri Jitendra Nande, (earned counset for the oppellant has contended that the evidence led by the prosecutrix not on!y - s establishes 1+ie consent of the pro^cutrix in the sexual intercour^, committed by the appelloint/if any, but also estabSlshes that 1fie age of the pro^cutrix on the date of occurrence was above 18 years. Placing reliance on J'ini^ilal Sah v. State of Bihar 2003(1) C.6.L.J. 138, it was argued thdt -Hie convlction and ^ntence of the appellant is !iab!e to be set aside. On 'riie other hand/Shri Neeraj Mehta, Panel Lawyer argued in support of the Jmpugned judgment. 6< Havjng considered the rivoj submtesions, I have perused the record. The first point that requires con^ideration jn this appeal is the age of the prosecutrix on the date of occurrence, It is a materiai fact in determining the conimissjon of the offences under 5ection363, 366 and 376 (1) I.P.C. Kunti Bai P.W.6 is the mother of 1+se prosecutrix* In paragroph 4, she stated that her marnage took place 26 years prior to the date of her eyjdence and the eldest daughter was born after 7 years of her marriage and thereafter the prosecutrix was born after anQther one ond half years - two years- If this is accepted/the age of the prosecutrix comes to around 17 years or above on the date of the aSJeged offence. Sonbati P,W,1, the sister of Kunti Bai has, on 1+se o1+ier hand, stated in paragraph 4 that Kunti BaE hact given birth to tihe prosecutrix 4 years after marriage which took place about 26 years back. If this to be believed, the age of the pro^cutrix on the date of occurrence comes to dround 22 years, Chohalram P<W*7, father of the pro^cutrix, has in para^roph 6 5tated that the eldest daughter was aged about 26 years while the prosecutrix was aged about 15 - 15 years meaning ^+iereby that 1+iere was a gap of more than 10 years between the two children which does not inspire confidence in view of the testimony of the mo1+»er Kunti Boi P.W.6 GS atso the testimony of Sonbati P.W.l.sister of fonti Bai. 7, It is the duty of the prosecution to prove the date of bir1+i of the prosecutrix by producing the primary evidence of date of birth ^^ - iL< - r •^ .^' ie. KolwQri Register or report at the Police Station where normally 1+ie vilbgers get the date of birth entered. ChohaSram P.W,7 has in paragro^h 6 of his testimony clearly stated tiiat he had informed the date of birth of the prosecutrix in P,S.Mowa or in P,S* Kotawati and has further stated that before admitting the prosecutrlx he had obtdned a certificate from the Kotwali for depositing the ^ame at the school. In this view of the matt-er, primaiy evidence relating to the date of birth of the prosacutrix though Qvaibblewas not produced by the prosecution for which an adverse inference is drawn against the prosecutjon. 8, So far as tfie progress report ExP-6 fifed by the prosecution is concerned, it does not show to which year It belongs. It also does not bear tiie date on which It granted, In this manner, tiiis document ExP.6 is a vague document, 5o far schooS admission register ExP.iOC is concerned, Smt, Premiata Shukla P.W^ll, Headmistress of l+ie school, has clearty stated that tiie date of birth entered therein was on the basis of the transfer'certificate of Class-V, In 1+iis view of the matter, the very basis on which the date of bjrtii of the prosecutrix came to be entered in the school admission register or the progress r^port has not been produced and proved by the prosecution. ChohaSrant PAV.7 has, in paragniph 6, clearly stated that he does not remember 1+ie date of birth and was narrating the fact of age of the prosecutrix only on guess work. Kunti Bai P.W.6 also stated !ikewise in her testimony. 9. 5o far as ossification test report ExP,16 conducted by Dr. Anand Jaiswal P,W,23 is concerned, it is a very vague document, br. Anand Jaiswaj P,W,23 has admitted in paragraphs 2 and 3 of his testimony that his report js only on the basis of X-ray of 1+ie lower end of radius and the upper end of radiys. It is thus clear that the RGdiotogicat Examjnation was not conducted in details, The estimation ^G-^ ^ --^ f •<- of age given by Dr. Anand Jaiswal is as vague as it could be since it shows 1+iat tihe prosecutrix could be aged below 18 y^srs but above 14 years^ It is weli ^ttlsd by a catena of decisions 1+iat the legdly permissible mar9sn of error of two years on either side has to be taken into consideratson while assessing the exact age of the prosecutrix on tiie basis of theossification test report. The medical examination report of the pro^cutrix by Dr, Neeb Kumari P,VV,17also shows that the secondary sexual characters of 1fie prosecutrix were well developed. She has also admitted in cross-examinatiQn 1+iat she made no effort to make an estimation of the age of the prosecutrix by examining the number of her teeth. Having tiius consjdered the entire oral as wel! as documentary evidence led by the pro^cution, I am of the considered oplnion that it cannot b ruled out that the prosecutrix was above 18 years age on the date of occurrence. 10. Coming to the allegation of the kidnopping cuid rape of the prosecutrix, I find that Itie testimony of the prosecutrix clearly spells out her con^nt in the elopement with the appellcmt and the ^xuat act»if any, committed by the appelloOTt with her. Ttie fact that she lived with the appetlant in viilage Chandrq?ur for two months and also went with the appellcmt to tfie tempJe and during 1+ie entire period of two mont+is did not inform anybody about the fact that she was forcibly kidnapped by the appelbnt and was being subjected to forcible ^xuat intercourse cleariy goes to ^iow that she was a consenting party\ In paragraph 10 of her testimony, she has stated that though she used to be alone in the house during the whole doy, yet she nei-Hier informed au'iybody about the jncident. It is aiso borne out that even after retuming to her maternal home, the prosecutrix did not immediateiy narrate 1+ie incident to her parents. It is also worthwhile to niention here that the report of F.5,L also does not show that the vaginaS stides of 1+ie prosecutrix prepared by Dr. Neefa - 6- <^. Kumari P,W<17 and the underwear of tiie appejlont seized during investigation had no marks of semen or human spermatozoa^ I have minutely perused the testimony of l4ie prosecutrix in paragrophs 7 to 10 and I am of the considered opinion that it clearly spe!ls out consent of 1+ie prosecutrix not on!y in eloping with the appellant butalso in the sexual act/if any, committed by 1+ieappeJlant J^e pro^cutrix has stated that she did not know the appellant before and the oppeJlant -^" was not on visiting terms pf her house, She has also denied that the appellant worked with her fa-riier, However, Chohalram P.W-7 has in paragraph 8 admitted that the o^peliant was working as a mason under him. In paragraph 13, he also admitted that tiie appeltant had taken 1+ie pro^cutrix and his eldest daughter to visit the temple. He also admitt'ed that the appellant rcgarded him as his father and used to deposit money with him. In paragraph 8 he also admiHed that the appellant being a neighbour was on yisiting terms at his hou^. Thus, the prosecutrix has suppres^d materiaj facts and her testimony is not w.orthy of credence that she was forcibly kidnapped by the appellant, 11. Having thus consider-ed the evidence led by 1+ie prosecution in its entiret/, I am of 1+ie considered opi'nion that the pros^cution has fajled to establish the guilt of tiie appetlflOTt under ^ctions 363. 366 and 376 (1) of the I.P.C. 12, In the result, this appeai is alSowed< Convs'ction of the appellant under Sections 363. 366 ond 376 (1) of the I.P.C. and the sentences awarded thereunder are set dside* The' appeJ!cnt is acquitted ond shall be set at Jiberty forthwith, if not required in any other case< Fine, jf paid, sholl be refunded to the oy>peJlant. Sd/- DiUpRaosahebDeshmukh Judge