HIGH COURT OF CHHATTISGARH BILASPUR Criminal Appeal No.37 of 2007 APPELLANT: ) 1 Santos Sah h u Versus RESPONDENT: he State of Chhattisgarh T ronouncement’of 'ud ment on 23'” Jul ‘ } Po§t for § HIGH COURT OF CHHATTISGARH, BILASPUR i Criminal Appeal No.37 of 2007 APPELLANT: Santosh Sahu, aged about 28 years, (In Jail) ‘ ‘ S/o Shri Mohan Sahu, R/o Chhataud, ’ \ P.S. Newra, Distt. Raipur (C.G.) ‘ \ i I Versus 1i » RESPONDENT: The State of Chhattisgarh, through the Police Station Newra, Distt. Raipur (C.G.) {Apéeail under Section 374 (2) of the Code of Criminal Procedure, 1973} § y Present: 4 a Mr} G.S. Agrawai, Senior Advocate with Mr. Sudeep Verma, Advocate for the adpeilant. MLE Sushi! Dubey, Govt. Advocate for the State/respondent. i tw t Single Bench: Hon’ble Mr. T.P. Sharma, J JUDGMENT (Deiivered on 23$ July, 2069) 1. This criminal appeal is directed against the judgment of conviction & i i order ‘of sentence dated 28—10—2006 passed by the 8‘“ Additional Sessions Judge (F.T.C.), Raipur in Sessions Trial No.84/2005 whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of offence under Section 376 (2) (f) of the l.P.C.,‘ sentenced him to undergo R.l. for ten years & pay fine of Rs.1,000/—, in default of payment of fine to further undergo R.l. for six: months. 2. Judgment of conviction & order of sentence are challenged on the ground that the prosecution has not proved the age of the prosecutrix below 16 years, medical evidence has not supported the case of the; prosecution, there is material improvement in the evidence of the witnesses and improbability of commission of such offence. 3. Case of the prosecution, in brief, is that the prosecutrix (PW-1) was aged ‘ abouti11 years on the date of incident i.e. 4—8-2004. She was sleeping in ,her house at village Chatoud, Police Station Newra‘, Distt. Raipur. m Firstly, the appellant came to her house and took her brother Narayan for , fishing, aftenNards he again came, demanded tobacco and caught hold i,, , “Ac“,w A: c. ,, ‘After affording opportunlty of hearing to the parties learned Additional ‘ ' Sessrons Judge has conVIcted & sentenced the appellant In they ‘ aforesaid manner. ’ , the hands of the prosecutnx pressed her breasts and after throwmg her’ down and pressmg her mouth committed forceful sexual Intercourse wrth her When the accused was gorng from the house of the prosecutrrx the Court of Sessrons Rarpur from where learned 8‘“ Additional SeSSIons‘ " Judge (F T C ) Ralpur received the case on transfer for trlal . ln order to prove the gurlt of the appellant the prosecution has examrned as many as seventeen Witnesses Statement of the accused was .prosecutnx crred for help on which Narayan & others came and she ' I: narrated the mCIdent to her brother & others and lodged the F i R on ‘V second day Vlde Ex P 1 Spot map was prepared by the Patwan Vlde . Ex P 3 Underwear of the prosecutnx was seized Vlde Ex P 4 They y 'V f 'Pollce prepared spot map Vlde Ex P 5 Transfer certificate showrng date V of birth‘ of the prosecutnx ExP6 was seized Vlde ExP 10 The, ' prosecutnx was sent for medical exammatlon vrde Ex P 18 and she was} «examined by Dr Sudha Samuel (PW 6) Vlde ExP 9 No Injury was _ 'found over the body & private parts of the prosecutnx hymen was old i torn and vaglna admits 1 1/2 frngers The accused was also examined by ‘ I :Dr RS Thakur (PW 9) vrde ExP 11 and he was found capable of ‘commlttlng sexual Intercourse Vaglnal slides of the prosecutnx were - taken and sent for chemrcal analysrs Statements of the Witnesses were a; recorded under Sectron 161 of the CrPC and after completion of v ‘- I y' investigation charge sheet was fled before the Court of Judlcral , .V Magrstrate Frrst Class Ralpur who In turn committed the case to they» . i recorded under Section 313 of the CrPC In which he denied the ‘ ’ L, clrcu’mstances appearing agalnst him and pleaded Innocence& false? '1' a ' implication Defence has ex‘amine'd Dukalhin (ow-1) & Sahdev (ow-2) ‘ ‘ ‘ I Dukalhln (DW-1) has deposed that father of the prosecutnx used to l 1 ‘ g spray and throw feathers of birds near the well of the accused and there V I was enmlty between father of the accused & father of the prosecutnx I e 'Sahdev (DW 2) has deposed that he stayed In the house of the accused on the fateful night and the accused has been Impllcated for accusatron 'I of rape alleged to have been committed at late night 6.. l have heard Iearned counsel for the parties and perused the impugned judgment as also the record of the trial Court. . Learned Senior Advocate appearing on behalf of the appellant chaiienged Iegaiity & propriety of the judgment on the ground that the prosecution has not proVed the age of the prosecutrix beiow 16 years, medical evidence has not supported the case of the prosecution, there is improbability of the commission of offence and improvement in the statements of the witnesses. Learned Senior Advocate further argued that the alleged documents of age i.e. transfer certificate showing date of birth of the prosecutrix Ex.P-6 & EXP—12, have not been proved by the author of the documents to prove the age of the prosecutrix. In absence 'of such evidence. and evidence of the prosecutrix in para 10, it is clear that age 'of the prosecutrix is above 16 years on the date of incident. Both the parties were in inimical terms on the ground of throwing feathers of birds near the well of the accused and on the ground of enmity the appellant has been falsely implicated in the crime in question. There are material exaggeration, omissions, contradictions and discrepancies in the statements of witnesses which shaken their credibility. The doctor has not supported the statement of the prosecutrix and the circumstances show improbability of the commission of offence. Learned Senior Advocate placed reliance in the matter of Narain Singh v. Sundarlal Patwa1 in which it has been held by the M.P. High Cour that entry of birth date of student in school register is not conclusive proof, either parents or person on whose information such entry was made should be examined. Learned Senior Advocate further placed reliance in the matter of Raja Janaki Nath Roy and others v. Jyotish Chandra Acharya Chowdhury and othersz in which it has been held b the Calcutta High Court that the statement in the school register abou the age of a person in absence of evidence to showgon what materials the entry in the register about the age of that person was made has no much evidentiary value. Learned Senior Advocate also placed reliance in the matter of Mitthu @ Harbaksha v. State of M.P.3 in which it has been held by the MP. High Court that in absence of corroboration from 1 1996 JLJ 158 2 AIR 1941 Calcutta 41 3 1999 (2) M.P.L.J. Note 7 t y t t .medical sources, offence punishable under Section 376 of the l.P.C. is not made out. ' On the other hand, learned counsel appearing on behalf of the State/ respondent supported the judgment and submitted that the prosecution has adduced sufficient evidence to prove the guilt of the appellant and the Court, below has rightly convicted & sentenced the appellant. . ln order to appreciate the contentions of the parties, i have examined the evidence adduced on behalf of the parties. ‘ As regards the question of age of the prosecutrix (PW-1), her age was ascertained by the Court as 12 years. Dr. Sudha Samuel (PW-6) has also ascertained the age of the prosecutrix as twelve years. She has deposed that menstrual cycle of the prosecutrix has not started, but her breasts were well developed. She has not deposed any other physique conditiOn of the prosecutrix for'ascertaining her age. Head Master Hariprem Verma (PW—1 1) has deposed that the prosecutrix was admitted n school and her date of birth is 5-6-1 993 and copy of the register is XP—12 which was seized vide EXP-13. But he has admitted in his cross—examination that he has issued the certificate EXP-6 when the prosecutrix was admitted second time in the school. Entry of EXP-12 as not made by him and he cannot say on what basis the entry has been made by the person concerned. Except this evidence, no evidence has been adduced on behalf of the prosecution. Without any evidence elating to truthfulness of entry of Exs.P-6 & P-12, it is difficult to hold that ate of birth of the prosecutrix is 5—6—1993 and she was below the age of 16 years on the date of offence. he case of Mitthu (supra) is distinguishable on facts to that of the present case. in the light of decision in the cases of Narain Singh (supra) & Raja Janaki (supra), age of the prosecutrix below 16 years is not acceptable. ln order to appreciate the complicity of the accused in the crime in question, the prosecution has examined thevstatements of the witnesses The prosecutrix (PW-1) has deposed that on the fateful night she was sleeping in her house, the appellant came along with two persons and called her brother Narayan for fishing; her brother went away with the . . i E w r d .T . ....... .appellant & other persons, after some time, the accused again came and demanded tobacco & lime (Choona), when she refused to open the door, he compelled for opening the door and when she opened the door, the accused caught hold of her and dragged her, and after threatening her he took the prosecutrix in kitchen thereafter, he opened her clothes and V forcefully committed sexual intercourse with her. When she tried to cry for help, he closed her mouth. Lastly she came out and narrated the incident to Maina Bai. The accusedalso threatened the brother of the prosecutrix. Ultimately, the prosecutrix lodged report vide Ex.P-1. She was examined by the doctor and her clothes were seized. Narayan (PW-2), brother of the prosecutrix, has deposed that hrstly, the accused came to his house and called him for fishing, when he went with the accused, the accused left for another pond, but while the accused was returning from the pond he heard the cries of her sister saying ‘Chor Chor’, he rushed to the spot and saw that the accused was wearing pant. The accused threatened this witness also. Lastly they narrated the incident to Maina and lodged the report on second day. Parsuram (PW-3), father of the prosecutrix, has stated in his evidence that he came to know about the incident through his son. The prosecutrix was examined by Dr. Sudha Samuel (PW-6) who has deposed that on 5-8-2005 she has examined the prosecutrix, her hymen was old torn and admits 1 1/2 fingers easily. No sign of recent sexual intercourse was found. Dr. R.S. Thakur (PW-9) has examined the accUsed and found him capable of committing sexual intercourse. Defence has examined Dukalhin (DW-1) who has deposed that families of the accused & the prosecutrix were in inimical terms on the ground of throwing feathers of birds, but virtually the prosecutrix has not deposed any substantial fact relating to this issue. Likewise, Sahdev (DW-2) has eposed that on the date of incident at night he was with the accused and the accused has been falsely implicated in the crime in question. Defence has suggested in para 15 of cross-examination of the prosecutrix that on the date of incident the prosecutrix herself has dragged the accused inside her room and in para 16 that the accused has not committed any act, therefore, she has not cried which suffice the gr . , . . V d evidence of Sahdev (DW—2) that the appellant was sleeping with Sahdev (DW—2) at the time of incident. .Medical evidence shows signs of hymen (old torn hymen) which is suggestive of the fact that-the prosecutrix was accustomed to sexual intercourse or torn of hymen by any other reason. Even if medical evidence suggests that the prosecutrix was accustomed to sexua intercourse, it will not help the accused. ln case of old torn hymen no sign of sexual intercourse will be possible in absence of any struggle. ln ’ the present case, the prosecutrix has not deposed that there was any struggle. Defence has cross-examined the prosecutrix in detail and defence itself has suggested that the prosecutrix herself has dragged the accused inside her house at the time of commission of the allege incident and the appellant has not committed any act, therefore, th prosecutrix has not cried for help which she has denied. lt confirms the presence of the appellant in the crime in question. There ar discrepancies & exaggerations in the evidence of the prosecutrix from her first information report. especially relating to asking of tobacco & lime and threat by axe, but her evidence bears consistency on the point of commission of sexual intercourse. ln her examination & cross— examination, she has deposed that firstly the accused came and took away her brother thereafter, he again came alone and committed forceful sexual intercourse with her. This shows that firstly the accused secured loneliness of the prosecutrix and then he committed sexual intercourse with her. The accused has not suggested the prosecutrix for commission of offence with consent. The prosecutrix herself has also deposed that the accused has forcefully committed sexual intercourse with her. Presence of the accused on the spot is supported by the evidence of Narayan (PW-2), Parsuram (PW-3) & Ganesh (PW-10). The prosecutrix has not stated that sexual intercourse has been committed upon her for the first time and in strength of such statement injury over private part would not be possible. 17. After appreciating the evidence available on record, learned Court below has convicted & sentenced the appellant as aforementioned. 18.Evidence of the prosecutrix supported by the promptly lodged F.l.R. inspires confidence and it is sufficient to draw inference that the accused d l e e \ \ w, ‘ 6!i? §,%LIM/ff w? %%mg« ha citted exa tercurse with the prosecutrix without her sent which i offence under ection 375 of the I.P.C. Conviction of the ccus und Section 76 (2) (f) of the I.P.C. in absence of proof of age o th prosecutrix bew 12 years is not sustainable under the law. ikewise minimum sentnce under Section 376 (2) (f) of the liP.C. is lo o sustainable In e prent case, age of the prosecutrix was not pved o be belo ye, but the prosecution has proved that the lant as committed sexual intercourse with the prosecutrix without r will consen. ct of he acused squarely falls within the ambit of Sci 6 (1) f l.P.. For the foregoing easons, the appeal is partly allowed. Conviction of the pllan under Section 376 (2) (f) of the l.P.C. and sentence of 10 years & ine f s.1,000/- are modi, instead thereof he is convicted under Sction 376 (1) f the l.P.C. and sentenced to undergo R.l. for seven ea & pay fin o R1,000/—, in default of payment of fine to further un x ; r apet f o R fied e o yrs e f s. dergo R.l. for si months. SdL T.P. SHARMA :: Judge s omm sul ino con s S aed er 3 f e lo L, e as nt . th es ro t w 12 ars appel h he & t A t c eton 37 othe C