^ HIGH COURT^OF CHHATnSGAJRH. VVLASPVK Q-imiaal Aooeal nTo. 1142 of 2002 Dharmendra Ram. Khati Versus State dfCIihattisgarh JUDGMBNT Postfor 15.05.3007 Sd/- SunilKumarSiBha Judge 1- mGH COURTOF CHHAVnSGARH. BILA8PUR APPELLANT &iialnalADoeaINo. 1.142 of 2002 Dharmendra Ram Khati, S/o Mahesh Rani Kliati, aged about 23 ycars, Sakiil- Sohajna, Thaaa- Islaampur, District- Nalaada (Bihar) Halniukam., Kailasli. Nagar Bu^aon, Thana- Urla, District- Raipw(C,G.) <•;< Ver^us RESPONDENT Stete of Chhatttegarh, Through Police Statioh- UrM, District RaipurfC.G,) Anoearance: ShriK.K. Sin^li, cQunselforthe appeUao.t. Shri Ania Sao, Govt. Advocate for fhe State. <,. • • • - • JUDGMBIIT (15.05.2007) Snall Kumar Slalta. J. (1) This appealis dirccted against fhe judgment of conviction and orier of senteuces dated 3.9.2002 passediriSessioasTrial No. 334/2001 by fhe Sessions Judge, Raipur, whereby, the said Court, wlule acquittjng 2 Go-accused persoBS nainely Awadhesh Yadav and Ghanshyam (aecused No. 2 & 3), Gonvieted the appeBaat underSections 363, 366 & 376 I.P.C. and senteuGed hiTn to undei^o R.I. for 3 yeara and to pay fine of Rs.2,QOO/-, jn default ofpaynient offihe tQ furfher UDdergo R.I. for6 inonths; R.I. for 5 years aad to pay fine of Rs.2,000/,-, in default of payinentoftoetofurfheriuidergoR.I.for6inonfhsaudR.I.for S years and tQpay fine ofR^.2,000/-, in default ofpayiaeat of Cr-A. Nb. tl42 of2002 fine to further lundeigo R.I. for 6 inonths respectivety with a furfher direction to run fhe sentences concurreitfty. (2) The case of the .prosecution isthat on 22.4.2001, iri between 00.30 'O' clock to 7 'O' cloek, the appellant abducted Ku. Pooraima, a girl aged about 12-13 yeaia^from. fhe lawful <7. . ' guardianship of her father with ^n •intention to coinmit marriage or rape against hcr and thereaftEr he also coiiuiut rape ou her. In fact, fhe appeBant was fiiend of brother of fhe prosecutrix nainefy Narendra Tiwari, and was residing near fhe house of the prosecutiix and was fisquently visitmg her house. He abducted PoorBima and thereaflsr, took her to Nalaiida (Bihar) and kept her as his wife. The gicl was rec-cwered fixiin fhe possession offhe appeUant and was brought to Raipur. According to Ddkhil Kharij Panji of scUooI, the date of bir£h of the prosecutrix was 5t:h August, 1988. Since the appeUant was fiTequenfty visiting the house of fhe prosecutrix, he - canie ia close contact wifh her due to said uitunacy, on fhe &teflil day, he enticed her and took her on his bicycle to the railway station. In the way, he was assisted by co-accused Awadhesh Yadav and Ghanshyaai. The appeUant and the prosecutrix boarded fhe tram and they went to Nalanda, where she resided wifh him as his wife and shewas subjected to sexual iatereoiirse by him. (3) During the course of myestigatiou, after recoveryi, wlien fhe prosecutrix and tfae appeBant were biought to Raipur, they were sent for niedical exaininatiou aad thereafter;- the evidence \ot~age of fhe prosecutrix w^ coHccted. Accordmg io[Dakh3 -^" '|'~,jBjK>B.sal>a—.SWj® W^^^'i^'^, Cr.A. No. 1142 of2002 Khaiij register, as stated above, her date ofbirth was 5,8.88 and in ossification test, she was fouad in betwecn 12-14 years. In further iavestigation, her steteaient under SectK>n 164 Cr.P.C'. was also recoided and aflter completion of iavestigation, tlie chai^e-sheet was'filed under the aforeinentioned Sections of I.P.C. ' :!• '''...'.. • .' . • ' • (4j Leamed Sessions Judge, on the basis ofevidence pffatlier and mother of ttie prosecutrix namety Narrottaiu Tiwari (P.W.-l) and Smt Kevera (P.W.-3) ahd also on the evidence ofentries of DakhS Kharij register (Ex.-P-4/A) and the mark-sheet of the prosecutrix (Bx.-P/5), which were proved by Devchaian Sonbair (P.W.-6) recoided a findiog that fhe proseeutrix was ^ed about 12 years and 8 months on the date ofiucident. Afterholdingso, the Sessions Judge, further on the evidence of prosecutrix Ku. Pooraima (P.W.-5), convicted the appeHant iinder aforementfoned Sections I.P.C. However, the ofher 2 co-accused persons namety Awadhesh Yaday and Ghanshyam were aequitted. Tfae Sessions Judge rccorded a findiiig that since the prosecutrix is not making aUegations against ofher co-accused peraons in her court stateinent, therefore, fhey caiunot be coavfcted on the basis of her pplice stateinent (Ex.-P/2) or on the basis of 164 StatEment (Ex.-D/l). About the preseht appellant, a findiug was reeorded ttiat since &e prosecutrix was ladnapped and she was so kidnapped to ooaipel her niamage or ID cause her defileinent and thereafter she was subjected to 4 Cr.A.Ne. 1142 of2002 u- sexual intercourse, therefore, this appellant was liable to be convfcted under fhe said Seetions ofI.P.C. (5) Leamed coiinsel for the appellant argued that the conviction aad senterice awaided to the appellant are not iu accordance •with law as none of the ofifencc has been proved *i. •s. (6J ffnfhe contraiy, leamed counsel for fheState opposed fhe subinissions and supported fhe judgment of conviction and order of sentences passed by the Sessions Court. (7) I have heard leamed couasel for the parties at length and have also perused the records ofsessnns case. (8| So far as the age of the prosecutrix is coacemed, admittedly, there are three seta of evidence. The first one is fhe evidence offa.ther, Namottaffl Tiwari, (P.W.-l) and mother, Sint Kecra (P.W.-3). Narrottam (P.W.-l) has deposed that fhe prosecutrct was aged about 14 years and Smt. Kevra (P.W.-3) has stated thatshe was aged about 13 yeara. They have been put to lengthy cross-examiaation by fhe defence maldng references to the dates ofbirth of other cluldren of fhe couple, but in the outcome nottung could be brought on reconi, wNch may suggest ttiat fhe ev^ence of father and inother regpiding date of birth of tlie prosecutrix inay be disbelieved. The second set ofevideace in this Begard is <fae school certificate, accordnig to which, the date of birth ofttie prosecutrix w^ 5.8^ 1988. .Deycharan Sonbair (P.W.-6), who was the teacher m primary Cr.A. No. 1143 of2002 school Udoyog N^ri was examiaed before fhe Sessions Court along with Dakhil Kharij register ofschoold and he has proved the copy of fhe said register as Ex.-P-4/A and he has also proved one inark-sheet of the prosecutrix as Ex.-P/S, according to which, her date ofbirth was 5.8.88. His evidence is atso intact on fhe point so far as it reJates to entry of date ofbirtfa ofthe prosecutrix in school rccords. 'HIC third set of evideaee is the ossification test conducted by Dr. Chaudrapal Adwani (P.W.-14), who,aflEt taking the X-ray of differcnt joiats of the prosecutrix, has submitted aad proved his report Ex.-P/14 and has also proved X-ray plates as Ex.-P/lS and Ex.-P/16. According to his ^- ' ' • . ' . " • • • '. ' • • .' . report, the prosecutrix was in between 12-14 yeara on the date of examination. Therefore, on the basis of these evidence available on record, it cannot be said that the Sessions Court coinmitted an erTor of law in determiniag the age of fhe prosecutrix to be about 13 years aad fhe fiiidmg in this regard is not in accordaace wifh law. (9) So far as fhe offence under Section.s 363 & 366 I.P.C. arc concemed, it coiaes ia fhe evidence ofPooraima (P.W.-5) that she was taken by fhe appellant on his bicycle to the Failway statiori where they boarded the train and she was taken to Bihar. In Bihar they. had gone to Nalanda where she was residing as the wife of the appellaiifc She atso slates that she was taken to Bad^oawhere tiae appeBant had lUamedl her after pouring Smdoor on her head aud had bept her along wittt his m.0ther aiid father aadyounger brofh.er. The version of !a"^aa^^).y^^..^y,i.-s<»<,,.jgjgag>^SSS ^^^^E^ Cr.A. No. 1142 of2002 V''' prosecutrix to this extent is clear and unainb^uous but so far as questiDn of coiiunission of rape or sexual intercouise is concemed, her version is uot uniform. (10) Learaed couusel for fhe appenant refers to her 164 statEiaent(Ex.-D71), mwtuch,she has clearly stated thatduring llie entire period of her stay i^ith the appenant, the appellaat has not made physieal relations with her. Meaning theirby that she was not subjected to sexuat m.tercoiirae by the appeUaut during the said period of stay with hiia. When she was faced with the said stateineut recorded iiader Section 164 Cr.P.C., she has given anunusuaI.explaaationfhatYes, she has stated like this before the Magistrate, but, on aceo-unt of fear of fhe police, and for fhis, the Court below has uot given much mlportaace to the said contradictioia.. This view taken by the trial Court appears to be strangejbecause, nomiaBy in a case fBed by fhe police, ifthe prosecutrix is brought before the MagistTate for her 164 Gr.P.C. stateuient, fhe poIiceinaycreateafeaTorpressurize fhe prosecutrix for deposing that the incident do had taken place, that means, if the case is one of rape, if any pressure would be niade, tfaat woiild be made for deposiag fhat the cape was coiumitted and not for that fhe witness or prosecutrix should depose fhat tile rape was not committed. Such au explanation giveu by the prosecutrix for tbe said, vitel contradiction ia belween her court stateinent and 164 stateiaent and its aeceptance by fte Sessions Gourt is uitaatural |and not •'corTOCt; Oa this count, the Sessions Court would have atleast Cr.A.No. 1142 of2002 partty disbelieved the prosecutrix so far asoffeace under Section 376 I.P.C. is conceraed. (11) In the opiaion oftfais Court, the Sessions Coiu-t committed an error of law by believing the prosecutrix, so far as altegations of rape are concemed. In fact, the veraion of the prosecutrix, *j particulariy with reference to fhe conuaissiou ofrape or foroefiil sexual intercourse ngninst her^is an exaggeration ia her court statement as the factuia of coauuission of sexual intercourse was an omission in her 164 state.ment for whicfa a totaSy uniiatural explanation has been offered by her, which was easily accepted by the Session.8 Court and it does not uispire the confidence offhds Court so as to base a conviction uader Section 376 I.P.C. and conviction of the appellaat under Section.376 I.P.C., based such evidenceofthe prosecutrix, is Kable to be set aside. (12( In the resiilt, fhe appeal partly succeeds. The conviction and sentence awarded to theappeBaatu/ss363 and 366 I.P.C. are inaiutaiaed. However, his conviction aad sentence awarded u/s 376 I.P.C. are set aside. He is acquitted of the charges fi-amed u/s 376 I.P.C. The appeal is aflowed to fhe extent indicated above. Sd/- SunilKutnarSiBha Judge .-.•--.e^SwS ^^ym?^s:^iwi;