(^ HiOH COURT OF GHHATTISGARH AT BiLASPUR Coram: Hon'blle Shri Dhirendra Wiishra & Hon'bSe Shri R.N. Chandrakar. JJ. Crtminai Appeal No. 801/2007 APPELLANT (Accused) Vs. ge^B^naent Tiwari Lai, S/o Late Shri Birsai Yadav, aged about 26 years, Occupation- Vehicle Driver, R/o Vi!!. Podikhurd, Foiice Chouki- Korbi Pasan, Distt. Korba (CG) State of Chhattisgarh through P.S. Pasan, Police Chouki Korabi, Distt. Korba (CG) Present: Ms. Chandra Kumari Nawrang. counsel for the appeilant. Shri Ashish Shukla, Govt. Advocate for the State/respondent. ORAL JUDGMENT (04.08.2010) The foliowing judgment of the Court was delivered by Dhirendra iWishra, J. The appeilant has preferred this criminal appeal under Section 374(2) of the Code of Criminal Procedure against the judgment of convictiQR and order of sentence dated 29th June, 2006 passed in Special Sessions Trial No.01/2006, whereby learned Special Sessions Judge, (Atrocities), Korba, after hoiding the appellant guilty under Sections 363, 366 and 376 of IPC and under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, has convicted and sentenced him to undergo R.l. for 2 years and fine of Rs.500/-, R.l. for 5 years and fine of Rs.500/-; life imprisonment and fine of Rs.SOO/- and life imprisonment and fine of Rs.1.000/- resDectivelv. In default of payment of tine; additional R.l. of 2 months, 2 months, 2 months and 4 months respectively have been imposed and the sentences have been directed to run concurrentiy. 2. Case of the prosecution, as projected in the impugned judgment is that, the prosecutrix (PW-1) was residing with her parents in Viiiage Tanera. On the date of incident i.e. on 20.12.2004, she was going to her slster namely Sushila's house at Village Sarma. The appeiiant took the prosecutrix (PVV-1)on his bicycle on the promise that he would leave her to her sister's house at village Sarma. However, he took her to Village Rodelab in his materna! grandmother's house and committed rape with her several times in the night. In the same night, he again took her to Mandendragarh by a jeep and left her In the house of her maternat grandmother with a promise that he wili come back with money and perform court marriage with her. When the accused did not return as promised, the prosecutrix (PW-1) went to her house with her maternal uncle Bharat Choudhary and narrated about the incident to her mother and uncle and thereafter report (Ex.P-1) was lodged on 04.01 .2005. 3. The prosecutrix (PW-1) was sent for medical examination where, Dr. (Smt) K.B. Sonkar (PW-7) examined her and gave medico legal examination report of Ex.P-4. Her caste certificate (Ex.P-5) was also seized during investigation. The appellant was also medically examined by Dr. H.B. Dahire (RA/-12) vide Ex.P-14/A. The underwear of the appeliant, underwear, petticoat and vaginal slides of ^^y, "^•^.. ^ ,, ', ^ ^i y the prosecutrix (PW-1) were sent to the Forensic Science Laboratory, Raipur for chemicai examination and as per report (Ex.P-13) of the Forensic Science Laboratory, wearing apparels of the prosecutrix (PW-1) and the appeiiant and the vaginal slides were found stained with human sperm. However, the same was not found to be sufficient tor Seroiogical examination. 4. After completing usual investlgation, charge sheet was tiled in the Court of Judicial Magistrate, 1st Class, Khatgora, who, in turn, committed the case to the Court of Sessions Judge, Korba for trial. Learned triai Court framed charges agalnst the appellant, who abjured his guilt. 5. Prosecution in order to estabdsh the charges against the appellant examined 13 witnesses in all. Thereafter, statement of the appeilant was recorded under Section 313 of Cr.P.C in which, he denied the clrcumstances appearing against him in the prosecution case and pieaded innocence and false implication. 6. Learned trial Court on the basis of evidence of Dr. (Smt) K.B. Sonkar (PW-7), who assessed the age of the prosecutrix (PW-1) as 17 years and further, on the basis of the evidence of the prosecutrix (P'W-1) and her mother Basanti Bai (P.W-3) and father Uchjt Ram (P.W-4), who deposed that she was 16-17 years of age, heid that the prosecutrix (PW-1 ) was less than 1 8 years on the date of incident. 4 ^- 7. Learned counsel for the appeilant submlts that there is no documentary or medical evidence in the shape of ossification test tbr assessing the age of the prosecutrix. From the evidence of the prosecutrix, it is evident that she was admitted in the School. However, no evidence with respect to her age and date of birth jn the School has been collected and in these circumstances, the trial Court ought to have drawn adverse inference against the prosecution for not codecting the material evidence, which was available with respect to the age of the prosecutrix. 8. The finding of the trial Court, as argued by learned counsel for the appeilant, is based on oral testimony of the prosecutrix and her parents and aiso on estimation of her age by the Doctor on clinical examination. Neither the prosecutrix nor her parents have deposed about the date or even the year in which, the prosecutrix was born. In these circumstances, the finding of the trial Court based on their evidence that the prosecutrix was below 18 years on the date of incident, cannot be sustained and the estimation of age by the Doctor on the basis of clinical examination is not proper and the same cannot be a basis for assessing the age of the prosecutrix. 9. The trial Court, on the basis of evidence of prosecutrix as aiso on the basis of evidence of her parents, who have corroborated her version, has arrived at the conclusion that the appellant abducted her, took her io his maternal grandmother's house at Village Rodeiab on the faise promise that he would take her to her sisters house at </ Village Sarma and thereafter committed rape with her on the knife point by threatening her with knife is worth reliance. 10. As per the prosecution story, the incident occurred on 20.12.2004. The prosecutrix has deposed that she recognizes the appellant as he used to drive tractor In Village Tanera. On the date of incident at about 2.00 p.m, she was going to Village Sarma to call her sister Sushila Kumari. She met the appellant on the way, he stopped heragainst her wishes and took her on his blcycle on the promise that he will (eave her to her sister's house. However, instead of taking her to Village Sarma, he took her to Village Rodelab in the house of his maternal grandmother and committed rape with her. When she tried to raise aiarm, she was threatened by knife and he repeated the otfence four tlmes in the night. At 2.00 in the night, the appeilant took her on his blcycle to the bus stop from where, both of them went in jeep to Manendragarh, which is at a distance of 55 kms from her home and left her in the house of her maternal grandmother. The appellant, while ieaving her, promised that he would return with money and perform Court marriage. However, when the appeliant did not return as promised, she returned with her maternal uncie Bharat on Thursday and narrated about the incident to her mother and maternal uncle, whereupon, her mother scolded and beat her. Her father came on Sunday and thereafter, the report (Ex.P-1) was lodged by her. In paragraph-34 of her cross-examination, she has contradicted her version in the F.I.R. (Ex.P-1), wherein, she had stated that she lett her house to go to her sister's house, as her father had beaten her and asked to leave the house. 11. We have closely scrutinized the lengthy evidence of the prosecutrix; as also the report (ExP-1) lodged by her and we find that she has made material improvement in her deposition before the Court with respect to the reason for leaving the house and the clrcumstances in which, she agreed to accompany the appellant, whom she met on the way. We also find substance in the argument advanced by learned counsel for the appellant that the conduct of the prosecutrix is suggestive of her being a consenting party. The report was lodged after 15 days of the incident i.e. on 04.01.2005. The expianation offered by the prosecutrix for delay in her deposition is not convincing and even if we accept her version, the prosecutrix in any case returned tp her parents' home on 23.12.2004 and her tather Uchit Ram (PW-4) returned home on Sunday i.e. on 26.12.2004, whereas the report was iodged on 04.01.2005. 12. Basanti Bai (PVV-3) is the mother of the prosecutrix. The sum and substanceof the evidence of this witness is that, the prosecutrix left home without informing her parents. They started searching her when she did not return in the night. However, she returned on Thursday with her maternai uncie Bharat, who resides in Manendragarh and thereafter the prosecutrix narrated about the incident to her. 13. Similar is the evidence of Uchit Ram (PVV-4), father of the prosecutnx. ^ ^^ ; .>*, ^ ^. tl ^ 14. On re-appreciation ot the evidence of the above witnesses, we are of the opinion that possibiiity of the prosecutrix being consenting party, cannot be ruled out. Dr. (Smt) K.B. Sonkar (P.W-7), who has examined the prosecutrix, also deposed that she did not find anysign of resistance on the person of the prosecutrix as there were no injuries on her chest, thighs or her private parts and there was old rupture of hymen, which admitted two fingers with some difricuity. However; she did not find any congestion or sweiling over her private parts. On the basis of old rupture, the Doctor has opined that the prosecutrix had experience of sexuai jntercourse. 1 S. On the basis of the afbresaid evidence, we have aiready held in — ^inf^c^^ T the forgoing paragraphs that the prosecutrix has faiied to prove that she was iess than 18 years on the date of incident. In view of the above, we are of the opinion that the trial Court was not justified in relying upon the evidence of the prosecutrix and we are of opinion that the version of the prosecutrix does not inspire confidence and the possibiiity of her being consenting party, cannot be ruled out. 16. For the foregoing reasons, we allow the appeal preferred by the appeliant. We set aside the conviction and sentence imposed upon the appellant by the trial Court and we acquit the appeltant of the aforesaid charges by extending him benefit of doubt. He be set at liberty forthwith, if not required in any other case. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge Pnya