.^. APPELLANT HIGH COURT OF CHHATTISGARH AT BU-ASPUR FSB: Hon'ble Mr.T.P.SharmaJJ Criminal Appeal No. 850of2007 Umesh Kumar alias Timkal, son of Jagdish Singh Kanwar, aged about 25 years, resident of village Nilkunthpur, Police Station Kusmi, District Sarguja, CG. VERSUS RESPONDENT State of Chhattisgarh through Police Station Kusmi, District Sarguja, CG. Shri Ravindra Agrawal counsel for the appellant. Ms. Sangita Mishra PLforthe respondent/State. CRIMINAL APPEAL UNDER SECTION 374(2L OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (24.11.2008) This appeal is directed against the judgment of conviction and order of sentence dated 11.5.2007 passed by Additional Sessions Judge, Sarguja, (Ambikapur) in Sessions Trial No. 21/2000 convicting the accused/appellant for the offences punishable under sections 363, 366 and 376 (1) of the Indian Penat Code and sentencing him to undergo rigorous imprisonment for 3 years, 5 years and 7 years and pay fine of Rs.100 on each count with default stipulation. 2. Judgment is challenged on the ground that without there being any evidence regarding the age of the prosecutrix to be below 16 years on the date of incident, the trial Court has committed an illegality in convicting and sentencing the accused/appeliant as mentioned above. 3. Case of the prosecution in brief is that on 28.11.1999 at about 7 p.m. when the prosecutrix namely Kavitaalong with herfriends namely Lalita, Kajri, Manjila and Suchita was returning home after participating in some '^ -z- programme at village Gopi Nagar, on the way accused/appellant and co- accused Brijkishore came there, accused/appellant caught hold of her hand and started dragging her. When she along with her friends tried to get rid of him, he threatened her friends and took her to some nearby lonely place and committed rape on her. Thereafter he took her to the house of one Somey where they took their meal and at about12 - 1 in the night he took her to the forest and then to the house of one Chhannu where he again committed rape on hertwice. Thereafter, on 29.11.1999 also he committed rape on her in the forest. When on 30.11.99 she was trying to run away, the accused/appellant caught her and took to Chulha Kona where also he committed rape on her. On 1.12.1999 in the morning she succeeded in running away from the clutches of theaccused/appellant and went to the house of her aunt at village Ghatgaon. At Ghatgaon also the accused/appellant followed her but her aunt told him that she had not come there. Thereafter on 4.12.99 she came back to her house and narrated the incident to her mother. Matter was reported to the Police on 7.12.1999 vide Ex. P-2 on the basis ofwhich First Information Report Ex. P-1 was registered. After obtaining her consent vide Ex. P-3 she was sent for medical examination to Community Health Centre, Shankargarh where Dr. (Smt.) J. Kujur (P.W. 12) examined her and vide report Ex. P-12 she found that the secondary sexual characteristics of the prosecutrix were not fully developed, 28 teeth were present on her both jaws, healed linear abrasion over ulnar border of right hand was found, pubic hair present were scanty, hymen was completely ruptured, no blood or semen was present over the vaginal area and vaginal orifice was loose. Two vaginal smear slides were prepared and sent for chemical analysis. Underwear of the prosecutrix was seized vide seizure memo Ex. P-4. Her skirt was seized vide seizure memo Ex. P-5. Spot map Ex. P-6 was prepared. Accused was sent for medical examination. Radiological examination of the prosecutrix was conducted vide ^ff^. f€^\ I 1 '-"s^^te ^ l: Y"?J -3- Ex. P-17 in which her age was ascertained to be about 14 years. Date of birth ofthe prosecutrix according to the school register Ex. P-16-B, is 23.8.1985. 4. After recording the statement of the witnesses under section 161 of the Code of Criminal Procedure and completing the investigation charge sheet was filed in the Court ofJudicial Magistrate First Class, Ambikapur, who in turn committed the case to the Court of Sessions from where iearned Additional Sessions Judge, Ambikapur, received the same on transfer for trial. 5. In order to prove the guilt of theaccused/appellant the prosecution has examined as many as 18 witnesses. Statement of the accused was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the material appearing against him in the prosecution case and pleaded his innocence and false implication in the case. 6. After affording opportunity of hearing to the parties learned trial Court convicted and sentenced the accused/appellant as mentioned above. 7. Heard counsel for the parties and perused the material available on record as well as the judgment impugned. 8. It is argued on behalf of the accused/appellant that the age of prosecutrix Kavita on the date of incident was more than 16 years and less than 18 years and she herself went with the accused/appellant. It is argued that the accused/appellant has already completed the imprisonment for three years which would be sufficient for the offence punishable under section 366 of the Indian Penal Code. According to the counsel for the appellant, the case of the prosecution reveals that the prosecutrix was more than 16 years of age on the date of incident and she was a consenting party to the act of the accused/appellant as she herself went with him. Therefore, sexual intercourse by the accused/appellant with the prosecutrix was with her consent and the ^w^-»^.''^wy. -@ -^- same does not fall within the category of the offence punishable under Section 376(1) of the Indian Penal Code. It is argued that there may be difference of two years in the age ascertained by radiological examination. It was the duty of the prosecution to prove that on the date of incident the prosecutrix was less than 16 years of age. From the statement of mother and father of the prosecutrix it appears that she was more than 16 years of age. 9. On the other hand counsel for the respondent/State supported the judgment of the trial Court and submitted that the prosecution has proved the age of the prosecutrix on the date of incident to be below 16 years. It is argued that the accused/appellant abducted the prosecutrix who was below 16 years of age and committed rape on her at different places and lastly she managed to escape from his clutches and after reaching her house told the incident to her mother and thereafter the matter was reported to the police. It is submitted that the statement of the prosecutrix is supported by the independent witnesses and also the medical evidence which is sufficient for drawing inference against the accused/appellant. 10. In order to appreciate the contention of the counsel for the parties l have examined the evidence adduced by the prosecution. As regards the question of involvement of the accused/appellant in the crime in question, prosecutrix Kavita (PW-1) has specifically stated that while she was coming after participating in some programme along with her friends, accused/appellant came there along with co-accused and took her towards the forest where he committed rape on her. Thereafter, he took her to the house of his maternal uncle where again he committed rape on her. Next day she tried to flee away from the house of maternal uncle of the appellant and came to her aunt's house at village Bhatgaon where she stayed for three days. There also the accused/appellant had come in search of her but her aunt told him ^s%.. ^3. -5- that she had not come there. After three days she came to her house and the report was lodged. Tebri Bai (PW-2), the mother of the prosecutrix and Vanaspati Singh (PW-5) father of the prosecutrix have also supported the statement of the prosecutrix. She was medically examined by Dr. (Smt.) J. Kujur (PW-12) who has statedin her evidence that hymen of the prosecutrix was old ruptured and vaginal orifice was loose. According to the case of the prosecution the accused/appellant committed rape on the prosecutrix on two- three days for so many times and it is as a result of which her hymen was ruptured and vaginal orifice was loose. Defence has suggested the prosecutrix that she was a consenting party to the act ofthe accused/appellant. In fact the defence has not denied the incident of intercourse. It appears that the defence has been taken thatthe prosecutrix was aconsenting party and her age on the date of incident was more than 16 years. Statement of the prosecutrix is sufficient to draw an inference that the accused committed rape on her so manytimes. 11. As regards the question of age of the prosecutrix, the trial Court has ascertained her age as 14 years as at that time she was a student of class VIII. Her mother Tebri Bai (PW-2) has stated in paragraph 3 of her evidence that age of the prosecutrix was 14-15 years. In paragraph 4 of her cross- examination she has admitted that age of the prosecutrix is 22-23 years but in the same paragraph she has also stated that she being illiterate does not know her age and when she was married. Vanaspati Singh (PW-5) the father ofthe prosecutrix has also stated in paragraphNo.1 that age ofthe prosecutrix is 15 years. In paragraph 2 of his cross examination he has admitted that Kavita was born in t'ne year 1984-85 but he is not in a position to tell the correct date of birth. He has also stated that his other daughter elder to Kavita was born in the year 1982. He has denied that his elder daughter was born in the year 1977-78. Dr. M.K. Jain (PW-16) who conducted the radiological ^'sa3^. ^'1:8<\ ^.. ^•&-.._ ^ i' ^tes^.. i 1 ?11 J •^. 1^^;i'^ ^) ^. -Gy- examination of the prosecutrix opined that her right elbow and radius were fused, right wrist joint and lower part of the radius were not fused.centre of elycrist was visible. On the basis of radiological examination her age was ascertained about 14 years. Albert Tirki (PW-14) has stated in his evidence that according to the school admission register Ex. P-16 the date of birth of the prosecutrix is 23.8.1985. This witness has admitted in his cross examination that he did not make any entry relating to the date of birth of the prosecutrix. Dr. (Smt.) J. Kujur who medically examinedthe prosecutrix has stated in her evidence that her secondary sexual characteristics were not fully developed and 28 teeth were present on both jaws. Prosecution has adduced the evidence of radiological examination, school register and also the evidence regarding her physical appearance. According to the school register her date of birth is 23.8.1985 and therefore, on the date of incident she was below 16 years of age. Father ofthe prosecutrix Vanaspati Singh (PW-5) has stated that the prosecutrix was born in the year 1984-85. This witness has not informed the date of birth for being recorded in the school register. According to the radiological examination the prosecutrix was about14 years of age. Her physical appearance shows that secondary sexual characteristics were not fully developed and only 28teeth were present on her both jaws. Prosecution has also examined Ku. Kajri (PW-3), Ku. Bina (PW-4) and Ku. Suchita (PW-6) who are friends of the prosecutrix. Kajri (PW-3) and Suchita (PW-6) have stated in their evidence that Kavita was 2-3 year older to them. However, these witnesses have not stated as to on what basis they stated this age difference. 12. Age ascertainedby radiological examination carries two year margin on either side. In this case, the prosecution has not examined the person who actually recorded the date of birth ofthe prosecutrix. However, in the absence of any conclusive proof, the age may be ascertained on the basis of physical ^^ .Y ^ -7- appearance ofthe victim. Ifwe see the physical appearance ofthe prosecutrix, it is revealed that her secondary sexual characteristics were not fully developed and 28 teeth were present on her both jaws. Report of the radiologist shows that her right elbow and radius were fused, right wrist joint and lower part of the radius were not fused, centre of elycrist was visible, which is suggestive of the fact thather age was about 14 years on the date of incident. Her father Vanashpati Singh (PW-5) has stated that his daughter was born in the year 1984-85. In the matter of Nand Kishore v. State of Raisthan 1 it has been held by the Rajsthan High Court, Jaipur Bench, that in the absence of direct or oral evidence regarding the age of the prosecutrix, medicalevidence may be relied upon. In the matter of Java Mala v- Home Secretary, Government of Jammu andKashmir and others 2 it has been held by the Apex Court that age ascertained on radiological test, margin of error is two years on eitherside.In the matter of Vishnu v. State of Maharashtra 3 it has been held by the Apex Court that ossification test for determining the age is of advisory character and it is notbinding on witness of fact. In the instant case the medical evidence relating to physical appearance of the prosecutrix, schoolregister and statement of the father is available. Ossification testwas conducted which shows that the age of the prosecutrix on the date of incident was about 14 years. Evidence collected by the prosecution from all the three sources is sufficient to draw an irresistible conclusion that the age of the prosecutrix on the date of incident was below 16 years In the matter of Narendrasincih v. State of Madhya Pradesh 4 it has been held by the Madhya Pradesh High Court that in the absence of proof of age by oral evidence or school register, medical opinion based on ossification test may be relied upon. ' 2002 Cri.L.J. 4157 2AIR1982SC1297 3 2006 Cri.L.J. 303 4 1996 CrLL.J. 198 ^. -8" 13. From the evidence available on record the age of the prosecutrix on the date of incident appears to have been below 16 years. Accused/appellant has suggested the prosecutrix that she was a consenting party to the act of the accused/appellant but she has denied this suggestion put by the accused/appellant. Kajri (PW-3), Bina (PW-4) and Suchita (PW-6) have specifically stated in their evidence that the accused dragged Kavita, they tried to save her but could not succeed and the accused/appellant took her away. Prosecutrix herself has stated that accused/appellant took her away forcibly and committed rape on herandtaking opportunity she fled away from the house of maternal uncle of the accused/appellant and came to her relative's house and after staying there for three days she came to her house and thereafter lodged the report. This act of the prosecutrix shows that she was not a consenting party to the act ofthe accused/appellant. 14. After appreciating the evidence available on record, the trial Court has convicted and sentenced the accused/appellant for commission of the offence punishable under Sections 363, 366 and 376 (1) of the Indian Penal Code which is based on reliable and clinching evidence and sustainable in law. 15. As regards sentence, the accused/appellant has abducted the prosecutrix below 16 years of age and committed rape on her. The sentence imposed on him is neither unjust nor excessive. 1 do not find any illegality or irregularity in thejudgment impugned. 16. Consequently, the appeal being devoid of substance is liable to be dismissed and it is hereby dismissed. Sd/- T.P. Sharma Judge <^0'