BEFORE THE HON’BLE HIGH COURT OF CHHATTISGARH W Cr.A. No. ’ j j i /2007 Shailendra Dubey, S/o. Baliram Dubey, aged about 25 years, Occupation-Student, R/o. Village- Godaripara, Kothari, P.S. Chirmiri, District Korea (C.G.) VERSUS The State of Chhattisgarh, through, S.H.O., P.S. A.J.K. Ambikapur, District Sarguja (C.G.) CRIMINAL APPEAL UNDER SECTION 374(2)/ OF THE CODE OF CRIMINAL PR \\ APPELLANT (IN JAIL) RESPONDENT OCEDURE. (Han. Mr. ustice Pritinker Diwker Criminal Appeal No. 1111 of 2007 APPELNT LA Shiier Duey anda b BESWNQENT isg State of Chhattarh hri J.‘A. Lohi, counsel for te appeiiant. . hri Niraj Mehta, P.L. for the State. ik m u: gg JuDGMENT (16.05.2011) This appea is directed against he mugned dent" and rder at 03,12,200? passe by, Sessions Judge/Speciai Judge, Korea in Special session ma! No. 24/2006 convicting the accused/appeiiant for the ffence uner Section 36 ad 76 of {PC and sentencing im to undergo rioros imprisonment for thr years and y i’ihe f Rs. 500 u/ 36 nd igorous imprisnent fo seven yes and pay fine f Rs. 500V u/s) 376 of IPC, ps default o d 6 n 3 h gu ee pa o s 6 a r om r ar o iu stipuiations. Both the sentences were direcued to run concurrently. ' 2. Brief facts of the case are that on 26.06.2001, FIR Ex.P‘ 1 was lodged bythe prosecutrix (PW-1) before 1’olice Station, I Chirmiri alleging in it that on 23.06.2001. when she was going to the house of her elder brother along with Bhanu Pratap t (PW-2), the appeklant came on his bicycle and forcibly took her and Bhanu Pratat on his bicycle to an abandoned house of village Tebumaina—Dubchhola and stayed there in the night where she was subjected to sexual intercourse by the HIGH COURT OF CHHATTISGARH AT BILASPUQ J a)‘ véRsu§ S an h S mnimmmg wpgnwu 3M m mn CODE Gimmm. Pnacaayka " l t ip jugm o ded d -2; appellant on the assurance of marriage. On the foimwing night, due to rain they stayed in the house of some Muslim near a forest. In the next morning while retuming, the appeiiant was apprehended by the viiiagers and thereafter father of the prosecutrix aiso reached there and then the report was lodged. Later an, this FIR was transferred to the AJAK police Station, Sarguja and the same was registered vide Crime No. 39/2001 (Ex. P-8) for the offence under Sections 363, 366, 376 of IPC and 3 (1)(xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act. After compietion of investigation, Chef/an was filed against the appellant on 22.09.2001 for the offence under Sections 363, 366, 376 of IPC and'3 (1)(xii) & 3 (2) (v) of Scheduled Castes .and Scheduled Tribes (Prevention of Atrocities)Act whereas the Court below framed charge against him under Sections 363, 366, 376 of IPC and 3 (2) (v) of Scheduled Castes and Scheduled Trihes (Prevention of Atrocities)Act. 3. So as to hold the accused/appellant guilty, prosecution has examined 14 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 318* of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false impiication in the case. 4. After hearing the parties the triai Court‘has acquitted the accused/appellant of the offence under Sections 363 of IPC and 3 (2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act but convicted and sentenced him for the offence under sections 366 and 376 of IPC, henoe, the present appeal. 5. Contention of $hri Lohani, learned counsel appearing for the appellant is that there is no legally admissibie evidence on \ g :3 ~ record in respect of the age of the prcsecutrix and in absence of the same, it can be easiiy said that present is a case of consent. He submits that the prasecutrix remained with the . appellant for about two days without offering any resistance which shows that she was a consenting party. He submits that one love letter Ex.D-4 was also seized and from that it is apparent that the appellant and the prosecutrlx were in love. He further submits that if the entire statement of the father of the prosecutrix (PW-3) is seen, it can be easily held that at the time of incident the prosecutrix was major. He submits that in absence of any documentary evidence in relation to the correct date of birth of the prosecutrix it cannot be held that at the time of incident she was minor. 6. On the other hand supporting the impugned judgment it has been argued by Shri Mehta, learned counsel appearing for the State that as per the admission register Ex.P-9C, the date of birth of' the prosecutrix is 01.06.1990 and on the date of incident her age comes to about 11 years 22 days. Even as per Ex.P-10C, the certificate issued by the Headmaster (PW— 10) with the consent of the parents of the prosecutrix, her- date of birth is 01,06.1990. He further submits that Ramashray Rai (PW—10) has duly proved the documents Exs.P-9Cl & P-1OC and once the prosecutrix is held to be minor, her consent becomes immaterial. He further argua that the Court below has already taken a very lenient view in awarding the sentence of seven years under section 376 of IPC and in fact the appellant ought to have been convicted under section 376 (2) (f)- of IPC and should have been sentenced for at least 10 years of rigorous imprisonment. 7. Heard counsel for the'parties and perused the material available on record including the judgment impugned. 3‘1 ,u’ 8. Prosecutrix (PW-1) in her court statement has stated that on 23" July, 2001 at about 3 p.m. when she was going to the house of her Bade papa (eider brother of the father of ‘ the prosecutrix) along with Bhanu (PW-2), the appellant came there and took her and Bhanu to a small house of‘ village Bhugbhugi where she was subjected to forclble sexual ‘ intercourse by him. Thereafter the appellant took her to Durga temple and as tyre of his cycle got punctured, he went ‘ to Dubchhola along with her for getting his cycle tyre inflated where heuwas apprehended by one Dabbu. After getting ' information her father came there and then the report was lodged. 9. Bhanu Pratap (PW-2) y who had accompanied the t prosecutrix has stated that on the date of Incident the appellant took him and the prosecutrix to a house of viilage Bhugbhugi on his bicycle and stayed there in the night. On the following night, due to rain they stayed in the house m: some Muslim and next morning when they, were going towards village Bhugbhugi, the appellant was apprehended by i some acquainted persons and thereafter father of the w prosecutrix came there along with other persons. 10. Setu @ Hemmu (PW-3), father‘of the prosecutrix has sated that at the time of incident, age of the prosecutrix was about 14—15 years and on the date of incident he was informed by his son Durgesh that the prosecutrix was missing. After getting information from the Sarpanch of village Dubchhola, he along with some other persons went there where the prosecutrix, Bhanu and the appellant were kept. In paragraph—4 he has stated that he has seven issues from his second wife and the prosecutrix is one of them. Though an attempt has been made by the appellant to show the difference of age between the children of this witness but i .-5"»— no specific question has been put to him as to whether the date 0f birth of the prosecutrix is 01.06.1990 or not and information given by this witness in the documents Exs. P-9C and P—10C is correct or not. Horiiai (PW-4) is a seizure witness of Ex.P-2 by which underwear of the prosecutrix was seized. Constable Umesh Bhagat (PW-5) had taken siide of the prosecutrix (Ex.P-7). B. R. Singh (PW~6) is the Assistant Sub Inspector who had recorded the FIR vide criminal No.39 of 2001 (Ex.P—8). B.R. Jaiswal (PW-7) is the Patwari who had prepared the spot map Ex. P-4. Ramcharan (PW—8)} has done the seizure of the slide of the prosecutrix (Ex.P-7). R. S. Ranawat (PW-9) has filed the Che/Ian. Ramashray Rai (PW- 10), the Headmaster of the School has stated that as per School admission register Ex.P‘9 copy P-9C at serial No.3443 the name of the prosecutrix has been recorded and her date of birth is 01.06.1990. He has stated that before making entries in the school register, a certificate is taken from the parents of the child and as per the said certificate (Ex.P-1OC) also the date of birth of the prosecutrix is 01.06.1990. He has further stated that the document Ex. P—10 was certified by him only after consent of the parents of the prosecutriiC Though he has also stated that normally the date of birth has been recorded on the basis of the Patwari register or the document of Municipal Corporation or Municipality but in the case of the prosecutrix the date of birth was recorded on the basis of information given by the father of the prosecutrix. He has categorically denied the fact that at the time of admission of the prosecutrix' in the School her age was 11 years. Balaji Rao (PW—11), the Investigating Officer has supported the prosecution case. G. P. Anant (PW-1:2) had recorded the first FIR Ex.P-1. Dr. R. R. Gajbhie (Ex.P~13) who had medically examined the appellant has stated that he was capable of performing sexual intercourse. Dr. Nirmaia m€§§*‘J @W ‘.g— Yadav Rohan (PW-14) has been examined ta prove the medical report of the proSecutrix Ex,P-22 by which the- roseCutrix was examined by Dr. ,Sima Chainpuria. Aecording to therdoctor, no injur whatsoer was foun on the person of the psecutrix, he hymen was oi tom er vagina entered two finrs easily d s was habitual o su intercrse. .The lady doctor has urther stated hat the prosecutrix was referred for the radioogical test, I is admittd otion that no ssification test of the psecutrix was done. 11 ute examination o the eidc as a te prosecutibn makes it clear h th prosctix ws‘subje .. o xual intercourse by the appellnt. Een it s n case of the ppellant tha he has een falsely implicate but accordg to him, prsent s a case o consent Now, he oly question which t be decided by this Court sast heer sufficient material is available on co in sect ge of the proscutrix or not. .orm th documents Ex. —QC & C, t is apparent at th date f birth f th proscutrix s 01,06.10 d hese document hav been uly ‘provezv Ramashray Rai PW-10), the Headmsterf th chool. find no lacua or infiity in the statement o Ramashray Ri especially when he has cagricly sta hat l h nrie of the register an th certificate we made y hi as per infrmation ‘given by th pare. The appel o put any queti to 'Setu (PW-3), fh of the cutrix respect of recording the date of birth of the prosecutrix as 01.06.1990. Further there is no reason for this Court to disbelieve the statement of Ramashray Rai (PW-10) and the documents proved by him vide Exs. P—9C & P-10C. This, Court is in full agreement with the findings givensby the Court below in respect of date of birth of the prosecutrix as 01.06.1990 and based on this date of birth it is apparent that v p y ev d ro r d , h \ ge an he t exal ou f t l t e psi o ro . Min f vene dduced by h tat e eur aead , t se a v i ot a y a t b d in e i f . t n > is o io wth rerd rep of a a e F e P 10 ’ i th e o o e e i ‘ l 99 an t s e d dJ ( ao e s i n rm f a teoal ted t al te ets d e er b m o e nts lant has nt son ater prose in :7- on the date of incident Le. 23.06.2001 the pmsecutrix ms betow 12 years of age. Though ossification test of the prosecutrix has not been done but merely on that ground it cannot be said that at the relevant time the prosecutrix was major especially when the documentary evidence is on record to show her date of birth is 01.06.1990. As on the date of incident the prosecutrixl was minor, her consent becomes immateriai and therefore it can be safely held that the conviction of the appellant under Section 366 and 376 of IPC is in accordance with law. just and proper.