'\\ (^ €,-... ^ 0*< ^ ^ ^ ^ ^' ^ ^ ^ HIGH COURT OF CHHATnSGARH. BILA8PUR Amieal No. 3305 of 1999 Oeffaari v». State ofM.P. (now Chhattisgarii), Crianinal Amieal Mo. 3382 of 1999 Vipin Kumar v». State of Madhya Pradesh (xiow Chhattisgarh) & Criniteal Aopeal Ko. 11 of2000 Manoj Kumar v». State of Madhya Pradesh (now Chliatdsgarfa) JUDGMBNT Pbstfor 08.05.2007 ~^ Sd/- Sunil Kumar Sinha Judge ^^" (^ HIGH COWRT OF CHHATnSOARH. BILASPUR C^iminal Anneal No. 330<S of 1999 APPBLLANT RB8POMDBNT E)efhac4 S/o Bhuraabo Behra^ aged about 25 years, Occupation Labour, Resideat of ViUage Malda and Maching Centre, Raigarh^ Nayapara, Kabir Chcwk^ Joot MiU Raigarh (C.G.) Vexsws State ofM,P. (now Chhattisgarfa) fhroiigh District Magistrate, Rgdgarh (C.G.) APPBLLAWT Cr&minal Amieal No. 3382 of 1999 Vipini Kumar S/o Lalkumar SaOy aged about 25 years, Occupation- Cultivation, R/o vfllage Malda, Police Station Pussore^ District Raigarh (C.G.) RB8PORDBKT VCTIW State of Madhya Prmiesh (now Chhatdsgarh) tihrough Distdct Ms^isteate, Raigarh (C.G,) Crianinal Aoneal No. APPBLLAHT RB8PONDBNT Manoj Kumar, Son of Bodhan Sao, Aged about 23 years, Occupatioa : student, Resident of ViUage Malda, PoUcc Station Pusour, District- RAIOARH (C.G.) Vet»u» State of Madhya Pradesh (now Chhatttegarh) Through : Station House Officer, Police Station Pusour, Distrfct RAIGARH (C.G.) (ABoeate under Sectioaa 374 (2»ofCr.P.C.I Aooearaace: Smt Indiia Tripafhi, Advocate, for the appeBant in Cr.A. No. 3305/99, Shri Abhay Tiwari, Advocate, for fhe appellant in Cr.A. No. 11/2000 & Shri Rajendra Tripathi, Advocate, for the appeUant in Cr.A. No. 3382/99. Shri S.K, Misfafa, Panel Laiwyer, for the State in all fhe Crmunal Appeals, k 'lV' (g) ^. l/' ./ Y"' JUDGMBNT (08.0S.2007) (1) These appeals are directed agaiast ttie judgment of convictibn and order of sentence dated lvt of DeceHiber 1999 passed in S.T. No. 119/1998 by fh-e Second AddL Sessions Judge, Raigarh, whercby the saM Court convicted the appellants u/s 376/34 I.P.C. and sentenced them. to under^) RJ. for 10 years and to pay a fine of Rs.5000/-, ia default of paymeut of fine to further uadei^o R.L for one year. (2) The brief facts arc fhat ffae appeflants and the prosecutrix namely Motiwati (P.W.5) arc residents of village MaMa. On 04.2,1998, some Diama show was gomg on m the viUage. The show contmued t31 late xiighfc At about 3 a.m-, fhe prosecutrix aad her J&iend oamety Ku. Arti were returoiag to fhdtr house afiker fhe show was over. Arti?s house was first at poiat on fhe way, fhercfore, she weat to her house. The aflegatioiis are that when fhe prosecutrix reached ia fpont of fhe doors of her house aad was caUmg her mother, the appellant Manoj canie over fhere aad forcibly dragged the prosecutrix to a nearby open fiield of one Rajarani. He undressed himself and thereafter, he put oflf the imden^ear of fhe prosecutrix aad committed sexual intercourae agamst her. Further aUegations are fhat when he was committiag sexual iatexcoiirse, two other appeUaats, Vipin and Dethari came over there and waraed them fhat the broffaer- ia-law (Jija) of fhe prosecutrix is comiag towards them, on (ff) t*""n-uu.. which, appeUaat- Manoj and prosecutrix bofh took anofher way and the prosecutrix was left by fhis appeflant at her house from fhe said way. On 05.2.1998, the pxosecutrix disclosed the stoiy to her grand inofher Parvati (P.W.9) aml she also disclosed stoxy to her mofher aa also fafher naiaety Daniodar (P.W.4), who nanated fhe stoiy to Pafe? of fhe village Sidar Smgh. Sidar Siagh said that he wiU ask tfae accuscd persons, but wfaen nottiing was done, fhen fhe prosecutrix atojigwifh her fafher Damodar (RW.4), brofher Hemant axid brofher-ici-law (Jija) Shivnath (P.W.7) went to the Police statfon on 7.2.1998 and a rcport Ex.P.2 was lodged. The prosecutdx was sent for medical examumtfon where she was examiaed by Dr. Arti Naiide (P.W. 13) who also advised for X-Ray for ascertainmg the age of fhe prosecutrix. Dr. M.D, Joshi (P.W,12) has conducted fhe Ossification test of fhe prosecutrix acid has gwen his rcport Ex-P. 10, ia which she was found to be ia betuyeen 15 - 16 yeara. Though a Photostat copy of school certificate was also seized ia tihis case, but fhe saxae was not proved on recoid. On fhis evidence, fhe charge sheet was jfiled axid afier conclusioxi of fhe trial, fhe accused persons were convicted as aforcmentioned, (3) The learaed Sessions Judge rccorded fhe findiag fhat fhe prosecutrix was below 16 years of age on fhe date of iacident and she was subjected to forcible sexual iiitercourse by appellant Mauoj aad two other appellants had ateo assisted him in the inamaer as fhey had iaformed him, during fhe course of ^•' --\ -'" ^p sexual iatercourse, fhat bax>fher-ia-law (Jija) of the prosecutrix is coiniag towards them. (4) Learaed counsel for fhe appeMant Manoj argued fhat fhe prosecution has failed to prove that fhe prosecutdx was below 16 years of age on fhe date of incident He also argued that m fhe facts and circuinstaaces of £hecase^ fhe inatter appears to be one of consent between the prosecutdx aad this appeBaxifc About tlie other two appeUants, learaed rcspective counsel argued that fhere is absolutefy no evidence agamst them and they have been convicted only on ffae evidence fhat they had wanied fhe prosecutrix and Manoj fhat her biofher-in-law (Jija) is coining towards the field where tih.cy were performmg sexual iatercourse. (S) On fhe ofher hand, learaed counsel for fhe State argued that fbere is aoiple evidence on record to sustam the conviction axid fhe Sessions Court has rightly convicted fhe appeUants luider the aforementioned sections ofI.P.C. (6) I have heard leamed counsel for fhe parties at lengfh and have also perused fhe records ofthe SessioDS Triai (7) So far as the age of prosecutrix is conceraed, the father of fhe prosecutrix namety Daiaodar (P.W.4) has stated fhat fhe prosecutrix was aged about 15 yeara on fhe date of iacident In his cross exaiamatfon in para 11 he had adnaitted that fhe date ofbirth offhe piosecutrix was noted by the Kotwar but it is not with him and he cannot teH liie actual date of birth of his daughter, but it may in fhe year 1982. He has also stated that at fhe time of her admissiou to the School, he had not taken birth certificate J&om Kotwar. He has furfher stated fhat he caiinot tell as to what was fhe age of prosecutrix at the time of her admission to schcwL The outcoiae of his evidence is fhat he is imable to teU her actual date ofbirth or her age on the date of iacident Anofher evidence of age is the Ossijfication test report given by Dr.M.D. Joshi (P.W.12)» Accorditig to him, the prosecutrix was in between 15 and 16 years 011 fhe date of iiicident This witaess has also admitted in his crass exaxairiation that the margui oferror ia such age, deteniuned by fhe OssiGcation test, may be 3 years. Bxcept this^ fhere is no evidence pertafcaing to fhe age of fhe prosecutrix ia this case. In Modfs Medical jurisprudence (20th Edition), it is stated fhat too inuch reKance should not be placed on the table showiag fhe age aad yeare of fhe appearance and fusion of sonie of fhe epiphysis as obseryed by differcut authora as it merety indicates the avexage aad is Ukely to vary ia iadividual case even of fhe same proviace owuig to fhe eccentricities of development It is further stated fh.at recent work has shown that fhe range of error may be upto fhree yeara on eifher side. Apart fix>m tfais, a Photostat copy of fhe School Certificate was produced by the prosecution m which fhe date of birth of fhe prosecutrix was recorded as 20.4.1982, but tihis dcx^ument was not proved on recond. It is miportant to inention fhat even fhe Headmaster of fhe school was not cited as a witness ia the case aad was never caUed by fhe prosecution to prove ffae aBeged docuxaeat by com.paring fhe vyi same wifh fbe original or wifh fhe recoids on which it was issued. (8) Thereforc, ia my opinion, fhe prosecution has utterty failed to prove the age offhe prosecutrix below 16 years aad fhe finduig recoided by the Court telow, on fhe basis of above evidence, is totally perverae, which deserves to be set aside and I hold it aocordiagly. (9) About fhe forcible sexual iatercourse, fhe prosecutrix namely Ku. Motiwati (P.W.5) has stated fhat whea she reached m front of her house and was caflm^ her mother, appeUant Maaoj came over therc and by closiag her mouth he took her to tfae Badi of Rajaram, Therc, Manoj firafly put oflT his Paiit and thereafter he put oflF her underwear and committed sexual iatercourae ^ainst her. She speci&calty states that while the sexual io.tercourse was beiag comxaitted, she had cried^ on which fhe ofher two appellaats namely Vipm and Dethari heard her noise, fhey came to fhe place ofoccurrcnce and told fhat her brother ia law (Jija) is coming, fhereafter, Manoj took her from a different way towards her house and he lefk her m front of ffae doors of Kothar of one Dataram. She has fizrfher stated that when her mother asked her as to where she had gone ? She told fhat she wiU not teU her just now and she wffl teU her in the moraiag. However, she has narrated the stoiy to her sister and later on the stoiy was xiarrated to the mofher and father. Adaiittedly, it was a day when many persons were returaing back from. fhe place of Drama Show and tticy were passiaig .-, ^,- ^. fhrough the way. Ifthe prosecutrix was forcft>fy dragged by fhe appellant Manoj by closiag her moufh, then it should have been noticed by the viUagera, pardcularly by the iiimates of tibiose houses which are situated in the close vicioity of fhe house of piusecutrix, Not a siagle pereon could see the appeUant draggmg tiie prosecutrix to a long distance fix>m her house to the Badi of Rajaram where fh.e sexual iatercourse was coiamitted. Anofher factor which appeals to ine is fhe alleged macuier ia wtuch fhe sexual intercourse was committed. The prosecutnx says fhat afber taldng her to fhe said fieM, firsfly, Manoj undressed himselfby puttiag offhis ftdl pant and thercafter, he also put oflf her undenvear and then he committed sexiial iatercoiuse agamst her. Caa it be possibte for a maa to do Kke fhat wifhout fhe assistaace of fhe counter-part ? What fhe girl was domg whea fhe appeUant Manoj was iindressiDg himself? Was it not possible for her to ruuai away iauaediately when she got a chaace because it is iiot fhe case of prosecutk)n that eifher she was ffarcatened or she was caught aB fhe time by the appeBant Maaoj. These arc the circumstances which show the conduct of the prosecutrix aad su^est fh^t she has willingly accompanied the appellant and had aUowed him to commit sexual iatercourse agaiast her* (10) Apart fironi tibds, anofher iniportaiit conduct of fhe prosecutrix is as to why she accompanied Manoj to reach to her house by taking a different way fhaa fhe way which was easier aad on which her brofher-ia-law was comiiig. She had fufl ww 8 ^ opportunity to leave tihe appeUant Manoj and to nui towaids fhe brofher in law. Taldng different way to the house by hiding fhemselves fnom the brofher-m-law is one of fhe alanning circumstaace ofthe cose. AH these facts are suggestive tfaat in fact fhe prosecutnx was a wiUiag party and had gone to the place of occurrcnce on her own with the appellaat Maooj aad thereafifcer fhey performed sexual iiitercourse there and when it was waraed by fhe other two appeUants that her biofher-in-law is comiag towards tiiat place, bofh raii away from the place of occurrence and took a differcnt way to reach the house. The allegations made against fhe appellant Maaoj regardmg commission of sexual mtercourse is also not supported by fhe inedical evidence as tihie lady Doctor, who examined fhe prosecutrix, has not notic^l any iajuiy on fhe person of prosecutrix aad her hymen was old ruptured^ fhere were no bleediag poiats, there was no dischai^e aad accordmg to her, no definite opiaion cx^uld be given regardiEig coxamission of sexual mitercourse. (11) In the facts aad circumistances, referrcd to above, it does not appear to me fhat a possibflity of tlie prcxsecutrix being a consentmg party caa be fiiUy ruled out in fhis case and fhe matter appears to be one ofconsent between the pros^sutrix and appeflant Manoj. (12) So far as fhe ofher two appeUaats are concenied, fhere ra absolutely no legal evidence agaiast them and the onty evftieitce which coiaes against fhem is fhat fhcy reached to the spot aad /^ they told fhe appeUant Manoj that fhe brother in law of fhe prosecutrix is coiniag towards theixi and on fhis waniing onfy, the prosecutorix and Manoj left tfae place of occurrence and fhey took a different way to reach to the house ofprosecutrix so that fhey miay not be caught by fhe brother ia law. On this evidence only, the two ofher appeUaats have been convicted by the court below. Such conviction also caiuiot be sustaiaed for want of legal evidence, (13) Thereforc, fhe conviction and seatence based upon such evidence against the appellaats deserye to be aad is acconimigly set aside. AU fhe appeals staad allowed. The appenants are acquitted offhe chai^es fraxaed agauist them. | Sd/- Sunil Kumar Sinha Judge Rao