IN THE HIGH COURT OF CHHTTISGARH AT BILASPUR Criminal Appeal No-éf§-A&/2OO6 APPELLANT:- Pankaj Lakara (IN JAIL from 1.8.05) S/o Alekjender Lakara, ‘aged about 2O years R/o Village Bhandari P.S.H. & Tah. Kunkuri Distt—J‘ushpur (C.G) VERSUS RESPONDENT : - State of Chhattisgarh Through station officer P.S.H. & Tah. Kunkuri Distt—Jushpur (C.G) Criminal appeal U/s 37f’of Criminal procedure code WM HEGH €$~URT GF €Hfv€éWI$éié§H AT EELA§P£1§ €35. Aggeaf Na.£3@f2GGé Pankahi Lgkam ‘v’s. Tha Sm-m 9f Chhcxf?i3§arh Pos?for.3m§gman : J,C.G8.2006 ‘ ; Sdl- E i f Dmp Raosaheb Deshmukh 1 Judge .082Q w Ge J HEéF=§ COURT OF €HHAWESGA§H 151T BRA$PU§ Cr. Agpeai N¢.434/2§Gé 5ingia agnc‘n: Hon!bie Sim Eiéig? QaOSahab &%s%muk§a, 3’. Pankaj Lakam Versus The 51mm of Chhai’fisaarh 5hri J.K.5hasfry, ieamed counsel fgr The cppeihrnr. Shri A$hish Shukia, Govt Advocm’e far ‘E‘he S‘m‘i‘e. 3QD§MENT {Da!§vere& on #Ms 1.0+“ day 0'? Augusf 2Q06) This appeai is directed uguinsf “:‘he judgmem dsfed 25%2006 deiiverea‘ by Shy-i &C.Bajpai, $essions Judge' Jashpur in Sessions Case No.1Gi/2005 Mxereiay "rhe aggeHam‘ was comvEcTed undar Secfkms 3631 36é, 376 (1) anti 341 1.?‘C. and was semencad under Sac? ens 363, 3&6, 3?é (1) 1’0 undergo rigorous imprisonmew‘r far- ?wc ' yams; f§ve yams and seven yem’s respeci'ivaly am? a§so 'i'o simp!e imprisonmw? for one moMh under Sed'ion 341 I.P.C. The senfences were order-ed 'h) rum cancurren‘i‘iy‘ 2. Briefiy s‘m'fea‘ ’rhe prosecu'i'ion case is *‘rha‘i‘ m 2%.72Gi‘l5 ‘Me prosecuw‘rix, aged abou‘r 13 years, was sen“? ‘Gy her mafher Ku§dim ?.W.2 1‘0.”- bringing Sayabeea chunks from Khan Shop» The prosecuiwix ief‘? her house er: a cycle and affer purchasmg $oya§aeei1 chunks ‘g‘mm Khan shop was ramming home. Near ?he schoo§, a‘he appeilm? Pankaj Lekda si'eod wiih one ?m‘mp, *‘rhe cousin bro?her of ”rhe erosecuwéx. Pmm'p ca'Hed her am: asked’ T'o give he? cycie ‘ru him. The prosecu‘ririx 9ave her cYcie 1‘0 PmmP who 1615? 1’he P Rice. The C‘?‘ ' baiiam' ‘E‘her‘eaf‘i‘er heEé "rha hanc‘ m‘ ‘r‘me prosecuwix and émggeé %:er irisiée "Fm schwi mom. She a'i'?amp’reci “m Show? bu? i’he appai‘mi‘x‘ gagged her mcui’hk Imsicie fhe kir‘rc‘ner: mam mg i3rimary Sc'md, 3haméri 'L'he aggpe§ian*r remsvad his undewear anc‘ aiso fhe underwear of The pmsecuWix am: eommi‘i‘fed rape on ‘K'he pmsecufr-ix. 3. in <x'he mea’nwhiie, since The presecuWix éie‘ m? re‘rum heme, her me'i'her serif her- een Arno! awn in eearciq of her. Amai refumee wii'h he cycEe m" i‘he presecwmx m5: 'E'aid hev "rhcx‘i‘ he haci me? Pm‘mp Wha had giver‘ her cycie To him. Upcm "i’his imforma?iom Kcx‘ic‘im ?.W.2 §qerseif wevx‘r iv“: search af The waeecuwix. When $he em’er‘ed ?he ki‘a‘chem poem mi ‘r'me echaoE, she eaw ‘i’ha‘é' ii'ie cppeRcmT was ccmméwiag rape cm ‘Wge proeecuWix. $§ae caugh‘? i'he aggpeéim‘l’ by his heck. 'f'rae pm$ecufrix “’mid he? ‘E'E’mi‘ fiae aweiiam’ was gagging her mom'h wPxeeex/er She wcmi'ea" ‘m shsu’r and me fwdbly cemmi‘i’md rape on her. Tiqe appeiim‘? féed {ram ?he eiece of‘occurrence. 3 FAR. was Eodgee‘ by ‘;‘he presecu'i'r'ix on 2?.?.20G5 a? 13$ R; .. in RS. Kuhkuri si‘i‘uefea‘ 16 kiiome’rere eas‘r. On 28.7.20G5 upcm mee‘icei examina’riee, Dru Sangim Tir§<i PIW.8, €eumd ‘i‘he": i'here was ccmga€e‘%'e smd‘ fresh rupfure o1: hymea o’f ‘§'he pmsecu‘frix whc compEainee' m‘ paim 'm her prévefe paws. Ei- was opinee‘ ‘E’ha‘r "rhe pmeecuWix had been subjecfedi To ‘sexue! iwer‘ceurse. No ex“?ema! injury was fourid cm her. Dr. 3 Topeo P.W.3 medicaiiy exemihea‘ ’ihe appeiian‘i en 1.8.2005 and opineé fha‘i’ he was capabie 6*? perfeiiming sexuei ihi‘ercaurse. Radioiogice! examimhan 9-? *‘rhe pmsecmrix for / e r 11’? Hiram... aw U) confirmafion of age wa$ conducfad by Dr'. Gecrge. I? was esTima‘red VEde opiniom da‘i'ed $092005 fi'mf fhe presecufr'ix was aged befween 15 1'0 17 yeaw. F). Affar comp!e?ion of invasfigafion, Th2 appeilan? waE pmsacmed und'ar Secfhm 341, 363 and 376 E.P.C. The iear‘ned wial Juége framed charga under Sec'ria'ns 341, 363, 366 and 376$) 0‘? §Fha IRC. Tha appaiian‘i' abjared 'fiae guih’. No avideme §n éefamce was ied by +ha appaHam‘. The prosacmica exam§neé as many as 8 wi-messes. Raiyiag upon f‘he avidence ied by fhz proszcui'ion, ‘i'he ieamaa aassians Eudge com’ic‘i’aa‘ and samenced *rhe appdkxm as aforesaid in para§mph i a'f‘rer' recording a fimikag *i'ha‘i' age OT 3‘ fae ! aresscwhix was more ’3’han la ysar-s aa ‘a‘he da‘i’e of occurrence. 1 A Qx u $§ar§ J.K.5‘nas?ri, iear-ned counsei for the appeiianf has assaiied T a impugned Judgmen? ea fhe grounci Tha‘r ‘i'he evidance of The prasecuwix claaa‘ly 2sfabiished hear consem’ in ‘i'he sexuaé im'ercour‘se commi‘rfad by Tha appeHan“? WM; ‘rhe pmsecu‘rrix. if was urged Tha”? “Fae Eaamad ‘h’m Jucige had racorded a clear ‘finéiag if} paragraph 9 ’ ‘i'ha? The prosecu?r§x was aged aiaove 16 years an "rhe dafa of occurreme. I? was urged “ma? The ‘iesi'imany 9f Dr. Saagi‘fa Tirkey RW§ i'n paraaraph 8 aiso esfabiished 'rrza? rhe prasecufrix was aged mare rhan 1-6 years 0a ‘rhe dare of occurrence. On ‘i'his ground a§ones in“ was caa‘rended fra‘i‘ comvici‘ion of ‘r'ne appeHaM' under Secfiams 363i 366, 376{1) and 341 91‘ ERG. was iiaiie r0 be sef aside. 7. On ‘rhe ofher handi Shr§ Ashish Shuklal Eeamed 6overamen? Advocate w§1§ie arguing in supgarr cf “due impugned judgmea? caa?ended rha? The evidence of ‘rhe prosecurrix was whoiiy umrebui‘red fhm" "rhe appeilan? had ccmmH‘red farcibk sexuai infercourse wifh her wi‘rhou? her consent A presump?ien under Secfém‘. 1% A of The Evideme Ac? arose agains? "Fhe appeHanf, which sTood whciiy unrebufi‘ed by him. I’r was alsa urgea‘ f‘na‘é‘ a defence of feise impiEca‘i‘ion due ‘m anémosi‘iy had aiso been raised by 1‘he appeHanT §n paragraph E7 of '%'he fes’rimony of We progecu?r‘ix. In “(his view ef The mafi’er, ‘i'he defence of consen‘r of fine prosecu‘rrix in The sexeal ac“: eommii+ec£ by i'he appeléan? was Habie 1'0 oufrigh‘i‘ rejec?im. QeiEcmee was pEaeea‘ cm 5::‘afe of MP 1x. Bait; 2$C$§ 5u§reme Cour? Cases €£eé§ 2W €?ar‘a i4). Lesi’iy, i? was confena‘eti "rhe? ?he medicai evidence of Dr. Sangifa Tir'ki RWB cieczr‘ly esi'ablisé'red a vioiem’ farcib§e rape by i'he appeiim? wii‘h ‘hhe DrOSecuTrix wmch complefely regnfived ”the deixeme cf cansenf of fhe prosecm‘rix. S. Having heard rim? submisgiens, i have perused fi'ie record of Sessiorss Case NoiGiiZGO5. The whoiiy unrebuf‘i‘eci *res’rimony of The prosecui'rix P.W.1. arid her mo‘fher Kaidiria P.W.2 proveci ‘i‘ha‘r ihe prosecufrix was sen? by her mo‘i'her for bringing 5ayabeen churiks from fhe Khan Shop of” 6.90 PM. The prosecui'rix deposed 14m? whiie ' she was rei’urning from Khan 5hoe, Pro-r"ap caiied her and fook ‘rier' cycie. Thereaf‘wr, file appeiiem‘? heid her hand and dragged her inside The kifchen room of *‘rhe school. She cofegoricoiiy s‘roi'ed ’rho‘? ‘i‘he oopeiion‘r commiffeo' sexuoii infercouree wiih her inside fhe schooi room. Her fesfimony is whoiiy corroboro‘reci by her mo'?her Kaidino P.W.2i who saw The oppeiion‘r acruoiiy commi‘r‘riing rope on *‘rhe prosecu‘rrix. Kaidino P.W.2 has oiso sm‘red ’rho‘?’ i‘he prosecufr§x~ro§d her eher‘r ‘i’he oppeilohi‘ was forcibiy commir’ring rape on her on?) gogged her moui’h whenever she o‘i’rempi'ed To shout She has co?egorica§iy shied i‘hm" on being asked 'fhe oppeiiom" had said The? he hoci/‘r’/orcgzi’ if“, k!‘ bmughf *vha prcsecui'rix ?here and was commi‘h‘ing mpg on her. The ‘I’e$‘rimony of Kaid'ma P.W.2 as afso of The prosecu‘i'rix has remained whoiiy unrebuf'i'ed in (tress-examinai‘ion. During cxrgumen'i’s, SEN J.K.S‘na$1'ri, Learned counsei for ”(he appeHan'E' cake did nof asseH fhe "finding recorded by ‘i’he Eeamz‘d Sessieng J'Udge Thai’ fhe appaiicnf had comm§ffed sexual Emercaurse wi‘rh $413 presecufr'ix. Tha ‘res‘rmony of DP. Sangi‘m Tirkey P.W.8 aEso eSi’abiished beycnd dnubi‘ ‘E‘ha’r farcibie sexua! in?er‘course hac‘ been commif’red wii‘h “the prosecu'i'rix smce she feund ‘i'ha‘r Thaw was a camp§efe and fresh mp‘E’ure m‘ hymen of fhe proseCm’r-ix w‘rm Wtls experiemcing pair: in her privcd‘e paws, I? is 1’hus es‘mblished beycnd deub? ?hu? 1'he appeiicm? had cammi‘h‘ed sexuai inmr‘cwr‘sa wifh {he prosecuwix insMe fhe ki’i‘chan wom o; L me F scnooL i §. The only poim‘ which now requires coneidem‘?ion iiq fhis appea§ is whew‘her‘ '2‘he sexuai infercour'se commif’red by ?he appeiiam‘ wifh The grosecufrix was wi‘m her consent E1“ i3 peri'mem' €'o new fhcrr in cross-examina-rion paragraph 17 of ‘i'he prosecufrix fhe appe§lanT had Taken ‘rhe s‘hmd ‘fha’i‘ f‘ne prasecu‘rrix had falseiy implica‘red ‘nim due f0 ' a famiiy dispuie This ciefence faken by The appeiian? wiwiiy demo'iishes ihe ‘i‘heor‘y m‘ coesem’ v? file presecu‘h'ix during rape. The medicai evidence of Dr. Sangi’m Tirkey P.W.8 aiso negcrrives "rhe defence 9f cqnsem' ‘i'aken by 'i'he appeilanf since she feLmd fha‘r ‘ii’ie hymen sf The prosecui'rix had a compie're and fresh mpmre along wi‘ih gain experienced by ”(he prosecufrix in her privai’e par‘a‘s. The prosecui’rix has in her tesi’imony paragraphs 6 & 16 cieariy sfa‘ied “ihaf ihe appeiian‘i had forcibiy commi‘f‘fed rape on her and had gagged her mouih whenever she a‘H'emp’red 1'0 shout This is aisa corrobar'afed by Kaidina P.W.2 in paragraph 5 cf her +esiimony.&’/x/ / expianafion whcd'soevar was offered by fhe appeiian‘i’ in his examinafiw under Secféon 313 Cr.P.C. 10. Under Section 114—A of ’rhe Evidence Acf whare if §s' prayed '‘ihm‘ "rhe accused/appeiian? had commif‘red sexual imer'course with 'Z'he prcsecufrix and fhe prosecui‘rix s‘mi'ed in her evidence before The Cour? ‘r'mf she did no? cmsem‘ in The sexuai ‘amercour-se, ‘%he Cour? shcli dmw a presumpfion fhaf The prasecufrix did no? consen? fo fhe sexual infercourse. There is no‘rhing on recopd 1‘0 show fhaf fhe presecui‘rix was in Eove wh‘h 'fhe appeEiam’ or had gene ‘zo mee‘l‘ him. The i’esiimony of Kaidim P.W.2 clearly shows flea? fl‘ie appeilcm' was no“? even on visi‘i'irig i‘er‘ms a‘i’ fheir house. As held in Smfe af/I‘zifi V. Ba/u 2§0§ Sugar‘eme Caur‘i‘ Cases 66??) 2?G (Para E4), i‘he a‘efence or£ A:ialse implicai‘ien due Ta previous animosi‘iy ‘i'hus dearly nega‘lives The defence of conserri’ faker} by fhe appellant The evidence clearly shows ‘E'l'sm" moi-her of The prosecu?rix had sen? her on a cycle To bring Soyabeen chunks from The Khan Shop and *rhe opeellon‘r had forcibly *mken i'ine prosecu‘i'rix fo 'ri‘ie school room offer she gave her cycle To PraTop. Thus There is no maTeriai on record To show ThaT The prosecui’rix had consenfed 1‘0 i‘he sexual infercourse. 11. The burden *ro prove l'lm'l‘ age of The proeecui‘rix on fi'ie dare of occurrei‘ice was iess #hon i6 years is on ‘i‘l'ie prosecu’rion. The evidence oir’ i‘he pareni's is 'i'l'ie besf evidence for deferminal'ion of i'heroge of The prosecu’rrix. If “rhere is cogen? and reliable evidence :m record 1'0 prove i'he age of ihe prosecui'rix on 'ihe dafe of occurrence, fhe opinion of The RoéiologisT who conéucTed The ossificoTion TesT‘ ThoT The prosecuTrix was wiThin range of i5 To i7 years of age would noT be sufficienT and binding upon The courT To discard ocuiar evidence, a/sz/eee/ //‘// m 7Mw u e was heio‘ by 1'he Apex Cour‘r in Vishnu Ail’as Undrya y, Sfm‘e 0f Makarasfrfm (206$) 1 SCC (Chi) 217’. The opinicm of *rha Radiologist since he is no? a wi‘mess of fcici is mereiy “r9 assisf fine. Cour? and is reaiiy of an advisary char-ac‘i-er and' noi‘ biwing on fhe wi‘i'nesses cf fact The iegaiiy permissible margin of error- of fwo years on ei'rher side, inheren‘i in if, shows 'i'ha'r if is merely an esi'imm‘ion of age, n0? of binding na'mr‘e and wouH no'r o‘isiodge omi evidence of paren‘rs uric? ofher reievam‘ mai'er-iai on record regarding age of ‘rhe prosecu’rrix, if ‘ihe same is r-eiiabie and s'i'ood urirebui'i‘ed. 12. The pi‘osecui‘ion neii‘her proved The repori’ of ossi§iccfion nor examined ihe §adiologis+ Dr. 6eorge. Learned 5essions Judge asked Dr. Sahgim Tirkey P.W.8 ‘ro give an opihion on ‘rhe basis of fhe repar'? of Radioiogisi'. However, Dr. Sangria Tirkey P.W.8 was ho? oi Rodioiogisf and i’hus no? on exper‘i’ f0 give (my opinion as fo The age of fhe prosecufrix. In her estimcrrion ifseif she had, whiie examining fhe prosecufrix, given her age as 13 years vide reporf Ex.P.18. Seizure memo Ex.P.8 of fhe bir‘i‘h regisfer of fhe prosecu‘i'rix moim'ained by ‘rhe Koi'wor of Viiiage Bhandri ciearly reveaied i‘haf da'i‘e of birfh of rhe prosecufrix was eh‘rered Therein as 26.11.2991. £3. The prosecu'rrix P.W.1 had aiso sfafed Tha'r she was aged i3 years on fhe dare of occurrence. Her mo'rher Koidina P.W.2 had also deposed caregoricolly fha'l' fhe prosecufrix was aged only 13 years. The fes‘l'imony of The prosecu‘rrix revealed fhaf she was s‘z'udying ih class VIII. Cross-examina‘l'ion of Kaldina P.W.2 also revealed Thal' fhe prosecui‘rix had never failed in any class. The learned Sessions Judge, while recording evidence of ‘l‘he prosecufrix, had also made an es'l'ima‘l'ion of the age of fhe prosecufrix as 13 years. To summarize,/ /4// foiiowing mafer‘iuE was avaiiabie on record regarding fhe age of fhe rosecu‘l'r‘ix: a) In The esfima‘ficn of The learned Sessions Judge while recording har‘ evidence on 10.1.2006 ale. a‘Heas? six mom'hs affer‘ The occurrence The age of the ’prosecu‘h‘ix was esfimn'red a1' 13 year's. b) There was a posi‘i'ive asseri'ion by Dr. $angi'm Tirkey P.W’8 in her repor? EX.P.19 offer examining fhe prosecm‘rix on 287.2005 The? The age of rhe prosecu‘frix was 13 years. c) The seizure memo of birfh regis'rer main‘mined by Ko‘i’war of vi§!ege Bhcmdri also menfioned ”rho? da‘l’e of birth of the prosecu‘rrix was recorded as 26.11.1991 meaning fhereby fhaf fhe prosecu’rrix was befween 14- 'fo i5 years of age; d) There was a posi‘i‘ive asserfion by Kaidina P.W.2 fhaf fhe prosecufrix was aged 13 years which was whoiiy unrebu'i'fed in cross—examination. e) The Tesfimimy of The prosecufrix P.W.1 and Kaidina P.W.2 was whoiiy unrebu‘rfed fhm‘ fhe prosecufrix was s‘rudying in class VIII and had never failed in any ciass. Even if if is presumed fha‘r fhe prosecufrix was admif‘l’ed in Ciass—I a? fhe age of 5 years, her age on fhe dafe of occurrence wouid be 13 years, as she should be sfudying in class VII fhen. f) No suggesfion was given by The defence during cross-examinafion of fhe prosecufrix or her mofher Kaidina P.W.2 fhaf fhe prosecufrix was aged more Than 16 years. g) Dr. Sangi‘r‘a Tirkey P.W.8 no? being a Radiologisf was nof an experf ‘l'o opine on ’i'he basis of fhe Radiological examinafion reporf. 14. In ‘i'his View of The mafi’er, fhe learned Sessions Judge commi‘r‘i’ed an error in drawing a conclusion merely on fhe basis of The findings recorded by Dr. Sangi‘i‘a Tirkey P.W.8 regarding fhe p devebpmanf m‘ seconéury sexuai characfers (2f The prosecu‘i'rix and ‘i'he unproved documenf Le. ‘fhe osséficm’ion 1'23? repor? 141a? her age was move 1'x‘qan 16 years. 15. The am! and ummpeachable evidence §ed by The prosecufion rami‘ing “r0 age 0f The prosecufr'ix ‘rhus establishes fha‘r T§¢e prosecU‘fr-ix was aged less Than 16 years on fhe dafe of occurrence. in ”Ms view of ihe ma‘Her, her con$ent if any in The sexuai infercourse by 'rhe appeiiam‘ was whoiiy imma‘i'eriai under clause sixfhiy of Seci'ion 375 IRC. ' 16‘ in Tiais view of 'i’he ma‘rfer‘, convic‘i’ion of fhe appeiian'i' for ihe offences under Secfions 363, 366, 376(1) and 341 of I.P.C. and The sen-fence awarded ihereunder‘ are weii faunded and do no? caii for any inferference. 17. This appeai being devoid of meri? is dismissed. e: :: :16 K Sdl~ Judge i0 .08‘2G06 Dilip Raosaheb Deshmukh