,-U ..-..J .,,r'a'."' f^'*^ I ]> S. sjgsas HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT: (In Jail) RESPONDENT: Criminal Appeal No.1186 of 2003 Israfil alias Nasib Khan son of Habib Khan, aged about 42 years, R/o Street Chirmiri, P.S. Bagnadi, Distt. Rajnandgaon (C.G.) . Versus State of Chhattisgarh, Through the • District Magistrate, Rajnandgaon {Criminal appeal under Seetion 374 (2) read with Section 401 ofthe Code of Criminal Procedure, 1973} ^j. Present: Mr. Y.C. Sharma, counsel forthe appellant. Mr. V.V.S. Myrthy, Deputy Advocate General for the State/ respondent. DivisionBench: - Hon'ble Wlr. T.P. Sharma & Hon'ble Mr. R.L. Jhanwar. JJ ORAL JUDGMENT (18-1-2010) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 13-10-2003 passed by the Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act'), Rajnandgaon, in Special Case No.32/2003 whereby & whereunder learned Special Judge after holding the appellant guilty for commission of offence of rape, murder & concealing the evidence of criminal case, convicted the appellant under Sections 376, 302,201 ofthe I.P.C., 3 (1) (xii) &3 (2 (v) oftheAct, and sentenced him to undergo imprisonment for life & pay fine of Rs.25,000/-, in default of payment of fine to further undergo R.l. for one year; to undergo imprisonment for life & pay fine of Rs.25,000/-, in default of payment pf fine to further undergo R.l. for one year; to undergo R.l. for seven years & pay fine of Rs.25,000/-, in default of payment of fine to further undergo •f••{•(,.. ^•y ^'.•.£-iii'^^^^^S R.l. for one year; to undergo R.l. for five years & pay fine of Rs.25,000/-, in default of payment of fine to further undergo R.l. for one year; and to undergo imprisonment for life & pay fine of Rs.25,000/-, in default of payment of fine to further undergo R.l. for one year, respectively. 2. Judgment is impugned on the ground that without any credible and clinching evidence the Court below has convicted & sentenced the appellant and thereby committed illegality. «,; 3. Case of the prosecution, in britef, is that the appeltant was having ilticit reiation with Kum. Laxmi Bai Gond (since deceased), who was aged about 15 years on the date of incident i.e. 14-12-2002 and priorto 14-12- 2002. On the fateful day of 14-12-2002 between 5 a.m. & 8.30 a.m. the accused committed rape upon the deceased in the vacant house of Kanasram at Village Chirchari, Police Station Bagnadi, Distt. Rajnandgaon, knowing well that the deceased is a member of Scheduled Tribe and committed homicidal death amounting to murder of the deceased. After the commission of death, the accused concealed the evidence of criminal case by advising the persons to dispose of the dead body without intimating to thepolice. The accused was found near the place of incident just after the commission of incident. Merg was recorded vide Ex.P-16 and on the basis of merg, F.I.R. was lodged vide EK.P-17. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-1 inquest over the dead body of the deceased was prepared vide Ex.P-2. The dead body was sent for autopsy to the Assistant Surgeon, Churia, vide Ex.P-15 and the autopsy was conducted by a team-of doctors namely, Dr. Madhuri Khute (PW- 14), Dr.A.K. Bansore (PW-18) & Dr. S.K. Ahuja (PW-21) vide Ex.P-9. No external injury was found over the body of the deceased, size of uterus was about 6-8 weeks and no definite opinion of the cause of ..•.^^•.,, death was possible. Two slides of vaginal smear of the deceased were taken. Query was made to the doctors and they have answered the query vide Ex.P-10 that there was chance of conception and the deceased was accu^tomed to sexual intercourse. Spot map was prepared by the Investigating Officer vide Ex.P-12. Patwari prepared spot map vide Ex.P-11 . Mark sheet of the deceased Ex.P-5 was seized from Mansingh vide Ex.P-3. One copy was seized vide Ex.P-14. Ex.P-6 - photograph of the deceased including photograph of the accused & •'f. Devantin (PW-10) was reoovered from Subhash vide Ex.P-7. Letter written by the deceased was seized from Manik vide Ex.P-13. Sealed articles after autopsy were seized vide Ex.P-14. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Special Judge under the Act, Rajnandgaon. 4. In order to prove the guilt of the appellant, the prosecution has examined as many as twenty one witnesses. The accused wasexamined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence & false implication. After affording opportunity of hearing to the parties, learned Special Judge has convicted & sentenced the appellant in the aforesaid manner. 5. We have heard learned counsel for the parties, perused the judgment impugned and record of the Court below. 6. Learned counsel for the appellant vehemently argued that in the present case, the prosecution was required to prove that the accused has committed the aforesaid offence on the ground that the deceased is a member of Scheduled Tribe, the appellant has committed homicidal death of the deceased amounting to murder and has committed sexual intercourse with her against her consent & will or that the appellant has ^si-ts ":;i. ...«'@@& i "11'/ b ';^"?<^ ii*^^rf-?:^£ Os.-^ssa committed sexual intercourse with the deceased whose age was below 16 years on the date of commission of the offence, but the prosecution has not proved any of the ingredients of the offence. The prosecution has also not proved ttie fact that homicidal death of the deceased has been caused and age of the prosecutrix/deceased was below 16 years on the date of incident. 7. On the other hand, learned State counsel opposed the appeal and submitted that the prosecution has proved the case beyond all •'•<- reasonable doubts. , 8. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 1 9. In the present case, death ofthe deceased is not disputed by the parties, but homicidal death of the deceased has been disputed by the appellant. Autopsy was conducted by a team of doctors consisting of Dr. Madhuri Khute (PW-14), Dr. A.K. Bansore (PW-18) & Dr. S.K. Ahuja (PW-21) who have speciflcally deposed that they have conducted autopsy on the body of the deceased, but they are not in a position to opine the cause of death because there was no injury found over the body of the deceased. The prosecution has not led any other evidence to show that death of the deceased is homicidal in nature. In absence of any evidence relating to homicidal death of the deceased, especially on the basis of evidence of the doctors, it is difficult to hold that death of the deceased was homicidal in nature. 10.As regards the commission of sexual intercourse upon the deceased, the prosecution has not ledany direct evidence, but has led evidence to show that the appellant was having illicit relation with the deceased and the appellant was found near the place of incident which was a lonely place and vacant house of Kanasram where the dead body of the '^::: ..'• '^ '...at^t-ffi, 3 '••<;»,.. W>!i«K-'ie sifis^ WK' ^I^V:^ 1StSi^^-; ilHlT' IIJS;i; llffiil 8!1 llli;f 1 [11 y '^ deceased was found. Although the chemical analysis report is not available with the file, but para 27 of the judgment reveals that as per the F.S.L. report, presence of human sperm was found in the vaginal slides of the deceased which is suggestive of the fact that sexual intercourse has been committed upon the deceased. 11.0ne mark sheet Ex.P-5 has been seized from Mansingh vide Ex.P-3 in which date of birth of the deceased is mentioned as 20-7-1986, but the prosecution has not adduced any evidence to show that on what basis •'<- the date of birth was mehtioned in the mark sheet Ex. P-5 and who has informed the school relating to date of birth of the deceased. The prosecution has examined Mansingh (PW-1), father of the deceased, who has proved the seizure of mark sheet Ex.P-5, but has not stated a single word relating to age of the deceased, inter alia, the prosecution has adduced evidence to show that the deceased was having ilticit relation with the appellant which shows that the deceased was consenting party in case of sexual intercourse and therefore, the prosecution was under obligation to prove that on the date of commission of the offence, age of the deceased was below 16 years, but in absence of such evidence, it is difficult to hold that the accused has committed sexual intercourse upon the deceased without her will & consent. 12.According to the evidence of Mansingh (PW-1), Heeraman (PW-2), Manikram Shyam (PW-3), Bhavana Bai (PW-4), Basantram (PW-5), Kanasram Patel (PW-6),Palturam (PW-8), Ramesh (PW-9) &Agnu (PW- 11), on the fateful day between 5 a.m. & 6 a.m. the accused was present near the house of Kanasram which was lying vacant and he came out from the room where the dead body of Laxnm Bai was found. It also ^reveals from the evidence of other.witnesses that when the villagers isn l!li" '•:s-*^," ':'^, *i ' fiilS:^-^^-~ :^;'1, ^ y s ''t^y came to know that dead body of Laxmi Bai is lying inside the room, they triedto lodge report and the appellant told them that there is no necessity of lodging the F.1.P. relating to trivial incident. If these facts are admitted in their face value, it may be inferred that the appellant was present in the room where the body of the deceased was lying and the appellant may be fastened with the liability of commission of sexual intercourse with the deceased, but inabsence of the evidence of homicidal death of the deceased, no'liability of commission of murder can be fastened upon the appellant. In absenc^of proof of age of the deceased that too pf below 16 years at the time of incident and the factum of absence of consent & will; no inference would legally be possible against the appellant that the appellant has committed rape upon the deceased. The prosecution has not led any evidence to show that the appellant has committed any offence against the deceased on the ground that she is a member of Scheduled Tribe. In absence of commission of offence, the question ofconcealing the evidence ofcriminal case does not arise. 13. In the present case, even if the entire evidence adduced on behalf of the prosecution is admitted as gospel truth, conviction of the appellantfor the aforesaid offence would not be possible. The Court below has convicted & sentenced the appellant as aforementioned, but has not considered the most material aspect of the case that the prosecution has not proved homicidal death of the deceased, age of the prosecutrix/deceased and absence of will & consent for commission of the offence of rape, and thereby the Special Judge has committed illegality. 14.Virtually, thepresent case is a case of no evidence. Judgment of conviction & order of sentence passed by the Court below is without evidence, as such, conviction & sentence of the appellant is not sustainable under the law. Soma 15.For the foregoing reasons, the appeal deserves to be allowed and the judgment impugned deserves to be set aside. Consequently, the appeal is allowed. Conviction & sentence of the appellant under Sections 376, 302, 201 ofthe I.P.C., 3(1) (xii) & 3 (2 (v) ofthe Act arehereby set aside and the appellant is acquitted of the said charges. The appellant is in _£ystody. He be released forthwith, if not required in any other case. Sd/- T.P. Sharma Sd/- R.L. Jhanwar Judge K' m '••