HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri Ra'eev Gu ta C.J. & 'Hon’ble Shri Sunil Kumar Sinha, J. C‘riminal Apwl No. 850 of 2005 State of Chhattisgarh x Vs. Dolan Sethia JUDGMENT For consideratibn i , Sdl— Sunil Kumar Sinha Judge ‘' HON’BLE SHRI JUSTICE RAJEEV GUPTA / Post for Judgment z/5/09/2009 I / HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon’ble Shri Raieev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha. J. Criminal Appeal No.850l2005 State of Chhattisgarh, Through Station House Officer P.S. Ajak, Jggdaipur, District Bastar (C.G.) Versus Dolan Sethia S/o Jayaman Sethia, aged about 25 years, R/o Chote Murma, P.S. Parpa, Tehsii Jagdaipur, ‘ District Bastar (C.G.) Appellant u *3 Respondent Appeal under Section 378 (1) of the Code of Criminal Procedure Appearance: Mr. Sudhir Bajpai, Dy. Government Advocate for the State/appeiiant. Mr. Avinash K. Mishra, Counsel for the respondent. JUDGMENT (/§09-2009) the Court was delivered by Following judgment of Sunil Kumar Sinha, J. (1) Being aggrieved with the judgment of acquittal dated 14th May 2004 passed in S.T. No.439/2003 by the Special Judge under Scheduled “Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Special Act”), Bastar at Jagdalpur, the State has filed this appeal. @ @ Criminal Appeal No.850/2005 (2) The facts, briefly stated, are as follows: The respondent/accused was charged with the offences punishable under Sections 363, 366 and 376(1) IPC and Section 3(1) (xii) of the Special Act. The prosecution came with a case that the prosecutrix (PW-8), who was below the age of 18 years, was abducted by the accused/respondent in the evening of 23.05.2003. He took her from village Gudiya to Bijlipara, which is at a distance of 6—7 kms. and thereafter, she was subjected to forceful sexual intercourse by him. Learned Special Judge recorded the findings that the prgsecution could not establish that the prosecutrix was below 18 years of age on the date of incident; she willfully accompanied the accused/respondent; and she was a consenting party to the sexual intercourse. Therefore, the aforesaid offences would not be made out. The Special Judge also held that it was not a case of obtaining consent by the accused/respondent by using his dominating position to exploit the prosecutrix sexually, therefore, the offence under the Special Act would also not be made out. (3) Mr. Sudhir Bajpayee, learned Dy. Government Advocate appearing on behalf of the State, argued that the Special Judge erred in law in holding that the prosecution could not establish that the prosecutrix was below 18 years of age and that she was a consenting party and further that it was not a case falling under Section 3 (1 )( xii) of the Special Act. (4) On the other hand, Mr. Avinash K. Mishra, learned counsel appearing on behalf of the accused/respondent, opposed these arguments and supported the judgment passed by the Special Judge. (5) We have heard learned counsel for the parties at length and have also perused the records of the Sessions Case 7/ / -M . 3 w) Criminal Appeal No.850/2005 (6) So far as age of the prosecutrix is concerned, it has been deposed by the prosecutrix that her date of birth is 10.05.1986, according to which, she would be aged about 1,7 years 13 days on the date of the incident. The prosecutrix has not given basis of her date of birth. She deposed that she had studied up to VIII standard, but no certificate from the school showing her such date of birth has been proved on record. Guji @ Gujri Bai (PW-9) is the mother of the prosecutrix. According to her evidence, the prosecutrix was admitted in the school at the age of 7 years and she had studied up to Class Vlll. She also deposed that she has left the studies three years back. The outcome of this evidence would be that the t prosecutrix was aged about 18 years on the date of her evidence, which was recorded on 07.05.2004. We may also note that in para 3 of her cross-examination, she admitted that she is illiterate and the date of birth. of the prosecutrix would have been mentioned by the school teachers on their own assessment. Therefore, it cannot be said that the mother of the prosecutrix was very much sure about the age of the prosecutrix. The other evidence of age is the Ossification Test Report (Ex-P/1 ), which was conducted by Dr. Govind Singh (PW-1). He deposed that according to the Ossification Test conducted by him on 02.06.2003, the age of the prosecutrix was in between 16-19 years. (7) In appreciation of above evidence, we do not find that the prosecution has proved that the prosecutrix was below 18 years of age on~the date of the incident. Therefore, the finding of the Special Court cannot be interfered on this account. 4 @ Criminal Appeal No.850/2005 ‘(8) So far as conduct of the prosecutrix is concerned, she deposed that “the accused/respondent was previously known to her. On 23.05.2003, at about 5:00 p.m., he met he_r in village Gudiya. She had gone to attend the marriage of her sister in village Gudiya. The accused took her from village Gudiya to Bijlipara. He took her to the house of Raidhar. Accused/respondent prepared the meals and they took the meals. They had taken the meals at about 10:00 pm. Thereafter, in the night, the accused/respondent committed sexual intercourse two times. In the mornil'tgf, the accused/respondent took her and left her on the way in between Bijlipara and village Gudiya”. She lodged the report (Ex-P/1) in & the concerned Police Station on 01.06.2003. She had given explanation that due to fear, she could not lodge the report earlier. lt is ’on this evidence of the prosecutrix, the learned Special Judge held that she was a consenting party. We find that the prosecutrix accompanied the . accused/respondent all alone and they travelled a distance of 7 k'm; she did not make any compliant to Raidhar or any other person in the way; she participated in preparation of meals in the house of Raidhar and they also stayed in his house in the night and even she did not raise alarm, when the accused/respondent committed sexual intercourse against her, that too, for two times. The entire conduct of the prosecutrix and the manner in which she allowed the accused/respondent to commit sexual intercourse would show that she was a consenting party with him. Therefore, the finding of the Special Judge appears to be reasonable. . (9) So far as the offence under Section 3(1) (xii) of the Special Act is concerned, that cannot be said to have been made out in this case. Section 3(1) ’(xii) provides that whoever, not being a member of a s @D Criminal Agpeal No.850/2005 Scheduled Caste or a Scheduled Tribe, being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have ' otherwise agreed, shall be punishable with imprisonment as provided in the said Section. In the present case, we do not find any evidence that the accused/respondent was in a position to dominate the will of the prosecutrix and he had used that position to exploit her sexually to which she would not have otherwise agreed. In this case, though the prosecutrix was Belonging to Scheduled Tribe, but since she was a consenting party, the provisions of Section é(1) (xii) of the Special Act would not be $ . attracted. r ‘ (10) For the foregoing reasons, we find no illegality or infirmityin the judgment passed by the Special Judge. (11) The appeal has no merit and the same is liable to be dismissed shyna .1 —‘ l l i l l W<f and is accordingly dismissed. _,,,77 r i , ,. a , V» Sd/- 5 ‘ Chief Justice j, 3d] ‘ 1 Sunil Kumar Sinha J ’ Judge Judge ‘ W