HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 2414 of 1999
1. Man Singh Gond son of Dhaneshram alias Baya Mehra aged
about 24 years, R/o Hathband, Police Station Newra,
District Raipur, CG
1. State of Madhya Pradesh (Now Chhattisgarh) through Police
Station Bhatapara, District Raipur.
For Appellant – Shri Anil Singh Rajput, Advocate.
For Respondent – Smt. Madhunisha Singh, PL
Hon’ble Shri Justice Pritinker Diwaker
Judgment on Board
This appeal is directed against the judgment and order dated
31.08.1999 passed by Additional Sessions Judge Baloda Bazar,
District Raipur in Sessions Trial No. 296/1990 convicting the
accused/appellant under Sections 363, 366 and 376 IPC and
sentencing him to undergo rigorous imprisonment for three years
with fine of Rs. 500/- u/s 363; rigorous imprisonment for five years
with fine of Rs. 500/- u/s 366 and rigorous imprisonment for seven
years with fine of Rs. 1000/- u/s 376 IPC, plus default stipulations.
2. Case of the prosecution in brief is that on 17.07.1990 the
accused/appellant eloped the prosecutrix (PW-3) and ultimately
she was recovered from Dongargarh in the company of
accused/appellant on 28.07.1990. During this period they visited
various places such as Bilaspur, Howra, Bhilai, Durg, Rajnandgaon
etc. On 28.07.1990 FIR Ex. P-16 was lodged by father of the
prosecutrix namely Ganesh Prasad Tiwari alleging that the
accused/appellant allured away his daughter (prosecutrix). Based
on this report, offence under Sections 363 and 366 IPC was
registered against the accused/appellant. She was medically
examined by Dr. (Smt.) Vrinda Mandge (PW-16) who gave her
report Ex. P-16-A. Prosecutrix was also examined radiologically by
Dr. S.C. Vishnoi (PW-16) vide x-ray report Ex. P-17.
Accused/appellant also underwent medical examination by Dr. P.
Mukundan (PW-8) vide report Ex. P-7. After completion of
investigation, charge sheet was filed by the police for the offence
punishable under Sections 363, 366 and 376 IPC followed by
framing of charges accordingly.
3. So as to hold the accused/appellant guilty, prosecution has
examined 18 witnesses in support of its case. Statement of the
accused/appellant was also recorded under Section 313 of the
Code of Criminal Procedure in which he denied the charges levelled
against him and pleaded his innocence and false implication in the
4. After hearing the parties, the trial Court has convicted and
sentenced the accused/appellant as mentioned above in paragraph
No.1 of this judgment.
5. Counsel for the accused/appellant submits as under:
(i) That there is inordinate delay in lodging the FIR.
(ii) That conduct of the prosecutrix in visiting several places,
staying in hotel and some house and then submitting herself to the
accused for sexual intercourse without offering any protest or
making complaint to anyone for a period of 10 days demonstrates
that she was a consenting party to the act of the
(iii) That there is no conclusive evidence as to the prosecutrix
being minor on the date of incident.
(iv) That though as per the x-ray report the radiologist has
assessed the age of the prosecutrix as 15-16 years at the relevant
time but at the same time keeping in mind the genealogy,
nourishment and climatic factors he has also given her probable
age in between 18 and 19 years.
(v) That the transfer certificate Ex. P-5 mentioning the date of
birth of the prosecutrix as 12.12.1975 cannot be a basis to
determine her age as the author of the same has not been
examined by the prosecution.
(vi) That the medical report Ex. P-16 also does not support the
case of the prosecution.
6. On the other hand, counsel for the respondent/State supports
the judgment impugned and submits that the findings recorded by
the Court below convicting the accused/appellants under Sections
363, 366 and 376 IPC are strictly in accordance with law and there
is no infirmity in the same.
7. Heard counsel for the parties and perused the evidence on
8. Prosecutrix (PW-3) has stated in the Court statement that
the accused/appellant conveying his love towards her took her to
Bilaspur and they both stayed there in a hotel. At Bilaspur, the
accused/appellant is stated to have committed forcible sexual
intercourse with her and then taken her to Dongargarh where the
police apprehended them. According to this witness, the
accused/appellant had threatened her of life in case she refused to
accompany him. According to her, she did not know her date of
birth but the year of birth has been stated as 1976. In cross-
examination she is stated to have visited Bilaspur, Howra, Bhilai,
Durg, Rajnandgaon; stayed in a hotel at Bilaspur and in the house
of acquaintance of the accused at Howra; enjoyed movie and went
to the studio for photography with the accused. Dr. (Smt.) Vrinda
Mandge (PW-16) is the witness who medically examined the
prosecutrix and gave her report Ex. P-16 stating that she did not
notice any mark of struggle on her body; two fingers easily entered
her vagina, hymen was old torn, no injury was found on private
part. She has further stated that no definite opinion could be given
regarding commission of rape on the prosecutrix. Dr. S.C. Vishnoi
who is also marked as PW-16 is the witness who radiologically
examined the prosecutrix has stated that the age of the
prosecutrix at the relevant time was 15-16 years. In cross-
examination he however has opined her age in between 18 and 19
years looking to the nourishment, genealogy and climatic factors.
Prem Shankar Bajpai (PW-7) is the witness who has proved the
transfer certificate Ex. P-5 in which the date of birth of the
prosecutrix has been mentioned as 12.12.1975 and that way her
age at the relevant time comes to 14 year and 07 months. This
witness however stated that the said certificate has been issued on
the basis of the school register which has not been produced in the
Court. According to him, he never made any entry in the said
register. Dr. P. Mukandan (PW-8) is the witness who medically
examined the accused/appellant and gave his report Ex. P-7
stating that he was capable of having sexual intercourse. D.K.
Sinha (PW-18) is the investigating officer who has duly supported
the case of the prosecution.
9. Before adverting to the question of consent on the part of
the prosecutrix, this Court deems it appropriate to first decide her
age on the date of incident – whether minor or otherwise.
Prosecutrix has not been able to disclose her exact date of birth.
She has just given the year of birth as 1976 but that too without
anything in support. None of her dearest ones including mother,
sister and uncle could disclose her correct age at the relevant time.
Though the transfer certificate Ex. P-5 mentioning the date of birth
of the prosecutrix as 12.12.1975 has been filed by the prosecution
but none of the witnesses could establish as to on what basis such
entry was made. School teacher (PW-7) from whom the register
was seized has stated that the certificate (Ex.P-5) was issued by
him on the basis of entries made in the register by some other
teacher posted then in the school. Further, the radiologist (PW-16)
has stated that age of the prosecutrix at the relevant time was 15-
16 years but at the same time he has given an opinion that her
age could also be in between 18 and 19 years looking to the
nourishment, genealogy and climatic factors. The teacher making
entry in the school register has however not been examined by the
prosecution. Thus from the material gathered by the prosecution it
could not be established conclusively that on the date of incident
the prosecutrix was minor particularly when the radiologist has
given her probable age as 18-19 years also at the relevant time.
10. Now the second and last question to be decided is whether
the abduction of and sexual intercourse with the prosecutrix was
per force or consensual? Evidence reveals that on 17.07.1990 the
prosecutrix left the Poha Mill in the company of the
accused/appellant and visited several places such as Bilaspur,
Howra, Bhilai, Durg, Rajnandgaon etc. and she was recovered from
Dongargarh on 28.07.1990 i.e. after about 10 days. Evidence
further discloses that during this period they stayed in a hotel at
Bilaspur and in a house at Howra and enjoyed sexual intercourse
many a time. Had all that been really against the wishes and
without the consent of the prosecutrix, she could have narrated her
tale to the people coming across during this long period but no
attempt in this regard appears to have been made and a false
picture of her being taken away and subjected to forcible sexual
intercourse by the accused/appellant was painted only after the
police recovered her from Dongargarh in the company of the
accused. Furthermore, medical evidence also does not support the
case of the prosecution as the doctor examining the prosecutrix
has clearly stated in her evidence that there was no external or
internal injury on her body, two fingers easily entered her vagina
and the hymen was old torn.
11. In view of the aforesaid discussion, the findings recorded
by the Court below convicting the accused/appellant under
Sections 363, 366 and 376 IPC are not based on due appreciation
of the evidence on record and therefore liable to be struck down.
Appeal is therefore allowed, judgment impugned is hereby set
aside and the accused/appellant is acquitted of the charges
levelled against him. Being already on bail, he needs no order to be
set free etc. and the bonds so furnished stand discharged.