AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.74 of 2000
Judgment Reserved on : 28.11.2017
Judgment Delivered on : 21.2.2018
1. Aashiq Khan, S/o Sayyed Ali, aged 19 years, resident of Idgah Para,
Sakti, P.S. Sakti, District Janjgir-Champa
2. Rajesh Singh, S/o Badri Singh Gond, aged 21 years, resident of
Kanchanpur, Sakti, P.S. Sakti, District Janjgir-Champa
—- Appellants
versus
The State of Chhattisgarh, through the District Magistrate Janjgir-
Champa (Bilaspur), Chhattisgarh
— Respondent
——————————————————————————————————
For Appellants : Shri Arun Kochar, Advocate
For Respondent/State : Smt. Smita Ghai, Panel Lawyer
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Hon’ble Shri Justice Arvind Singh Chandel
C.A.V. JUDGMENT
1. This appeal is directed against the judgment dated 25.11.2000
passed by the Additional Sessions Judge, Sakti, District Bilaspur in
Sessions Trial No.133 of 2000 convicting and sentencing each of
the Appellants as under:
Appellant Conviction Sentence
Appellant No.1, Under Sections Rigorous Imprisonment for 2
Aashiq Khan 363, 366 and 376 years, 3 years and 7 years
of the Indian Penal and fine of Rs.1,000/-,
Code Rs.2,000/- and Rs.3,000/-,
respectively, with default
stipulation
Appellant No.2, Under Sections Rigorous Imprisonment for 2
Rajesh Singh 363 and 366 of the years and 3 years and fine
Indian Penal Code of Rs.1,000/- and
Rs.2,000/-, respectively with
default stipulation
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2. Facts of the case, in brief, are that on 13.1.2000 at about 11:00-
12:00 O’clock in the night, Appellant No.1, Aashiq Khan wrote a
letter (Ex.P1) to the prosecutrix (PW1), aged about 16 years asking
her to come out of her house when he reaches out of her house
and gives her a call. He also wrote in the letter that thereafter he
will take her away with him and if she does not come with him, he
will spoil her life. He also wrote that tranquilizer tablet (a sleeping
pill), which he had given to her, be administered on her parents
before her coming out of the house. The prosecutrix did so in fear.
She wrote a letter (Ex.P2) to her parents and left both the letters in
her room and when Appellant No.1, Aashiq Khan gave her a call
from outside at about 12 O’clock in the night, she came out of her
house. From there, both the Appellants took her to Village
Masaniya on a cycle. Thereafter, Appellant No.1, Aashiq Khan
took her to Village Kotmi and there he committed sexual
intercourse with her till 15.1.2000. The matter was reported by
Machhander (PW5), father of the prosecutrix vide First Information
Report (Ex.P6). On 16.1.2000, the prosecutrix was recovered
along with Appellant No.1, Aashiq Khan from the house of aunt
(Mausi) of Appellant No.1 at Village Kotmi. The prosecutrix and
Appellant No.1 were medically examined. Statements of witnesses
were recorded under Section 161 of the Code of Criminal
Procedure. On completion of the investigation, a charge-sheet
was filed against the Appellants for offence punishable under
Sections 363, 366, 376, 109 of the Indian Penal Code. Charges
were framed against Appellant No.1, Aashiq Khan under Sections
363, 366 and 376 of the Indian Penal Code and against Appellant
No.2, Rajesh Singh under Sections 363 and 366 of the Indian
Penal Code.
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3. To rope in the Appellants, the prosecution examined as many as 20
witnesses. Statements of the Appellants/accused were also
recorded under Section 313 Cr.P.C. in which they denied the guilt
and pleaded innocence. One witness has been examined in their
defence.
4. After Trial, the Trial Court convicted and sentenced the Appellants
as mentioned in the first paragraph of this judgment. Hence, this
appeal.
5. Learned Counsel appearing for the Appellants argued that the
prosecutrix was a consenting party. At the time of incident, she
was aged more than 18 years. Appellant No.1, Aashiq Khan and
the prosecutrix had a love affair due to which she herself left her
house because her marriage was fixed somewhere else. As per
the statement of Dr. S. Rajmala (PW17), her medical opinion given
vide Ex.P20 and the ossification test report (Ex.P23), age of the
prosecutrix was found to be about 19 years. Since the prosecutrix
was a consenting party and she herself had come out of her house
at her own will, the offence alleged against the Appellants is not
made out. Reliance has been placed on 2011 (1) Criminal Cases
Patrika (SC) 138 (Alamelu v. State) and 2010 (II) Criminal Cases
Patrika (SC) 69 (Sunil v. State of Haryana).
6. On the contrary, Learned Counsel appearing for the State
supported the impugned judgment of conviction and sentence.
7. I have heard Learned Counsel appearing for the parties and
perused the material available on record minutely.
8. The prosecutrix (PW1) has stated that on the date of incident at
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about 5:00 p.m., Appellant Aashiq Khan gave her a letter (Ex.P1)
and a sleeping pill (tablet) asking her to administer the pill on her
parents and come out of her house in the night. He had
threatened her also that if she would not come out of her house, he
will spoil her life. She has further stated that she left a letter
(Ex.P2) at her house and gave her parents the said sleeping pill by
mixing the same in vegetable. Her parents slept at about 12:00
O’clock in the night. Both the Appellants reached outside her
house and called her to come out of her house with her clothes
early. She came out of her house with her clothes. Thereafter, she
and the Appellants went to Village Masaniya on a cycle. They
reached there at about 1:00 a.m. From there, Appellant No.2,
Rajesh Singh returned back in the night itself. At about 7:00 a.m.,
she along with Appellant No.1, Aashiq Khan went to Village Kotmi
by a bus. At Village Kotmi, they stayed at the house of aunt
(Mausi) of Appellant No.1 for 3 days. She has further stated that
Appellant No.1 committed forcible sexual intercourse with her
during all the said three nights. Thereafter, police came there and
recovered her vide Ex.P3. In her cross-examination, she has
admitted that Appellant No.1 was visiting her house for the last 3-4
months. In paragraph 18, she has categorically admitted that her
father was not aware of her love affair with Appellant No.1, though
in paragraph 19, she has further stated that Appellant No.1 had
spread a rumour about her love affair with him. She has further
admitted that after sleeping of her parents and on being asked by
both of the Appellants, she had come out of her house with her
clothes and went away with the Appellants on a cycle. She has
further admitted that she did not tell anybody at Village Masaniya
that she was abducted by the Appellants. She has further stated
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that while going from Village Masaniya to Village Kotmi in the bus,
she did not tell anything to any passenger of the said bus. She has
further admitted that at Village Kotmi, aunt of Appellant No.1
provided her and Appellant No.1 a single room and she was living
in that room along with Appellant No.1 at her own will. In
paragraph 43, she has further admitted that from Village Masaniya
to the bus-stand, she and Appellant No.1 went on their feet and if
she wanted to return home, she could return, but she did not do so.
9. Shantibai (PW2), mother of the prosecutrix, has stated that they
were sleeping in the night. When they woke up in the morning,
they found two letters (Ex.P1 and P2) and their daughter (the
prosecutrix) was not present at their house. She has further stated
that the prosecutrix was found after 4 days of her leaving the
house. Machhander (PW5), father of the prosecutrix has also
made the same statement.
10. Ram Singh (PW4) has stated that at about 12:30 a.m., the
prosecutrix and Appellant No.1 had come to his house. On being
asked, the prosecutrix had told him that she had come to marry
Appellant No.1.
11. Jaitun Bi (PW8) has stated that Appellant No.1 had come to her
house along with a girl at about 5:00 p.m. On being asked, they
told her that they had come for hanging about and staying there for
one night. Next day, they went to the house of aunt of Appellant
No.1.
12. Khatun Bi (PW9), aunt (Mausi) of Appellant No.1 has stated that
Appellant No.1 and the prosecutrix had come to her house and had
stayed there for one night. Thereafter, police had come there and
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recovered them. Shyamlal Soni (PW7) and Dinanath (PW15) are
the witnesses before whom the police had recovered the
prosecutrix vide Ex.P3. Vishwanath (PW10) and Shankar (PW11)
are the witnesses before whom the police had seized the letters
(Ex.P1 and P2) vide Ex.P8. Dr. D.D. Mishra (PW14) examined
Appellant No.1 and gave his report (Ex.P12) in which he found that
Appellant No.1 was capable of committing sexual intercourse.
13. Dr. S. Rajmala (PW17) examined the prosecutrix on 17.1.2000 and
gave her report (Ex.P20) in which she found signs of recent sexual
intercourse with the prosecutrix. She also found that vagina of the
prosecutrix was admitting two fingers but with complaint of pain.
The doctor has further stated that she had found laceration below
the vagina and she had also found a small tear in the hymen of the
prosecutrix. She has further stated that during the course of
examination of the prosecutrix, she had told her that she had not
changed her clothes. During examination, she found stains of oil
on the petticoat of the prosecutrix. On being asked from the
prosecutrix, she had told her that on being asked by Appellant
No.1, she had applied oil on her vagina before commission of
sexual intercourse with her.
14. Assistant Sub-Inspector G.P. Shriwas (PW16) and Sub-Inspector
M.L. Patel (PW20) have partly investigated the offence in question.
15. From a minute scrutiny of the evidence available on record, it is
clear that the prosecutrix was acquainted with Appellant No.1 from
before the occurrence and Appellant No.1 had been visiting her
house from before 3-4 months of the incident. It is also clear that
the prosecutrix had herself come out of her house with her clothes
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after giving her parents sleeping pill and had gone away along with
the Appellants at her own will. She went along with the Appellants
to Village Masaniya on a cycle. She stayed at Village Masaniya
with Appellant No.1 for a night. From there, she went to the bus-
stand along with Appellant No.1 on their feet. Thereafter, both of
them went to Village Kotmi by a bus. During this period, she had
ample opportunity to disclose about her abduction, but she did not
make any effort. At Village Kotmi also, she stayed along with
Appellant No.1 in a single room of the house of his aunt in the night
at her own will. On being asked by Appellant No.1, she also
applied oil on her vagina before commission of the sexual
intercourse with her. From the evidence available on record, it is
established that the prosecutrix had left her house at her own will
and she was a consenting party to the act of commission of sexual
intercourse with her.
16. According to the prosecution, on the date of incident, age of the
prosecutrix was 16 years. No birth certificate of the prosecutrix is
placed on record. On the date of examination before the Court, the
prosecutrix has stated her age to be of 16 years. Her mother
Shantibai (PW2) and father Machhander (PW5) have also stated
her age to be of about 16 years, but they had not been able to
state her date of birth. In voter-list of 1999 (Ex.D1), the age of the
prosecutrix is mentioned as 18 years. Though her father has
stated that Ward Parshad Ishwar, in their absence, had obtained
signature of the prosecutrix on a paper and thereby he got her
name added in the voter-list and since the period of objection to
the voter-list had expired, even having knowledge, they could not
get the error corrected. Dr. S. Rajmala (PW17), who examined the
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prosecutrix on 17.1.2000, has categorically stated in paragraph 3
of her examination-in-chief that the prosecutrix had told her that
her first menstruation had come at the age of 12 years, i.e., 7 years
prior to her present medical examination. From this also, it is
established that the prosecutrix, on the date of incident, was more
than 18 years of age. Apart from this, ossification test of the
prosecutrix was also conducted by the prosecution. The
ossification test report of the prosecutrix (Ex.P23), which has been
admitted by the Appellants under Section 294 of the Code of
Criminal Procedure, clearly shows that the prosecutrix was aged
more than 19 years. From the foregoing, it is established that the
prosecutrix, on the date of incident, was not below the age of 18
years.
17. Thus, no case is made out against the Appellants.
18. In the result, the appeal is allowed. The impugned judgment of
conviction and sentence is set aside. The Appellants are acquitted
of the charges framed against them.
19. It is reported that the Appellants are on bail. Their bail bonds shall
continue for a further period of six months from today in terms of
the provisions contained in Section 437A of the Code of Criminal
Procedure.
20. Record of the Court below be sent back along with a copy of this
judgment forthwith for information and necessary compliance.
Sd/-
(Arvind Singh Chandel)
JUDGE
Gopal