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Ishwar Lal vs The State Of Madhya Pradesh Now … on 3 April, 2018

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.2427 of 1999

Judgment Reserved on : 4.1.2018

Judgment Delivered on : 3.4.2018

Ishwarlal, son of Shankarlal, aged 30 years, resident of Mudkhusra, P.S.
Deori, District Durg, M.P. (now Chhattisgarh)
—- Appellant
versus

State of Madhya Pradesh (now Chhattisgarh) through S.H.O., Police Station
Deori, District Durg
— Respondent
——————————————————————————————————
For Appellant : Shri P.P. Sahu, Advocate
For Respondent/State : Shri Sameer Behar, Panel Lawyer

——————————————————————————————————

Hon’ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal is directed against the judgment dated 31.8.1999

passed by the Additional Sessions Judge, Balod in Sessions Trial

No.78 of 1998 convicting and sentencing the Appellant as under:

Conviction Sentence

Under Section 376(1) of the Rigorous Imprisonment for 7
Indian Penal Code years
Under Section 506 Part II of Rigorous Imprisonment for 1
the Indian Penal Code year

2. Case of the prosecution, in brief, is that on 2.9.1997, the

prosecutrix (PW5), aged about 15 years lodged First Information

Report (Ex.P3) in Police Station Deori alleging that prior to 5

months from 2.9.1997 when she had gone to the agricultural field,
2

having seen her alone there, the Appellant caught her, caused her

to fall down and after removing her clothes, committed forcible

sexual intercourse with her. On opposing, he gagged her mouth

and also threatened her of life on being disclosed the incident to

anyone. Due to fear, she did not disclose the incident to anyone.

Thereafter also, many times, he committed forcible sexual

intercourse with her. When she became pregnant, she told the fact

to her parents. Her parents called a village meeting in which the

Appelalnt did not appear. Therefore, she lodged the FIR (Ex.P3).

She was medically examined by Dr. Alpana Agrawal (PW1). She

gave her report (Ex.P1) in which she stated that the prosecutrix

was habitual to sexual intercourse and she was carrying pregnancy

of 24 weeks. Regarding age of the prosecutrix, she opined that the

prosecutrix was aged about 15-16 years. She advised for her

examination by a Radiologist regarding her age. But, no

radiological examination report is available on record. Regarding

date of birth of the prosecutrix, school leaving certificate (Ex.P4)

was obtained from Headmaster Humanlal Sahu (PW4). According

to Ex.P4, the date of birth of the prosecutrix is 3.12.1982.

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 Appellant for offence punishable

under Sections 376 and 506B of the Indian Penal Code. Charges

were framed against him under Sections 376 and 506 Part II of the

Indian Penal Code.

3. To rope in the accused/Appellant, the prosecution examined as

many as 12 witnesses. Statement of the Appellant was also

recorded under Section 313 of the Code of Criminal Procedure in
3

which he denied the circumstances appearing against him,

pleaded innocence and false implication. No witness has been

examined in his defence.

4. The Trial Court convicted and sentenced the Appellant as

mentioned in the first paragraph of this judgment. Hence, this

appeal.

5. Learned Counsel appearing for the Appellant argued that the

prosecutrix was a consenting party. On the date of incident, she

was aged below 16 years is not proved. Dr. Alpana Agrawal (PW1)

has admitted that on the date of medical examination of the

prosecutrix, she had become 16 years of age. Even after being

advised by Dr. Alpana Agrawal for ossification test of the

prosecutrix, no ossification test report is available on record.

Regarding birth of the prosecutrix, statements of her father and

mother, namely, Vishal (PW7) and Narbadiya (PW9), respectively

are contradictory. Thus, it is not established that the age of the

prosecutrix was below 16 years. Since she was a consenting

party, no case is made out against the Appellant.

6. Per contra, 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 record with due care.

8. The prosecutrix (PW5) has stated that on the date of incident at

about 10:00 a.m., she was working in the agricultural field. The

Appellant came there, caught her and caused her to fall down and
4

after removing her skirt and underwear, forcibly committed sexual

intercourse with her. She has further stated that on being refused,

he did not stop and threatened her of life. Due to fear, she did not

disclose the incident to anyone on the date of incident. She has

further stated that after 8 days of the incident, she again went to

the agricultural field to work. On that day also, the Appellant came

there and even after refusing, he committed forcible sexual

intercourse with her. Due to fear, this time also, she did not

disclose the incident to anyone. When she was carrying

pregnancy of about 5 months and on being asked by her parents,

she disclosed about the incident. She has further stated that a

village meeting was called. Thereafter, she lodged the FIR

(Ex.P3).

9. Vishal (PW7), father of the prosecutrix and Narbadiya (PW9),

mother of the prosecutrix have stated that when the prosecutrix

was carrying pregnancy of about 5 months and on being asked,

she told about the incident. Thereafter, a village meeting was

convened, but the Appellant did not appear in the said meeting.

10. Savitribai (PW6) has also stated that when the prosecutrix was

carrying pregnancy of about 5 months, she came to know about

the pregnancy of the prosecutrix. A village meeting was convened

in which the Appellant did not appear.

11. Vijay Kumar (PW11) has also stated that a village meeting was

convened. He has stated that in the said meeting, the Appellant

had admitted that pregnancy of the prosecutrix was from him. But,

this fact is not mentioned in case diary statement of this witness

and he admitted that this fact was stated by him for the first time in
5

the Court itself.

12. Head Constable S.K. Hariharno (PW3) has stated that he recored

the FIR (Ex.P3). Dr. Alpana Agrawal (PW1) has stated that she

examined the prosecutrix on 2.9.1997 and gave her report (Ex.P1)

in which she opined that the prosecutrix was habitual to sexual

intercourse and she was carrying pregnancy of 24 weeks.

13. From the above, it is clear that the alleged incident had taken place

5-6 months prior to the date of lodging of the FIR (Ex.P3). Though

the prosecutrix has stated the commission of sexual intercourse

with her to be forceful and she has stated that her non-disclosure

about the incident to anyone was due to fear yet from her

statement, it is clear that as alleged by her, the Appellant had

committed sexual intercourse with her many times. During this

period, she had many opportunities to disclose about the incident,

but she did not disclose the incident to anyone. When she became

pregnant and she was carrying pregnancy of about 5 months, she

first time disclosed the incident and that too on being asked by her

parents. From the above, it is clear that the prosecutrix was a

consenting party.

14. Since the prosecutrix was a consenting party, determination of her

age is essential.

15. As per the statement and opinion of Dr. Alpana Agrawal (PW1), the

prosecutrix was more than 16 years of age on the date of

examination and despite advice of Dr. Alpana Agrawal for

ossification test of the prosecutrix, no such test was conducted.
6

16. Headmaster Humanlal Sahu (PW4) has stated that as per the

transfer (school leaving) certificate (Ex.P4) of the prosecutrix, her

date of birth is 3.12.1982. He has admitted that at the time of

admission of the students, the date of birth his recorded in the

school record as told by the parents of the students.

17. Vishal (PW7), father of the prosecutrix has stated that the

prosecutrix took birth in the year 1982 and he had got entered her

date of birth in the school. This witness has been unable to state

about the date and month of birth of the prosecutrix. In paragraph

6 of his cross-examination, he has stated that his eldest son took

birth in the year 1977, elder daughter Kamla took birth in the year

1979 and younger daughter (the prosecutrix) took birth in the year

1982. Contrary to this, Narbadiya (PW9), mother of the prosecutrix

has stated that her all 3 children took birth with an interval of 1½

years. If the testimony of Narbadiya (PW9) is considered that her

all the children took birth with an interval of 1½ years, the

prosecutrix would have taken birth in the year 1981. Vishal (PW7)

has stated that Kotwar of the village would have also recorded

date of birth of the prosecutrix, but no Kotwari Book/Register has

been produced on record by the prosecution.

18. From the above, it is clear that except the school leaving certificate

(Ex.P4), no other documentary evidence is available on record

regarding the date of birth of the prosecutrix. Though the entry

regarding the date of birth of the prosecutrix in the school was got

recorded by her father Vishal (PW7) yet he has not been able to

state about the date and month of birth of the prosecutrix. What

was the actual gap between the birth of their 3 children, statements
7

in this regard of Vishal (PW7), father of the prosecutrix and

Narbadiya (PW9), mother of the prosecutrix are contradictory.

19. From the above, it is not established beyond reasonable doubt that

the prosecutrix was below 16 years of age on the date of incident.

Since she was a consenting party and it is not established that she

was below 16 years of age on the date of incident, the alleged

offence is not made out against the Appellant.

20. Consequently, the appeal is allowed. The conviction and sentence

imposed upon the Appellant is set aside. The Appellant is

acquitted of the charges framed against him.

21. 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

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