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Aashiq Khan And Ors vs State 2 Cra/2690/1999 Hemant And … on 21 February, 2018

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

——————————————————————————————————

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
2

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.

3

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
4

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
5

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
6

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
7

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
8

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

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