NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 103 of 2015
Devising S/o Madhav Kashyap Aged About 22 Years R/o Village
Baghmohalai, P.S. Bhanpuri, Revenue And Civil Distt. Baster
C.G.
—- Appellant
Versus
State Of Chhattisgarh Through The Police Of Police Station
Bhanpuri, Reveue And Civil Distt. Baster C.G.
—- Respondent
For Appellant : Shri Sandeep Dubey, Advocate.
For Respondent/State : Shri Rahul Tamaskar, Panel Lawyer.
Hon’ble Shri Ajay Kumar Tripathi, C.J.
Hon’ble Shri Pritinker Diwaker, J
Judgment On Board By Justice Pritinker Diwaker
19/07/2018:
This appeal arises out of the judgment of conviction and order of
sentence dated 5.11.2014 passed by the Special Judge
(POCSO)/Additional Sessions Judge (FTC) Bastar at Jagdalpur in
Special Sessions Trial No.10/2014 convicting the accused/appellant
under Sections 363, 366 of IPC 6 of Protection of Children from
Sexual Offences Act, 2012 and sentencing him to undergo RI for five
years, fine of Rs.200/-; RI for seven years, fine of Rs.200/- and RI for
twelve years, fine of Rs.500/- with default stipulations respectively.
02. As per prosecution case, on 3.1.2014 FIR (Ex.P/9) was lodged
by the prosecutrix (PW-6) alleging therein that on 18.11.2013 while she
was returning from market, the accused/appellant met her on the way,
he expressed his desire to marry her and then took her in a taxi to
Jagdalpur. She states that from Jagdalpur she was taken to Nagarnar
where they stayed in the house of friend of the appellant. According to
the prosecutrix, she was subjected to physical relation by the appellant
in the said house. She has further states that she was made to stay in
the said house for about 20 days under threat of life and thereafter, on
7.12.2013 she was taken to the house of aunt of the appellant where
they stayed for about 15 days. She states that during all this period she
was subjected to sexual intercourse by the appellant against her wish
and without her consent under the threat of her life. On 21.12.2013 the
appellant took her to his house where they stayed till 2.1.2014 when
she was dropped to her house. Based on this report, offence under
Sections 363, 366, 376 506 of IPC was registered against the
appellant. The prosecutrix was medically examined by PW-2 Dr. Sarita
Mahobia vide Ex.P/3 on 3.2.2014 who did not notice any external or
internal injury on the person of the prosecutrix, her hymen was old torn,
her vagina admitted two fingers easily and that she was habitual to
sexual intercourse. The appellant was also medically examined vide
Ex.P/1 by PW-1 Dr. BD Rai who found him capable of performing
sexual intercourse. After investigation charge sheet was filed against
the appellant under Sections 363, 366, 376, 506 of IPC and Sections 4
6 of Protection of Children from Sexual Offences Act, 2012. The trial
Court charged the appellant under Sections 363, 366, 376(2)(n), 506
Part-II of IPC and Section 6 of Protection of Children from Sexual
Offences Act, 2012.
03. So as to hold the accused/appellant guilty, the prosecution
examined as many as 11 witnesses. Statement of the
accused/appellant was also recorded under Section 313 of Cr.P.C. in
which he denied the circumstances appearing against him in the
prosecution case, pleaded innocence and false implication.
04. The trial Court after hearing counsel for the respective parties and
considering the material available on record, by the impugned
judgment convicted and sentenced the accused/appellant as
mentioned in para-1 of this judgment.
05. Learned counsel for the appellant submits as under:
that there is no legally admissible evidence on record showing
the prosecutrix to be minor on the date of incident.
that the prosecutrix remained in the company of the appellant for
more than two months and during this period she visited several
places without offering any resistance or protest, which itself
proves that she was a consenting party. This apart, she herself
admits in cross-examination that physical relation between them
was with her consent.
that the medical evidence also negates the possibility of forcible
sexual intercourse with the prosecutrix and suggests that the act
so committed was consensual one.
06. On the other hand, supporting the impugned judgment it has been
argued by the State counsel that conviction of the appellant is strictly in
accordance with law and there is no illegality or infirmity in the
judgment impugned warranting interference by this Court.
07. Heard counsel for the respective parties and perused the material
on record.
08. PW-1 Dr. BD Rai medically examined the appellant on 4.1.2014
and found him capable of performing sexual intercourse vide Ex.P/1.
PW-2 Dr. Sarita Mahobia did medical examination of the prosecutrix on
3.1.2014 vide Ex.P/3. According to her, she did not notice any external
or internal injury on the person of the prosecutrix, her hymen was old
torn, her vagina admitted two fingers easily and that she was habitual
to sexual intercourse. PW-3 Medharam, father of the prosecutrix, has
stated that the prosecutrix went missing, for which he lodged a report
and when the village meeting was called, it was attended by the
appellant also. He states that he was informed by the prosecutrix that
she was subjected to sexual intercourse by the appellant as a result of
which she became pregnant and that she was carrying pregnancy of
about five months. In cross-examination he admits that during the
period when the prosecutrix was missing she would talk to her sisters
over cell phone. PW-4 Dhurjomani has turned hostile. PW-5
Premchand Jha, Patwari, prepared the spot map Ex.P/6.
09. PW-6 prosecutrix has stated that while she was returning from
market, the appellant met her on the way, took her to Jagdalpur in a
taxi, kept her in the house of one Dhurjomani at Village-Upanpal for
twelve days where he had physical relation with her and thereafter he
took her to the house of his uncle at Lamekar where they stayed for
thirteen days and during this period also the appellant committed
sexual intercourse with her. She states that the appellant then took her
to his village – Bagmohlai, kept her there for eight days and during this
period also he established physical relation with her. However, when
the villagers informed her parents that she is there, her parents came
to take her back. She admits that she lodged report Ex.P/9. In cross-
examination she admits that while she was being taken by the
appellant from one place to another, she came across number of
people and that she used to talk with her parents and sisters on mobile
while she was living with the appellant. She admits that the physical
relation between them was with her consent.
10. PW-7 Raghunath Kashyap, school teacher, has proved Ex.P/13C
i.e. admission register wherein date of birth of the prosecutrix is
mentioned as 15.7.1999. However, he admits that no document in
relation to age of the prosecutrix was brought by her father while
admitting her in the school. PW-8 Nityanand John and PW-11 Saroj
Toppo, police personnel, assisted in the investigation. PW-9 Shambati
has turned hostile. PW-10 GP Panda, investigating officer, has
supported the prosecution case.
11. According to the prosecutrix on 18.11.2013 while she was
returning from market, the accused/appellant met her on the way and
on the pretext of marrying her took her in a taxi to Jagdalpur and
thereafter to various places where they stayed for a considerable
period and on 2.1.2014 he dropped her at her house. She states that
during this period the appellant had sexual intercourse with her on the
threat of her life, against her will and without her wishes. However, in
the Court she admits that the physical relation so established was with
her consent and wishes. She admits that while she was being taken by
the appellant from one place to another, she came across number of
people but did not disclose about such incident to any of them. She
also admits that during her stay with the appellant she used to talk to
her parents and sisters on cell phone. This fact has also been admitted
by her father (PW3 Mandharam). Her medical report (Ex.P/3) also
negates the possibility of any forcible sexual intercourse with her. Thus,
in view of the above oral and medical evidence, it stands proved
beyond all reasonable doubt that the prosecutrix was a consenting
party to the act committed by the appellant.
12. Now what remains to be seen is whether the prosecutrix was a
minor on the date of incident. From perusal of the record, we do not
find anything which could suggest that she was minor on the date of
incident. The prosecution has utterly failed to prove minority of the
prosecutrix. Though ossification report is there on record, according to
which she was aged in between 14 17 years, but the said document
has not been exhibited. Though according to the school admission
register Ex.P/13C, date of birth of the prosecutrix is mentioned as
15.7.1999, however, PW-7 Raghunath Kashyap, school teacher, has
admitted the fact that no document in relation to age of the prosecutrix
was brought by her father while admitting her in the school. As such,
there is no conclusive evidence to show that she was minor on the
date of incident. Being so, the benefit of doubt must be credited to the
appellant.
13. On the basis of aforesaid discussion, we are of the opinion that
the trial Court was not justified in holding the appellant guilty under
Sections 363, 366 of IPC and Section 6 of Protection of Children from
Sexual Offences Act and he deserves to be acquitted of the said
charges by giving him benefit of doubt.
14. In the result, the appeal is allowed. The impugned judgment is
hereby set aside, acquitting the appellant of all the charges leveled
against him by extending him benefit of doubt. He is reported to be on
bail, therefore, his bail bonds stand discharged and he need not
surrender.
Sd/ Sd/
(Ajay Kumar Tripathi) (Pritinker Diwaker)
Chief Justice Judge
Khan
