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Devising vs State Of Chhattisgarh 37 … on 19 July, 2018

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

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