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Jugnu @ Prem Lal vs The State Of Chhattisgarh 12 … on 27 March, 2018

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.2973 of 1998

Judgment Reserved on : 4.1.2018

Judgment Delivered on : 27.3.2018

Jugnu alias Premlal, son of Brijlal Mehra, aged about 22 years, resident of
Shiv Nagar, P.S. Tikrapara, District Raipur, M.P. (now Chhattisgarh)
—- Appellant
versus

State of Madhya Pradesh (now Chhattisgarh) through Police Station
Tikrapara, District Raipur
— Respondent
——————————————————————————————————
For Appellant : Shri Arun Kochar, Advocate
For Respondent/State : Shri U.K.S. Chandel, Panel Lawyer

——————————————————————————————————

Hon’ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal is directed against the judgment dated 23.11.1998

passed by the Special Judge under the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth

‘the Act of 1989’), Raipur in Sessions Trial No.91 of 1998 convicting

and sentencing the Appellant as under:

Conviction Sentence

Under Section 376 of the Rigorous Imprisonment for 7
Indian Penal Code years

2. Case of the prosecution, in brief, is that on 19.11.1997 at about

8:30 p.m., the prosecutrix (PW1), aged about 15 years, was alone

at her house and was watching programme on television. The
2

Appellant came to her house. He allured her to accompany him

out. On being refused, he threatened her of life and he took her

behind her house and committed forcible sexual intercourse with

her. Thereafter, he leaving her there, ran away. She returned

home. When her elder brother Hemlal (PW2) returned home, she

told him about the incident. Thereafter, on the same day, at about

11:10 p.m., she lodged First Information Report (Ex.P1) in Police

Station Tikrapara. She was medically examined by Dr. Pratibha

Chouhan (PW9). She gave her report (Ex.P18) in which she

opined that the prosecutrix was habitual to sexual intercourse and

she did not find any internal or external injury on her body. She

also reported that no definite opinion could be given regarding

recent sexual intercourse with the prosecutrix. Clothes of the

prosecutrix and the Appelalnt were seized in which stains of sperm

were found. Regarding date of birth of the prosecutrix, mark-sheet

(Ex.P14) of the prosecutrix was seized vide Ex.P7. In the said

mark-sheet, the date of birth of the prosecutrix is mentioned as

7.10.1982. Dakhil-Kharij (Admission-Transfer) Register was seized

vide Ex.P10 in which also the date of birth of the prosecutrix is

mentioned as 7.10.1982. 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 Section 376 of the

Indian Penal Code. Charge was framed against him under Section

376 of the Indian Penal Code.

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

many as 9 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 Trial

Court has found the age of the prosecutrix to be 16 years and 7

months on the relevant date. As per the evidence adduced by the

prosecution, it is proved that the prosecutrix was a consenting

party because when the Appellant had taken her along with him,

she did not raise any alarm nor did anybody see them going

together. Even after the incident, she did not disclose about the

incident to anybody. After the alleged incident, she sat keeping

mum at her house and she herself did not disclose about the

incident to her brother Hemlal (PW2). When Hemlal, getting

annoyed, slapped and asked her about where had she gone, then

she disclosed him about the incident. Since she was a consenting

party and was aged more than 16 years, therefore, 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 utmost circumspection.

8. The prosecutrix (PW1) has stated that on the date of incident at
4

about 8:00 p.m., she was at home and her younger sister Lata and

younger brothers Vinod and Virendra were also present at home.

She has further stated that on being knocked from outside, she

opened the door of the house. The Appellant was standing at the

door. He straightway gagged her mouth and took her behind her

house. After causing her to lay down, he committed sexual

intercourse with her. On being shouted, he threatened her that he

will kill her there itself. She has further stated that the Appellant

thereafter ran away from there and she also returned home.

Thereafter, when her elder brother Hemlal (PW2) returned home,

she disclosed him about the incident and thereafter she lodged the

FIR (Ex.P1). She denied the fact that the Appellant had called her

and after alluring her that he will marry her, had taken her away

with him. As per her Court statement, the Appellant had taken her

away by gagging her mouth. But, this fact is not mentioned in her

police statement. In paragraph 11, she has stated that the

Appellant had caused her to fall down and the place where he had

caused her to fall down was rocky, but no internal or external injury

was found on her body on her examination by Dr. Pratibha

Chouhan (PW9). In paragraph 12, she has stated that before her,

her brother Hemlal (PW2) had reached home and when he,

scolding, asked her about where had she gone and also slapped

her, then she disclosed him about the incident.

9. Hemlal (PW2), elder brother of the prosecutrix has also stated that

he returned home at about 9:00 p.m. At that time, the prosecutrix

was not present at home. She returned home after ½ – ¾ hour of

his return at home. At that time, she was weeping. On being

asked, she did not disclose about the incident. But, on being
5

scolded and beaten, she disclosed him about the incident that the

Appelalnt had taken her behind their house and committed forcible

sexual intercourse with her by threatening her. This witness has

admitted that behind his house, houses of Gomti and Jhadi Sahu

are also situated. Main road false in front of his house. Many

houses and shops are situated adjacent to his house which remain

open till about 10:00 p.m.

10. Dr. Pratibha Chouhan (PW9) has stated that she examined the

prosecutrix. She gave her report (Ex.P18) in which she found that

the prosecutrix was habitual to sexual intercourse. No internal or

external injury was found on the body of the prosecutrix. No

definite opinion could be given regarding recent sexual intercourse

with the prosecutrix.

11. Inspector D.S. Parihar (PW7) is the witness who investigated the

offence in question. Assistant Sub-Inspector J.N.Tiwari (PW8) has

stated that he partly investigated the offence in question. Vimla

Agrawal (PW5) is the witness who relates to Dakhil-Kharij Register,

which was seized vide Ex.P10. Since the Trial Court has already

found the age of the prosecutrix to be 16 years and 7 months and

this point has not been challenged by the State, no further

discussion is required regarding the age of the prosecutrix.

12. On minute examination fo the above evidence, it is clear that the

prosecutrix was a consenting party because as per her Court

statement, she had been taken behind her house by the Appellant

by gagging her mouth, but this fact is not mentioned in her case

diary statement. Her house is surrounded by many other house

and shops which remain open till about 10:00 p.m. But, nobody
6

saw them, which is not possible. From the statements of the

prosecutrix and her brother Hemlal, it is also clear that the

prosecutrix had returned home after ½ – ¾ hour of the return of her

brother Hemlal and she herself had not disclosed him about the

incident. When he got annoyed and slapped and beaten her, then

she disclosed him about the incident. Had the incident taken place

with her forcefully, she would have immediately disclosed the same

at her house at her own at the time of her return but she did not do

so. From the evidence on record, it is also clear that she stayed

with the Appellant for about 1 – 1½ hours and after the incident

when the Appellant went away, she did not raise any alarm about

the incident nor did she disclose the incident to anybody and

keeping mum, returned home. Even after returning home, she

herself did not disclose about the incident to her brother Hemlal.

When Hemlal got annoyed and beat her, then she disclosed him

about the incident. Therefore, it is clear that she was a consenting

party and since she was on the date of incident more than 16 years

of age, no case is made out against the Appellant.

13. In the result, the appeal is allowed. The conviction and sentence

imposed upon the Appellant is set aside. The Appellant is

acquitted of the charge framed against him.

14. 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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