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Mukesh vs State Of C.G. 15 Wpt/2084/2011 … on 27 March, 2018

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.238 of 2002

Judgment Reserved on : 4.1.2018

Judgment Delivered on : 27.3.2018

Mukesh, S/o Jhaduram Yadav, aged about 18 years, R/o Railway Colony,
Bortalab, P.S. Bortalab, District Rajnandgaon, Chhattisgarh
—- Appellant
versus

State of Chhattisgarh through Police Station Bortalab, District Rajnandgaon,
Chhattisgarh
— Respondent
——————————————————————————————————
For Appellant : Shri Adil Minhaj, 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 20.2.2002

passed by the Special Judge under the Scheduled Castes and the

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

‘the Act of 1989’), Rajnandgaon in Special Case No.144 of 2000

convicting and sentencing the Appellant as under:

Conviction Sentence

Under Section 376(1) of On each count, Rigorous

the Indian Penal Code Imprisonment for 10 years and
(Two Counts) fine of Rs.5,000/- with default
stipulation
Under Section 3(1)(xii) of Rigorous Imprisonment for 5
the Act of 1989 years and fine of Rs.5,000/- with
default stipulation

2. Case of the prosecution, in brief, is that on 15.12.1998, First
2

Information Report (Ex.P1) was lodged by the prosecutrix (PW2),

aged about 15 years alleging that 1 year prior to lodging of the FIR,

mother of the Appellant had taken mother of the prosecutrix to

Nagpur for treatment. Sister of the Appellant was living in the

house of the Appelalnt along with her children. She was calling the

prosecutrix at the house of the Appellant for sleeping in the night.

One night, when the prosecutrix was sleeping in the house of the

Appellant, he came to her, gagged her mouth with a piece of cloth,

dragged her to another room and thereafter committed rape with

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

few days, the Appellant again caught her at his house and

committed rape with her. Thereafter, alluring her that he will marry

her, again committed sexual intercourse with her 2-3 times. Due to

this, she became pregnant. When she was carrying pregnancy of

about 7 months, she disclosed about the incident to her parents.

The family members of the prosecutrix asked the family members

of the Appellant to perform marriage of the Appellant with the

prosecutrix. On this, the family members of the Appellant

responded that after the birth of the child from the prosecutrix they

will take the prosecutrix with them to their house. On 12.10.1998,

child of the prosecutrix was delivered at the house of the Mama

(uncle) of the Appellant at Rajnandgaon. Thereafter, the Appelalnt

refused to marry the prosecutrix. On this, she lodged the FIR

(Ex.P1). Regarding date of birth of the prosecutrix, a Kotwari Book

(Ex.P6) was seized from Kotwar Nathuram (PW9) vide seizure

memo (Ex.P7). Medical examination of the prosecutrix was done

by late Dr. Jyoti Sadani (could not be examined due to her death)

and her report is Ex.P5. On completion of the investigation, a

charge-sheet was filed against the Appellant for offence punishable
3

under Section 376 of the Indian Penal Code and Section 3(1)(xii) of

the Act of 1989. Charges were framed against him under Sections

506B, 376(1) (Two Counts) and 417 of the Indian Penal Code and

Sections 3(1)(xii) and 3(2)(v) of the Act of 1989.

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

many as 10 witnesses. Statement of the Appellant was also

recorded under Section 313 of the Code of Criminal Procedure in

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

Appellant has been falsely implicated in the in case. There is no

conclusive evidence on record to prove guilt of the Appellant. The

prosecutrix became pregnant from any other person, not from the

Appellant. She has falsely implicated the Appellant. It was further

argued that both the prosecutrix (PW2) and Chandravati (PW1),

mother of the prosecutrix have admitted that as was asked by the

police officials to make a report, the prosecutrix lodged the FIR

accordingly. Both these witnesses have admitted that the police

officials had told them that if the report is lodged against a non-

tribal person, they will get money from the Government and,

therefore, they reported the matter against the Appellant. It was
4

further argued that even if it is accepted that the pregnancy of the

prosecutrix was from the Appellant, the prosecutrix was a

consenting party because she did not make any complaint nor did

she lodge any report prior to the birth of her child. The age of the

prosecutrix, on the date of alleged incident, was more than 16

years. Therefore, in these circumstances also, no offence 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 (PW2) has stated that her mother and mother of

the Appellant had gone to Nagpur for treatment of the mother of

the Appellant. She was sleeping in the house of the Appellant in

the night. One night, he came to her and deliberately scared her

and took her to the room of utensils and thereafter he committed

rape with her. Due to fear, she did not disclose the incident to

anyone. She has further stated that thereafter also, he committed

sexual intercourse with her 2-3 times due to which she became

pregnant. When she was carrying pregnancy of about 5-6 months,

her parents took her to the doctor. Thereafter, a village meeting

was called in which on being asked the Appellant refused to accept

that the pregnancy of the prosecutrix was from him. She has

further stated that thereafter she went to the house of Mama

(uncle) of the Appelalnt at Rajnandgaon for delivery of the child.
5

After 2 months from the delivery of the child, she return to her

village. Again a village meeting was called in which the Appelalnt

refused to accept that the child delivered by her was of his own.

Thereafter, she lodged the FIR (Ex.P1). In paragraph 4 of her

cross-examination, she has admitted that there was an old

acquaintance between her and the Appellant and the sexual

intercourse had taken place with their mutual consent. She has

further stated that the police officials had persuaded her that on a

report being lodged against a non-tribal person, money will be

given to her by the Government and on this persuading, she

lodged the FIR against the Appellant. She has further stated that

her family members had sent her to Rajnandgaon along with

Suresh and Shivkumar (not along with the Appellant) for abortion,

but delivery of the child took place at Rajnandgaon. She has

further stated that she had got name of father of the child recorded

as Chintu. In paragraph 3 of her cross-examination, she has

categorically stated that the financial aid from the Government has

been paid to her in part and she had given statement against the

Appelalnt because rest of the financial aid is to be paid to her after

the judgment.

9. Chandravati (PW1), mother of the prosecutrix has stated that when

her daughter (the prosecutrix) has stated that when the prosecutrix

was carrying a pregnancy of about 3-4 months she was taken to

the doctor where on being asked the prosecutrix took the name of

the Appellant as being responsible for making her pregnant.

Thereafter, they called village meeting twice. In both the meetings,

the Appellant refused about having any relationship with the

prosecutrix. In paragraph 14, she has stated that the prosecutrix
6

had taken the name of the Appellant on being asked forcefully. In

paragraph 20, she has categorically stated that the Appelalnt

refused to marry the prosecutrix saying that he was not responsible

for the pregnancy of the prosecutrix. In paragraph 21, she has

also stated that as was persuaded and told by the police officials,

the FIR (Ex.P1) was lodged and the statements were given to the

police and as was persuaded and told by the police officials, she

had given her statement in the Court.

10. Shatrughan (PW3), father of the prosecutrix, Rajendra Pal (PW4)

and K.D. Singh (PW5) are residents of Village Bortalab where the

prosecutrix was residing. All these three witnesses have stated

that in the village meeting, the prosecutrix had taken the name of

the Appellant responsible for making her pregnant, but the

Appellant had refused about having any relationship with the

prosecutrix.

11. The apparent age of the prosecutrix (PW2) recorded by the Trial

Court on the date of her examination in Court is 17 years. The

prosecutrix has not made any statement regarding her age. In

paragraph 4, she has categorically stated tht she was not aware of

her date of birth. She has further stated that her grandmother

resides in Village Pitepani, she took birth at Pitepani and she never

resided at Village Jatkanhar.

12. Chandravati (PW1), mother of the prosecutrix and Shatrughan

(PW3), father of the prosecutrix have not been able to state about

the date or year of birth of the prosecutrix. In paragraph 7,
7

Chandravati has stated that birth of the prosecutrix had taken place

in Village Bortalab. As per the Court statement of Kotwar

Nathuram (PW9) and the entires of Kotwari Book, the date of birth

of the prosecutrix is 2.4.1983 and her birth palce is Village

Jatkanhar and the entires ere recorded by one Punit. As stated

above, as per the prosecutrix, she had taken birth at Village

Pitepani, but as per the statement of her mother, the prosecutrix

took birth at Village Bortalab. Punit, who had made the relevant

entries regarding the date and place of birth of the prosecutrix has

not been examined by the prosecution. In these circumstances,

the Kotwari entries made vide Ex.P4 are not acceptable.

13. On minute examination of the above evidence, it is clear that the

FIR (Ex.P1) was lodged 2 months after taking birth of the child and

after 1 year of the alleged incident. From the evidence on record,

2 village meetings had taken place, but in both the meetings the

Appellant had refused about having any relationship with the

prosecutrix. Though birth of the child of the prosecutrix took place

in the house of Dhanesh (PW7), Mama (uncle) of the Appellant yet

as per the statement of Dhanesh (PW7), the prosecutrix was taken

to his house for delivery of the child by the elder brother of the

Appellant and the brother of the prosecutrix. It has not been stated

by Dhanesh (PW7) that the Appelalnt had taken the prosecutrix to

his house for delivery of the child nor has he stated that the

Appelalnt was having any relationship with the prosecutrix. From

the admission of the prosecutrix (PW2) and her mother

Chandravati (PW1), it is clear that the FIR (Ex.P1) against the

Appellant was lodged because they had been persuaded by the

police officials that if the report is lodged against a non-tribal
8

person, money will be given by the Government.

14. From the above, it is not proved beyond reasonable doubt that the

pregnancy of the prosecutrix was from the Appelalnt. Even if for

the sake of argument it is considered that the Appelalnt was

responsible for the pregnancy of the prosecutrix, the evidence on

record establishes that the prosecutrix was a consenting party. At

the relevant time, it is not proved that the prosecutrix was below 16

years. In these circumstances, the offence under Section 376(1) of

the Indian Penal Code and Section 3(1)(xii) of the Act of 1989 are

not proved beyond reasonable doubt.

15. 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.

16. 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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