SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Prakash vs State 2 Mcrc/2175/2018 Mahesh Ram … on 26 April, 2018

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.1487 of 2000

Judgment Reserved on : 30.1.2018

Judgment Delivered on : 26.4.2018

Prakash, son of Aaskaran Gadha, aged about 19 years, resident of Village
Patpar, P.S. Chowki Chichaula, District Rajnandgaon, M.P. (now
Chhattisgarh)
—- Appellant
versus

The State of M.P. (now Chhattisgarh) through Police Station Churia, District
Rajnandgaon
— Respondent
——————————————————————————————————
For Appellant : Ms. Sharmila Singhai with
Shri Sanjay Agrawal, Advocates
For Respondent/State : Shri Rajkumar Jaiswal, Panel Lawyer

——————————————————————————————————

Hon’ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal is directed against the judgment dated 26.5.2000

passed by the Sessions Judge, Rajnandgaon in Sessions Trial

No.24 of 2000 convicting and sentencing the Appellant as under:

Conviction Sentence

Under Section 376 of the Rigorous Imprisonment for 7 years,
Indian Penal Code and fine of Rs.400/- with default
stipulation
Under Section 366 of the Rigorous Imprisonment for 5 years,
Indian Penal Code and fine of Rs.300/- with default
stipulation
Under Section 363 of the Rigorous Imprisonment for 2 years,
Indian Penal Code and fine of Rs.200/- with default
stipulation

2. Facts of the case, in brief, are that on 6.7.1999, First Information

Report (Ex.P1) was lodged by Rajbhan Singh (PW8), maternal
2

grandfather of the prosecutrix (PW3), aged about 14 years alleging

that the prosecutrix was living with him. In the night of 4.7.1999,

she was studying at home till 11:00 p.m.. Next day, at about 5:30

a.m., she was not found at home and she had absconded. A boy

of the village, namely, Prakash (the Appellant) had also absconded

from the village. Two love letters written by the Appellant were

found in the books of the prosecutrix. Both the letters were seized

vide Ex.P6. On 22.8.1999, the prosecutrix was recovered from the

hut of the Appellant situated at Nagpur (Maharashtra). Statements

of the prosecutrix and other witnesses were recorded under

Section 161 of the Code of Criminal Procedure. The prosecutrix

was medically examined by Dr. Jyoti Sadani (PW6). She gave her

report (Ex.P13) in which she stated that she did not find any injury

on the body of the prosecutrix. She further stated that she could

not give any definite opinion regarding rape with the prosecutrix.

Secondary sexual characters of the prosecutrix were fully

developed. Two fingers were easily being inserted in the vagina of

the prosecutrix. Regarding age of the prosecutrix, birth registration

register (Ex.P14) has been submitted by the prosecution in which

her date of birth is mentioned as 1.11.1984. On completion of the

investigation, a charge-sheet was filed against the Appellant for

offence punishable under Sections 363, 366 and 376 of the Indian

Penal Code. Charges were framed against him under Sections

363, 366 and 376 of the Indian Penal Code.

3. To rope in the Appellant, the prosecution examined as many as 11

witnesses. Statement of the Appellant was also recorded under

Section 313 of the Code of Criminal Procedure in which he denied

the guilt and pleaded innocence. No witness has been examined
3

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 from the

evidence on record, it is clear that there was a love affair between

the prosecutrix and the Appellant and due to that relationship, the

prosecutrix herself left her home and absconded with the

Appellant. On the date of incident, she was aged more than 16

years. There is nothing on record to show that she was below 16

years of age on the date of incident. Since she was a consenting

party and her age is not proved to be below 16 years on the date of

incident, no case is made out against the Appellant. Reliance was

placed on ILR 2017 Chhattisgarh 2241 (Vinod Kumar v. State of

Chhattisgarh), AIR 1988 SC 1796 (Birad Mal Singhvi v. Anand

Purohit) and (2010) 1 SCC 742 (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 record minutely.

8. Constable Narendra Kumar (PW1) is the witness who had taken

the diary of unnumbered FIR (Ex.P1) recorded in Police Chowki

Chichaula to Police Station Chhuria for registration of a numbered

FIR, which was registered there as Ex.P2. Rajbhan Singh (PW8),

maternal grandfather of the prosecutrix has stated that on

4.7.1999, the prosecutrix was studying at home till 11:00 p.m. Next
4

morning, at about 5:30 a.m., she was not found at home. He also

came to know that one boy of the village (the Appellant) was also

not found in the village. On making search in the books of the

prosecutrix, two love letters were found which were written by the

Appellant. He reported the matter vide Ex.P1 and vide seizure

memo (Ex.P6), both the letters (Articles A and B) were seized.

Kejauram (PW2), uncle of the prosecutrix has also supported the

above statement of Rajbhan Singh (PW8) and stated that the

police had seized the letters (Articles A and B) vide Ex.P6. He has

further stated that after one month of the incident, he had gone to

Nagpur along with police officials where the prosecutrix was found

in the house of the Appellant. He and the police officials returned

along with the prosecutrix.

9. Dr. Jyoti Sadani (PW6) medically examined the prosecutrix on

23.8.1999. Her report is Ex.P13. She has stated that she did not

find any internal or external injury on the body of the prosecutrix

nor on her private part. Two fingers were easily being inserted in

the vagina of the prosecutrix. Secondary sexual characters were

fully developed. She found no positive evidence regarding recent

sexual intercourse with the prosecutrix. She has stated that no

definite opinion could be given regarding rape with the prosecutrix.

The Appellant was medically examined by Dr. A.K. Bansod (PW4).

His report is Ex.P8. Dr. Bansod has stated that in the examination,

he found the Appellant capable of performing sexual intercourse.

10. The prosecutrix (PW3) has stated that in the night at about 1:00

a.m, when she came out of her house to attend the call of nature,

the Appellant came there and gagged her mouth with a

handkerchief. When she tried to shout, he threatened her of life
5

and threatening her, he took her to the hill of Dongargarh, where,

even after her refusal, he committed sexual intercourse with her.

Thereafter, he took her to Dongargarh Railway Station. They

stayed at the railway station for the whole night. Next morning,

they went to Nagpur by train. At Nagpur, the Appellant went out in

search of a job. Thereafter, they began to live together there.

During that period, the Appellant kept on committing sexual

intercourse with her. She has admitted that the letters (Article A

and B) were written by the Appellant. The fact that on 4.7.1999, in

the night, the Appellant, threatening her, took her away with him is

not mentioned in her case diary statement (Ex.D3). In paragraph

17, she has admitted that she stayed with the Appellant at Nagpur

for about 40 days, but she never made any complaint to anyone at

Nagpur regarding the incident.

11. Inspector Nicolas Khalkho (PW7) has stated that he recorded

numbered FIR (Ex.P2) on the basis of Ex.P1. Assistant Sub-

Inspector S.R. Dhuware (PW10) is the witness who investigated

the offence in question. Constable Samaru Ram (PW11) has

stated that on 22.8.1999, he had gone to the hut of the Appellant

situated at Nagpur. On his reaching to the hut, the Appellant had

run away from there. He had found the prosecutrix in the hut. He

had taken her back from there.

12. Though the prosecutrix (PW3) has stated that in the night at about

1:00 a.m., gagging her mouth with a handkerchief, the Appellant

took her away forcibly from her house to the hills of Dongargarh

and committed sexual intercourse with her in the hills of

Dongargarh and thereafter also so many times at Nagpur without

her will and consent yet her above statement is not reliable
6

because from the statements of her uncle Kejauram (PW2) and her

maternal grandfather Rajbhan Singh (PW8), FIR (Ex.P1) and the

love letters (Articles A and B) seized vide Ex.P6, it is clear that

there was a love relation between the prosecutrix and the Appellant

and due to the said relation, she herself left her house and went

away with the Appellant. Had she been taken away forcibly and

sexual intercourse would have been committed with her without

her will and consent, she would have disclosed the incident during

journey from her village to Nagpur and during her 40 days’ stay

with the Appellant at Nagpur to nearby people as she had ample

opportunity to do so but she did not disclose the incident to anyone

nor did she even shout or raise any alarm and she was recovered

from the hut of the Appellant situated at Nagpur. Thus, she was a

consenting party to the incident.

13. The prosecutrix (PW3), in her Court statement, has stated that her

date of birth is 1.11.1984. Kejauram (PW2) and Rajbhan Singh

(PW8) have also stated that the date of birth of the prosecutrix is

1.11.1984. Mother and father of the prosecutrix have not been

examined by the prosecution. Though Kejauram (PW2) has stated

that the date of birth of the prosecutrix is 1.11.1984 yet he has

been unable to state the date of birth of his own four children.

Similarly, Rajbhan Singh (PW8) has admitted that birth of the

prosecutrix had taken place at Village Patharatola. He has

admitted that he did not know who recorded the birth entry of the

prosecutrix in the kotwari register.

14. Head Constable Bhikham Singh (PW9) is the witness who brought

the birth registration register (Ex.P14). In the said register, the

date of birth of the prosecutrix is mentioned as 1.11.1984. As per
7

the entries made in Ex.P14, the name of informant is mentioned as

P.R. Chandrawanshi and place of birth of the prosecutrix is

mentioned as Jaisinghtola. Bhikham Singh (PW9) has admitted

that he is unable to explain about who got the entries recorded. As

per the statement of Rajbhan Singh (PW8), maternal grandfather

of the prosecutrix, the birth of the prosecutrix took place at Village

Patharatola. Bhikham Singh (PW9) has categorically stated that

as per entries of Ex.P14, birth place of the prosecutrix is not Village

Patharatola, but is Village Jaisinghtola. Statements of mother and

father of the prosecutrix under Section 161 of the Code of Criminal

Procedure have not been recorded by the prosecution nor their

statements are recorded in the Court. Why were their statements

not recorded is not explained by the prosecution.

15. From the above, it is clear that except the entries of Ex.P14, there

is no other documentary evidence available regarding date of birth

of the prosecutrix. No kotwari register was seized. No ossification

test of the prosecutrix was conducted by the prosecution. It is

settled legal position that the date of birth mentioned in the school

register or any such document has no evidentiary value unless the

person who made the entries or who gave the date of birth is

examined. Merely proof of such document would not tantamount

to proof of all the contents or the correctness of date of birth stated

in the document. In Birad Mal Singhvi case (supra), the Supreme

Court has observed thus:

“14. …..   If   the   entry   in   the   scholar’s   register

regarding   date   of   birth   is   made   on   the   basis   of
information   given   by   parents,   the   entry   would   have
evidentiary value but if it is given by a stranger or by
8

someone else who had no special means of knowledge of
the date of birth, such an entry will have no evidentiary
value.  Merely because the documents such as extract of
School   Register,   mark   list   or   certificate   of   Education
Board   etc.   are   proved,   it   does   not   mean   that   the
contents of documents are also proved.   Mere proof of
such   documents   would  not   tantamount   to  proof  of  all
the contents or the correctness of date of birth stated in
the documents.   …..”

The above observation has been reiterated by the Supreme Court

in Sunil case (supra).

16. In the instant case, from the record, it appears that there is no

conclusive proof of legally admissible evidence in relation to age of

the prosecutrix which could suggest that on the date of incident

she was minor. Though oral statements have been made by the

prosecutrix, her maternal grandfather and uncle that she was minor

at the relevant point of time and as per the entries of birth

registration register (Ex.P14) her date of birth is 1.11.1984 yet the

prosecution has failed to prove as to on what basis the said date of

birth of the prosecutrix was recorded in Ex.P14. Mother and father

of the prosecutrix have not been examined by the prosecution.

Name of the informant in Ex.P14 is mentioned as P.R.

Chandrawanshi. No evidence is available on record that the name

of father of the prosecutrix is P.R. Chandrawanshi. Even

ossification test of the prosecutrix has not been done to determine

her age.

17. From the above discussion, I find that no case is made out against

the Appellant.

9

18. Consequently, the appeal is allowed. The impugned judgment of

conviction and sentence is set aside. The Appellant is acquitted of

the charges framed against him.

19. It is reported that the Appellant is on bail. His 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

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation