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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved for Judgment on : 28.08.2018
Judgment delivered on : 10/09/2018
CRA No. 1027 of 2014
• Rajat Vaisnav S/o. Mukesh Vaishnav, Aged About 19 Years, R/o. Vill.
Darrabandha, Police Station Chichola, District Rajnandgaon C.G.,
Chhattisgarh
—- Appellant
Versus
• State Of Chhattisgarh Through P.S. Dongargaon, Distt. Rajnangaon
C.G., Chhattisgarh
—–Respondent
For Appellant : Shri Arun Kochar, Advocate
For Respondent/State : Shri Lav Sharma, Panel Lawyer
Hon’ble Shri Justice Rajendra Chandra Singh Samant
CAV Judgment
10/09/2018
1. This appeal has been preferred against judgment dated 09-10-2014
passed in Special S.T. No.29/2014 by Additional Sessions Judge,
FTC, Rajnandgaon, C.G. convicting the appellant under Section
363, 366 376 of the IPC and Section 4 of the POCSO Act and
sentencing him with R.I. for 5 years along with fine Rs.500/-, R.I. for
7 years along with fine Rs.500/-, R.I. for 10 years along with fine
Rs.1000/- and RI for 7 years along with fine Rs. 500/- respectively,
with default stipulations and all the sentences are directed to be run
concurrently.
2. The case against the present appellant is this, that the prosecutrix
aged about 16 years went missing on 03-04-2014. The FIR and
missing report was lodged by Devendra Vaisnav (PW-1), father of
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the prosecutrix and on that basis offence under Section 363 of the
IPC was registered against unknown person. The minor prosecutrix
was recovered from the custody of this appellant on 07-04-2014
vide Ex.-P/2. On the basis of the statement given by the prosecutrix
and her medical examination report, further offences of rape and
offence under the provision of the POCSO Act were also added in
the investigation. After completion of the investigation, charge sheet
was filed before the concerned Court. The trial Court charged the
appellant with offence under Section 363, 366, 376 of the IPC and
under Section 4 of the POCSO Act. The appellant denied the
charges and prayed for trial.
3. On completion of the evidence for prosecution, the appellant was
examined under Section 313 of the CrPC in which he has denied all
the incriminating evidence against him, pleaded innocence and false
implication. No witness was examined in defence. On completion of
the trial, the impugned judgment was passed in which the appellant
has been convicted and sentenced as aforementioned.
4. It is submitted by the counsel for the appellant that a totally
erroneous judgment has been passed by the trial Court without
appreciating the evidence on record, which shows that the
prosecution has not proved its case beyond reasonable doubt. It
should have been appreciated that the prosecutrix had willingly left
her paternal home and accompanied the appellant as both of them
were having affair. While visiting various places the prosecutrix
never raised alarm or tried to escape from the custody of the
appellant which further shows her consent. The age of the
prosecutrix was below 18 years is not proved beyond reasonable
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doubt by the prosecution. The entry in school register is not a
conclusive proof. The medical evidence also does not support the
prosecution case that the prosecutrix was raped, as the prosecutrix
was a consenting party. Further, according to the statement given
by Dr. Kiran Dhandekar (PW-10) while examining the prosecutrix,
she was informed that the prosecutrix had her menstrual cycle on
3rd April, 2014 which normally continues for 5 days and the date of
recovery, i.e., 7th of April, 2014 is within those 5 days, which shows
that the prosecution has come up with an improbable story of
commission of the offence of rape in this case. Hence, for these
reasons, the appellant was entitled to be acquitted in the case
concerned. It is prayed that the appeal may be allowed and the
appellant be acquitted of charges.
5. Learned counsel for the applicant placed reliance on the judgments
of this Court in the matter of Ashok Kumar Vs. State of C.G.,
reported in 2016(1) C.G.L.J. 367, which is based on findings of the
facts and reliance on the same cannot be applicable in the case.
Reliance has also been placed on the judgment of this Court in the
matter of Rajkumar Another Vs. State of C.G., reported in
2016(3) C.G.L.J. 550, which is based on medical report, no opinion
was given by the examining doctor, hence, the appellate Court had
allowed the appeal on this point; which is again finding of the fact. In
this case the same has to be appreciated on the basis of the
evidence present in this case. On this point, further reliance has
been placed on the judgment dated 12-04-2018 of this Court
passed in Criminal Appeal No.885 of 1999 [Kalyan Singh Vs. The
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State of Madhya Pradesh (Now Chhattisgarh)].
Learned counsel for the appellant also placed reliance on the
judgments of this Court in the matter of Sanjay Kumar Nayak Vs.
State of C.G., reported in 2017(2) C.G.L.J. 579, which is based on
the point of radiological examination of the age. When there is no
evidence regarding exact date of birth, the radiological examination
of the age is resorted to. It is not a similar case here, hence, this
citation does not help the appellant. On behalf of the appellant
reliance has also been placed on the judgments of this Court in the
matter of Guruprasad Another Vs. State of M.P. (Now C.G.),
reported in 2016(3) C.G.L.J. 13, and Rajesh Alias Kameshwar
Soni Vs. State of M.P., reported in 2010(4) C.G.L.J. 324.
Learned counsel for the appellant also placed reliance on the
judgment dated 05-04-2010 of this Court passed in Criminal
Appeal No.435 of 1992 (Roshan Lal S/o Sarju Prasad Gupta
Versus State of Madhya Pradesh). Reliance has also been placed
on the judgment delivered on 12th January, 2010 of this Court in
Criminal Appeal No.522 of 1991 (Ramadhin Versus State of
M.P.).
6. It is submitted that in the matter of Alamelu and Others Vs. State
represented by Inspector of Police and Others, reported in
(2011) Cr.C.P.(S.C.) 138, Hon’ble the Supreme Court has held that
a girl who has remained in company with the accused for couple of
days cannot be said to have accompanied him on compulsion and it
was also held that the date of birth mentioned in transfer certificate
has no eventiary value unless the person making entry is examined
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before the Court.
Reliance has also been placed on the judgment delivered by
Hon’ble the Supreme Court in the matter of Uday Versus State of
Karnataka, reported in 2003 SCC (Cri) 775, which does not attract
in this case as in that case the prosecutrix was a major girl and
there had been evidence that she was consenting party.
7. It is submitted that in the matter of Naravan @ Naran Versus State
of Rajasthan, reported in 2007 SAR (Criminal) 579 Supreme Court,
Hon’ble the Supreme Court has held that when the evidence of
prosecutrix is full of material contradictions without corroboration,
that cannot be relied upon. Further reliance has been placed on the
judgments delivered by Hon’ble the Supreme Court in the matter of
Tameezuddin @ Tammu Versus State of (NCT) of Delhi, reported
in 2009 SAR (Criminal) 933 and Lalliram and Anr. Versus State of
M.P., reported in 2008 SAR (Criminal) 815 Supreme Court.
8. Per contra, learned counsel for the State opposing the appellant’s
submission, submits that the prosecution has proved its case
beyond reasonable doubt, as the prosecutrix has herself supported
the prosecution case completely. Secondly, the entry in the school
register has presumptive value unless the presumption is rebutted
by some cogent and clear evidence and there is no such evidence
brought on record by the defence, which shows that the prosecutrix
was not competent to consent. Hence, the offence of rape is clearly
made out against the appellant. Hence, it is prayed that the appeal
may be dismissed.
9. The case of the appellant has to be examined on two points, firstly,
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about the willingness of the prosecutrix and her affair with the
appellant and secondly on the point of age of the prosecutrix
whether or not she was minor on the date of incident.
10. On the point of willingness, the statement of the prosecutrix herself
is important. The prosecutrix (PW-3) has stated that when she was
on her way to home from temple the appellant came on a bike and
offered her lift, then he by force took her to Raipur and by keeping
her in a place by force and without her consent had sexual
intercourse with her. In cross-examination this witness was
confronted with her previous statement (Ex.-D/3) and it appears that
she has made a statement, that firstly she was taken to
Dongargarh. Which is omission before the Court, that firstly she was
taken to Dongargarh. On asking as to why she did not make her
escape, she has stated that she had been afraid from jumping from
the motorcycle and she was under the threat given by the appellant
and she has further clarified that her mobile was broken by the
appellant, because of which she was unable to contact her family
members. Similarly, she has also denied her earlier statement (Ex.-
D/3) about going to Village Murra, where the maternal grand-mother
of the appellant resides and it was there where she was raped by
the appellant. She has also omitted to state another portion of her
earlier statement that when she was in Raipur with the appellant
then her uncle found them and took them to the police station.
On perusing her full statement in cross-examination, it
appears that she has not made any admission that she had willingly
accompanied the appellant.
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11. Other relevant statement has been made by Devendra Vaisnav
(PW-1) who has lodged the FIR and missing report (Ex.-P/1). He
has stated that on asking the prosecutrix she informed him that the
appellant has offered her lift in motorcycle and he took her to Raipur
by putting her under threat and also after destroying her mobile
phone. In cross-examination no question has been put to this
witness about any previous affair of the appellant with the
prosecutrix and also that the prosecutrix had willingly accompanied
the appellant to various places.
12. Kusumlata (PW-2) has not made any specific statement in her
examination-in-chief. She is mother of the prosecutrix, in her cross-
examination she has denied that her daughter had accompanied the
appellant willingly for having a ride on motorcycle, and there is no
other statement in her whole deposition admitting the suggestion of
the defence that the prosecutrix had willingly accompanied the
appellant.
13. Jagvendra Vaisnav (PW-4) is uncle of the prosecutrix. He has stated
that he made a call on mobile phone to the appellant, who received
it and informed him that he is in Dongargarh with the prosecutrix
and then he asked them to come to Raipur. On arrival of appellant
and the prosecutrix he took both of them to the father of the
prosecutrix. In cross-examination he has admitted that the
prosecutrix has told him that she does not want to go home and her
father should not be informed.
14. Kokila Vaisnav (PW-9) who is maternal grand mother of the
appellant, has stated before the Court, that on one night the
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appellant and the prosecutrix both came to her house and stayed
for a night. Both had slept separately and both of them left next
morning. Her statement has remained unchallenged.
15. On examining the witnesses whose statement are relevant on the
point for consideration about the willingness of the prosecutrix, it
appears that the prosecutrix (PW-3) has deliberately made some
omissions regarding visit to Dongargarh and visiting the place of
maternal grand-mother of the appellant, whereas, the IO, Inspector
Anju Chelak (PW-11) has stated before the Court, that she has
recorded the statement under Section 161 of the Cr.P.C. of the
Prosecutrix (Ex.-D/3) according to the statement given by her and
secondly Kokila Vaisnav (PW-9) is another witness examined by the
prosecution and on whom the prosecution relies.
16. The Prosecutrix (PW-3) is partly reliable and partly unreliable on the
point of her willingness. She happened to be only witness who can
give statement in clear terms whether she had on her own will
accompanied the appellant or not. The omission made by her
shows her reluctance. Further, the circumstance speaks for itself
that the prosecutrix had been along with the appellant from 03-04-
2014 to 07-04-2014 and the statement given by Jagvendra Vaisnav
(PW-4) in his cross-examination helps the defence that the
prosecutrix had stated him that she does not want to go home and
her father should not be informed. This shows that the case of the
prosecution that the prosecutrix was an unwilling party cannot be
held proved on the basis of shaky evidence of the prosecutrix.
17. Second point under consideration is the age of the prosecutrix
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regarding which Prahlad Singh (PW-5), the Head Master from
Sarswati Shishu Mandir has been examined, who has stated on the
basis of school admission register, that the date of birth of the
prosecutrix is recorded as 06-02-1998, Ex.-P/11 in the document
produced as prosecution evidence. In cross-examination, his
admission, that during investigation no other documents were asked
for by the policemen is of no consequence and there is no such
statement in his cross-examination which can be found as
contradictory to the statement given by him in examination-in-chief
and to the entry made in Ex.-P/11.
18. The other witnesses on the point of age are Devendra Vaisnav (PW-
1) and Kusumlata (PW-2), the father and mother of the prosecutrix.
Devendra Vaisnav (PW-1) has stated clearly that date of birth of his
daughter is 06-02-1998 and his statement has remained unrebutted
in cross-examination. The questions were put about the documents
mentioning the date of birth of the prosecutrix which were not
produced by him before the police or before the Court by itself does
not falsify his statement as he is the best person to have the
knowledge of date of birth of the prosecutrix. Kusumlata (PW-2)has
stated in her cross-examination that one of her child has birthday on
6 February and another child has birthday on 14 th May and
according to her knowledge the prosecutrix is of age 16 years and
that she was married at the age of 20 years and after 1 and ½ years
her daughter Pinki was born, are vague statements, which cannot
be considered as cogent and reliable evidence to rebut or contradict
the evidence regarding date of birth of the prosecutrix which has
10been brought by the prosecution before the Court through school
register and through the statement given by the father of the
prosecutrix Devendra Vaisnav (PW-1). Hence, under these
circumstances, on scrutinizing the evidence on the point of date of
birth of the prosecutrix, it is found that the prosecution has proved
this point beyond reasonable doubt that age of the prosecutrix (PW-
3) was below 18 years and about 16 years on the date of incident.
19. Doctor Kiran Dhandekar (PW-10) has stated that while examining
the prosecutrix on 08-04-2014 she did not found any injuries on the
private parts, her secondary sexual characters were well developed
and vide her report Ex.-P/13 she had not found any symptom
regarding sexual intercourse. The clothes of the prosecutrix was
preserved by her which were sent for FSL examination and she has
also stated that the prosecutrix had menstrual cycle on 03-04-2014,
although this has not been informed as to whether her menstrual
cycle started on 03-04-2014 or ended on 03-04-2014. The FSL
report regarding vaginal slides regarding the prosecutrix and her
undergarments is negative vide FSL report Ex.-P/20.
20. After considering on the entire evidence and looking to the
contradiction that has been established by the defence in the
evidence of the prosecutrix that she was raped in a place in Raipur,
whereas, she has made statement under Section 161 of the Cr.P.C.
in Ex.-D/3 that she was raped in village Murra which is a place of
Kokila Vaisnav (PW-9), who has herself stated that the appellant
and the prosecutrix stayed in night in her place and slept separately,
is the material contradiction and she has not been declared hostile
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by the prosecution. Hence, on the point of this allegation that the
prosecutrix was raped by the appellant, I am of this opinion that the
evidence of the prosecution is unreliable and it is not proved beyond
reasonable doubt that the prosecutrix was raped by the appellant
while she was in his company between 03-04-2014 to 07-04-2014.
21. After due consideration on all the evidence present on record this
conclusion has drawn that the porsecutrix is minor of age about 16
years, the appellant by taking her with him away from lawful
guardianship has committed the offence of abduction, the offence
under Section 363 of the IPC, whereas, the evidence on the point of
commission of offence under Section 366 and 376 of the IPC and
Section 4 of the POCSO Act has been found not proved, because of
which, conviction of the appellant under these sections is bad in law.
22. Consequently, the appeal filed by the appellant is allowed in part.
Conviction and sentence of the appellant under Section 363 of the IPC
is upheld, whereas, conviction of the appellant under Section 366, 376
of the IPC and Section 4 of the POCSO Act are set aside. Fine
sentence awarded by the trial Court under Section 363 of the IPC is
also maintained.
23. The appeal stands disposed off.
Sd/- Sd/- Sd/-
(Rajendra Chandra Singh Samant)
Judge
Aadil
