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Rajat Vaisnav vs State Of Chhattisgarh on 10 September, 2018

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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
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been 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

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