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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Reserved on 30-8-2018
Pronounced on 5-9-2018

CRIMINAL APPEAL No. 137/2003

Santosh S/o. Johan, aged about 20 years, occupation Kumhari, R/o.
Village Sambalpur, P.S Bhanupratappur, Distt. Kanker (CG)
-versus-
State of Chhattisgarh, through PS Bhanupratappur,Distt. Kanker (CG)

For appellant : Ms. Aprajita Gayakwad, Adv. on behalf of Smt. Renu
Kochar, Advocates.
For State : Shri Vinod Tekam, P.L.

Hon’ble Shri Sharad Kumar Gupta, Judge
C.A.V. JUDGMENT
1.

In this criminal appeal the challenge is levied to the judgment of

conviction and order of sentence dated 10.01.2003 passed by

First Additional Sessions Judge, Kanker in ST No. 412/2001

whereby and whereunder he convicted appellant u/s 376 of the

Indian Penal Code (hereafter called as ‘IPC’) and sentenced him

to undergo RI for 7 years and fine Rs. 500/-, in default of

payment of fine, to further undergo RI for 6 months.

2. In brief the prosecution story is that at the time of the alleged

incident prosecutrix was 14 years old and resident of village

Sambalpur. On 02.04.2001, she had gone to attend a marriage in

the house of one Ramji Halba. At about 09:30 pm appellant

caught hold of her, gave threatening to kill and took away her

under the tamarind tree beside that house. Thereafter he pressed

her mouth and committed forcible sexual intercourse with her.

Thereafter, she went to her house and narrated the incident to
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her mother, her father, her maternal uncle Tribhuwan Nath,

neighbours Hemlal and Mehtar. Due to night she lodged the FIR

next day in PS Bhanupratappur. After completion of the

investigation a charge-sheet was filed against him u/s 376 and

506, IPC. Trial Court framed charge against him u/s 376 IPC.

He abjured the charge and faced trial. To bring home the charge

prosecution examined as many as 12 witnesses. Appellant

examined one witness in his defence.

3. After conclusion of the trial, Trial Court convicted and sentenced

appellant as aforesaid.

4. Counsel for the appellant argued that Trial Court has not

appreciated the evidence in proper perspective. Prosecution

failed to prove that at the time alleged incident prosecutrix was

below 16 years. She was a consenting party. Thus, the conviction

and sentence of the appellant are bad in eyes of law. Hence,

appellant may be acquitted of the aforesaid charge.

5. Counsel for the State argued that the conviction and sentence of

the appellant is based on clinching evidence. The conviction and

sentence of the appellant do not call for interference by this

Court.

6. P.W. 1 Prosecutrix says in para 4 of her statement given on 3-4-

2002 that she is a 5th class passed student. She had left the

school two years ago. She failed in class 1st and class 3rd.

7. P.W. 2 Mangesh who is father of the prosecutrix says in para 3 of

his statement given on oath on 3-4-2002 that prosecutrix is near

about 14 years old.

8. As per photocopy of Dakhil Kharij Panji Shala Ex. P-10 (C), the
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date of birth of the prosecutrix is 10-8-1986. As per the certificate

Ex. P-11 the date of birth is 10-8-1986. As per Transfer Certificate

of the school, the date of birth of the prosecutrix is 10-8-1986.

9. D.W. 1 Gansi Bai says in para 4 of her statement given on oath

on 27-9-2002, the prosecutrix is near about 18 – 19 years old.

10. Prosecution has not examined any person who had allegedly

stated the date of birth of the prosecutrix as 10-8-1986 at the time

of her admission in school to the author of Ex. P-10. Moreover,

prosecution failed to examine the author of Ex. P-10. In these

circumstances and observations made by Hon’ble Supreme

Court in Biradmal Singhvi v. Anand Purohit {AIR 1988 SC

1796}, Bablu Pasi v. State of Jharkhand and Another {2008

AIR SCW 7332}, Sunil v. State of Haryana {2010 (1) SCC 742},

Alamelu and Another v. State represented by Inspector of

Police {2011 (2) SCC 385}, this Court finds that prosecution does

not get any help from Exs. P-10, P-11 and P-23 in this reference

that on 2-4-2001 prosecutrix was allegedly below 16 years of

age.

11. P.W. 1 prosecutrix, P.W. 2 Mangesh, P.W. 3 Meena Bai who is

mother of the prosecutrix, do not say clearly and strongly about

the date of birth of the prosecutrix. Moreover, P.W. 3 Meena Bai

says in para 4 during her cross-examination that prosecutrix had

two elder brothers, eldest is near about 20-21 years old,

youngest is two years younger then him. One year after the birth

of elder brother the prosecutrix was born.

12. Looking to above mentioned facts and circumstances of the case,

this Court disbelieves aforesaid statements of P.W. 1 Prosecutrix
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and P.W. 2 Mangesh in this reference that allegedly at the time of

the incident, prosecutrix was below 16 years and believes

aforesaid statement of D.W. 1 Gansi Bai that at the time of

alleged incident the prosecutrix was not below 16 years of age.

13. After appreciation of the evidence discussed herebefore, this

Court finds that prosecution has failed to prove beyond

reasonable doubt that at the time of alleged incident prosecutrix

was below 16 years of age.

14. P.W. 1 prosecutrix says in para 1 that appellant had taken away

her forcefully by pulling her from the house of marriage to a

nearby tamarind tree and committed sexual intercourse with her.

15. P.W. 2 Mangesh, P.W. 3 Meena Bai and P.W. 6 Hemlal, who is

the maternal grand-father of the prosecutrix say in para 1 that

prosecutrix had told that the appellant had taken her away near a

tamarind tree and committed sexual intercourse with her.

16. P.W. 4 Tribhuwan Ram, who is the maternal uncle of the

prosecutrix, P.W. 5 Rupo Bai and P.W. 7 Mehtar say in para 1 of

their statements given on oath that P.W. 3 Meena Bai had told

them that the appellant had committed sexual intercourse with

the prosecutrix.

17. D.W. 1 Gansi Bai in para 2 of her statement given on oath that

prosecutrix had told her that after returning back from the

marriage house, her father abused her and asked as to what act

she had committed with the appellant, she had also told that she

had not committed any wrong act with the appellant.

18. This is not the prosecution case that when allegedly the appellant

had taken away the prosecutrix by pulling her from the house of
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the marriage, he had shown some dangerous weapon to her.

Moreover, P.W. 1 Prosecutrix does not say clearly and strongly

that appellant had allegedly given her threatening to kill.

Moreover, she says in para 5 and 6 during her cross-examination

that at the place of marriage there was croud, when the appellant

had taken away by pulling her, she had not shouted, she had not

resisted under the tamarind tree, this is true that she had

returned back late night from the house of marriage to her house,

then her mother scolded her, after scolding she had narrated the

incident to her mother. Moreover, P.W. 2 Mangesh says in para 4

during his cross-examination that when he returned back to his

house he found that prosecutrix was not sleeping in his house

instead of it, she was sleeping in the house of her paternal aunt,

when he inquired with her then she told him about the incident,

P.W. 5 Rupo Bai says in para 1 of her statement given on oath

that she had seen that prosecutrix was sleeping in courtyard of

Ramji Halba. Moreover P.W. 3 Meena Bai says in para 1 during

her examination in chief that the prosecutrix had told that she had

gone to pass urine under the tamarind tree, this is not the

prosecution case. Moreover, P.W. 2 Mangesh and P.W. 3 Meena

Bai, do not say clearly and strongly that the appellant had taken

away prosecutrix forcefully. In these circumstances, there is

strong possibility that prosecutrix was allegedly ‘consenting

party’.

19. P.W. 4 Tribhuwan Ram, P.W. 5 Rupo Bai and P.W. 7 Mehtar do

not say clearly and strongly that prosecutrix herself narrated the

incident to them. This circumstance is not normal and natural.
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20. There is no such evidence on record on the strength of which it

can be said that aforesaid statement of D.W. 1 Gansi Bai is not

believable in this reference that allegedly the appellant had not

committed rape with the prosecutrix.

21. After appreciation of the evidence discussed herebefore this

Court disbelieves aforesaid statements of Para 1 of the

prosecutrix, P.W. 2 Mangesh, P.W. 3 Meena Bai, P.W. 4

Tribhuwan, P.W. 5 Rupo Bai, P.W. 6 Hemlal, P.W. 7 Mehtar, in this

reference that the appellant had allegedly committed rape with

prosecutrix and believes on the aforesaid statement of Para 2 of

D.W. 1 Gansi Bai in this reference that allegedly appellant had

not committed rape with the prosecutrix.

22. Looking to the above mentioned facts and circumstances of the

case, this court finds that the prosecution has failed to prove

beyond reasonable doubt the charge punishable under Section

376 of the IPC against the appellant.

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

conviction and order of sentence are set aside. The appellant is

acquitted of the charge punishable under section 376 of the IPC

extending him benefit of doubt. After the prescribed period of

appeal or revision, the fine amount, if deposited, be refunded to

the appellant.

24. The appellant is reported to be on bail. His bail bonds stands

cancelled subject to the provisions of Section 437-A, Cr.P.C.

Sd/-

(Sharad Kumar Gupta)
Judge
Kishor/P