HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 945 of 2001
Uttam Kumar, Son of Pardeshi, aged about, 25 years,
R/o.Village Dulna, P.S. Gobranavapara, District Raipur C.G.
The State Of C.G. Through :O.I.C. of P.S. Gobranavapara,
District Raipur, C.G.
For Appellant : Shri K.D. Kuldeep, Advocate.
For State : Shri Avinash K. Mishra, P.L.
Hon’ble Shri Justice Gautam Chourdiya
Judgment On Board
1 This appeal arises out of the judgment of conviction and
order of sentence dated 20.08.2001 passed by learned
III Additional Sessions Judge, Raipur, C.G. in Sessions Trial
No. 164/2000, the appellant stands convicted and sentenced
Serial Conviction Sentence
1. Under Section 363 of 4 years R.I. and fine of Rs.
Indian Penal Code (for 1,000/- in default of which
short ‘IPC’). 02 months R.I.
2. Under Section 366(A) of 5 years R.I. and fine of Rs.
IPC. 1,000/- in default of which
02 months R.I.
3. Under Section 376(1) of 7 years R.I. and fine of
IPC. Rs.2,000/- in default of
which 04 months R.I.
2 As per prosecution case, on 08.04.2000 at about 18:00 hrs.
father of the prosecutrix PW-2 Panchuram lodged FIR
Ex.P-2, against the accused/appellant alleging inter alia that
on 06.04.2000 in the evening, when the complainant sat to
take his dinner, his second daughter (prosecutrix) aged
about 14 years served him meal and went out from the
house. After some time, complainant went out to search for
her daughter but he could not find her and after searching,
he came back. Thereafter, on the next day, when Kevra Bai
elder daughter of complainant went to the well to fetch
water, she heard that prosecutrix was in the house of
appellant/accused and when the complainant went to search
for prosecutrix, he saw that one Bodhani Yadav had taken
away prosecutrix to the appellant’s house. At that time, in
the presence of Duaram Sahu, Bodhani Yadav, Cherkin Bai
and Omprakash Sahu father of the prosecutrix enquired
her, then she narrated the story about the accused/appellant
that he was alluring prosecutrix to provide ornaments,
clothes, marry with her and ready to keep her as mistress
(wife) in his home then on this allurement of
appellant/accused, the prosecutrix went out with the
appellant/accused to his home, after that information
received from prosecutrix, PW-2 (Panchuram) lodged FIR
against appellant/accused. At the time of incident, the age of
prosecutrix was about 14 years. During investigation,
prosecutrix and other witnesses i.e. Panchuram, Duaram,
Bodhani Bai, Cherkin Bai and Omprakash in their statement
under Section 161 Cr.P.C. have alleged regarding forcible
sexual intercourse with the prosecutrix.
3 As per Ex. P-1 clothes of prosecutrix was seized. Spot map
Ex.P-5 was prepared by Patwari. Prosecutrix was medically
examined by PW-16 Dr. Neeta Bhatnagar. The
accused/appellant was also examined by PW-3 Dr. C.B.
Gupta and was found to be capable of performing sexual
intercourse vide Ex. P-3 and the date of birth certificate
Ex.P-10A was seized from village Kotwar (Agam Das).
Forensic report Ex. P-19 prepared by Senior Scientist and
underwear, panty and slide mentioned in Ex.P-19 found
semen and spermatozoa.
4 After completion of investigation, charge sheet under
Sections 342, 363, 366 and 376 IPC was filed against
appellant/accused. The trial Court framing the charge
against appellant/accused under Sections 363, 366 and
376(1) IPC, the trial Court after conclusion of the trial
sentencing the accused/appellant as mentioned in para 1 of
5 So as to hold the accused/appellant person guilty, the
prosecution has examined 16 witnesses. Statement of
accused was also recorded under Section 313 of Cr.P.C in
which he denied the circumstances appearing against him in
the prosecution case, pleaded innocence and false
implication, In defence, he examined only one witness
Keshar Bai (DW-1).
6 The trial Court after hearing counsel for the parties and
considering the material available on record, by the
impugned judgment convicted and sentenced the
accused/appellant as mentioned in Para 1.
7 Counsel for the appellant submits as under:-
i) There is no definite opinion regarding the
age of the prosecutrix was made by
prosecution and there is contradiction
between Kotwari Book entry and school
ii) No medical opinion was given by Doctor
regarding sexual intercourse committed
iii) Major contradictions and omissions
between the statement of witnesses
examined in Court and their statement
under Section 161 Cr.P.C.
iv) Prosecutrix herself admitted that she
went to the house of appellant by her own
will. She also admitted that she had never
narrated anybody about rape.
8 On the other hand, counsel for the respondent/State
supports the judgment of conviction and sentence of trial
Court and has been argued that conviction of the appellant
is strictly in accordance with law and there is no illegality and
infirmity warranting interference by this Court. The
prosecution proved the age of prosecutrix and she was
minor at that time. Forensic report also supports the
prosecution case and there is no reason to disbelieve the
prosecution case regarding rape.
9 I have heard the counsel for the respective parties and
perused the evidence on record.
10 PW-2 Panchuram father of the prosecutrix stated that at the
time of incident, age of prosecutrix was 14 years and that
statement was not challenged in any manner, in cross
examination and otherwise. As per father of the prosecutrix,
the age of the prosecutrix was 14 years and she was minor.
Statement of prosecutrix’s father also supported by village
Kotwar PW-9 Agam Das in Kotwari Panji Ex. P-10A and the
age of prosecutrix mentioned in that Kotwari Panji Ex. P-
10A, date of birth was 16.06.1985, that means at the time of
incident prosecutrix age was below 15 years.
11 The age of the prosecutrix was below 15 years according to
Ex.P-10A and proved by PW-9 Agam Das (Kotwar).
Ex. P-9 is a seizure memo. Birth and death report form was
registered by village Kotwar and in that register entries were
made. Ex. P-10A has been duly proved by Agam Das and
there is no reason to disbelieve the said certificate.
12 PW-15 Chunnilal Chandrakar stated in his examination that
according to Primary School Register Ex.P-21, when
prosecutrix was admitted in school in serial no. 1158, date of
birth was 20.06.1985 and those entries made in the school
register have also been proved which shows that at the time
of incident, the age of prosecutrix was below 15 years.
13 As regards contradiction in School register and Kotwari
Panji, there was four days gap in Kotwari Panji and School
register i.e. 16.06.1985 and 20.06.1985, but that
contradiction is not of such a nature which could lead to an
inference that at the relevant time the prosecutrix was not a
minor, in particular when the witnesses, as discussed above,
have stated in clear terms that the prosecutrix was below 15
years at the date of incident and the documents pertaining to
the age of the prosecutrix have been duly proved by the
author of the same.
14 PW-1 Prosecutrix stated that when she was roaming in
garden at about 2 P.M. the accused/appellant met her and
promised to marry her and further allured to give ornaments
and clothes. On this, the prosecutrix went with
appellant/accused and thereafter appellant/accused had
committed 3-4 times sexual intercourse with Prosecutrix in
his home and other places (i.e. garden near side river)
also he committed rape with prosecutrix. Then Bodhni Bai,
(Maternal Aunt of Prosecutrix) took her away from the
appellant/accused’s house and, thereafter, father of the
prosecutrix lodged FIR against accused/appellant. In her
cross examination, she admitted that she was entered the
house of appellant/accused by jumping from the back side of
wall. In paragraph 6, she admitted that no incident was
happened with her and she never narrated anybody about
rape. That major portion specifically mentioned in her chief
examination that where a place of occurrence made by
prosecutrix cannot be denied, even PW-2 Panchuram also
narrated regarding rape committed by appellant/accused
and PW-11 Omprakash also stated that on certain
allurement the accused/appellant committed sexual
intercourse with prosecutrix.
15 PW-2 Father of the prosecutrix stated that the prosecutrix
informed about the incident to her Maternal Aunt and
Mother, who in turn disclosed about the same to him.
16 PW-3 Dr. C.B.Gupta medically examined the appellant and
found accused/appellant capable of performing sexual
17 PW-4 Ransjeeven Yadav, Patwari prepared the spot map
Ex.P-5. PW-5 Mukund Bihari Rai, PW-8 Vishwanath, PW-13
Raju Sakhe are formal witnesses. PW-6, Prahalad Singh,
PW-7 Devnarayan Sahu, Police Personnel, assisted in the
investigation. PW-11 Omprakash is the Sarpanch of the
village has stated that on being enquired the prosecutrix
disclosed to her family members in his presence that on
certain allurement the accused/appellant committed sexual
intercourse with her. PW-12 Bodhani Bai (Maternal Aunt of
the Prosecutrix) has supported the version of the
prosecutrix. PW-14 D.R. Sapre, Investigating Officer has
duly supported the prosecution case. PW-15 Chunnilal
Chandrakar, Head master has stated about the date of birth
of the prosecutrix and also produced the admission register
of the school for the relevant period. PW-16 Dr. Neeta
Bhatnagar, medically examined the prosecutrix. One
Defence witness Keshar Bai, DW-1 has not stated any
specific reason in favour of the appellant/accused.
18 As per the FSL report Ex.P-19 underwear of accused, panty
and slide of prosecutrix examined by Senior Scientist found
semen and spermatozoa.
19 Regarding the age of prosecutrix in the preceding
paragraphs, it has already been observed that on the date of
incident the prosecutrix was minor, below the age of 15
years. From the over all evidence available on record, oral,
documentary as well as medical forensic report, it is clear
that the appellant/accused had committed sexual
intercourse with the prosecutrix. It is also proved that
accused/appellant committed sexual intercourse with the
prosecutrix below the age of 15 years girl child, kidnap from
lawful guardianship, she may be forced for seduce to illicit
sexual intercourse and below the age of 15 years girl child
was raped by the accused/appellant. Even if, it is presumed
that the said act was with the consent of the prosecutrix, it
would be to no help to the appellant/accused because the
prosecutrix was a minor below the age of 15 years on the
date of incident and as such her consent was of no
consequence. On the basis of aforesaid discussion, this
Court is of the opinion that the finding of guilt recorded by
the trial Court is based on just and proper appreciation of the
evidence on record and being so, the same is hereby
20 In the result, the appeal fails and is, accordingly dismissed.
21 Accused/appellant is on bail since 08.09.2003. His bail bond
is cancelled and he is directed to surrender and to be taken
into custody forthwith to serve the remaining part of the
sentences awarded to him.