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Uttam Kumar vs State Of Chhattisgarh on 12 July, 2018

1

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.

—- Appellant

Versus

 The State Of C.G. Through :O.I.C. of P.S. Gobranavapara,
District Raipur, C.G.

—- Respondent

For Appellant : Shri K.D. Kuldeep, Advocate.

For State : Shri Avinash K. Mishra, P.L.

Hon’ble Shri Justice Gautam Chourdiya
Judgment On Board

12-07-2018

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

as under:-

Serial Conviction Sentence
No.

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.
2

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
3

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

this judgment.

4

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

certificate.

ii) No medical opinion was given by Doctor

regarding sexual intercourse committed

on prosecutrix.

iii) Major contradictions and omissions

between the statement of witnesses

examined in Court and their statement
5

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
6

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
7

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
8

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

intercourse.

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
9

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

affirmed.

20 In the result, the appeal fails and is, accordingly dismissed.
10

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.

Sd/-

Gautam Chourdiya
Judge

Akhilesh

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