AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1062 of 2018
Judgment Reserved on : 27.8.2019
Judgment Delivered on : 25.11.2019
Smt. Sonam @ Jyoti Tiwari, W/o Parmeshwar @ Chhotu Tiwari (wrongly
mentioned as D/o Parmeshwar @ Chhoui Tiwari), aged about 19 years, R/o
Tikrapara, Shiv Mandir Talkies Road, Near Bodh Mandir, Bilaspur, District
Bilaspur, Chhattisgarh
—- Appellant
versus
State of Chhattisgarh through the Station House Officer, Police Station Civil
Line, Bilaspur, District Bilaspur, Chhattisgarh
— Respondent
Criminal Appeal No.962 of 2018
Ashish @ Ashu Tiwari, S/o Arvind Tiwari, aged about 28 years, R/o Tifra,
Housing Board Colony, Naya Bus Stand, District Bilaspur, Chhattisgarh
—- Appellant
versus
State of Chhattisgarh through Station House Officer, Police Station Civil Line,
District Bilaspur, Chhattisgarh
—- Respondent
Criminal Appeal No.980 of 2018
Sidhnath alias Tantan, son of Doman Vishwakarma, aged about 27 years,
resident of Masturi, District Bilaspur, Chhattisgarh
—- Appellant
versus
State of Chhattisgarh through the Police Station Civil Lines, Bilaspur
— Respondent
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Criminal Appeal No.1137 of 2018
Vikki @ Ghanshyam Das Manikpuri, S/o Late Manharan Das Manikpuri, aged
about 24 years, R/o Latiyapara, Thana Masturi, District Bilaspur,
Chhattisgarh
—- Appellant
versus
State of Chhattisgarh through Thana Civil Line, District Bilaspur, Chhattisgarh
— Respondent
and
Criminal Appeal No.1045 of 2018
Himanshu @ Chhota Manikpuri, age 22 years, S/o Manharan Manikpuri, R/o
Village Latiyapara, P.S. Masturi, District Bilaspur, Chhattisgarh
—- Appellant
versus
State of Chhattisgarh through the District Magistrate Bilaspur, Chhattisgarh,
P.S. Civil Line
— Respondent
——————————————————————————————————
For Respective Appellants : Shri Pushpendra Singh Baghel, Shri Raj Kumar
Gupta, Shri Rajeev Kumar Dubey, Shri Vivek
Shrivastava, Advocates
For State/Respondent : Smt. Hamida Siddique, Dy. Advocate General
——————————————————————————————————
Hon’ble Shri Justice Arvind Singh Chandel
C.A.V. JUDGMENT
1. All the above mentioned appeals arise out of a common judgment,
therefore, they are disposed of together.
2. The appeals have been preferred against the judgment dated
12.6.2018 passed by the Special Judge under the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act
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(henceforth ‘the PoA Act’), Bilaspur in Special Criminal Case SCST
(PA) Act 1989 No.22 of 2016, whereby the Appellants have been
convicted and sentenced as under:
Criminal Appeal No.1062 of 2018
Appellant Smt. Sonam alias Jyoti Tiwari
Conviction SentenceUnder Section 109 of the Rigorous Imprisonment for 7
Indian Penal Code years and fine of Rs.10,000/-
with default stipulation
Under Section 109 of the Rigorous Imprisonment for 7
Indian Penal Code years and fine of Rs.10,000/-
with default stipulation
Under Section 506 of the Rigorous Imprisonment for 1
Indian Penal Code year and fine of Rs.1,000/- with
default stipulation
Under Section 365 of the Rigorous Imprisonment for 5
Indian Penal Code years and fine of Rs.1,000/-
with default stipulation
Under Section 343 of the Rigorous Imprisonment for 1
Indian Penal Code year and fine of Rs.1,000/- with
default stipulation
All the sentences are directed
to run concurrentlyCriminal Appeal No.962 of 2018
Appellant Ashish alias Ashu Tiwari
Conviction SentenceUnder Section 4 of the Rigorous Imprisonment for 7
Protection of Children years and fine of Rs.10,000/-
from Sexual Offences Act, with default stipulation
2012 (henceforth ‘the
Pocso Act’)
Criminal Appeal No.980 of 2018
Appellant Sidhnath alias Tantan
Conviction Sentence
Under Section 366 of the Rigorous Imprisonment for 5
Indian Penal Code years and fine of Rs.5,000/-
with default stipulation
Under Section 4 of the Rigorous Imprisonment for 7
Pocso Act years and fine of Rs.10,000/-
with default stipulation
Both the sentences are
directed to run concurrently
4Criminal Appeal No.1137 of 2018
Appellant Vikki alias Ghanshyam Das ManikpuriConviction Sentence
Under Section 366 of the Rigorous Imprisonment for 5
Indian Penal Code years and fine of Rs.5,000/-
with default stipulation
Under Section 506 of the Rigorous Imprisonment for 1
Indian Penal Code year and fine of Rs.1,000/- with
default stipulation
Under Section 365 of the Rigorous Imprisonment for 5
Indian Penal Code years and fine of Rs.1,000/-
with default stipulation
Under Section 343 of the Rigorous Imprisonment for 1
Indian Penal Code year and fine of Rs.1,000/- with
default stipulation
Under Section 4 of the Rigorous Imprisonment for 10
Pocso Act years and fine of Rs.10,000/-
with default stipulation
Under Section 3(1)(xii) of Rigorous Imprison for 2 years
the PoA Act and fine of Rs.2,000/- with
default stipulation
All the sentences are directed
to run concurrentlyCriminal Appeal No.1045 of 2018
Appellant Himanshu alias Chhota ManikpuriConviction Sentence
Under Section 4 of the Rigorous Imprisonment for 7
Pocso Act years and fine of Rs.10,000/-
with default stipulation
3. Case of the prosecution, in brief, is that on the relevant date, age
of the prosecutrix (PW3) was about 16 years. In the year 2015,
she was studying in XIth standard in Devkinandan Dixit School,
Bilaspur and was residing in Post Matric Anusuchit Jati Kanya
Chhatrawas, Bilaspur along with Padmini Banjare (PW4). Both got
acquainted with each other. In August, 2015, Padmini Banjare
introduced Appellant Vikki alias Ghanshyam Das Manikpuri with
the prosecutrix in Magneto Mall, Bilaspur. Appellant Vikki gave his
5mobile number to the prosecutrix and thereafter they were talking
to each other on phone. On the day of tija festival in the year
2015, by a phone call, Appellant Vikki called the prosecutrix out of
her hostel and telling her that he will take her for roaming took her
to the house of his friend Vishal Kumar Patre (PW13) situated at
Village Masturi. There Appellant Vikki committed sexual
intercourse with the prosecutrix after shutting the door and
thereafter he asked her not to disclose about this to anyone.
Thereafter, he left her at her hostel. In December, 2015, Appellant
Sonam @ Jyoti Tiwari and Padmini Banjare came to the
prosecutrix in the hostel. At that time, Appellant Sonam and the
prosecutrix got acquainted with each other. Thereafter, they used
to talk to each other on phone. Appellant Sonam told the
prosecutrix that Appellant Vikki is her husband. Thereafter,
Appellant Vikki tendered his apology to the prosecutrix on phone
and called her to the Magneto Mall. She went to the Mall. There
Appellant Vikki introduced her with Appellant Sidhnath alias
Tantan. There both these Appellants telling the prosecutrix that
time was of night took her to Village Masturi Kirari. Appellant Vikki
returned from there and Appellant Sidhnath made physical
relationship with the prosecutrix in his shop at that village. In the
next morning, Appellant Sidhnath gifted a suit to the prosecutrix
and left her at her hostel. On 31.12.2015, Appellant Sonam called
the prosecutrix at her house. The prosecutrix went to her house
along with Padmini Banjare (PW4) in the evening. Appellants
Vikki, Sidhnath, Himanshu alias Chhota Manikpuri and acquitted
accused Yashwant @ Monu Thakur were also present there. All
these persons took dinner. Thereafter, Padmini and the
prosecutrix went to the room for sleeping. Thereafter, Appellant
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Sonam called Padmini out of that room and sent acquitted accused
Yashwant inside the said room. Thereafter, Yashwant made
physical relationship with the prosecutrix in the said room.
Thereafter, Appellant Sonam asked the prosecutrix to stay at that
house and to attend her school from there. On this, the prosecutrix
stayed there till 9.1.2016. on 2.1.2016, Appellant Himanshu made
physical relationship with the prosecutrix at the house of Appellant
Sonam. 2-3 days thereafter, Appellant Sonam called Appellant
Ashish alias Ashu Tiwari telephonically to her house. Appellant
Ashish reached her house and thereafter took the prosecutrix and
Appellant Sonam in a car to his house at Tifra, Bilaspur. In the
night, Appellant Sonam asked the prosecutrix to sleep with
Appellant Ashish. The prosecutrix did so. In the next morning,
Appellant Ashish left both the prosecutrix and Appellant Sonam to
the house of Appellant Sonam. Thereafter, on 11.1.2016,
Appellant Sonam again went to the hostel of the prosecutrix and
took her out from there saying that both will go for roaming.
Thereafter, she called acquitted accused Mohd. Lukman alias
Monu and sent the prosecutrix with him. Thereafter, Mohd.
Lukman took the prosecutrix to the house of his friend and made
physical relationship with the prosecutrix there. On 9.2.2016, the
prosecutrix left a letter at the hostel that she was going to the
house of her sister and left the hostel. On 13.2.2016, the
prosecutrix returned the hostel in the evening. Appellants Sonam
and Vikki reached behind her to the hostel and threatening her
took her away along with them. On 15.2.2016 at 2:30 p.m., the
prosecutrix returned her hostel. Behind her, Appellant Sonam also
came to her and threatened her. Hostel Superintendent Smt.
Sharda Dhritlahre (PW1) made a written complaint in this regard in
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the police station on the basis of which offences under Sections
363, 365, 34 of the Indian Penal Code were registered. Statement
of the prosecutrix was recorded under Section 161 of the Code of
Criminal Procedure. On the basis of her statement, other offences
were added. Statements of other witnesses were also recorded.
During the course of investigation, a mark-sheet (Ex.P20) of the
prosecutrix was seized from her father Bedram Anchal (PW6) vide
seizure memo (Ex.P16). Dakhil-Kharij register (Ex.P66) was also
seized vide seizure memo (Ex.P67). According to the entries
made in the mark-sheet and in the dakhil-kharij register, date of
birth of the prosecutrix is 12.9.1999. On completion of the
investigation, charge-sheet was filed. Charges were framed
against Appellant Vikki under Sections 376(1), 366, 506, 365, 343
of the Indian Penal Code and Section 4 of the Pocso Act. Charges
were framed against Appellants Himanshu, Ashish and acquitted
accused persons Yashwant and Mohd. Lukman under Section
376(1) of the Indian Penal Code. Against Appellant Sidhnath
charges were framed under Sections 376(1), 366 of the Indian
Penal Code and Section 4 of the Pocso Act. Against Appellant
Sonam, charges under Sections 109/115 (3 counts), 506, 365,
343, 370(A) of the Indian Penal Code were framed. Against
Appellants Vikki, Ashish, Sidhnath, acquitted accused Yashwant
and Mohd. Lukman, additional charges under Section 3(1)(xii) of
the PoA Act was framed. Against Appellant Vikki, acquitted
accused Yashwant, Appellant Himanshu, acquitted accused Mohd.
Lukman, Appellants Ashish, Sidhnath, Sonam, charge under
Section 3(2)(v) of the PoA Act was also framed.
4. In support of its case, the prosecution examined as many as 29
witnesses. In examination under Section 313 of the Code of
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Criminal Procedure, the accused persons denied the guilt. No
witness has been examined in their defence.
5. After trial, the Trial Court acquitted accused persons Yashwant and
Mohd. Lukman of all the charges framed against them, but
convicted and sentenced the present Appellants as mentioned in
second paragraph of this judgment. Hence, these appeals.
6. Learned Counsel appearing for the Respective Appellants
submitted that the present Appellants have wrongly been convicted
by the Trial Court without there being sufficient evidence on record
against them. The entire story narrated by the prosecutrix is
suspicious and not natural. She never made any complaint at any
point of time to anyone. If the entire statement of the prosecutrix is
taken as it is, it is well established that she was a consenting party
to the alleged act done with her. The Trial Court has wrongly
arrived at the conclusion that at the time of incident age of the
prosecutrix was below 18 years. From a bare perusal of the
statement of father of the prosecutrix, it is well established that on
the relevant date, the prosecutrix was aged more than 18 years.
The doctor had also advised for ossification test of the prosecutrix
for determination of her age, but the prosecution did not conduct
ossification test of the prosecutrix for the reasons best known to
them. Since on the date of incident, age of the prosecutrix was
above 18 years and she was a consenting party to the alleged act,
no offence is made out beyond reasonable doubt. Thus, the
finding of the Trial Court is perverse and not in accordance with the
evidence available on record.
7. Learned Counsel appearing for the State supported the impugned
judgment of conviction and sentence.
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8. I have heard Learned Counsel appearing for the parties and
perused the record minutely.
9. I shall first consider the evidence on record with regard to age of
the prosecutrix. In this regard, 2 documentary evidence are
available on record. They are dakhil-kharij register (Ex.P66) and
mark-sheet (Ex.P20) of the prosecutrix. According to the entries
made in these two documents, date of birth of the prosecutrix is
12.9.1999. The alleged incident took place in December, 2015. As
stated by the prosecutrix (PW3), in the year 2015, she was
studying in XIth standard. In her Court statement, the prosecutrix
(PW3) has not been able to state her date of birth and whatever
has been stated by her regarding her date of birth is based on the
entries made in her mark-sheet (Ex.P20). Her father Bedram
(PW6) has also deposed that he also stated her date of birth on the
basis of the entries made in the mark-sheet (Ex.P20). He has
further deposed that he had got the prosecutrix admitted in the
Primary School Mathpur in 1st standard. He has also admitted that
he did not get the birth particulars of the prosecutrix entered in the
kotwari register. According to the entries of dakhil-kharij register
(Ex.P66) also, date of birth of the prosecutrix is 12.9.1999.
10. Teacher Sarla Ahire (PW28) has stated that in the entry made at
Sl.No.355 of dakhil-kharij register (Ex.P66), date of birth of the
prosecutrix is 12.9.1999 and date of her admission in I st standard is
10.8.2004. She was not able to state that on what basis the
entries were made in the dakhil-kharij register and who made those
entries in the said register.
11. Bedram (PW6), father of the prosecutrix has stated in paragraph 6
of his cross-examination that he was aged about 19 years at the
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time of his marriage. 1½ years thereafter, his first child was born
and thereafter with an interval of 1-1½ years, his remaining 2
children including the prosecutrix were born. On the date of
recording of his statement in the Court, his apparent age is
mentioned as 45 years. If he got married on his age of 19 years
and his all the 3 children born with an interval of 1-1½ years then
his all the 3 children would have taken birth on his age of 25 years.
In these circumstances, in the year 2015, age of the prosecutrix
establishes to be 18-19 years. Bedram (PW6) has further stated in
paragraph 9 that he got the prosecutrix admitted in the school in 1 st
standard on her age of 7-8 years. As stated by teacher Sarla Ahire
(PW28), admission of the prosecutrix in the school was done on
10.8.2004. In these circumstances, on 10.8.2004, i.e., on the date
of her admission in the school, age of the prosecutrix was 7-8
years and in the year 2015 when she was studying in XI th standard
her age establishes to be 18-19 years.
12. From the evidence discussed above, it is well established that
though in dakhil-kharij register (Ex.P66) and in mark-sheet
(Ex.P20), date of birth of the prosecutrix is mentioned as
12.9.1999, who made those entries in these 2 documents and on
what basis the entries were made in these documents is not
established. No entry regarding date of birth of the prosecutrix was
got recorded in the kotwari register. Despite being suggested by
the doctor, ossification test was not conducted by the prosecution
for determination of age of the prosecutrix. From the statement
made by Bedram (PW6) in paragraphs 6 and 9, age of the
prosecutrix in the year 2015 establishes to be between 18 and 19
years. Thus, the finding of the Trial Court that on the date of
incident age of the prosecutrix was below 18 years is not in
11
accordance with the evidence available on record.
13. With regard to the alleged incident, only the Hostel Superintendent
Sharda Dhritlahre (PW1) has identified Appellant Sonam. In her
Court statement, she has stated that on 9.2.2016, the prosecutrix,
leaving a letter in the hostel that she had to go to the house of her
sister, went out. On 13.2.2016, Gangabai Yadav (PW2) and
Rajkumari Diwaker (PW11), both cook of the hostel had told this
witness that the prosecutrix went out of the hostel along with one
boy on a motorcycle. Thereafter, on 15.2.2016, the prosecutrix
returned to the hostel. This witness called the prosecutrix to her.
At that time, a telephonic call of Appellant Sonam came to the
prosecutrix. Then this witness called Appellant Sonam. Sonam
came to this witness. Then this witness called police at the hostel
and thereafter she made the written complaint (Ex.P1). This
witness has turned hostile. In her cross-examination in paragraph
12, she has stated that in the police station she was asked by the
police officials to give a complaint in writing and, therefore, she
made the written complaint. Gangabai (PW2) and Rajkumari
(PW11) have also not supported the case of the prosecution and
turned hostile.
14. The prosecutrix (PW3) in her Court statement has stated that she
took admission in the hostel in July, 2015. In the hostel, her
friendship developed with Padmini Banjare. Thereafter, she went
along with Padmini Banjare to Magneto Mall. Padmini Banjare
introduced her with Appellant Vikki in the Mall. Thereafter, talks
started between her and Appellant Vikki. She has further stated
that on the day of tija festival, Appellant Vikki called her at the gate
of her hostel. She came out of the hostel and went out along with
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Appellant Vikki on his bike for roaming. Appellant Vikki took her to
the house of his friend Vishal (PW13) at Village Masturi. She
stayed in a room of that house for 1 day. During her stay at the
house, Appellant Vikki forcibly committed wrong with her. But,
Vishal (PW13) has not supported the above statement of the
prosecutrix and turned hostile. The prosecutrix has further stated
that 1 week thereafter Appellant Vikki made her a telephonic call
and tendered his apology. He called her to meet him. On her
refusal, he threatened her and asked her to come to Magneto Mall.
She went to Magneto Mall. There she met with Appellants Vikki
and Tantan. While roaming, the time spent and it became evening.
Then she asked them to leave her at her hostel. They saying that
they will leave her at her hostel took her on their motorcycle.
Thereafter, they took her to the shop of Appellant Tantan situated
in Village Kirari. Thereafter, Appellant Vikki went away and
Appellant Tantan committed wrong with her in his shop. Next day,
Appellant Tantan gifted her a suit and asking her not to disclose
the matter to anyone left her at her hostel. She has further stated
that in December, 2015, Appellant Sonam came to the hostel along
with Padmini Banjare. During stay of Sonam at the hostel for 2
days, this witness got acquainted with her. Thereafter, on an
invitation of Appellant Sonam for celebrating 31 st December, she
went to the house of Sonam along with Padmini Banjare. After
celebrating the new year, this witness and Padmini Banjare slept in
the night in a room of the house of Appellant Sonam. In the night,
Appellants Sonam and Vikki called and took out Padmini from the
room and sent acquitted accused Yashwant inside that room
where he committed rape with her in that night. In the next
morning, Appellant Vikki, Padmini and Yashwant returned back.
13
Appellant Sonam asked this witness to stay at her house and
attend her school from her house. On being asked so, this witness
stayed at the house of Appellant Sonam. 2 days thereafter,
Appellant Sonam called Appellant Ashish. Then Appellants Sonam
and Ashish and this witness went to the house of Appellant Ashish
situated at Tifra, Bilaspur in a car. There 3-4 boys were already
present. All the persons took dinner there. Thereafter, Appellant
Sonam shut this witness along with Appellant Ashish in a room
there. Thereafter, Appellant Ashish committed rape with her in that
night. In the next morning, at about 10-11 a.m., Appellant Ashish
took this witness and Appellant Sonam and left them at the house
of Appellant Sonam. This witness has further stated that on 7 th or
8th of January, 2016, Appellant Himanshu came to the house of
Appellant Sonam. Sonam introduced Himanshu with her as
younger brother of Appellant Vikki. In the night, Appellant
Himanshu committed rape with her. This witness has further
stated that on 9.1.2016, she returned to her hostel with her mobile
phone and started living at her hostel. Thereafter, Appellant
Sonam had been threatening her to come back otherwise she will
take her out of the hostel. On 8 th or 9th of February, 2016,
Appellant Sonam again threatened her. On this, this witness
leaving a letter in the hostel went to the house of Appellant Sonam.
She stayed at the house of Appellant Sonam till 13.2.2016. on
13.2.2016, Appellants Sonam and Vikki came to her hostel.
Sonam dragged her by her hand from her room to the gate of the
hostel. Appellant Vikki started abusing her at the gate. Appellants
Sonam and Vikki forcibly made her sit on a bike and thereafter she
was taken away from there. On 15.2.2016, this witness telling
Appellant Sonam that she had received a telephonic call from her
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father returned from the house of Appellant Sonam and came to
her hostel. When she was narrating the incident to the Hostel
Superintendent, at that time itself, a telephonic call of Appellant
Sonam came to her. On this, the Hostel Superintendent talked to
Appellant Sonam and asked her to come to the hostel. On
reaching Sonam to the hostel, the Hotel Superintend called police
at the hostel. In her cross-examination, the prosecutrix has stated
that when she was shut in the house of Vishal (PW13) at Village
Masturi, at that time, she had shouted loudly. She has further
stated that on the next day, at about 11-12 a.m., Appellant Vikki
had left her at the gate of the hostel. At that time, she had not
made any complaint to anyone. In paragraph 28, she has further
stated that in the night of 31 st December, 2015, she did not see the
person who committed sexual intercourse with her. On being told
by Padmini Banjare, she came to know that the said person was
Yashwant. In paragraph 29, she has admitted that she had a
mobile phone on which she had been talking to her family
members, but she never told about the incident to her family
members. In paragraph 40, she has further stated that in Village
Kirari, she had stayed at the shop of Appellant Tantan for about
10-12 hours and when he started doing wrong with her forcibly,
she shouted for about 10 minutes. Thereafter, Appellant Tantan
gagged her mouth. She has further stated that Appellant Tantan
did not commit any marpeet with her and on the next day he
himself had left her on his bike to her hostel. At that time also, she
did not make any complaint to anyone. She has further stated that
on 31.12.2015, Appellant Tantan had met with her at the house of
Appellant Sonam. There also, this witness did not make any
complaint against Appellant Tantan.
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15. Padmini Banjare (PW4) has also not supported the case of the
prosecution and turned hostile. Priyanka Tandaon (PW7), one of
the students, who was also residing in the hostel has not supported
the case of the prosecution and turned hostile. Sangeeta (PW8),
cook of the hostel has also not supported the case of the
prosecution and turned hostile. Constable Neelam Yadav (PW9)
and Lance Nayak Salomi Rani (PW10) were deputed to discharge
their duties at the hostel in question. Both have also not supported
the case of the prosecution and turned hostile. Trilochan Singh
(PW14) and Seema Lader (PW17) are witnesses in whose houses
Appellant Sonam had lived as their tenant for some period. Both
these witnesses have stated that they had expelled Appellant
Sonam out of their houses because of her suspicious activities.
Sub-Inspector J.R. Banjare (PW20) recorded First Information
Report (Ex.P2) on the basis of the written complaint (Ex.P1) made
by the Hostel Superintendent.
16. Inspector Vinodini (PW19) recorded statement of the prosecutrix
under Section 161 of the Code of Criminal Procedure. Dr. Nilesh
Thakur (PW21) examined the prosecutrix on 16.2.2016. Her report
is Ex.P18 in which she opined that no definite opinion could be
given regarding recent sexual intercourse with the prosecutrix.
She opined that the prosecutrix was habitual to sexual intercourse.
2 fingers entered easily into her vagina. No injury on any part of
her body was found. For determination of her age, this witness
advised for ossification test.
17. Deputy Superintendent of Police Nasar Siddiqui (PW22), Additional
Superintend of Police Varsha Mishra (PW27) and Head Constable
Manoj Rajput (PW29) are the witnesses who investigated the
16
offence in question in part. Other witnesses, namely, Satyendra
Mishra (PW24) and Subhash Singh (PW25) have also not
supported the case of the prosecution and turned hostile.
18. Hostel Superintendent Sharda (PW1), in paragraphs 13, 14 and 15
of her cross-examination, has admitted the fact that homeguards
were present at the gate of the hostel for 24 hours. A lady
homeguard also remained present in the girls hostel. A separate
shade is made for meeting with visitors. Permission is granted to
the students staying at the hostel only to meet with their parents
and with the persons whose photographs are pasted in the visitors’
register. This witness has further stated that she herself marks
attendance of the students in the attendance register daily in the
evening. In paragraph 20, she has admitted that in December,
2015, according to the attendance register, attendance of the
prosecutrix for all the days excluding the period of winter vacation
is marked as her presence. She has further admitted that in
January, 2016, attendance of the prosecutrix for the whole month
is marked as her presence. In the month of February, 2016 also,
presence of the prosecutrix is marked for the period from 1.2.2016
to 8.2.2016. In paragraph 26, she has further admitted that from
31.12.2015 to 9.1.2016, presence of the prosecutrix is marked in
the hostel attendance register.
19. On a minute examination of the above evidence on record, it is
clear that as stated by the prosecutrix, first incident took place with
her by Appellant Vikki on the day of tija festival. But, she never
made any complaint in this regard to anyone and she returned
from Village Masturi along with Appellant Vikki himself. Later on
also, both continued to meet with each other. But, she never made
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any complaint. With regard to Appellant Tantan, from the evidence
of the prosecutrix, it is established that she herself stayed at the
shop of Appellant Tantan for the whole night and she was gifted a
suit also by him next day of her stay and he went along with her to
leave her at her hostel. On 31.12.2015 also, Appellant Tantan met
with the prosecutrix at the house of Appellant Sonam where many
persons were already present. But, she did not make any
complaint against Appellant Tantan to anyone. With regard to
Appellant Ashish, as stated by the prosecutrix, in the first week of
January, 2016, at the house of Appellant Ashish, he had committed
rape with her, but, she herself has admitted that on the next day, it
was Appellant Ashish who left her at the house of Appellant
Sonam. At that time or even later on, she did not make any
complaint against Appellant Ashish to anyone. With regard to
Appellant Himanshu, on 7th or 8th of January, 2016, Appellant
Himanshu had stayed at the house of Appellant Sonam and
committed rape with the prosecutrix, but against him also, she did
not make any complaint to anyone.
20. According to the statement of Hostel Superintendent Sharda
(PW1), attendance of the prosecutrix in the hostel attendance
register was marked for the whole month of January, 2016
including 31st December, 2015. In these circumstances, statement
of the prosecutrix that she stayed at the house of Appellant Sonam
from 31.12.2015 to 9.1.2016 and during that period Appellants
Ashish and Himanshu committed the alleged act with her at the
house of Appellant Sonam and she would have stayed at her
house is not reliable. With regard to the incident of 13.2.2016 and
15.2.2016 also, the cooks and homeguards of the hostel have not
supported the case of the prosecution. On a minute examination
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of the statement of the prosecutrix and the other evidence
available on record, it seems that the whole incident is not natural
and unreliable. Even if for the sake of argument, it is considered
that the incident in question had taken place with the prosecutrix,
from the statement of the prosecutrix itself it is established that she
was a consenting party. On the relevant date, age of the
prosecutrix was below 18 years is not proved and as stated by her
father Bedram (PW6) it seems that her age on the relevant date
was about 19 years. Hence, no offence is made out against any of
the Appellants.
21. Consequently, all the appeals are allowed. The impugned
judgment of conviction and sentence is set aside. All the
Appellants are acquitted of the charges framed against them.
22. Record of the Court below be sent back along with a copy of this
judgment forthwith for information and necessary compliance.
Sd/-
(Arvind Singh Chandel)
JUDGE
Gopal