Chattisgarh High Court
Sumil Minj vs The State Of C.G on 20 December, 2022
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 2436 of 2000
Judgment Reserved on 29.8.2022
Judgment delivered on 20/12/2022
• Sumil Minj S/o Kendva, aged about 20 years, Caste- Uranv,
Occupation-Student, resident of village Kailary, Police Station
Dhourpur, District Sarguja (CG)
---- Appellant
(In Jail)
Versus
• State of M.P. through Police Station Dhourpur, Distt. Sarguja
(CG)
---- Respondent
For Appellant : Mr. V.K. Pandey, Advocate
For Respondent : Mr. R.M. Solapurkar, Govt. Advocate
Hon'ble Shri Justice Parth Prateem Sahu
CAV Order
1. This appeal arises out of judgment of conviction and sentence dated 9.9.2000 passed by the learned 2 nd Additional Sessions Judge, Ambikapur, District Surguja in S.T. No.245/99 thereby convicted accused/appellant under Sections 363, 366, 342 & 376 (1) of the Indian Penal Code (for short 'the IPC') and sentenced him to undergo RI for 03 years; RI for 03 years, RI for 06 months and RI for 06 years and fine of Rs.200/-, in default to undergo additional RI for 01 year, respectively. All the sentences were directed to run concurrently.
2. Case of the prosecution, in brief, is that on 6.6.1999 when the prosecutrix along with her friends Hiramani (PW-2) and Virjita (PW-3) was returning her home from Kanki village market. On the way, appellant came on bicycle and caught hold of hand of prosecutrix near an agriculture field in between Kakni & 2 Gangoli and started dragging her from her hairs. When PW-2 & PW-3 asked him not to do so, he threatened them due to which they fled from there. Thereafter, appellant forcibly took the prosecutrix with him to village Chitpur and kept her whole night in the house of one Bokhibai. Next morning appellant took the prosecutrix to his village where he kept her for two days and during this period, he committed sexual intercourse with her saying that he will keep her as his wife. Father of prosecutrix came to house of appellant, freed her daughter from custody of appellant and thereafter prosecutrix lodged report of incident on 10.6.99. Based on aforementioned report, police registered crime for offence defined under Sections 363, 366, 342 & 376 of IPC against appellant.
3. After completion of investigation, police filed charge sheet before the Court of competent jurisdiction. The trial Court framed charges under Sections 363, 366, 342, 376 (1) of IPC against appellant. So as to hold appellant guilty, prosecution examined 12 witness in all and exhibited 13 documents in all. Statement of accused/appellant was recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case and pleaded innocence & false implication. He examined one witness namely Bishu Dev (DW-1) in his defence.
4. After conclusion of trial, trial Court upon appreciation of oral and documentary evidence available on record, convicted and sentenced appellant vide impugned judgment in the manner as mentioned above, by recording finding that on the date of 3 incident, prosecutrix was less than 16 years of age; appellant committed forcible sexual intercourse with her.
5. Learned counsel for appellant would submit that impugned judgment of conviction passed by trial Court is per se illegal, perverse to evidence available on record and also contrary to law laid down by Hon'ble Supreme Court with regard to determination of age of prosecutrix. He submits that on the date of incident, prosecutrix was about 16 years of age, as determined by the Radiologist in report of Ex.P-26 wherein Radiologist (PW-11) has opined that as per test conducted by him, he found the prosecutrix to be in between14 to 16 years. He contended that if ossification test shows age of a person to be 14-16 years then maximum age, as opined by the Radiologist in report Ex.P-26 is to be taken into consideration. He also submits that though Radiologist in report Ex.P-26 has mentioned the range of error in age to be two years on either side but as per law laid down in Subelal vs. State of MP (Now CG) reported in (2011) 4 CGLJ 424, the range of error may be up to 03 years on other side. In the given facts of case, considering range of error in the age as three years, the prosecutrix on the date of incident was more than 16 years. In case at hand, as per report of Radiologist, age of prosecutrix was above 16 years. He further submits that as per statement of prosecutrix herself, after being kidnapped, she was taken by appellant to the house of one lady in village Chitpur. She also admitted that in the house where she stayed in first night except one old lady, other members were in favour of appellant. 4 This old lady by name Bokhibai was examined before trial Court as PW-4 and she had not made any allegation in her statement that prosecutrix complained of kidnapping etc. In fact, this witness stated that prosecutrix told her that one boy brought her to her house on the assurance that he will keep her with him for whole life. Next day, at the instance of prosecutrix, when she was going to drop her to her parents house, on the way the prosecutrix said that she will go home herself Prosecutrix told her that she is going to village Dhimri and saying so, she move forward and at that time, one boy came on bicycle and she went along with that boy. Conduct of prosecutrix shows that she was consenting party. In support of submission that age of prosecutrix has not been proved in accordance with law, learned counsel places reliance upon decisions of Hon'ble Supreme Court in case of Birad Mal Singhvi Vs. Anand Purohit reported in AIR 1988 SC 1796; Babloo Pasi vs. State of Jharkhand reported in 2008 AIR SCW 7332; Sunil vs. State of Haryana reported in 2010 (1) SCC 742 & Alamelu & another vs. State represented by Inspector of Police reported in (2011) 2 SCC 385.
6. On the other hand, learned Government Advocate for the State opposing submissions of learned counsel for appellant, would submit that case of prosecutrix is that when prosecutrix was returning from village market along with her friends Hiramani (PW-2) and Virjita (PW-3), appellant came there and caught hold of her hand. Hiramani (PW-2) and Virjita (PW-3) are independent witnesses and they have supported case of 5 prosecution that appellant forcefully caught hold prosecutrix, assaulted her and due to fear, they ran away from the place of incident. Further, prosecution duly proved the age of prosecutrix by producing school register, which is a government record, wherein date of birth of prosecutrix is mentioned as 28.1.1985, according to date of birth of prosecutrix, on the date of incident she was about 14 years of age and therefore, submission of learned counsel for appellant that prosecutrix was a consenting party is having no force at all. He also contended that prosecution proved allegation of forceful kidnapping, abduction as also commission of rape upon minor girl by producing cogent and admissible piece of evidence, hence impugned judgment does not call for any interference.
7. I have heard learned counsel for parties and perused record of trial Court.
8. Main contention raised by learned counsel for appellant is that prosecution failed to prove age of prosecution to be below 16 years and in view of report of Radiologist (Ex.P-26), age of prosecutrix was opined between 14 to 16 years and margin of error is of two years.
9. To appreciate above submission of learned counsel for appellant, I have perused oral and documentary evidence available on record. Copy of FIR is marked as Ex.P-1. In FIR there is allegation that on the date of incident, appellant forcefully took prosecutrix to another village and next day she was brought to house of appellant and during both nights, appellant committed sexual intercourse with her. Date of 6 incident in FIR is mentioned to be of '6.6.1999' and date of birth of prosecutrix is mentioned as '28.1.1985'. During investigation, prosecution seized school certificate (Ex.P-6) of prosecutrix stated to be issued by the Headmaster of Primary Girls School, Nagpur, in which it is certified that as per school record, prosecutrix took admission in school in Class-1 in the year 1990-91 and her date of birth is 28.1.1985. School register was also produced before trial Court to prove date of birth mentioned in Certificate (Ex.P-6). Headmaster, who issued Certificate (Ex.P-6) was examined before trial Court as PW-6 and he admitted to have issued certificate (Ex.P-6) mentioning date of birth of prosecutrix as 28.1.1985. Father of prosecutrix was examined as PW-3. He stated in his evidence that date of birth of prosecutrix is 28.1.1985, he got recorded date of birth of prosecutrix in school and at the time of incident, age of prosecutrix was about 13-14 years.
10. Hon'ble Supreme Court in case of Sunil v. State of Haryana reported in (2010) 1 SCC 742 while considering issue of determination of age of prosecutrix has held thus:
"25. The prosecution also failed to produce any admission form of the school which would have been primary evidence regarding the age of the prosecutrix. The School Leaving Certificate produced by the prosecution was also procured on 12.09.1996, six days after the incident and three days after the arrest of the appellant. As per that certificate also, she joined the school in the middle of the session and left the school in the middle of the session. The attendance in the school of 100 days is also not 7 reliable. The prosecutrix was admitted in the school by Ashok Kumar, her brother. The said Ashok Kumar was not examined. The alleged school leaving certificate on the basis of which, age was entered in the school was not produced."
11.In case of Alamelu & anr Vs. State represented by Inspector of Police reported in (2011) 2 SCC 385, Hon'ble Supreme Court held as under:-
"39. We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ex.P16 and the certificate issued by PW8 Dr. Gunasekaran, Radiologist, Ex.P4 and Ex.P5.
40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined."
12. In case of Subelal v. State of MP (now CG) reported in 2011 (4) CGLJ 424, considering issue of age of prosecutrix has held thus;-
"11. Dr. S.C. Vishnoi (PW-6) determined the age of the 8 prosecutrix in between 15 to 16 years on the basis of ossification test performed by him. His report is Ex.- P/9. The X-ray plates are Ex.P/10, P/11 & P/12. In Modi's Jurisprudence (20th Edition), it is stated that too much reliance should not be placed on the table showing the age and years of the appearance and fusion of some of the epiphysis as observed by different authors as it merely indicates the average and is likely to vary in individual case even of the same province owing to the eccentricities of development. It is further stated that recent work has shown that the range of error may be up to 3 years on either side. In the present case, Dr. Vishnoi (PW-6) also admitted in the cross-examination that a difference of 3 years on either side may be there in the age determined on the basis of ossification test. In this matter, if we add 3 years towards upper side, the age of the prosecutrix would come to 19 years. Besides the above, there is no other evidence of the age of the prosecutrix. On appreciation of the above evidence, I am of the view that the prosecution could not establish that the prosecutrix was a minor and the finding recorded by the Session Judge cannot be sustained."
13. Report (Ex.P-3) is proved by Dr. M.K. Jain (PW-12), Radiologist who examined prosecutrix and based on report opined that prosecutrix is between 14 to 16 years of age. Hon'le Supreme Court in case of Jaya Mala vs. Home Secretary, reported in (1982) 2 SCC 538 has held that however, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. In case of Subelal (supra), referring to 20 th Edition of Modi Jurisprudence, learned Single Judge observed that according to recent work, margin of error may be three years 9 on either side. In case at hand, if margin of error of three years is taken from higher side of age i.e.16 years, as opined by the doctor (PW-26), then age of prosecutrix on the date of incident would come to 19 years i.e. above 18 years of age. Certificate (Ex.P-6) produced by prosecution and proved by PW-6, is handwritten piece of paper prepared on 4.7.1999, whereas date of incident, as mentioned in FIR, is 6.6.1999. Hence, this handwritten certificate is issued after the date of incident. Record based on which this certificate is issued mentioning date of birth of prosecutrix as 28.1.1985 was not produced before trial Court by prosecution. Considering report (Ex.P-6) in light of above decisions of Hon'ble Supreme Court, particularly in absence of original school record substantiating date of birth mentioned in certificate (Ex.P-6), evidence of Headmaster (PW-6), Certificate (Ex.P-6) and date of birth mentioned in it, cannot be accepted as Gospel truth. When any certificate with respect to date of birth found to be unacceptable, than the age can be ascertained from radiological report.
14. As discussed in preceding paragraphs, based on radiological report (Ex.P-23), which is duly proved by doctor (Ex.P-12), as also decision of this High Court in Subelal's case (supra), I am of view that appellant is entitled to benefit of margin of error of three years on higher side of age of prosecutrix assessed in radiological examination. This being the position, the trial Court fell into error in holding prosecutrix to be below 18 years of age. Hence, finding of trial Court regarding age of prosecutrix is 10 erroneous and it is accordingly set aside. It is hereby held that on the date of incident, prosecutrix was above 18 years of age.
15. Now this Court will consider whether appellant committed sexual intercourse with prosecutrix against her wish?
16. Perusal of evidence of prosecutrix would show that on the date of incident, prosecutrix along with her friends was returning home from village market. On the way, appellant came on bicycle, caught hold of hand of prosecutrix and when prosecutrix somehow managed to free herself from clutches of appellant, he caught hold of her hairs and started dragging her. Friends of prosecutrix tried to intervene but appellant threatened them. Thereafter appellant forcibly took prosecutrix to village Chitarpur and kept her in the house of a guard in night. One old lady was also residing there to whom she requested to drop her at her home. When prosecutrix along with that old lady was going to her house, appellant came on the way, took prosecutrix to his own house on the point of knife, locked her in a room and committed sexual intercourse with her in night thrice. Next day father of prosecutrix came to house of appellant and took back prosecutrix with him.
17. Friend of prosecutrix, who at the time of incident was returning with prosecutrix, was examined as PW-2. In her evidence, this witness supported allegation and statement of prosecutrix that one boy came on bicycle, caught hold of hands of prosecutrix and when prosecutrix somehow managed to free herself, he caught hold of her hairs. She was threatened by appellant.
18. Father of prosecutrix was examined as PW-3 and mother of 11 prosecutrix was examined as PW-5. In cross-examination, mother of prosecutrix stated that they informed villagers that her daughter is in the house of appellant. Even after getting knowledge that prosecutrix is in the house of appellant, she or her uncle, who was residing in village, had not gone along with other villagers to the house of appellant to bring back prosecutrix.
19. Prosecutrix in her evidence stated that due to threat given by appellant, she did not return with villagers who came to house of appellant. She returned to her house only when her father came to house of appellant.
20. Bokhibai (PW-4) is a lady with whom prosecutrix was going back to her house. She stated that, on being asked, prosecutrix told her that she is unmarried and resides in village Koilari. After eating dinner, prosecutrix started crying and on being asked, she said that boy who told her that he will keep her with him whole life and is supposed to come, had not come.
21. In view of above evidence of prosecutrix (PW-1), PW-4, PW-5, the allegation and statement of prosecutrix before trial Court raises suspicion on allegation appellant forcibly took prosecutrix and committed forcible sexual intercourse with her. There are contradiction in evidence of material witnesses. There is no doubt that conviction under Section 376 of IPC can be based on solitary evidence of prosecutrix, but that evidence should inspire confidence. In case at hand, prosecutrix though stated that when villagers came to house of appellant to take her back home, she refused to go with them due to threat given 12 by appellant, which is difficult to accept because appellant is also resident of same village, particularly in the light of evidence of PW-4. Prosecutrix resided in the house of appellant, more than one person i.e. villagers came there to take her back but she did not go with them or made allegation against appellant to them. It has also come in evidence that prior to incident in question, some dispute also took place between family member of prosecutrix and appellant, but no report was lodged.
22. Taking into consideration the entire evidence available on record, this Court is of the view that prosecution failed to prove beyond reasonable doubt that appellant committed offence punishable under Sections 363, 366, 342 & 376 of IPC and being so, appellant is entitled for benefit of doubt.
23. In the result, appeal is allowed. Conviction of appellant under Sections 363, 366, 342 & 376 of IPC and sentenced imposed under those sections are hereby set aside. Appellant is acquitted from charge of Sections 363, 366, 342 & 376 of IPC. He is reported to be on bail. His bail bonds stand discharged.
Sd/-
(Parth Prateem Sahu) Judge roshan/-