Chattisgarh High Court
Basant Kumar Uraon vs State Of Chhattisgarh on 6 September, 2022
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 640 of 2002
• Basant Kumar Oraon, son of Late Ramsewak, aged 18 years,
resident of village Orkela, Police Station Sanna, District
Jairamnagar, Chhattisgarh.
---- Appellant (In Jail)
Versus
• State of Chhattisgarh, through Police Station Sanna, District
Jashpurnagar, Chhattisgarh.
---- Respondent
For Appellant : Mr. S.B. Pandey, Advocate
For Respondent : Mr. Ajay Kumrani, Panel Lawyer.
Hon'ble Shri Justice Parth Prateem Sahu
Judgment on Board
06.09.2022
1. Challenge in this criminal appeal is to the judgment of conviction and order of sentence dated 17.4.2002 passed in S.T. No.125/2001 by which learned Additional Sessions Judge, Jashpurnagar convicted accused/appellant under Sections 363, 366 & 376 of the Indian Penal Code (for short 'the IPC') and sentenced him to undergo RI for 4 years with fine of Rs.1,000/-, in default to undergo additional RI for 3 months; RI for 5 years with fine of Rs.1,000/-, in default to undergo additional RI for 3 months; and RI for 7 years with fine of Rs.5,000/-, in default to undergo additional RI for 6 months respectively. All the sentences were directed to run concurrently.
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2. Case of the prosecution, in brief, is that on 7.4.2001, prosecutrix lodged report in concerned police station mentioning that on 4.4.2001 at about 5:00 p.m. she along with other students was returning home from school at Alori. On the way near Deven-dera, accused/appellant came near to her, caught hold of her hand and thereafter on the point of knife took her towards jungle. Next day at about 5:00 a.m. in the morning they reached to the house of aunt of accused/ appellant situated in village Sogda where accused/appellant ate food and thereafter left for the house of Puniyabai, another aunt of accused/appellant, situated in village Kharsotta where they reached at 11:00 a.m. and after taking lunch, accused took her to the house of his uncle & aunt situated in village Phenku, where they stayed there whole night and during night accused/appellant committed forcible sexual intercourse twice with her on the point of knife. On 6.4.2001, Rajendra, brother of prosecutrix, and Sanjay, brother-in-law of prosecutrix, came to village Painku and took her back to village Orkela. Based on aforementioned report, police registered offence against appellant under Sections 363, 366 & 376 of IPC and started investigation. During investigation, police arrested accused/appellant, sent the prosecutrix as also accused for medical examination, recorded statements of witnesses including prosecutrix and on completion of investigation, filed charge sheet against appellant and co-accused Devnarayan before the Court below.
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3. The trial Court framed charges under Sections 363, 366, 376 (1) of IPC against appellant. To prove charge against appellant, the prosecution exhibited as many as 13 documents from Ex.P-1 to Ex.P-13 and examined 12 witness namely Dr. Ranjeet Toppo (PW-1), Ramdev (PW-2), Dr. Fabiyola Kispotta (PW-3), Pitrus Tirkey (PW-4), prosecutrix (PW-5), Ajantibai (PW-6), Rajendra Ram (PW-7), Piyus Toppo (PW-8), Sushil Kumar (PW-9). 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; pleaded innocence and false implication.
4. After conclusion of trial, the trial Court upon appreciation of oral and documentary evidence available on record, convicted and sentenced accused/appellant vide impugned judgment in the manner as mentioned in para-1 of this judgment.
5. Learned counsel for appellant would submit that trial Court failed to properly appreciate oral and documentary evidence brought on record and passed the impugned judgment without proper application of mind. From evidence available on record it is clear that on the date of incident, prosecutrix was not only above 18 years of age but also a consenting party to the sexual intercourse between her and appellant. Prosecutrix visited many places with appellant i.e. village Sogda, Kharsotta, Phenku, but she did not make any complaint to anyone on the way or at the places where she stayed with 4 appellant. On the contrary, she accompanied appellant quietly in a normal manner, which shows that prosecutrix was not kidnapped or abducted or taken by force by appellant from lawful guardianship of her parents, rather she was a consenting party. He also submits that in order to prove age of prosecutrix, the prosecution filed mark-sheet (Ex.P-12) in which date of birth of prosecutrix is mentioned as '3.6.1984'. This mark sheet is stated to have been seized from prosecutrix. However, prosecution failed to prove date of birth of prosecutrix in accordance with law as the person who recorded date of birth of prosecutrix in this mark sheet (Ex.P-
12) or the Principal of the school who had issued this mark sheet, was not examined before the Court below. Mere filing of mark-sheet is not sufficient to establish that on the date of incident, the prosecutrix was below 18 years of age. This apart, the prosecutrix was not sent for ossification test / radiological examination to determine her age and in absence thereof, it cannot be said that on the date of incident, the prosecutrix was below 18 years. The Court below, without there being any concrete evidence relating to age of prosecutrix, only considering that prosecutrix is student of Class 7th, erroneously ascertained her age to be 13-14 years. As per mark sheet Ex.P-12, age of prosecutrix on the date of incident was 16 year 10 months and therefore, even if it is admitted for sake of argument only that appellant established physical relation with prosecutrix, then the same would not fall within definition of Section 375 of IPC. It is also pointed out 5 that prosecutrix returned back to her home only when brother & brother-in-law of prosecutrix came to the house of maternal aunt of appellant. MLC report of prosecutrix only mentions about redness and tenderness of minora, there is no mention about rupture of her hymen. The doctor who had examined prosecutrix has stated in his evidence that redness and tenderness in minora can be for some other reasons also.
6. On the other hand, learned State Counsel opposed the submissions of learned counsel for appellant and supported the impugned judgment. He submits that the prosecutrix (PW-5) and Ajantibai (PW-6), friend of prosecutrix, have categorically stated in their evidence that on the date of incident, appellant caught hold of hand of prosecutrix and forcibly took her with him. Prosecutrix in FIR mentioned her age as 13 years. Even if the date of birth mentioned in mark- sheet (Ex.P-12) is taken as it is, then also on the date of incident, prosecutrix was less than 18 years of age. Hence, the trial Court rightly concluded that prosecutrix was minor on the date of incident. He submits that in MLC report doctor specifically opined that prosecutrix was subjected to rape. In these circumstances, the impugned judgment does not call for any interference.
7.I have heard learned counsel for parties and perused the record of trial Court.
8. Perusal of FIR lodged by prosecutrix would show that from near Devendera, appellant took the prosecutrix with him on the point of knife and next morning at about 5:00 a.m. they 6 reached to house of aunt of appellant situated in village Sogda where appellant ate food, but the prosecutrix had not made any complaint to aunt of appellant that she was kidnapped or abducted by appellant. As per FIR, thereafter, on the same day, appellant took her to two different villages but, as per evidence of prosecutrix, she has not made any sort of complaint to anyone either to the persons travelling on the way or to the members of house where she stayed with appellant in the afternoon or night. Both the houses were of maternal aunts of appellant located in two different villages. Prosecutrix returned her home only when her family members including brother & brother-in-law came to the house of maternal aunt of appellant in village Painku.
9. Rajendra Ram (PW-7) did not support case of prosecution and turned hostile. In answer to leading questions asked by learned Additional Public Prosecutor, this witness has denied the suggestion that prosecutrix was forcibly taken away by appellant. This witness admitted that prosecutrix accompanied with appellant of her own will, there was love affair between her and appellant prior to date of incident; Sunil, brother-in-law of prosecutrix, gave 2-3 slaps to her and forcibly took her with him.
10. Ajantibai (PW-6), who on the date of incident was returning along with prosecutrix, also not supported prosecution case and as such, she was also declared hostile. In cross- examination by the Public Prosecutor, she stated that she does not know as to whether or not prosecutrix accompanied 7 appellant of her own will because she herself fled from the spot.
11. From the above evidence available on record, case of prosecution that appellant took the prosecutrix on the point of knife does not appear to be acceptable and reliable. Now this brings me to the question with regard to age of prosecutrix.
12. Prosecution seized Class 7th mark-sheet (Ex.P-12) of prosecutrix of the year 1999-2000 in which her date of birth is mentioned as 03.06.1984. Mark-sheet bears seal and signature of Headmaster of Middle School, Manora, District Raigarh as also of Block Education Officer, Manora, District Raigarh, but none of these two government officials was examined by the prosecution before the Court below to prove contents of Ex.P-12. Except mark sheet, there is no other document available on record to ascertain /determine the age of prosecutrix. Even prosecution has not sent the prosecutrix for ossification test/radiological test. It is a mark-sheet of school and not issued from Board of Secondary Education. At the time of lodging FIR, prosecutrix mentioned her age to be 13 years. Whereas, as per date of birth mentioned in mark-sheet Ex.P-12, on the date of incident, she was about 16 years & 10 months. In view of this contradiction in respect of age of prosecutrix and in absence of examination of any witness i.e. authority issuing mark-sheet (Ex.P-12), the same cannot be treated as admissible piece of document for determining age of prosecutrix. For this view I am fortified by decision of Hon'ble Supreme Court in case of Alamelu & 8 another Vs. State represented by Inspector of Police reported in (2011) 2 SCC 385 wherein Hon'ble Supreme Court while considering transfer certificate placed on record by prosecution to prove the age of prosecutrix has held as under:-
"44.In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl."
48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows (SCC p.595, para 38):-
"38. The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same 9 standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted.
49. In such circumstances, we are constrained to hold that the High Court without examining the factual and legal issues has unnecessarily rushed to the conclusion that the girl was a minor at the time of the alleged abduction.
There is no satisfactory evidence to indicate that she was a minor."
13. PW-9, brother of prosecutrix, have not stated date of birth of prosecutrix. Piyush Toppo (PW-8), Investigating Officer, admitted in his cross-examination that he had not sent the prosecutrix for ossification/radiological test. No explanation has been offered by this witness as to why ossification test of prosecutrix was not got done.
14. The trial Court in Paragraph-6 of impugned judgment, taking note of Ex.P-12 i.e. copy of mark-sheet, has observed that prosecution failed to prove date of birth of prosecutrix mentioned in mark-sheet in accordance with law, however, considering that prosecutrix herself stated in her evidence that she cannot tell her date of birth. Trial Court only considered that prosecutrix passed Class 7th in the year 1999-2000, hence she was of 13-14 years of age. Age of 10 prosecutrix in criminal cases is required to be proved by placing cogent and admissible piece of evidence on record and it cannot be determined only on the basis of presumption and assumption. Hence, observation made by learned trial Court with regard to age of prosecutrix to be 13-14 years is not sustainable.
15. In view of above discussion, particularly in light of judgment of Hon'ble Supreme Court in Alamelu (supra), I am of the view that prosecution failed to prove that on the date of incident, prosecutrix was 13-14 years of age or minor.
16. Now coming to submission of learned counsel for appellant that prosecution failed to prove commission of rape upon prosecutrix. The doctor, who medically examined the prosecutrix vide Ex.P-4, had noticed tenderness in right dorsum of foot; redness in right side of libia minora and opined in favour of rape. In cross-examination the doctor (PW-3) has admitted that there is no mention in MLC (Ex.P-4) with regard to status of her hymen, whether ruptured or not; age of injuries and further last menstrual period. Prosecutrix in her evidence stated that appellant committed rape with her in village Painku. In view of aforementioned evidence available on record, MLC report of the doctor and further evidence of prosecutrix, this Court is not convinced with statement made by learned counsel for appellant that there was no evidence available on record proving commission of sexual intercourse with prosecutrix by appellant. However, the evidence available on record 11 indicates that sexual intercourse between the appellant and prosecutrix was consensual.
17. In view of above, as the prosecution failed to prove age of prosecutrix by cogent and admissible piece of evidence, in the opinion of this Court, the trial Court fell into error in arriving at a conclusion that on the date of incident, the prosecutrix was minor and convicted the appellant for aforementioned offence. In absence of proof of age of prosecutrix, when there are two version of prosecutrix herself with regard to age of prosecutrix, she cannot be considered to be minor on the date of incident and in view of aforementioned evidence, I am of the considered view that the prosecutrix was the consenting party. As age of prosecutrix is not proved to be below 18 years in the facts and circumstances of case and evidence available on record, particularly evidence of PW-7, conviction of appellant under Sections 363, 366 & 376 of IPC is not sustainable and it is liable to be set aside.
18. Consequently, appeal is allowed. Impugned judgment of conviction and order of sentence is hereby set aside. Appellant is acquitted of all the charges. Appellant is on bail, his bail bonds stand discharged.
Sd/-
(Parth Prateem Sahu) Judge roshan/-