Chattisgarh High Court
Santosh Sahu vs The State Of Chhattisgarh on 23 July, 2009
Author: T.P. Sharma
Bench: T.P. Sharma
HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No.37 of 2007
Santosh Sahu
...Petitioners
Versus
The State of Chhattisgarh
...Respondents
{Appeal under Section 374 (2) of the Code of Criminal
Procedure, 1973}
! Mr. G.S. Agrawal, Senior Advocate with Mr. Sudeep Verma, Advocate for the appellant
^ Mr. Sushil Dubey, Govt. Advocate for the State/respondent
Honble Mr. T.P. Sharma, J
Dated:23/07/2009
: Judgment
JUDGMENT
(Delivered on 23rd July, 2009)
1. This criminal appeal is directed against the judgment of conviction & order of sentence dated 28-10-2006 passed by the 8th Additional Sessions Judge (F.T.C.), Raipur in Sessions Trial No.84/2005 whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of offence under Section 376 (2) (f) of the I.P.C., sentenced him to undergo R.I. for ten years & pay fine of Rs.1,000/-, in default of payment of fine to further undergo R.I. for six months.
2. Judgment of conviction & order of sentence are challenged on the ground that the prosecution has not proved the age of the prosecutrix below 16 years, medical evidence has not supported the case of the prosecution, there is material improvement in the evidence of the witnesses and improbability of commission of such offence.
3. Case of the prosecution, in brief, is that the prosecutrix (PW-1) was aged about 11 years on the date of incident i.e. 4-8-2004. She was sleeping in her house at village Chatoud, Police Station Newra, Distt. Raipur. Firstly, the appellant came to her house and took her brother Narayan for fishing, afterwards he again came, demanded tobacco and caught hold the hands of the prosecutrix, pressed her breasts and after throwing her down and pressing her mouth, committed forceful sexual intercourse with her. When the accused was going from the house of the prosecutrix, the prosecutrix cried for help on which Narayan & others came and she narrated the incident to her brother & others, and lodged the F.I.R. on second day vide Ex.P-1. Spot map was prepared by the Patwari vide Ex.P-3. Underwear of the prosecutrix was seized vide Ex.P-4. The Police prepared spot map vide Ex.P-
5. Transfer certificate showing date of birth of the prosecutrix Ex.P-6 was seized vide Ex.P-10. The prosecutrix was sent for medical examination vide Ex.P-18 and she was examined by Dr. Sudha Samuel (PW-6) vide Ex.P-9. No injury was found over the body & private parts of the prosecutrix, hymen was old torn and vagina admits 1 + fingers. The accused was also examined by Dr. R.S. Thakur (PW-9) vide Ex.P- 11 and he was found capable of committing sexual intercourse. Vaginal slides of the prosecutrix were taken and sent for chemical analysis. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation charge sheet was filed before the Court of Judicial Magistrate First Class, Raipur, who in turn committed the case to the Court of Sessions, Raipur, from where learned 8th Additional Sessions Judge (F.T.C.), Raipur received the case on transfer for trial.
4. In order to prove the guilt of the appellant, the prosecution has examined as many as seventeen witnesses. Statement of the accused was recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence & false implication. Defence has examined Dukalhin (DW-1) & Sahdev (DW-2). Dukalhin (DW-1) has deposed that father of the prosecutrix used to spray and throw feathers of birds near the well of the accused and there was enmity between father of the accused & father of the prosecutrix. Sahdev (DW-2) has deposed that he stayed in the house of the accused on the fateful night and the accused has been implicated for accusation of rape alleged to have been committed at late night.
5. After affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted & sentenced the appellant in the aforesaid manner.
6. I have heard learned counsel for the parties and perused the impugned judgment as also the record of the trial Court.
7. Learned Senior Advocate appearing on behalf of the appellant challenged legality & propriety of the judgment on the ground that the prosecution has not proved the age of the prosecutrix below 16 years, medical evidence has not supported the case of the prosecution, there is improbability of the commission of offence and improvement in the statements of the witnesses. Learned Senior Advocate further argued that the alleged documents of age i.e. transfer certificate showing date of birth of the prosecutrix Ex.P-6 & Ex.P-12, have not been proved by the author of the documents to prove the age of the prosecutrix. In absence of such evidence and evidence of the prosecutrix in para 10, it is clear that age of the prosecutrix is above 16 years on the date of incident. Both the parties were in inimical terms on the ground of throwing feathers of birds near the well of the accused and on the ground of enmity the appellant has been falsely implicated in the crime in question. There are material exaggeration, omissions, contradictions and discrepancies in the statements of witnesses which shaken their credibility. The doctor has not supported the statement of the prosecutrix and the circumstances show improbability of the commission of offence. Learned Senior Advocate placed reliance in the matter of Narain Singh v. Sundarlal Patwa1 in which it has been held by the M.P. High Court that entry of birth date of student in school register is not conclusive proof, either parents or person on whose information such entry was made should be examined. Learned Senior Advocate further placed reliance in the matter of Raja Janaki Nath Roy and others v. Jyotish Chandra Acharya Chowdhury and others2 in which it has been held by the Calcutta High Court that the statement in the school register about the age of a person in absence of evidence to show on what materials the entry in the register about the age of that person was made has not much evidentiary value. Learned Senior Advocate also placed reliance in the matter of Mitthu @ Harbaksha v. State of M.P.3 in which it has been held by the M.P. High Court that in absence of corroboration from medical sources, offence punishable under Section 376 of the I.P.C. is not made out.
8. On the other hand, learned counsel appearing on behalf of the State/ respondent supported the judgment and submitted that the prosecution has adduced sufficient evidence to prove the guilt of the appellant and the Court below has rightly convicted & sentenced the appellant.
9. In order to appreciate the contentions of the parties, I have examined the evidence adduced on behalf of the parties.
10. As regards the question of age of the prosecutrix (PW-
1), her age was ascertained by the Court as 12 years. Dr. Sudha Samuel (PW-6) has also ascertained the age of the prosecutrix as twelve years. She has deposed that menstrual cycle of the prosecutrix has not started, but her breasts were well developed. She has not deposed any other physique condition of the prosecutrix for ascertaining her age. Head Master Hariprem Verma (PW-11) has deposed that the prosecutrix was admitted in school and her date of birth is 5-
6-1993 and copy of the register is Ex.P-12 which was seized vide Ex.P-13. But he has admitted in his cross-examination that he has issued the certificate Ex.P-6 when the prosecutrix was admitted second time in the school. Entry of Ex.P-12 was not made by him and he cannot say on what basis the entry has been made by the person concerned. Except this evidence, no evidence has been adduced on behalf of the prosecution. Without any evidence relating to truthfulness of entry of Exs.P-6 & P-12, it is difficult to hold that date of birth of the prosecutrix is 5-6-1993 and she was below the age of 16 years on the date of offence.
11. The case of Mitthu (supra) is distinguishable on facts to that of the present case. In the light of decision in the cases of Narain Singh (supra) & Raja Janaki (supra), age of the prosecutrix below 16 years is not acceptable.
12. In order to appreciate the complicity of the accused in the crime in question, the prosecution has examined the statements of the witnesses. The prosecutrix (PW-1) has deposed that on the fateful night she was sleeping in her house, the appellant came along with two persons and called her brother Narayan for fishing, her brother went away with the appellant & other persons, after some time, the accused again came and demanded tobacco & lime (Choona), when she refused to open the door, he compelled for opening the door and when she opened the door, the accused caught hold of her and dragged her, and after threatening her he took the prosecutrix in kitchen thereafter, he opened her clothes and forcefully committed sexual intercourse with her. When she tried to cry for help, he closed her mouth. Lastly she came out and narrated the incident to Maina Bai. The accused also threatened the brother of the prosecutrix. Ultimately, the prosecutrix lodged report vide Ex.P-1. She was examined by the doctor and her clothes were seized.
13. Narayan (PW-2), brother of the prosecutrix, has deposed that firstly, the accused came to his house and called him for fishing, when he went with the accused, the accused left for another pond, but while the accused was returning from the pond he heard the cries of her sister saying `Chor Chor', he rushed to the spot and saw that the accused was wearing pant. The accused threatened this witness also. Lastly they narrated the incident to Maina and lodged the report on second day.
14. Parsuram (PW-3), father of the prosecutrix, has stated in his evidence that he came to know about the incident through his son. The prosecutrix was examined by Dr. Sudha Samuel (PW-6) who has deposed that on 5-8-2005 she has examined the prosecutrix, her hymen was old torn and admits 1 + fingers easily. No sign of recent sexual intercourse was found. Dr. R.S. Thakur (PW-9) has examined the accused and found him capable of committing sexual intercourse.
15. Defence has examined Dukalhin (DW-1) who has deposed that families of the accused & the prosecutrix were in inimical terms on the ground of throwing feathers of birds, but virtually the prosecutrix has not deposed any substantial fact relating to this issue. Likewise, Sahdev (DW-2) has deposed that on the date of incident at night he was with the accused and the accused has been falsely implicated in the crime in question. Defence has suggested in para 15 of cross- examination of the prosecutrix that on the date of incident the prosecutrix herself has dragged the accused inside her room and in para 16 that the accused has not committed any act, therefore, she has not cried which suffice the evidence of Sahdev (DW-2) that the appellant was sleeping with Sahdev (DW-2) at the time of incident.
16. Medical evidence shows signs of hymen (old torn hymen) which is suggestive of the fact that the prosecutrix was accustomed to sexual intercourse or torn of hymen by any other reason. Even if medical evidence suggests that the prosecutrix was accustomed to sexual intercourse, it will not help the accused. In case of old torn hymen no sign of sexual intercourse will be possible in absence of any struggle. In the present case, the prosecutrix has not deposed that there was any struggle. Defence has cross- examined the prosecutrix in detail and defence itself has suggested that the prosecutrix herself has dragged the accused inside her house at the time of commission of the alleged incident and the appellant has not committed any act, therefore, the prosecutrix has not cried for help which she has denied. It confirms the presence of the appellant in the crime in question. There are discrepancies & exaggerations in the evidence of the prosecutrix from her first information report, especially relating to asking of tobacco & lime and threat by axe, but her evidence bears consistency on the point of commission of sexual intercourse. In her examination & cross-examination, she has deposed that firstly the accused came and took away her brother thereafter, he again came alone and committed forceful sexual intercourse with her. This shows that firstly the accused secured loneliness of the prosecutrix and then he committed sexual intercourse with her. The accused has not suggested the prosecutrix for commission of offence with consent. The prosecutrix herself has also deposed that the accused has forcefully committed sexual intercourse with her. Presence of the accused on the spot is supported by the evidence of Narayan (PW-2), Parsuram (PW-3) & Ganesh (PW-10). The prosecutrix has not stated that sexual intercourse has been committed upon her for the first time and in strength of such statement injury over private part would not be possible.
17. After appreciating the evidence available on record, learned Court below has convicted & sentenced the appellant as aforementioned.
18. Evidence of the prosecutrix supported by the promptly lodged F.I.R. inspires confidence and it is sufficient to draw inference that the accused has committed sexual intercourse with the prosecutrix without her consent which is offence under Section 375 of the I.P.C. Conviction of the accused under Section 376 (2) (f) of the I.P.C. in absence of proof of age of the prosecutrix below 12 years is not sustainable under the law. Likewise, minimum sentence under Section 376 (2) (f) of the I.P.C. is also not sustainable. In the present case, age of the prosecutrix was not proved to be below 12 years, but the prosecution has proved that the appellant has committed sexual intercourse with the prosecutrix without her will & consent. Act of the accused squarely falls within the ambit of Section 376 (1) of the I.P.C.
19. For the foregoing reasons, the appeal is partly allowed. Conviction of the appellant under Section 376 (2) (f) of the I.P.C. and sentence of 10 years & fine of Rs.1,000/- are modified, instead thereof he is convicted under Section 376 (1) of the I.P.C. and sentenced to undergo R.I. for seven years & pay fine of Rs.1,000/-, in default of payment of fine to further undergo R.I. for six months.
J U D G E