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Chhattisgarh High Court · body

2009 DIGILAW 211 (CHH)

Kailash Raut v. State of Chhattisgarh

2009-08-10

T.P.SHARMA

body2009
JUDGMENT Criminal Appeal No. 437/2006 filed by Kailash Raut and Criminal Appeal No.51/2008 filed by Ashok Kumar Kujur are arising out of the judgment of conviction & order of sentence dated 17.4.2006 passed by the Special Judge (Atrocities), Jashpur, in Special Criminal Case No.10/2005, therefore, they are being disposed of by this common judgment. 2. The aforesaid criminal appeals are directed against the judgment of conviction & order of sentence dated 17.4.2006 passed by the Special Judge (Atrocities), Jashpur, in Special Criminal Case No.10/2005 whereby and whereunder learned Special Judge after holding the appellants guilty for the offence punishable under Sections 376 (2) (g) of the Indian Penal Code and each of them sentenced to undergo rigorous imprisonment for ten years. 3. Judgment of conviction & order of sentence is challenged on the ground that without there being an iota of evidence, the court below has convicted and sentenced the appellants as aforementioned and has not considered the case of enmity and cause of false F.I.R. against the present appellants. 4. Case of the prosecution, in brief is that on 30.3.2005 the prosecutrix (PW-1) aged about 15 years was coming from village Susdega to her village Kharkatta, police station Pattalagaon by Max Van at about 5 p.m. Accused Ashok Kumar was driving the vehicle. Accused Kailash was sitting beside the prosecutrix. When they reached near Khardhodhi, accused Ashok stopped the vehicle and forcefully dragged her and took inside the forest. When she tried to save herself then accused fell down her and accused Kailash caught hold her hands and pressed her mouth. Accused Ashok after removing his clothes and clothes of the prosecutrix and committed forcefully sexual intercourse with her. At about 11 p.m. after commission of the offence, the prosecutrix went to the house of Lacchan Sai and she narrated the incident to him. Lacchan chased the accused persons but they fled away by the vehicle. The prosecutrix stayed in the house of Lacchan. Second day i.e. on 31.3.2005, she appeared in her examination and after coming from the school, she narrated the incident to her father, uncle and mother and lodged the F.I.R. vide Ex.P/1 on 1.4.2005 at about 1 p.m. at police station Patthalgaon. Her underwear was seized vide Ex.P/2. Spot map was prepared vide Ex.P/3. Photocopies of her marksheet and caste certificate (Exs.P/5 and P/6) were seized vide Ex.P/4. Prosecutrix was sent for medical examination. Her underwear was seized vide Ex.P/2. Spot map was prepared vide Ex.P/3. Photocopies of her marksheet and caste certificate (Exs.P/5 and P/6) were seized vide Ex.P/4. Prosecutrix was sent for medical examination. She was examined by Dr.Smt.K.Tirki (PW-4) vide Ex.P/9 where she found 26 teethes in her both the jaws. Breast were well developed. Pubic hairs were scanty. On examination of her private part, swelling and redness were found over Para urethral region. Hymen was swollen. Abrasion present posteriorly. She was complained pain. Two slides of vaginal smear were prepared and sealed. She was subjected to sexual intercourse. Accused were arrested. One vehicle was seized from accused Ashok vide Ex.P/8. Documents of the vehicle were also seized vide Ex.P/10. Accused was examined by Dr.P.Suthar (PW-7) vide Ex.P/11 who opined that accused Ashok is capable of committing sexual intercourse. Map was prepared by patwari vide Ex.P/12. One underwear of accused Ashok was seized vide Ex.P/7. Slides were seized vide Ex.P/21. Articles were sent for medical analysis. 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short `Code') and after completion of investigation, charge sheet was filed in the Court of the Chief Judicial Magistrate, Jashpur who in turn committed the case to the Court of Sessions Judge, Jashpur from where the Special Judge (Atrocities), Jashpur received the same on transfer for trial. 6. In order to prove the guilt of the accused/appellants, the prosecution examined as many as 9 witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code of Criminal Procedure, 1973, in which they denied the circumstances appearing against them and innocency and false implication is claimed. The accused/appellants have also examined defence witness Lacchan Sai (DW-1) who has deposed in his evidence that on 30.3.2005 at about 5 p.m. Rohit came to his house. He was waiting for arrival of bus. On being asked, he told him that he was waiting for one person who will come by Kiran Bus. After sometime at about 5.30 p.m. one white colour Marshal came and the prosecutrix got down from marshal vehicle. Rohit went to his village along with the prosecutrix. On the date of incident, Rohit or prosecutrix were not stayed in his house. Distance of Kharkatta and Khardhodhi is about 1 km. Rohit and the prosecutrix were having love affairs. Penalty of Rs.1500/- was imposed upon Rohit. Rohit went to his village along with the prosecutrix. On the date of incident, Rohit or prosecutrix were not stayed in his house. Distance of Kharkatta and Khardhodhi is about 1 km. Rohit and the prosecutrix were having love affairs. Penalty of Rs.1500/- was imposed upon Rohit. He has also deposed that quarrel took place between mother-father of Piyo Bai relating to property of dowry, daughter-in-law of Kawal Sai i.e. father of the prosecutrix. In his detail evidence, Lacchan Sai has deposed that accused persons did not come there and the prosecutrix went with her lover Rohit. Kotwar Dhursai (DW-2) has deposed in his evidence that name of prosecutrix is not recorded in the birth registrar and name of Padma Bai finds place in birth register who is daughter of Kawal Sai. In his cross- examination, he has admitted that he has not made any entry in the birth register. 7. Learned Special Judge after affording opportunity of hearing to the parties, convicted and sentenced the accused/appellants as aforementioned. 8. I have heard Shri Pushpendra Kumar Patel and Shri Abhay Tiwari, counsel for the appellants and Shri Akhil Mishra, Dy.Govt.Advocate for the State/respondent and perused the judgment impugned as also record of the court below. 9. Shri Abhay Tiwari, learned counsel for appellant Ashok Kumar vehemently argued that present accused Ashok Kumar and co-accused have never took the prosecutrix and Ashok has not committed any offence on the date of incident. Sister-in-law (bhabhi) of the prosecutrix hired one vehicle for transportation of her articles. She also went to Kharkhatta along with her sister-in-law (bhabhi) and other relatives of her bhabhi. They have transported the articles of dowry of her Bhabhi from Kharkhatta to Susdega. Learned counsel further argued that on the ground that the present appellants have transported the articles of her bhabhi. She has lodged false report after getting advice from her relatives. On the date of incident she went with lover Rohit and he might have been committed sexual intercourse with her to create evidence against the present appellants. The statement of the prosecutrix is full of contradiction and omission does not inspire confidence and trustworthy and is not safe to rely. Learned counsel also argued that other witnesses have not corroborated the statement of the prosecutrix. The defence was not required to prove its defence like the case of the prosecution. The statement of the prosecutrix is full of contradiction and omission does not inspire confidence and trustworthy and is not safe to rely. Learned counsel also argued that other witnesses have not corroborated the statement of the prosecutrix. The defence was not required to prove its defence like the case of the prosecution. Simply creating doubt upon the story of prosecution is sufficient for discharge the burden of the defence. Defence has examined Lacchan Sai (DW-1) who is prosecution witness, but the prosecution has not examined him. Reason best known to the prosecution. Lacchan Sai has specifically deposed that on the date of incident the prosecutix went with her lover Rohit. She has never stayed in his house and the prosecutrix has not narrated any incident to him. This evidence is sufficient for creating and casting doubt upon the story of prosecution and to make the story suspicious. The prosecution has utterly failed to prove the age of the prosecutrix below 16 years on the date of commission of the offence. 10. Shri Pushpendra Kumar Patel, counsel for appellant Kailash Raut vehemently argued that according to case of prosecution only present appellant was sitting in the same vehicle and co-accused Ashok Kumar has committed sexual intercourse with the prosecutrix. The prosecutrix has deposed improbable story that at the time of commission of sexual intercourse by the co-accused, the present appellant has caught hold her hands and pressed her mouth. Learned counsel further argued that story of prosecution is improbable. It appears that only with a view to implicate the appellant falsely in the crime in question, the prosecutrix has deposed against him. Learned counsel also submits that according to case of prosecution he has not committed intercourse with the prosecutrix. Even according to case of prosecution, his act does not fall under the category of act committed in furtherance of his common intention. 11. On the other hand, judgment is supported on behalf of the respondent/State. 12. In order to appreciate the contentions of the parties and to connect the accused/appellants in the crime in question, I have examined the evidence adduced on behalf of the prosecution. As regards the age of the prosecutrix at the time of commission of offence is concerned, the Court below has ascertained the age of the prosecutrix below 16 years on the basis of date of birth recorded in the marksheet as 7.2.90. As regards the age of the prosecutrix at the time of commission of offence is concerned, the Court below has ascertained the age of the prosecutrix below 16 years on the basis of date of birth recorded in the marksheet as 7.2.90. In case of rape with minor girl, heavy burden is always on the prosecution to prove the age of the prosecutrix below 16 years by cogent and reliable evidence. Entry of date of birth in the birth register (kotwari register) is conclusive proof for determination the age of the person, but in the absence of such evidence, the Court is required to determine the age of the prosecutrix on the basis of her physical appearance, statements of the parents and other persons having knowledge about the date of birth of the person , ossification test and entry in school admission register showing the date of birth. 13. In the matter of Sidheswar Ganguly v. State of West Bengal1, the Apex Court has held that the only conclusive piece of evidence may be the birth certificate, but unfortunately, in this country such a document is not ordinarily available. The Court or the jury has to base its conclusions upon all the facts and circumstances disclosed on examining all the physical features of the person whose age is in question, in conjunction with such oral testimony as may be available. 14. In the absence of conclusive evidence, age can be determined on the basis of other circumstances. Age of the prosecutrix was ascertained approximate by the Court as 14 years. Kawal Sai (PW-2) father of the prosecutrix has not deposed anything relating to age of his daughter. Dr.Smt.K.Tirki (PW-4) has examined the prosecutrix and estimated her age as 14 years. The prosecutrix was examined by Dr.Smt.K.Tirki vide Ex.P/9 in which the doctor has recorded her physical appearance as follows:- "Her height was 4 feet, weight was 35 kg., chest was 31 cm. Teethes 7-6/6-6, breast were well developed. Public hairs were scanty." 15. Her copy of marksheet (Ex.P/5) was seized vide Ex.P/4 by S.R.Bhagat (PW-9) Sub Divisional Officer (Police). For determination the age of the prosecutrix below 16 years on the date of commission of offence, the prosecution has not conducted any ossification test of the prosecutrix. Teethes 7-6/6-6, breast were well developed. Public hairs were scanty." 15. Her copy of marksheet (Ex.P/5) was seized vide Ex.P/4 by S.R.Bhagat (PW-9) Sub Divisional Officer (Police). For determination the age of the prosecutrix below 16 years on the date of commission of offence, the prosecution has not conducted any ossification test of the prosecutrix. Even the prosecution has not seized admission register of the school, has not examined any person who has made entry of date of birth in the school register and the basis of such entry. Virtually, in this case, the prosecution has not collected any evidence except seizure of photographs of marksheet. Parents of the prosecutrix have not stated that her age was only below 16 years. Photocopy of document or seizure of photocopy of the marksheet containing date of birth itself does not proof the age or date of birth of the prosecutrix. The prosecutrix herself has deposed that she is aged about 14 years and her date of birth is 7.4.90 but she has not deposed that on what basis she has told her age or date of birth. Statement of the prosecutrix relating to her age itself is a question for determination. In this case, only statement of the prosecutrix is not sufficient to prove her date of birth. In the absence of any proof of age or date of birth of the prosecutrix it is difficult to hold that her age was below 16 years at the time of commission of offence. 16. As regards the commission of sexual intercourse by present appellant Ashok Kumar with the prosecutrix is concerned, the prosecutrix (PW-1) has specifically deposed that on 30.3.2005 she was returning from her sister-in-law's (Bhabhi's) village Susdega to her village Kharkatta. She was standing in the bus stand and waiting for bus, at that time appellants came and asked where she want to go. She told them that she want to go to village Kharkatta, then the appellants told her that they were also going to village Kharkatta by Max Van and suggested to sit in the max. She agreed with their suggestion. Appellant Ashok was driving the vehicle and other appellant was sitting beside her. She was setting towards gate in the vehicle. The distance of Kharkhatta to Susdega was 20 kg. At about 11 p.m. when they reached near Khardhodhi, then appellant Ashok Kumar stopped the vehicle. She agreed with their suggestion. Appellant Ashok was driving the vehicle and other appellant was sitting beside her. She was setting towards gate in the vehicle. The distance of Kharkhatta to Susdega was 20 kg. At about 11 p.m. when they reached near Khardhodhi, then appellant Ashok Kumar stopped the vehicle. Both the accused dragged and took her inside the forest and after laying down her in the field, appellant Ashok Kumar removed her clothes and after removing his clothes, committed sexual intercourse with her and at that time her hands were caught hold by co-accused Kailash and also pressed her mouth. She immediately fled away from the spot with her clothes and went to the house of Lachhan. Accused persons were chasing her. When Lacchan and Rohit came out from the house from Lachhan with stick and they chased the accused persons, then they fled away by their vehicle. She stayed in the house of Lacchan. Second day morning at 8 p.m. she went to school and appeared in the examination. She narrated the incident to her teacher. After completion of the examination she came to her house and narrated the incident to her father, uncle and mother and thereafter she lodged the F.I.R. vide Ex.P/1. Her underwear was seized vide Ex.P/2. Spot map was prepared vie Ex.P/3. Her mark-sheet and caste certificate (Exs.P/5 and P/6) were seized vide Ex.P/4. She has specifically deposed that she has not consented appellant Ashok for commission of intercourse. Kawal Sai (PW-2) has stated that when her daughter came back she narrated the incident and then they lodged the report. Rohit Kumar (PW-3) has supported the seizure (Exs.P/2, P/7 and P/8). S.R.Bhagat (PW-9) has supported the investigation in his detail evidence. She was examined by Dr.Smt.K.Tirki (PW-4) who found swelling upon hymen of the prosecutrix. She has specifically deposed that she was subjected to sexual intercourse. She has admitted in para-9 of her cross-examination that injury in the private part may be caused for other reason. Evidence of Dr.Smt.K.Tirki and report Ex.P/9 suggests that the prosecutrix has been subjected to sexual intercourse. 17. Lacchan Sai (DW-1) has deposed that on the date of incident, Rohit was present at Khardhodi. He was waiting for the prosecutrix. The prosecutrix came by marshal at about 5.30 p.m. then Rohit went with the prosecutrix. The prosecutrix has not stayed in his house. They were having love affairs. 17. Lacchan Sai (DW-1) has deposed that on the date of incident, Rohit was present at Khardhodi. He was waiting for the prosecutrix. The prosecutrix came by marshal at about 5.30 p.m. then Rohit went with the prosecutrix. The prosecutrix has not stayed in his house. They were having love affairs. He has deposed that panchayat was convened relating to love affairs of Rohit and the prosecutrix and document were also written. 18. In this case, the prosecutrix is only substantial witness relating to commission of offence with her. Defence has cross-examined the prosecutrix at length. In her detail cross-examination, she has deposed that on the date of commission of offence, she was coming from her sister-in- law's (bhabhi's) maternal house. The defence has specifically suggested to the prosecutrix that the present accused persons were driving marshal vehicle and both the accused persons were present in the vehicle and told that she will reach in time for taking part in the examination then she boarded in the vehicle. Lastly, they reached near the house of Lacchan where the accused stopped the vehicle. By giving suggestions to the prosecutrix, the appellants have admitted the fact that they came to the place of incident by their vehicle from Susdega along with the prosecutrix. The prosecutrix had denied the suggestion that near the place of incident she herself got down and also denied the suggestion that she was not dragged by the accused persons. The prosecutrix has specifically deposed that after dragging the accused persons, took the prosecutrix to the place of incident and appellant Ashok committed sexual intercourse with her. She has admitted the fact that second day they went to Patthalgaon along with her father, uncle and Rohit, but she denied any relation or love affairs with Rohit. She has specifically deposed that her name is Sombai and not Padma Bai. Kawal Sai (PW-2) father of the prosecutrix has also not admitted any relation of the prosecutrix with Rohit. The prosecution has examined Rohit Kumar as PW-3 who has also denied any relation with the prosecutrix, but has specifically admitted in para-4 of his cross-examination that when the prosecutrix came to the house of Lacchan at that time he was present. He has denied the suggestion that when the prosecutrix stayed in the house of Lacchan, then he committed sexual intercourse with her. He has denied the suggestion that when the prosecutrix stayed in the house of Lacchan, then he committed sexual intercourse with her. The prosecutrix (PW-1) has specifically deposed that while she was coming from her sister-in-law's village in the vehicle of the accused persons, then at near Khardhodi, appellant Ashok stopped the vehicle and both the accused took her to the place of incident and appellant Ashok committed sexual intercourse with her. She has specifically deposed that she stayed in the house of Lacchan Sai at night and Rohit was also present there. 19. The prosecution has not examined Lacchan, but defence has examined Lacchan who has specifically deposed that on the date of incident the prosecutrix has not stayed in his house but she went with Rohit, contra the defence has not asked anything to the prosecutrix that she went with Rohit from the house of Lacchan. On the other hand, defence has specifically suggested Rohit Kumar (PW-3) in para-4 of his cross- examination that during the course of stay of the prosecutrix in the house of Lacchan, he has committed sexual intercourse with her which he has specifically denied. This suggestion is sufficient to draw inference that the prosecutrix has stayed in the house of Lacchan and has not gone with Rohit and disbelieve the fact that she has not stayed in the house of Lachhan. She has not lodged the report on second day morning but she went to school for appearing in the examination and when she came back from the school, thereafter she narrated the incident to her mother, father and other relatives and finally she has lodged the report. 20. The prosecutrix is teenaged girl. She has attended the school and appeared in the examination. She has given preference in appearing the examination instead of lodging the report promptly. This is a case of gang rape. Normally in case rape prompt report is not possible and after discussing with the family members and other consideration, the prosecutrix and her parents used to lodge the report, but only on this ground the evidence of the prosecution cannot be discarded. Her statement is supported by the medical evidence which is suggestive of the fact that the prosecutrix was subjected to sexual intercourse during the period of incident. The defence has suggested that Rohit has committed sexual intercourse which he has denied specifically. Her statement is supported by the medical evidence which is suggestive of the fact that the prosecutrix was subjected to sexual intercourse during the period of incident. The defence has suggested that Rohit has committed sexual intercourse which he has denied specifically. The prosecutrix has specifically deposed against appellant Ashok. The suggestion has not been given by the defence to the prosecutrix that Rohit has committed sexual intercourse with her and she is implicating the present appellants. The defence has not suggested anything to the prosecutrix that her sister-in-law has transported her dowry articles by the vehicle of the accused or the prosecutrix has lodged the report against the present appellants on the basis of some dispute or enmity. The prosecution witnesses had denied the suggestion of love affairs of the prosecutrix with Rohit. Corroboration of the statement of the prosecutrix is not sine qua non. Corroboration is not a rule of law but it is a rule of caution and prudent. 21. In the present case, statement of the prosecutrix is corroborated by the medical evidence and partly by her father's Kawal Sai (PW-2), Rohit (PW-3) and F.I.R. (Ex.P/1) which are sufficient for drawing inference that appellant Ashok has committed sexual intercourse with her without her consent and will. The prosecutrix has also deposed that at the time of commission of offence by appellant Ashok, appellant Kailash caught hold her hands and pressing her mouth. She has lodged the report (Ex.P/1) in which this fact also finds place. She has also deposed that after commission of sexual intercourse by appellant Ashok, she immediately fled away from the spot and reached to the house of Lacchan to save her. The accused persons also chased her but when they were chased by Lacchan and Rohit, then they were fled away with their vehicle. It shows that appellant Kailash was not only present in the place of incident but he has facilitated the commission of the offence and also chased the prosecutrix after commission of offence shows his active participation in the offence. 22. After appreciating the evidence available on record, the Special Judge has convicted the appellants for the offence punishable under Section 376 (2) (g) of the Indian Penal Code. The finding of the Court below is based on evidence of the prosecutrix, materially corroborated by independent sources sufficient for drawing inference with the commission of gang rape. 22. After appreciating the evidence available on record, the Special Judge has convicted the appellants for the offence punishable under Section 376 (2) (g) of the Indian Penal Code. The finding of the Court below is based on evidence of the prosecutrix, materially corroborated by independent sources sufficient for drawing inference with the commission of gang rape. Conviction is based on legal evidence and is sustainable under the law. 23. As regards the question of sentence is concerned, minimum prescribed sentence have been awarded to the appellants which does not warrant any interference. 24. In the result, Criminal Appeal Nos. 437/2006 & 51/2008 filed by the appellants being devoid of merits are liable to be dismissed and are hereby dismissed.