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2011 DIGILAW 93 (CHH)

Mahesh alias Raja v. State of C. G.

2011-03-07

PRITINKER DIWAKER

body2011
JUDGMENT Pritinker Diwaker, J. 1. This appeal is directed against the judgment and order dated 22.7.2010 passed by Additional Sessions Judge (FTC) Kondagaon, Bastar, in Sessions Trial No. 13/2007 convicting the accused/Appellant under Sections 366 and 376 Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 100/- on each count, plus default stipulations. 2. Case of the prosecution in brief is that on 3.6.2003 FIR (Ex. P-6) was lodged by the prosecutor (PW-1) alleging that on 13.5.2003 she had gone to the house of one Ku. Bina where the accused/Appellant and the co-accused Neel Kanth were already there. It is alleged that accused/Appellant had asked the prosecutor to meet him on 15.5.2003 behind the house of said Bina from where they would run away. Accordingly, on 15.5.2003 the prosecutor went behind the house of Bina where the accused/Appellant was already there. It is alleged that thereafter the accused/Appellant allured her away on the pretext of marriage. He took her to village Jugnani Kalar where they boarded a truck and went to Masora and stayed in the house of one Kedia. On the second day he took her to the house of his brother-in-law and in the presence of his sister he married her in a temple and from 17.5.2003 to 20.5.2003 she was kept in a rented house and during this period she was subjected to sexual intercourse by the accused/Appellant. Based on this FIR, offences under Sections 363, 366 and 376 Indian Penal Code were registered against the accused/Appellant and co-accused Neel Kanth and after investigation, challan was filed by the police. 3. So as to hold the accused persons guilty, the prosecution has examined 16 witnesses in support of its case. Statements of the accused persons were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges leveled against them and pleaded their innocence and false implication in the case. This apart, one Chandi Charan Mitra and Shital Banal (DW-1 and DW-2) have also been examined by the defense in support of its case. 4. After hearing the parties the trial Court has acquitted the co-accused namely Neel Kanth of the charges leveled against him. This apart, one Chandi Charan Mitra and Shital Banal (DW-1 and DW-2) have also been examined by the defense in support of its case. 4. After hearing the parties the trial Court has acquitted the co-accused namely Neel Kanth of the charges leveled against him. Accused/Appellant herein has also been acquitted of the charges under Section 5 of the Child Marriage (Prohibition) Act and Section 363 Indian Penal Code but convicted and sentenced by it as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the Appellant submits that there is no concrete evidence available on record in respect of the age of the prosecutor and in these circumstances the Appellant cannot be convicted under Section 366 Indian Penal Code. He submits that as the prosecutor prima facie appears to have been a consenting party to the act of the accused/Appellant, his conviction under Section 376 Indian Penal Code is also bad in law. 7. On the other hand counsel for the Respondent/State supports the judgment impugned and submits that the manner in which a minor girl has been kidnapped by the accused/Appellants and subjected to forcible sexual intercourse, the conviction of the accused/Appellant under Sections 366 and 376 is just and proper. 8. Prosecutor (PW-1) has stated in her evidence that her friend Bina had come to her house for taking nail-polish and while drinking water, she told her that accused/Appellant was standing behind her house. Thereafter, this witness went to the place where the accused/Appellant was already there. According to her, as the accused/Appellant used to frequent to the house of her friend Bina, she was familiar to him. Thereafter, the accused/Appellant held her hand and took her to Jugani Kalar and from there he took her to Masora by truck. Her friends Bina and Krishna are said to have told this witness that the accused/Appellant was a good boy and he loved her and also asked her to go along with him. According to this witness, when on the way she showed her disinclination to accompany him, the accused/Appellant threatened her of life and it is for this reason she went ahead with him. At village Masora, the accused/Appellant kept her in the house of his acquaintance namely Sujit where his mother, wife and children were also present. According to this witness, when on the way she showed her disinclination to accompany him, the accused/Appellant threatened her of life and it is for this reason she went ahead with him. At village Masora, the accused/Appellant kept her in the house of his acquaintance namely Sujit where his mother, wife and children were also present. According to her, in the night she had slept with the accused/Appellant but he did not do any bad work with her. Next day said Sujit dropped her and the accused/Appellant on his motorcycle at the Narayanpur turning from where accused/Appellant took her to the house of his brother-in-law at Narayanpur by bus. Thereafter, sister and brother-in-law of the accused/Appellant took them to a temple situated on the hillock of Narayanpur where their marriage took place in the presence of priest. Then in the night she was made to sleep with the accused/Appellant in a separate room where accused/Appellant had sex with her without any objection being raised. On the second day thereto the accused/Appellant took her to a rented house for 3-4 days and during this period he used to have sex with her everyday. According to this witness, after the accused/Appellant took the house on rent, essential commodities were made available by his brother-in-law and she used to cook food. Three-four days thereafter when Sudhir and his wife had come to the house of Neel Kanth (acquitted accused), she had also gone thereto where the information was given that the police was also there and in the evening she was sent back to her parent's house. About two days thereafter a village meeting was called but as the accused/Appellant had not attended the same a decision was taken to lodge the report. This witness has though not stated anything about her age, she has denied the suggestion put by the defense that she was about 18-19 years old. Sukumar (PW-2) - the father of the prosecutor has stated that when he found his daughter missing, he enquired about the same and ultimately when he came to know that she was in the company of the accused/Appellant, she was taken back. He has admitted that he was informed by his daughter as to in what manner the Appellant married her. He however has not stated anything about the age of the prosecutor. He has admitted that he was informed by his daughter as to in what manner the Appellant married her. He however has not stated anything about the age of the prosecutor. Smt. Geeta (PW-3) - the mother of the prosecutor has not supported the case of the prosecution and has been declared hostile. She has however stated that the prosecutor was aged about 16 years at the relevant time. Smt. Kalpana (PW-4) and Meghnath Burman (PW-5) have not stated anything specific. Kalyan (PW-6) - the priest of the temple has not supported the case of the prosecution and has been declared hostile. Sudhir (PW-7) has not supported the case of the prosecution and has been declared hostile. Parimal Saddar (PW-8) has not stated anything specific. Ku. Bina (PW-9) and Krishna (PW-10) have not supported the case of the prosecution and they have been declared hostile. Dr. Benidikta Ekka (PW-11) who had medically examined the prosecutor and given her report Ex. P-17 has not found any external or internal injury on her person and she was habitual to sexual intercourse. For determination of age this witness had referred her for radiological examination. Pankaj Yadav (PW-12) is the witness to seizure of articles made under Ex. P-18. Chaituram (PW-13) is another witness to the seizure of articles made under Ex. P-19 but he has not supported the case of the prosecution. D.S. Gahalot (PW-14) is the witness who had done part of the investigation. A. Nuruti (PW-15) is the investigation officer who has supported the case of the prosecution. Subhash Mandal (PW-16) is the head master of the school who has stated that as per the admission register Ex. P-16, the date of birth of the prosecutor is 12.12.1987. According to him, the prosecutor was admitted in the school on 7.8.1993 and studied there up to Class v. This witness has stated that he had brought declaration form given by the father of the prosecutor showing her date of birth as 12.12.1987. In cross examination he has admitted that all the documents in relation to her age are Xerox ones and the originals were either with the prosecutor or the department concerned. He has admitted that in the declaration form signature of the father of the prosecutor is not there and it was signed by one Bill Mistri. In cross examination he has admitted that all the documents in relation to her age are Xerox ones and the originals were either with the prosecutor or the department concerned. He has admitted that in the declaration form signature of the father of the prosecutor is not there and it was signed by one Bill Mistri. He has admitted that at the time of admission, birth certificate of the prosecutor was not produced nor any document from the Kotwar was given. 9. Minute examination of the evidence thus makes it clear that the prosecutor went in the company of the accused/Appellant at her own volition. Record also shows that she visited various places along with him without any protest on her part. Record also shows that the prosecutor did not offer any resistance when she was first subject to sexual intercourse after marrying her in the temple. All this shows that the prosecutor was a consenting party to the act of the accused/Appellant in taking her away and subjecting her to sexual intercourse. As regards age, neither the prosecutor herself, nor her father has stated anything. Even her mother has not been very specific and has simply stated that the prosecutor was about 16 years of age at the relevant time. School certificate showing the date of birth of the prosecutor has also not been duly proved by the prosecution in accordance with the requirement of law. The person who made entry in the school register has not been examined. Original documents on the basis of which her date of birth has been recorded have not been produced and merely on the basis of evidence of Subhash Mandal (PW-16), it will not be safe for this Court to hold that on the date of incident the prosecutor was minor. The doctor who had medically examined the prosecutor has stated that the secondary sexual characters of the prosecutor were fully developed. Though the prosecutor was referred for radiological examination, it remains undone and therefore the inference is to be drawn against the prosecution. That apart, there is about 18 days inordinate delay in lodging the report which has also not been properly explained by the prosecution. In the midst of these lacunae in the case of the prosecution, benefit of doubt has to go to the accused/Appellant. 10. Accordingly, the appeal is allowed. Judgment impugned is hereby set aside. That apart, there is about 18 days inordinate delay in lodging the report which has also not been properly explained by the prosecution. In the midst of these lacunae in the case of the prosecution, benefit of doubt has to go to the accused/Appellant. 10. Accordingly, the appeal is allowed. Judgment impugned is hereby set aside. Accused/Appellant is acquitted of the charges leveled against him. He is in jail and be set free forthwith if not required in any other