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2012 DIGILAW 154 (CHH)

SHIVCHARAN ALIAS JARHA v. STATE OF M. P.

2012-06-21

PRITINKER DIWAKER

body2012
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 12.9.1996 passed by Additional Sessions Judge, Ambikapur, District Sarguja in Sessions Trial No. 159/1993 convicting the accused/appellant under Sections 363, 366 and 376 IPC and sentencing him to undergo rigorous imprisonment for five years u/s 363 and rigorous imprisonment for seven years with fine of Rs. 1000 u/s 366 and 376 IPC each, plus default stipulations. 2. Facts of the case in brief are that on 7.9.1991 FIR Ex. P-1 was lodged by Elthoris Tigga (PW-2) - cousin of the prosecutrix alleging that he had left the prosecutrix (PW -1) aged about 14 years in the house of one Alaxendor (PW-3) for the purpose of household work and pursuing studies. On 16.8.1991 he was informed by Alaxendor (PW-3) that the prosecutrix had left his house without informing him. Allegedly, while searing for her, he came to know that after being allured the prosecutrix had gone to the house of accused/appellant and was living with him. The prosecutrix was recovered on 15.9.1991 from the house of the accused/appellant vide recovery memo Ex. P-19. Based on this report, offences under Sections 363 and 368 IPC were registered against the accused/appellant. After investigation, charge sheet was filed by the police on 31.12.1991 for the offences under Sections 363, 366 and 376 IPC. 3. In support of its case, prosecution has examined 09 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the Court below has convicted and sentenced the accused/appellant as mentioned in paragraph No.1 of this judgment. 5. Counsel for the accused/appellant submits that the conduct of the prosecutrix herself in visiting several places in bus and met number of passengers but did not disclose anything to them and kept silent shows that she was a consenting party to the act of the accused/appellant. According to him, medical report clearly says that at the relevant time the prosecutrix was aged about 18 years. According to him, medical report clearly says that at the relevant time the prosecutrix was aged about 18 years. He submits that the Court below ought to have seen the three years' margin with respect to the judgment of error has to be given to the opinion of the radiologist and that if the said margin of three years is added in the age given the radiologist, it can safely be said that on the date of incident she was major. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the findings of the Court below being based on the evidence of the witnesses, is just and proper and calls for no interference in this appeal. 7. Prosecutrix (PW -1) has stated in her evidence that she knew the accused/appellant who had come to her village for carpentry work and he stayed in the house of her uncle for about one month. According to her, she was brought by Elthoris Tigga (PW-2) to the house of one master to attend to his child and that on the date of incident when she was attending to the child, accused/appellant carne there and threatened her to accompany him otherwise she would be stabbed to death and on account of fear she accompanied him to his house at village Damali where she was kept for two weeks and subjected to forcible sexual intercourse all along this period. This witness has stated that whenever she asked him to go home, he would threaten to kill her. Thereafter, her cousin Elthoris Tigga (PW-2) came there and took her with him, report was lodged by him and she was medically examined. In cross examination, the prosecutrix has stated that she is an Oraon Christian whereas the accused/appellant is an Oraon Hindu and that she has four sisters and three brothers but she could not tell the age of her elder brother. According to her, she had accompanied the accused/appellant to village Kusmi by bus. She then stated that she was cheated by the accused/appellant. Further, she stated that the accused/appellant was making a search for her at village Kusmi and she met him in the market. According to her, in the bus number of passengers were there and the bus had halted at many places. She then stated that she was cheated by the accused/appellant. Further, she stated that the accused/appellant was making a search for her at village Kusmi and she met him in the market. According to her, in the bus number of passengers were there and the bus had halted at many places. She has stated that as the night had fallen, she could not say as to at which place of Ambikapur they had alighted from the bus. At Ambikapur she is stated to have stayed in the house of the relative of the accused/appellant where four persons were already there. After staying at Ambikapur in the night, she accompanied the accused/appellant to village Damali by bus and in that bus also number of passengers were there. From Damali, they went to village Pakjam where she stayed with the accused/appellant for 15 days. Then Elthoris Tigga (PW-2) and one Mariyanus came there and took her to Ambikapur where she stayed for a week. Thereafter, according to this witness, the accused again came there and took her with him on the point of knife. In paragraph 7 of her evidence she has admitted that on first occasion she did not lodge any report at Ambikapur and when she was again taken by the accused/appellant and stayed with him for seven days, the report was lodged by her. At village Pakjam on being asked by the accused/appellant she used to work in the field along with other persons and all the workers were getting wages. She has denied that at the time of incident she was 18-19 years of age but has stated that at that time she was aged about 15 years. She has further stated that in her caste, the marriage is performed at the age of 18. Elthoris Tigga (PW-2) has stated in his evidence that the prosecutrix is his uncle's daughter and she was missing from the institute of Alaxendor (PW3) and then search was made. During search, he met some teacher namely Mariyanus who told him that he had seen the prosecutrix at village Damari Pakjam. Thereafter, he along with said Mariyanus went to village Damari Pakjam and found the prosecutrix in the house of the accused/appellant and took her back with him. According to him, the prosecutrix did not disclose him anything. During search, he met some teacher namely Mariyanus who told him that he had seen the prosecutrix at village Damari Pakjam. Thereafter, he along with said Mariyanus went to village Damari Pakjam and found the prosecutrix in the house of the accused/appellant and took her back with him. According to him, the prosecutrix did not disclose him anything. This witness has stated that when the prosecutrix eloped with the accused/appellant she was 15 years of age and her date of birth is 8.1.1976. In cross examination, he has stated that he was not aware of the date of birth of other brothers and sisters of the prosecutrix. He disclosed the date of birth of the prosecutrix to the police but if it is not written in the report, he could not tell the reason thereof. This witness has admitted that when the prosecutrix was brought for the first time to Ambikapur from the house of the accused/appellant, stayed there for about seven days and then again went to the house of the accused/appellant at village Damari Pakjam. Alaxendor (PW-3) in whose house the prosecutrix used to work has stated in his evidence that wife of Elthoris Tigga (PW-2) was working in his institute and that Elthoris Tigga had brought his cousin (prosecutrix) to his house and from 16.8.1991 she was absconding and during search it was found that she was in village Damari Pakjam. Dr. M.K. Jain (PW-4) - the radiologist who had done ossification test of the prosecutrix and given his report Ex. P-4 has opined that at the relevant time she was 14-16 years of age. Tobius Tigga (PW-5) - the pastor of the church has stated that baptism certificate of the prosecutrix was issued on 11.9.1991 in which her date of birth is mentioned as 1.8.1976 and her naming ceremony was performed on 6.4.1977. Baptism certificate is Ex. P-7 but the original record with respect to that was not with him. According to him, the file was given to the in-charge pastor and at the time of naming ceremony he was not there and it was done by his predecessor who expired subsequently. According to him, while issuing baptism certificate signature of the parents of the child is not taken. Leela Devi (PW -6) is the constable who took the prosecutrix for medical examination. Dr. According to him, while issuing baptism certificate signature of the parents of the child is not taken. Leela Devi (PW -6) is the constable who took the prosecutrix for medical examination. Dr. (Smt.) S, Sinha (PW-7) is the witness who medically examined the prosecutrix and gave her report Ex. P-8 opining that she was aged about 18 years at the relevant time, no external or internal injury was there on her person, her hymen was old ruptured, two fingers easily entered her vagina, her secondary sexual characters were fully developed and that she was habitual to sexual intercourse. Dr. R.K. Bajaj (PW-8) is the witness who medically examined the accused/appellant and gave his report Ex. P-10 stating that he was capable of performing sexual intercourse. Isdaur Ekka (PW-9) is the investigating officer who has supported the case of the prosecution. 8. Minute examination of the evidence of the witnesses including the prosecutrix goes to show that on 16.8.1991 the prosecutrix went along with the accused/appellant to his house at village Damari Pakjam and stayed there for a night. Record also shows that the prosecutrix during her journey in the bus met number of passengers and thereby got full opportunity to disclose to them about the act of the accused/appellant of taking her away but the silence maintained by her throughout indicates that she was a consenting party. Further, on being brought to Ambikapur she remained there for seven days and thereafter again she went to the house of accused/appellant along with him and stayed there for about two weeks. This long stay with the accused/appellant without raising any hue and cry also speaks a lot that she was a consenting party to the act of the accused/appellant. As regards her age, except baptism certificate Ex. P-7 proved by Tobius Tigga (PW-5) - the pastor of the church there is no evidence on record for the same. It is not clear from the statement of Tobius Tigga (PW-5) that on what basis her date of birth was recorded in the baptism certificate. He has stated that entry was made by some other pastor. Even the original of the said entry has not been produced in the Court. Thus the baptism certificate cannot be said to be a reliable piece of evidence to determine the age of the prosecutrix. He has stated that entry was made by some other pastor. Even the original of the said entry has not been produced in the Court. Thus the baptism certificate cannot be said to be a reliable piece of evidence to determine the age of the prosecutrix. As regards ossification test, the radiologist has opined the age of the prosecutrix to be 14-16 years of age with which some plus minus margin has to be there. Even the lady doctor medically examining the prosecutrix has stated that she was about 18 years of age, two fingers easily entered her vagina, secondary sexual characters had developed and that she was habitual to sexual intercourse. Even the prosecutrix or her brother have not stated anything about her age and mother and father of the prosecutrix have not been examined to prove her age. 9. In view of above discussion, this Court is of the considered opinion that the findings recorded by the Court below convicting the accused/appellant under Sections 363, 366 and 376 IPC are not in consonance with the evidence of the witnesses and therefore liable to be set aside. Appeal is thus allowed. Judgment impugned is set aside. Accused/appellant is acquitted of the charge levelled against him. As he is already on bail, his bait bonds stand discharged. Appeal Allowed.