Research › Search › Judgment

Chhattisgarh High Court · body

2012 DIGILAW 158 (CHH)

NETRAM SAHU v. STATE OF C. G.

2012-06-27

PRITINKER DIWAKER

body2012
JUDGMENT 1. This appeal arises out of the judgment and order dated 10.8.2010 passed by Special Judge, Rajnandgaon in Special Case No. 04/2009 convicting the accused/appellant under Section 376 IPC and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 1000/-, in default of payment of fine to further undergo rigorous imprisonment for three months. 2. Facts of the case in brief are that on 5.8.2008 at about 2.10 p.m. FIR Ex. P-3 was lodged by the prosecutrix (PW-5) - a minor girl aged about 14 years to the effect that on 4.8.2008 at about 8 p.m. she had gone to the house of the accused/appellant to watch TV and while getting back, accused/appellant caught hold of her, dragged her away to the backyard of one Nankuram, threw her on the field, removed her underwear and committed forcible sexual intercourse with her. It is alleged that when she tried to raise her cries, the accused/appellant had gagged her mouth. During the commission of offence mother of the prosecutrix is alleged to have reached the place of incident and on seeing her, accused/appellant ran away from there. After reaching home, she narrated the incident to her mother and brother and then the matter was reported to the police. Based on this FIR, offences under Sections 376 IPC and 3 (1) (XII) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (for short the "Act") were registered against him and after completion of investigation; challan was filed by the police on 22.11.2008 for the said offences. Court below however framed the charges under Sections 376 IPC and 3 (1) (XII) and 3 (2) (V) of the Act. 3. In support of its case, prosecution has examined as many as 12 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the allegation made against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the Court below has acquitted of the accused/appellant of the charges under Sections 3 (1) (XII) and 3 (2) (V) of the Act but convicted and sentenced him as mentioned in paragraph No.1 of this judgment. 5. 4. After hearing the parties, the Court below has acquitted of the accused/appellant of the charges under Sections 3 (1) (XII) and 3 (2) (V) of the Act but convicted and sentenced him as mentioned in paragraph No.1 of this judgment. 5. Counsel for the accused/appellant submits that there is no legally admissible evidence with respect to the age of the prosecutrix at the relevant time and even if statement of Govind Lal Chandravanshi (PW -7) is taken as it is, it cannot be said with certainty that her date of birth is 2.5.1997. He further submits that date of birth of the prosecutrix has been recorded on the basis of assumption because statement of Dr. (Smt.) Suchita Shrivastava (PW9) secondary sexual characters of the prosecutrix were fully developed and therefore, it cannot be said that on the date of incident she was minor. He submits that according to the doctor medically examining the prosecutrix no external or internal injury was found on her person and that she was habitual to sexual intercourse. Counsel for the appellant further submits that as the accused/appellant and the prosecutrix were seen by Rajkumari (PW -6) in an objectionable condition, the report came to be lodged. Lastly, he submits that the accused/appellant is in jail since 13.11.2008 and if at all this Court is not inclined to interfere with his conviction, the sentence imposed on him may be reduced to the period already undergone by him. 6. Heard counsel for the parties and perused the material available on record. 7. Prosecutrix (PW-5) has stated in her evidence that she knew the accused/appellant who belonged to Sahu caste. According to this witness, at the relevant time she was 14 years of age and was studying in class V. On the date of incident, she had gone to the house of the accused/appellant to watch TV and while getting back, the accused/appellant dragged her away to the backyard of one Nanku and when she tried to raise an alarm, he gagged her mouth. Thereafter, accused/appellant removed her as well his own clothes, made her lie on the ground and committed forcible sexual intercourse with her as a result of which she felt pain in her private part coupled with bleeding. Thereafter, accused/appellant removed her as well his own clothes, made her lie on the ground and committed forcible sexual intercourse with her as a result of which she felt pain in her private part coupled with bleeding. According to this witness, during the commission of offence her mother came there and on being asked as to what he was doing, he pushed her aside and left the spot. Thereafter, she narrated the incident to her mother, brother, Sarpanch of the village, Rajkumari and Mehattar and then went to the police station accompanied by her mother and lady Kotwar where the report was lodged followed by her medical examination and preparation of spot map Ex.P-1 by Patwari. This witness has however stated that she did not remember her date of birth or the year in which she was admitted to school but at the time of her admission in the school, she might have been aged about 8-9 years. The Court statement of this witness carries a lot of contradictions and omissions on material particulars if compared to her case diary statement. According to this witness, on earlier occasion also the accused/appellant had teased her but she did not lodge the report for that and even after being subjected to teasing by him she continued frequenting to his house to watch T.V. Smt. Rajkumari Bai (PW -6) -mother of the prosecutrix has stated in her evidence that on the date of incident at about 7 p.m. her daughter had gone to the house of the accused/appellant to watch TV and when she asked her younger daughter Preeti about her, she told her that prosecutrix had gone in the neighbourhood to watch T.V. Thereafter, when the prosecutrix did not return for half an hour, she went to the house of accused/appellant but as her daughter was not found there, she went towards the road where her other daughter Ashwini told her that accused/appellant had taken her away by dragging and then she went to the backyard of one Nankuram and found the accused/appellant committing sexual intercourse with the prosecutrix and when she tried to catch hold of him he ran away by pushing her aside. On being asked by this witness, the prosecutrix told her that accused/appellant had forcibly taken her away and committed sexual intercourse with her after gagging her mouth. On being asked by this witness, the prosecutrix told her that accused/appellant had forcibly taken her away and committed sexual intercourse with her after gagging her mouth. In paragraph No.7 of her deposition, this witness has stated that though she had noted down the date of birth of the prosecutrix which was 17 but she did not know the month and year thereof. According to this witness, after the birth of child in the village information was given to the Kotwar and in the case of the prosecutrix also this practice was followed. According to her, birth certificate was issued from the police station but in the case of the prosecutrix no such certificate was issued. She has stated that prosecutrix was admitted in school by her father and at that time birth certificate issued by the Sarpanch was submitted in the school. According to this witness, in school the prosecutrix was called as Phulkunwar whereas in the birth certificate and in the Kotwari register her name was got mentioned as Rajni. According to her, date of birth of the prosecutrix in the school was written on the basis of assumption but she could not tell the date of birth of the prosecutrix or her other two daughters. Narendra Kumar Sethia (PW-1) is the Patwari who prepared spot map Ex. P-1. Mehttar Ram Patel (PW-2) is the witness to whom mother of the prosecutrix had informed about the incident on the second day. In cross examination, initially this witness stated that no such incident was informed to him by the mother of the prosecutrix but later he stated that it was informed to him by her. Rajkumar (PW-3) has stated that mother of the prosecutrix had informed him about the incident of rape on the prosecutrix. Dr. B.K. Gupta (PW-4) is the witness who medically examined the accused/appellant and submitted his report Ex. P-2 stating that he was capable of performing sexual intercourse. Govind Lal Chandravashi (PW-7) - the head master of the school has proved the admission register Ex. P-7 and stated that it was seized from him vide Ex. P-6. He has stated that according to admission register, prosecutrix was admitted in the school on 5.7.2003 and her date of birth is 2.5.1997. This witness has further stated that based on this register, birth certificate Ex. P-9 was issued by him. P-7 and stated that it was seized from him vide Ex. P-6. He has stated that according to admission register, prosecutrix was admitted in the school on 5.7.2003 and her date of birth is 2.5.1997. This witness has further stated that based on this register, birth certificate Ex. P-9 was issued by him. At the time of recording of his evidence, according to this witness, the prosecutrix was studying in class V and that date of birth of the prosecutrix was recorded as per the information given by her parents but in this case he could not say as to on what basis the date of birth of the prosecutrix was registered in (he school register. Deshram (PW-8) - brother of the prosecutrix has stated that on the date of incident when he returned home at about 8 p.m. he was informed by his mother that prosecutrix was raped by the accused/appellant. Thereafter, according to this witness, prosecutrix also told him about the incident of rape on her. Dr. (Smt.) Suchita Shrivastava (PW-9) had medically examined the prosecutrix has stated that at the relevant time she was 14 years of age; her secondary sexual characters were fully developed; no external or internal injury was there on her person; her hymen was old torn; two fingers easily entered her vagina and that she was habitual to sex. According to this witness, no sign of forcible sexual intercourse with the prosecutrix was noticed by her. She has further stated that as no request was made by the police for determination of age of the prosecutrix by a radiologist, she had not referred her for such examination. She has denied that looking to physical growth of the prosecutrix she could be above 14 years of age. Umend Banjare (PW-10) has stated that on the date of incident at about 10 p.m. mother of the prosecutrix had come to him and informed that prosecutrix was subjected to rape by the accused/appellant. Lady constable namely Smt. Kanak Mandavi (PW-11) is the witness who had taken the prosecutrix for medical examination, along with the vaginal slides and underwear of the prosecutrix in a sealed packet. Sub Inspector namely M.R. Sinha (PW-12) is the witness who recorded FIR Ex. P-3 and sent the prosecutrix for medical examination. Vijay Agrawal (PW-13) is the investigating officer who has supported the case of the prosecution. 8. Sub Inspector namely M.R. Sinha (PW-12) is the witness who recorded FIR Ex. P-3 and sent the prosecutrix for medical examination. Vijay Agrawal (PW-13) is the investigating officer who has supported the case of the prosecution. 8. Minute examination of the evidence available on record goes to show that prosecutrix appears to be a consenting party to the act of the accused/appellant as case of the prosecution itself is that after the mother of the prosecutrix saw her in compromising position with the accused/appellant, she chose to lodge the report against him. Record also shows that while being subjected to sexual intercourse by the accused/appellant the prosecutrix did not offer any resistance to the same. Evidence also speaks that previously also the accused/appellant used to tease her but despite that she did not stop going to his house to watch TV and continued to do so even thereafter. Mother of the prosecutrix (PW-6) has stated in her evidence that earlier also her daughter (prosecutrix) was subjected to rape by the accused/appellant but no report was lodged by her as she had not seen the incident with her own eyes. Now the next question to be decided by this Court is regarding the age of the prosecutrix at the relevant time. Neither the prosecutrix herself nor her mother has deposed about the date of birth of the prosecutrix. Mother of the prosecutrix has categorically stated that prosecutrix was born on 17th but she did not remember the month and year thereof as she was illiterate. She has further stated that when the child is born in the village, same is reported to the Kotwar and in the case of the prosecutrix also her date of birth was reported to him. According to her, birth certificate was being issued from the police station but in the case of prosecutrix no such certificate was issued. This witness has further stated that at the time of admission of the prosecutrix in the school, it is her father who had got her admitted and birth certificate issued by the Sarpanch was given in the school. She has further stated that she did not even remember the date of birth of her other two daughters. This witness has further stated that at the time of admission of the prosecutrix in the school, it is her father who had got her admitted and birth certificate issued by the Sarpanch was given in the school. She has further stated that she did not even remember the date of birth of her other two daughters. Govind Lal Chandravanshi (PW -7) - the Head Master of the school has stated that date of birth of the prosecutrix was recorded in the school register as 2.5.1997 and accordingly he issued the school certificate Ex. P-9. However, in the cross examination this witness has stated that at the time of admission of the prosecutrix whatever date of birth of the prosecutrix was disclosed by her guardian, same was recorded in the school register but on what basis it was recorded in the register it is not mentioned therein. He has further stated that it appeared to him that it was the mother of the prosecutrix who got her admitted in the school. Moreover, no ossification test has been done in this case and the age of the prosecutrix as 14 years recorded by the doctor (PW -9) has no basis. Doctor (PW -9) has fixed up the age of the prosecutrix as 14 years on the date of her medical examination. She has not stated as to on what basis she has recorded the same. The doctor (PW-9) did not conduct either the ossification test or any other pathological test to reach at least the proximate age of the victim and thus her assessment regarding age is based on fragile premises. 9. In view of the foregoing discussion, this Court is of the considered opinion that the prosecution has utterly failed to prove its case beyond reasonable doubt and benefit of this has to go to the accused/appellant. Court below has thus not appreciated the evidence of the witnesses in its proper perspective and that being so the judgment impugned being totally unjustified is liable to go. Accordingly, the appeal is allowed. Judgment impugned is set aside and the accused/appellant is acquitted of the charge levelled against him. As the accused/appellant is in jail, he be set free forthwith if not required in any other case. Appeal Allowed.