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2012 DIGILAW 278 (CHH)

SUSHIL LOHAR v. STATE OF C. G.

2012-10-19

PRITINKER DIWAKER

body2012
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 8.7.2008 passed by Special Judge, Jashpur, in Special Case No. 03/2007 convicting the accused/appellant under Section 376 (1) IPC and sentencing him to undergo rigorous imprisonment for eight years. 2. Facts of the case in brief are that on 7.12.2006 a report was lodged by Devnarayan Maravi (PW-3) - the father of the minor prosecutrix alleging that she was missing since 4.12.2006. Entry of this missing report was made in the Rojnamcha Sanha Ex. P-6. On 17.1.2007 the prosecutrix was recovered from Gorakhpur (UP) vide recovery memo Ex. P-1 where she was in the company of accused/appellant. Prosecutrix was medically examined on 18.1.2007 by Dr. (Smt.) K. Kujur (PW-12) who gave her report Ex. P-14-A. On 17.1.2007 itself FIR Ex. P-11 was registered against the accused/appellant under Sections 363, 366 and 376 IPC whereas case diary statement of the prosecutrix was recorded on 20.1.2007. Charge sheet was filed by the police on 9.3.2007 under Sections 363, 366 and 376 IPC and 3 (1) (xii) read with 3 (2) (v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (for brevity "the Act"). 3. In support of its case, prosecution has examined 12 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges leveled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the Court below acquitted the accused/appellant of the charges under Sections 363, 366 IPC and 3 (1) (xii) read with 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 the prosecutrix remained in the company of accused/appellant from 4.12.2006 to 17.1.2007 and during this long period she came across number of persons but kept quiet and did not make any effort to wriggle out of his clutches, which shows that she was a consenting party. He further submits that there is no legally admissible evidence to show that on the date of incident the prosecutrix was minor and therefore conviction of the accused/appellant under Section 376 IPC is not justified. 6. He further submits that there is no legally admissible evidence to show that on the date of incident the prosecutrix was minor and therefore conviction of the accused/appellant under Section 376 IPC is not justified. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that conviction of the accused/appellant under Section 376 (1) IPC is based on the evidence of the witnesses and therefore just and proper. He submits that in the school admission register Ex. P-17 date of birth of the prosecutrix is recorded as 24.6.1996 and thus on the date of incident she was about ten and a half years of age. He submits that Ex. P18 is a letter/certificate of the principal of the concerned school which clearly indicates the date of birth of the prosecutrix as 24.6.1996 and in view of these two documents findings of the Court below that on the date of incident the prosecutrix was minor, are strictly in accordance with law and need no interference with. 7. Heard counsel for the parties and perused the material available on record. 8. Prosecutrix (PW-1) has stated in her evidence that at the relevant time she was studying in class V in Duldula Kanya Ashram. On the date of incident at about 4-5 p.m. while she was returning from school, she met four boys out of whom one was accused/ appellant, one was his brother and other two his relatives. Accused/appellant snatched her school bag and threw it away, tied her hands with a chain, asked her to accompany him and threatened of being killed in case she did not follow him. He took her to jungle where he kept her for three days and during this period he subjected her to rape. During this period, her friend Nirmala was also there in Jungle in their company. After keeping her in jungle for three days, accused/appellant took her to Taisera (Jharkhand) where she worked in a brick kiln for about one and a half month. In Taisera (Jharkhand), accused/ appellant kept her in the house of his uncle and there also he made physical relations with her. This witness has further stated that from Taisera, accused/appellant and the kiln owner took her to Simdega, Ranchi and Gorakhpur and at these places also the accused/ appellant subjected her to rape. In Taisera (Jharkhand), accused/ appellant kept her in the house of his uncle and there also he made physical relations with her. This witness has further stated that from Taisera, accused/appellant and the kiln owner took her to Simdega, Ranchi and Gorakhpur and at these places also the accused/ appellant subjected her to rape. Meanwhile, her mother and father reached Taisera (Jharkhand) and brought her back. Thereafter, she was medically examined and report was lodged. This witness has stated that at the relevant time her age was 12 years but she did not remember her date of birth. In cross-examination, she has disclosed her age on the basis of assumption. In paragraph 9, this witness has described the manner in which she visited several places and admitted that during this long period she met number of people but did not disclose the incident to anyone about being forcibly taken by the accused/ appellant Ku. Nirmala (PW-2) has stated that when she was returning from school along with the prosecutrix, she met the accused/appellant and his friend Tiju and both of them took her and the prosecutrix with them to Bihar. According to this witness, she was subjected to rape by Tiju. After her stay in Bihar for about a month, her father reached there and brought her back. This witness has however stated that she was not aware as to what the accused/appellant did with the prosecutrix and on this point she has been declared hostile. Devnarayan Maravi (PW-3) the father of the prosecutrix has stated that at the relevant time his daughter (prosecutrix) was aged about 14 years but he did not remember her year or date of birth. According to him, on 4.12.2006 prosecutrix went missing. On that very day, mother of Nirmala (PW-2) came to him and informed that her daughter (Nirmala) also did not return home from school. Later he came to know that accused/appellant was also not in the village. Thereafter, search was made and when the prosecutrix and said Nirmala (PW-2) were not found, missing report was lodged. About one and a half month thereafter, he came to know that prosecutrix was taken to U.P. by the accused/appellant and said Nirmala by one Tiju, he along with other persons went there and brought both the girls back. Thereafter, search was made and when the prosecutrix and said Nirmala (PW-2) were not found, missing report was lodged. About one and a half month thereafter, he came to know that prosecutrix was taken to U.P. by the accused/appellant and said Nirmala by one Tiju, he along with other persons went there and brought both the girls back. According to this witness, though horoscope was prepared in his family but in the case of prosecutrix it was not prepared and that he did not remember the date of birth of the prosecutrix. He has admitted that when he got the prosecutrix admitted in the school, he did not carry any document with him and simply by making the prosecutrix touch her ear by taking her right hand over the head, her age was recorded on the basis of assumption. This witness has further stated that on the date of incident the prosecutrix was not aged about 17 years but 15 years. Dr. Vipin Indwar (PW-4) is the witness who medically examined the accused/appellant and gave his report Ex. P-9 stating that he was capable of performing sexual intercourse. Shankar Prasad Gupta (PW-5) is the witness to seizure of underwear of the accused/appellant made under Ex. P-10. Assistant Sub Inspector namely Pooran Chandra Singh (PW6) is the witness who did major part of investigation. Smt. Mangla Gupta (PW7) is the witness who has proved the documents of Ex. P-17 and P-18 in relation to the age of the prosecutrix. She has stated that at S. No. 246 of the original register name of the prosecutrix is mentioned and her date of birth is recorded as 24.6.1996. She has admitted that it is correct to say that at the time of admission, parents are unable to give the exact date of birth of their child and entries are made on the basis of assumption. S.L. Salam (PW-8) is the witness who assisted in investigation. Ramkumar Jaisawal (PW-9) is the Patwari who prepared spot map Ex. P-21 and proved Khasra Panchsala Ex. P-22. R.R. Bhagat (PW-10) is the Naib Tehsildar who issued caste certificate to the prosecutrix. Jagdish Khakha (PW-11) is the witness who has proved entries made in the Rojnamcha Sanha Ex. P-26 and P-27. Dr. (Smt.) K. Kujur (PW12) is the witness who medically examined the prosecutrix and gave her report Ex. P-21 and proved Khasra Panchsala Ex. P-22. R.R. Bhagat (PW-10) is the Naib Tehsildar who issued caste certificate to the prosecutrix. Jagdish Khakha (PW-11) is the witness who has proved entries made in the Rojnamcha Sanha Ex. P-26 and P-27. Dr. (Smt.) K. Kujur (PW12) is the witness who medically examined the prosecutrix and gave her report Ex. P-14-A stating that she was pregnant, her secondary sexual characters were fully developed, no external or internal injury was found on her person, her hymen was old torn, two fingers easily entered her vagina and she was habitual to sexual intercourse. She has further stated that for correct determination of age, the prosecutrix was advised for x-ray and for confirmation of pregnancy, sonography test was advised to her. 9. Minute examination of the material available on record including the evidence of the witnesses goes to show that the prosecutrix left her house in the company of accused/ appellant and remained with him in the jungle for 3 days without offering any protest. Thereafter, she visited various places up to the State of Jharkhand where she stayed for about one and a half month and during this period she used to work in a brick kiln but all along she kept quiet and did not make any disclosure to anyone about being forcible taken by the accused/appellant, though she came across number of people during this long period and thus it can be said that she was a consenting party to the act of the accused/appellant. As regards age, the prosecutrix and her parents have clearly stated in their evidence that they were not aware of her date of birth. Father of the prosecutrix has stated that in the village, horoscope was prepared but in the case of prosecutrix no such thing has been produced. Further, Smt. Mangla Gupta (PW-7) has stated that she did not make entry in the document Ex. P-17 and was not aware as to who made it. Father of the prosecutrix has also admitted that when he got the prosecutrix admitted in the school, he did not carry any document with him and simply by making the prosecutrix touch her ear by taking her right hand over the head, her age was recorded on the basis of assumption. Father of the prosecutrix has also admitted that when he got the prosecutrix admitted in the school, he did not carry any document with him and simply by making the prosecutrix touch her ear by taking her right hand over the head, her age was recorded on the basis of assumption. Thus there is no source on the basis of which the age of the prosecutrix was recorded in the school register and even the teacher of the school concerned who made entry in the same has not been examined in the Court. Even the lady doctor medically examining the prosecutrix has stated that her secondary sexual characters were developed and for correct determination of her age she had referred her for x-ray but no such report is on record which makes this Court draw an adverse inference in favor of the accused/ appellant. 10. Thus taking into consideration the cumulative effect of the evidence collected by the prosecution, this Court is of the considered opinion that the Court below has gone wrong in convicting the accused/appellant under Section 376 (1) IPC. In these circumstances, the accused/appellant is entitled to get benefit of doubt. Appeal is accordingly allowed. Judgment impugned is set aside. Accused/appellant is acquitted of the charge leveled against him. As he is already in jail, he be set free forthwith if not required in any other case. Appeal Allowed.