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2013 DIGILAW 174 (CHH)

RAMCHANDRA KHUNTE v. STATE OF C. G.

2013-06-14

Radhe Shyam Sharma

body2013
JUDGMENT 1. This appeal is directed against the judgment dated 29-03-2007 passed by Additional Sessions Judge, Dhamtari in Sessions Trial No. 19/2006. By the impugned judgment, accused/appellant Ramchandra Khunte has been convicted under Sections 363, 366, 376(1) and 506B IPC and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 500/- for the offence under Section 366 IPC; to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 500/- for the offence under Section 376(1) IPC; to undergo rigorous imprisonment for 3 years for the offence under Section 506B IPC, in default of payment of total fine amount of Rs. 1000/-. to further undergo rigorous imprisonment for 4 months; with a direction to run the sentences concurrently. For the offence under Section 363 IPC, no separate sentence has been awarded to the appellant. 2. Case of the prosecution, in brief, is as under : Prosecutrix (PW-1) was residing in Village Hanchalpur and was studying in 6th Standard. Salik Das Vaishnav (PW-15) is her father and Sharda Devi (PW-2) is her mother. In the month of Chaitra, 2005, Salik Das Vaishnav (PW-15) was ill and admitted in Christian Hospital (Bathhena), Dhamtari for treatment. Sharda Devi (PW-2) was also staying with Salik Das Vaishnav (PW-15). The appellant was engaged to watch their house. The prosecutrix (PW-1) was alone in the house. She was working in her room and smearing the room with cow-dung. At that time, the appellant caught her hand, gagged her mouth, caused her to fall down, removed her clothes and committed forcible sexual intercourse with her. The appellant threatened her that if she will shout, he will kill her and committed sexual intercourse with her without her consent. Due to fear and threatening given by the appellant, she did not disclose the incident to her parents. After 3-4 months of the first incident, the appellant again entered the house through window, gagged the mouth of the prosecutrix (PW-1) with handkerchief, threatened her with knife, took her in his house and confined her inside the room. The prosecutrix (PW-1) extricated herself from the clutches of the appellant, came to her house and narrated the incident to her mother Sharda Devi (PW-2) and father Salik Das Vaishnav (PW-15) and, thereafter, lodged First Information Report (FIR) (Ex.-P/1) in Police Outpost Bhakhara. Offence under Sections 376 and 506 IPC was registered. The prosecutrix (PW-1) extricated herself from the clutches of the appellant, came to her house and narrated the incident to her mother Sharda Devi (PW-2) and father Salik Das Vaishnav (PW-15) and, thereafter, lodged First Information Report (FIR) (Ex.-P/1) in Police Outpost Bhakhara. Offence under Sections 376 and 506 IPC was registered. The prosecutrix (PW-1) was sent to District Hospital, Dhamtari for medical examination vide Ex.-P/15. Doctor Smt. Asha Tripathi (PW-14) examined the prosecutrix (PW-1) and gave her report (Ex.-P/20). 2 slides of vaginal swab of the prosecutrix (PW-1) were prepared and were seized vide Ex.-P/6. The mark sheet of the prosecutrix (PW-1) was seized vide Ex.-P/4. Kotwari book was also seized vide Ex.-P/8. The appellant was also sent to District Hospital, Dhamtari for medical examination vide Ex.-P/17. Doctor J.S. Khalsa (PW-16) examined him and gave his report (Ex.-P/17A), in which he found that the appellant could perform the act of sexual intercourse. In further investigation, spot map (Ex.-P/2) was prepared by Patwari Punit Ram (PW-9) and another spot map (Ex.-P/16) was prepared by the Investigating Officer. The seized articles were sent to Forensic Science Laboratory (FSL), Raipur for chemical examination vide Ex.-P/18. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Kurud, who, in turn, committed the case to the Court of Session, Raipur, from where it was received on transfer by the Additional Sessions Judge, Dhamtari, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Y.C. Sharma, learned counsel for the appellant argued that on the date of incident, the age of prosecutrix (PW-1) was above 16 years. The documents produced by the prosecution relating to the age of prosecutrix (PW-1) were not duly proved by it. He further argued that the finding recorded by the trial Court is perverse. Looking to the evidence of the prosecutrix (PW-1), it appears that she was a consenting party to the sexual intercourse. The evidence of the prosecutrix (PW-1) does not inspire confidence. There are material contradictions in the evidence of the prosecutrix (PW-1). Thus, the finding recorded by the learned Additional Sessions Judge is liable to be set aside and the appellant deserves to be acquitted. 4. On the contrary, Shri Ashish Shukla, learned Govt. The evidence of the prosecutrix (PW-1) does not inspire confidence. There are material contradictions in the evidence of the prosecutrix (PW-1). Thus, the finding recorded by the learned Additional Sessions Judge is liable to be set aside and the appellant deserves to be acquitted. 4. On the contrary, Shri Ashish Shukla, learned Govt. Advocate appearing for the State/ respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference by this Court. 5. I have heard rival contentions of the parties and have also perused the record of Sessions Trial No. 19/2006. 6. Now, I shall examine whether on the date of incident, the age of prosecutrix (PW-1) was below 16 years or not? 7. Evidence of parents of a victim girl is material for proving her age. In the instant case, at the time of deposition of prosecutrix (PW-1), her age was mentioned 14 years in her deposition sheet. Salik Das Vaishnav (PW-15), who is father of prosecutrix (PW-1) deposed that the prosecutrix (PW-1) is his daughter. Initially, her name was Krishna. He further deposed that he informed the Kotwar regarding the date of birth of Krishna and Kotwar entered the date of birth of Krishna and Prosecutrix (PW-1) is also known as Krishna. Prosecutrix (PW-1) deposed that her date of birth is 26th January, her brother is aged about 19-20 years and she is 5 years younger than her brother. 8. Mohan Lal (PW-6) deposed that he was Kotwar of Village Hanchalpur. Before him, his father was Kotwar of the said village. He further deposed that police seized Kotwari book from him vide Ex.-P/8 and Kotwari book is Ex.-P/9. According to Kotwari book, the date of birth of Krishna Kumari is 17-02-1991. Assistant Sub-Inspector N.P. Chandrakar (PW-12) deposed that he had seized birth report register from Kotwar Mohan Lal (PW-6) vide Ex.P/8. At serial No. 7 and registration No. 234, date of birth of Kumari Krishna is mentioned as 17-2-1991 and the name of Salik Ram (PW-15) is mentioned as father and mother's name is mentioned as Sharda Devi (PW-2). 9. Salik Das Vaishnav (PW-15) specifically deposed that the name of the prosecutrix (PW-1) was recorded as Kumari Krishna and prosecutrix (PW-1) is known as Krishna also. 9. Salik Das Vaishnav (PW-15) specifically deposed that the name of the prosecutrix (PW-1) was recorded as Kumari Krishna and prosecutrix (PW-1) is known as Krishna also. No single question was put by the defence whether prosecutrix (PW-1) and Kumari Krishna are two different girls or both are not the names of a single girl, therefore, the evidence of Salik Das Vaishnav (PW-15) that prosecutrix (PW-1) is known as Kumari Krishna and her name was entered in Kotwari book as Krishna is reliable. Therefore, it is established that prosecutrix (PW-1) is also known as Kumari Krishna. 10. Kotwari book is a public document and is admissible in evidence u/s 34 of the Evidence Act. In Harpal Singh and another Vs. State of Himachal Pradesh1, the Hon'ble Supreme Court observed that the entry was made by the concerned official in the discharge of his official duties, therefore, it is clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author. 11. In the instant case, Salik Das Vaishnav (PW-15) specifically deposed that the name of prosecutrix (PW-1) is Krishna also and she is known as Krishna since her childhood and at the time of her birth the name of the prosecutrix (PW-1) was entered in Kotwari book as Krishna. Mohan Lal (PW-6) also deposed that in Kotwari book, the date of birth of Kumari Krishna is mentioned as 17-02-1991. Dr. Smt. Asha Tripathi (PW-14) also mentioned the age of the prosecutrix (PW-1) as 14 years in her report (Ex.-P/20). The month of incident was Chaitra, 2005 and date of birth of the prosecutrix (PW-1) is 17-02-1991. Therefore, on the date of incident, the age of the prosecutrix (PW-1) was near about 14 years and 3 months. The First Information Report (Ex.P-1) was lodge on 10-08-2005. On that date, the age of the prosecutrix (PW-1) was 14 years 6 months and 21 days. It reveals that on the date of incident, the prosecutrix (PW-1) was below 16 years of age. 12. Now, I shall examine whether offence under Section 376(1) IPC is made out against the appellant or not? 13. Prosecutrix (PW-1) deposed that in the month of Chaitra, 2005, her father Salik Das Vaishnav (PW-15) was admitted in hospital at Dhamtari. Her mother Sharda Devi (PW-2) was also staying with Salik Das Vaishnav (PW-15). 12. Now, I shall examine whether offence under Section 376(1) IPC is made out against the appellant or not? 13. Prosecutrix (PW-1) deposed that in the month of Chaitra, 2005, her father Salik Das Vaishnav (PW-15) was admitted in hospital at Dhamtari. Her mother Sharda Devi (PW-2) was also staying with Salik Das Vaishnav (PW-15). The appellant was engaged for watching the house of the prosecutrix (PW-1). On the date of incident, prosecutrix (PW-1) was smearing the room with cow-dung. At about 2 pm, the appellant came there, gagged her mouth, dragged her inside the room, removed her clothes and also removed his clothes and then committed sexual intercourse with her. The appellant threatened her that if she will narrate the incident to her parents or anyone, he will kill her and her brother and committed sexual intercourse with her. Therefore, she did not narrate the incident to her parents. 14. Prosecutrix (PW-1) deposed that after 3-4 months of the first incident, the appellant entered her house through window and at that time, she was sleeping in the room. The appellant gagged her mouth with handkerchief and threatened her by knife, took her inside the room of his house and closed the door. The appellant threatened her of life. She extricated herself from the clutches of the appellant, came to her house and narrated the incident to her mother Sharda Devi (PW-2) and father Salik Das Vaishnav (PW-15). 15. Prosecutrix (PW-1) deposed in her cross examination in para 14 that it is true that she disclosed the incident to her mother after 4 months of the incident. Sharda Devi (PW-2) deposed that prosecutrix (PW-1) narrated the incident to her after 2 months of the incident. Salik Das Vaishnav (PW-15) also deposed in similar fashion. 16. Prosecutrix (PW-1) deposed that when her parents were in hospital, she used to sleep in the house of Dallu Ram Sen (PW-3). It is true that he did not disclose the incident to Dallu Ram Sen (PW-3). Dallu Ram Sen (PW-3) also deposed that father and mother of the prosecutrix (PW-1) were in the hospital and at that time, prosecutrix (PW-1) used to sleep in his house in the night along with her sister. 17. It is true that he did not disclose the incident to Dallu Ram Sen (PW-3). Dallu Ram Sen (PW-3) also deposed that father and mother of the prosecutrix (PW-1) were in the hospital and at that time, prosecutrix (PW-1) used to sleep in his house in the night along with her sister. 17. Looking to the evidence of prosecutrix (PW-1), it appears that the appellant committed sexual intercourse with prosecutrix (PW-1) with her consent, therefore, she was a consenting party to the commission of the sexual intercourse but she was below 16 years of age on the date of incident, hence, her consent is of no consequence and is immaterial. Therefore, the offence under Section 376(1) IPC is made out against the appellant. 18. Looking to the evidence of prosecutrix (PW-1), it appears that prosecutrix (PW-1) had gone to the house of the appellant and prosecutrix (PW-1) did not disclose the incident immediately to her parents. Even she did not disclose the incident to Dallu Ram Sen (PW-3). It appears that prosecutrix (PW-1) voluntarily went to the house of the appellant, therefore, the offence under Sections 363, 366 and 506B IPC are not made out. 19. For the foregoing reasons, I do not find any infirmity in the conviction recorded by the learned Additional Session Judge for the offence under Section 376(1) IPC, but the conviction recorded under Sections 363, 366 and 506B IPC is not sustainable. 20. Learned counsel for the appellant argued that the appellant is a poor person and the offence was committed in the month of Chaitra, 2005. The appellant is in jail since 10-08-2005 and has suffered jail sentence for about 7 years and 10 months. Therefore, the jail sentence awarded to him may be restricted to the period already served by him. 21. In the instant case, learned Additional Sessions Judge has sentenced the appellant with rigorous imprisonment for 10 years for the offence under Section 376(1) IPC. Looking to the evidence of prosecutrix (PW-1), it appears that prosecutrix (PW-1) had willingly accompanied the appellant and on the date of incident, she was below 16 years of age. For the offence under Section 376(1) IPC, the minimum prescribed sentence is 7 years. 22. Looking to the facts and circumstances of the case, the jail sentence awarded by the learned Additional Sessions Judge for the offence under Section 376(1) IPC is harsh. For the offence under Section 376(1) IPC, the minimum prescribed sentence is 7 years. 22. Looking to the facts and circumstances of the case, the jail sentence awarded by the learned Additional Sessions Judge for the offence under Section 376(1) IPC is harsh. I am of the view that ends of justice would be served if the appellant is sentenced for the period already undergone by him. 23. In the result, the appeal is partly allowed. The conviction and sentence awarded to the appellant under Sections 363, 366 and 506B IPC are set aside and he is acquitted of the charges framed thereunder. The conviction of the appellant under Section 376(1) IPC is affirmed. However, the sentence of rigorous imprisonment for 10 years awarded to him for the offence under Section 376(1) IPC is reduced to the period already undergone by the appellant. The sentence of fine awarded by the learned Additional Sessions Judge for the offence under Section 376(1) IPC is also affirmed. It is stated that the appellant is in jail. He be released forthwith, if not required in any other case. Appeal Partly Allowed.