Research › Search › Judgment

Chhattisgarh High Court · body

2013 DIGILAW 50 (CHH)

SURESH NISHAD v. STATE OF C. G.

2013-02-05

PRITINKER DIWAKER

body2013
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 20.1.2010 passed by Special Judge (Atrocities) Durg, in Special Case No. 51/2007 convicting the accused/appellant for the offence punishable under Sections 366 and 376(1) IPC and sentencing him to undergo RI for five years with fine of Rs.500/- U/S 366 and RI for seven years with fine of Rs.500/- U/S 376(1) IPC, plus default stipulations. 2. Case of the prosecution in brief is that on 13.9.2007 a missing report was lodged by the father of the prosecutrix namely Gopi (PW-3) alleging that his minor daughter (prosecutrix) aged about 15 years at the relevant time went missing. This report was entered into Rojnamcha Sanha No. 17/2007. On 19.9.2007 prosecutrix returned home and based on her statement FIR Ex. P-13 was registered on 20.9.2007 for the offences punishable under Sections 363, 366 and 376 IPC. Prosecutrix was medically examined by Dr. Suhadra Thakur (PW-8) on 20.9.2007 and after completion of investigation charge sheet was filed by the police on 21.10.2007 for the offences punishable under Sections 363, 366, 376 and 496 IPC. Court below however framed the charge under Sections 366 and 376 (1) IPC as well as 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989 (for short the "Special Act"). 3. In support of its case the prosecution has examined 15 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he pleaded his innocence and false implication in the case. 4. After hearing the parties, the Court below acquitted the accused/appellant of the charge under Section 3(2)(v) of the special Act but convicted and sentenced him as mentioned in paragraph No.1 of the judgment. 5. Counsel for the accused/appellant submits that prima facie it appears that prosecutrix was a consenting party to the act of the accused/appellant and that the prosecution has not adduced any legally admissible evidence in respect of her age. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that findings recorded by the Court below are strictly based on the evidence adduced by the prosecution and there is no infirmity in the same. 7. Heard counsel for the parties and perused the material available on record. 8. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that findings recorded by the Court below are strictly based on the evidence adduced by the prosecution and there is no infirmity in the same. 7. Heard counsel for the parties and perused the material available on record. 8. Prosecutrix (PW-1) has stated in her evidence that she knew the accused/appellant who is of Nishad caste whereas her caste is Satnami. At the relevant time she is stated to have been studying in class VII. Accused/appellant was residing near her house and whenever she went to the pond to take bath, she used to look at him. On the date of incident when she came out of the school premises to answer the call of nature, accused/appellant forcibly dragged her, made her sit on his motorcycle and when she tried to raise alarm, he pressed her mouth and showed her knife. According to her, out of fear she accompanied the accused/appellant. Accused/appellant is stated to have taken this witness to several places including village Balodi where in the house of his relative he committed forcible sexual intercourse with her in the night. Thereafter, he took her to village Jamghat and kept in his house. After staying for about an hour at village Jamghat when the accused/appellant was to take her somewhere else, at that time her parents came there and took both of them to police station Berla where the matter was reported to the police. Thereafter, her underwear was seized and she was medically examined with her consent Ex. P-2. In cross-examination she has stated that while going to number of places, several people came across but she did not make any disclosure to them. Even while sitting on the motorcycle of the accused/appellant she has not made any protest. In village Balodi she used to do household work along with the mother of the friend of the accused/appellant and she lived there as his wife. On marriage certificate of Arya Samaj being shown to this witness, she has stated that accused/appellant had forced her to wear sari and put vermillion on forehead. She however has denied that she was having any affair with the accused/appellant. When love letter Ex.D-1 was shown to this witness, she has stated that it was not written by her. On marriage certificate of Arya Samaj being shown to this witness, she has stated that accused/appellant had forced her to wear sari and put vermillion on forehead. She however has denied that she was having any affair with the accused/appellant. When love letter Ex.D-1 was shown to this witness, she has stated that it was not written by her. Mongra Bai (PW-2) mother of the prosecutrix has stated that when the prosecutrix did not return from the school in the evening, some of her relatives told her about the same and then she got back to village Jamghat. According to her, after about eight days the accused/appellant brought her daughter (prosecutrix) back and then the matter was reported to the police. This witness has stated that at the relevant time the prosecutrix was aged about 13 years. Gopi Satnami (PW-3) father of the prosecutrix has stated that when the prosecutrix did not return home, a search was made for her followed by lodgement of missing report. According to this witness, his daughter (prosecutrix) came back after about a week and then in the police station the report was lodged. This witness has further stated that on the date of incident prosecutrix was aged about 14 years but he could not tell her exact date of birth. He has admitted that he had seen the prosecutrix sitting on the motorcycle being driven by the accused/appellant. Gopal Satnami (PW-4) uncle of the prosecutrix has stated that at the time of incident she was aged about 13 years and that in his presence her underwear was seized vide Ex.P-5. Prabhu Ram Sinha (PW-5) has not supported the case of the prosecution and has been declared hostile. Bhaklu Yadav (PW-6) is the witness who had seen the prosecutrix and the accused/appellant going on a motorcycle. Puran (PW-7) is the witness to seizure of underwear made under Ex. P-5 but he has not stated anything specific. Dr. Suhadra Thakur (PW-8) is the witness who had medically examined the prosecutrix vide Ex. P-7 and according to her she (prosecutrix) was habitual to sexual intercourse and no sign of recent intercourse was noticed by her. Dr. Jitendra Kunjam (PW-9) is the witness who medically examined the accused/appellant vide Ex. P-9 and stated that he was capable of performing sexual intercourse. P-7 and according to her she (prosecutrix) was habitual to sexual intercourse and no sign of recent intercourse was noticed by her. Dr. Jitendra Kunjam (PW-9) is the witness who medically examined the accused/appellant vide Ex. P-9 and stated that he was capable of performing sexual intercourse. Gopal Rajak (PW-10) is the 'constable who took the prosecutrix for medical examination and produced the sealed packet containing vaginal slides, in the police station. Sukhram Banjare (PW-11) is the head master of the school who has proved the admission register Ex.P-10 in which date of birth of the prosecutrix is recorded as 12.2.1994. He has also proved the transfer certificate Ex.P-11 issued by him on the basis of entry made in the school register. This witness has stated that the entry in the register was made on the basis of record of primary school Jamghat. Jogeshwar Prasad Sharma (PW-12) is the Patwari who prepared spot map Ex.P-12. Santosh (PW-13) is the witness who saw the accused and the prosecutrix on motorcycle. K.M. Mishra (PW-14) is the investigating officer who has duly supported the case of the prosecution. Dr. Badri Narayan Dewangan (PW-15) is the witness who performed ossification test of the prosecutrix vide Ex.P-18 and according to him at the relevant time the prosecutrix was aged about 16 years carrying a margin of two years on either side. 9. Minute examination of the evidence available on record particularly the evidence of the prosecutrix shows that she went in the company of the accused/appellant to several places of her own without making any protest and during this period permitted him to have sex with her. Conduct of the prosecutrix in keeping silence and not disclosing the act of the accused/appellant to the persons who are said to have met her during her visits to several places goes to demonstrate that she was a consenting party. As regards her age, there is no legally admissible evidence to show that on the date of incident she was minor. Dr. Badri Narayan Dewangan (PW-15) who conducted ossification test on the prosecutrix has stated that at that time she was aged about 16 years of age which may carry a margin of two years on either side. Even parents of the prosecutrix could not tell the exact date of birth of their daughter. Dr. Badri Narayan Dewangan (PW-15) who conducted ossification test on the prosecutrix has stated that at that time she was aged about 16 years of age which may carry a margin of two years on either side. Even parents of the prosecutrix could not tell the exact date of birth of their daughter. Date of birth disclosed by (PW-11) also appears to be without any cogent basis as according to him it was recorded on the basis of transfer certificate issued by Primary School Jamghat but there is nothing on record as to on what basis it was originally recorded. Thus, this Court is of the opinion that the prosecution has not been able to prove its case beyond reasonable doubt and likewise the Court below also chose a wrong track of conviction though the evidence on record is not as such. 10. In the result, the appeal is allowed. Judgment impugned is set aside. Accused/appellant is acquitted of the charge levelled against him. Accused/appellant is in jail. He be set free forthwith if not required in any other case. Appeal Allowed.