Khopli, Police Station Utai, District Durg (C.G.) v. State of Chhattisgarh, through the Police Station Utai, District Durg
Case Details
1 Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.02.28 11:03:44 +0530 2025:CGHC:9734 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 133 of 2007 Roshan Kumar Sahu, S/o Shri Dwarika Prasad Sahu, aged about 22 years, resident of Village Khopli, Police Station Utai, District Durg (C.G.) ... Appellant versus State of Chhattisgarh, through the Police Station Utai, District Durg (C.G.) ... Respondent For Appellant : Mr. Amit Kumar Sahu, Advocate For Respondent/State
Legal Reasoning
passed by this Court in the matter of Vikas Sahu Vs. State of Chhattisgarh passed on 17.02.2025 in CRA No.120/2007. 6. On the other hand, learned counsel appearing for the State submits that the conclusion given by the trial court regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by Counsel appearing for the appellant is not acceptable, hence, the appeal may be dismissed. 5 7. Heard learned counsel for the parties and perused the record with utmost circumspection. Consenting party 8. The victim (PW-8) has stated in her court statement that when she used to go to school, the appellant used to tease her. He used to hold her hand. Then one day, at about 10.00 in the day, he came to her room, closed the door from inside and raped her forcefully and threatened to kill her if she told anyone. After that, finding an opportunity, the appellant used to come to her grandfather's room and rape her, due to which she became pregnant. When she told the appellant, he got her abortion done. Then a meeting was held in the Village society, where on the persuasion of the Panchayat, the appellant married her. He kept her as his wife for two months. Then he beat her and threw her out of the house. Then she made a written report of the incident in police station Utai vide Exhibit P-5. On which the police registered a crime and investigated. It is noteworthy that the first incident is said to be occurred on 10/11/2002. But the written report was filed after 2 ½ years i.e. on 16/05/2005. The victim never complained about the incident to the neighbors or her family members for 2½ years. Thus, it is clear from the statement of the victim (PW-8) that she was a consenting party. Age Determination 9. In this case, the victim (PW-8) has stated her date of birth as 08/04/1988. In this regard, her school mark-sheet (Exhibit P-9) has also been seized. But to prove when, how and who entered the date of birth on that document, no 6 competent authority who issued the mark sheet has been examined in the trial Court. The trial Court has determined in paragraph 10 of its judgment that the said mark sheet has not been duly proved and hence is not a conclusive proof of the date of birth and age of the victim (PW-8). Thus, on the basis of the said document, it has not been proved that the date of birth of the victim (PW-8) is 08/04/1988 and that at the time of the incident, her age was around 16 or less than 18 years. 10.In this case, Dr. B.N. Devangan (PW-13) has certified the X- ray test report (Exhibit P-15) regarding the age of the victim (PW-8), which has also been relied upon by the trial Court. According to Dr. B.N. Devangan, he found that the age of the victim (PW-8) was about 17 years. The trial Court has found that as per the judicial precedent, the age given by the doctor in the ossification test can be presumed to be two years less or more and under this opinion the trial Court has reduced the age given by the doctor from 17 years and has estimated her age to be less than 16 years. It is a well settled principle of law that where two opinions are possible, the opinion which is in favour of the accused/appellant should be taken. 11.According to the judgment passed by the Hon’ble Supreme Court in the matter of Jaya Mala v. Home Secretary Government of J&K & Ors., AIR 1982 SC 1297, the age mentioned in the ossification test report as 17 years can be presumed to be two years less i.e. 15 years and two years more i.e. 19 years. Since, the presumption of the victim (PW-8) being older will be in favour of the appellant, the presumption will be that the age of the victim (PW-8) was about 19 years at the time of the ossification test. 7 12.In such a situation, while the victim (PW-8) is found to be a consenting party and the prosecution has failed to prove that the age of the victim (PW-8) was less than 16 or 18 years at the time of the incident, the conviction of the appellant is not found to be proper. Hence, the impugned judgment is not found to be sustainable. 13. Accordingly, the appeal is allowed. The impugned judgment is set aside and the appellant is acquitted of the charges levelled against him. 14. It is reported that the Appellant is on bail. He need not to surrender in this case. His bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437-A of the Cr.P.C. 15. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith for information and necessary action, if any. Sd/- (Sanjay Kumar Jaiswal) Judge Shubham
Arguments
: Mr. Vivek Mishra, Panel Lawyer Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (25.02.2025) 1. This criminal appeal filed by the appellant under Section 374 (2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 27-01- 2 2007, passed by learned IXth Additional Sessions Judge (FTC), Durg (C.G.), in Sessions Case No.151/2005, whereby the appellant has been convicted as under:- Conviction Sentence & Fine U/s 376 of IPC R.I. for 7 years and fine of Rs.5,000/-, in default thereof, 6 months’ additional RI U/s 450 of IPC R.I. for 7 years and fine of Rs.5,000/- in default thereof, 6 months’ additional RI U/s 342 of IPC R.I. for 3 months and fine of Rs.500/- in default thereof, 1 month’s additional RI U/s 506-B of IPC R.I. for 2 years and fine of Rs.1,000/- in default thereof, 2 months’ additional RI U/s 417 of IPC R.I. for 6 months and fine of Rs.1,000/- in default thereof, 2 months’ additional RI 2. As per prosecution story, the victim (PW-8) lives with her parents in village Khopali. The parents have only one room of 10x10 in village Khopali and an open shed next to the room. Due to the small size of the room, the victim had difficulty in studying, so she took the key of the house of her grandfather Videshiram Sahu, who lives in Durg, located behind her house and was using that room for her studies. Before the date of incident, when the victim used to go to school, the appellant used to tease and make gestures at her. The victim, being young and naive, did not pay much attention to the actions of the appellant, nor did she tell anyone. On the incident date i.e. 10/11/02, at around 3 10 am, when the victim was preparing to go to school in her grandfather's room, the accused opened the door of the house, entered and reached the victim's room and closed the door from inside. When the victim tried to scream and run away, he held both her hands and threatened to kill her, threw her on the ground and raped her forcefully and threatened to defame her and kill her, on which the minor victim got scared and did not tell anyone about the incident. Her age at the time of the incident was 14 years 07 months 02 days. After the above incident, the appellant kept raping the victim at the same place every day, due to which the victim got pregnant. When the above matter was told to the appellant, the appellant administered a pill to her and got the abortion done. For about 8-9 months, the appellant kept exploiting the victim by deceitfully having physical relations with her. When the victim's parents came to know about it, they called a social meeting, in which it was decided that the victim and the appellant should be married, on which they got married in the Village. But the appellant played with the dignity of the victim by just pretending to get married and after two months of marriage, he drove the victim out of his house. On the basis of above, the victim made a written complaint on 16.05.2005 (Ex.P-5) before SDOP Patan and on the basis of said report, FIR registered at Utai Police Station against the appellant. Thereafter, the medical examination of the victim was conducted. The seizure of articles like school certificate of the victim, photocopy of the Panchayat decision taken in the social meeting, photographs of marriage were made. After completing the entire investigation, a charge sheet was filed against the appellant. 3. During the course of trial, in order to bring home the 4 offence, the prosecution has examined as many as 13 witnesses and exhibited 15 documents. Statements of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. 4. After hearing the parties, vide impugned judgment dated 27.01.2007, the learned Trial Court has convicted and sentenced the Appellant as mentioned in paragraph 1 of this judgment. Hence, this appeal. 5. Learned counsel appearing for the appellant submits that the date of birth of victim (PW-8) is not proved. No conclusive evidence regarding her age has been produced by the prosecution. Thus, as date of birth of victim (PW-4) was not proved, the prosecution has failed to prove that the victim was minor at the time of the incident. He further submits that the victim was a consenting party though prosecution has failed to prove its case beyond doubt. Hence, it is prayed that the appellant may be acquitted of the charges leveled against him by setting aside the impugned judgment of conviction and order of sentence. In support of his argument, he relied upon the judgment