Mohan Das v. Present
Case Details
:..';&^^s ;"itS '•^^ d-^- lO sals8gl 'HE HIGH COURT OF JUDICATURE CHFIATTISGARH AT BILASPUR CRIMmAL APPEAL N0. °?^°? / 2006 (S.B.1 Moban Das S/o Jagdish Samami, Aged about 22 years, R/o Village Navagaon, P.S. Sahaspiir Lohara, Dist: Kabirdhara-jC.G State ofChIiattisgarh, T'hrough P.S. Sahaspur Lohara, Dist: Kabirdham-jC.G.) ~rr tr\ --i'-^/t fr^\ -^tr?»t^U!iSt f^/^T^ll? /^l?/"•'TE?i^4l] ^
Legal Reasoning
HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 252 of 2006 Mohan Das Appellant In Jail Respondent State of Chhattisgarh Vs Present:
Legal Reasoning
Mr. N.K. Chatterjee, counsel forthe appellant. Mr. Akhil Agrawal, Panel Lawyer for the State. JUDGMENT (Deliveredon 30th January, 2013) G. Minhaiuddin. J 1. This appeal has been filed by the appellant under Section 374(2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 31 March, 2006 passed by the in S.T.No.33/2005, Sessions Judge, Kabirdham (Kawardha), convicting the appellant under Section 376 of the Indian Penal Code i^!sl;3l!"-is ^l^^sl^^ and sentencing him to undergo Rl for 7 years, toundergo additional Rl to pay a fine of for 3 Rs.1000/- and in default thereof, months. 2. Case of the prosecutiori, in brief, is that on 22.5.2005, the prosecutrix alongwith her father Banshilal and mother Indratinbai had gone to Village-Narodhi for attending the marriage function of her maternal uncle, where her maternal sister Pramilabai and appellant/convict Mohan had also come. Thereafter, parents of the prosecutrix went to their Village-Parasbod and the prosecutrix went to Village-Navagaon alongwith Pramilabai and the appellant/convict. On 24.5.2005, whilethe prosecutrix was sleeping at night, the appellanVconvict having pressed her mouth with his hands fordbly took her towards Badi and committed rape upon her and also threatened her of life if she discloses about this incident to anyone. After about 4-5 days of the above inciden^ grand-father of the '^ •^ s ..y ^ prosecutrix took her back to Parasbod from Navagaon. Thereafter, when the appellant/convict came to the house of the prosecutrix at then the Parasbod and proposed to marry the prosecutrix, prosecutrix narrated about members, whereupon father of the prosecutrix took the prosecutrix to police station and lodged a report against the appellant/convict. the After usual investigation, charge sheet was filed against the aforesaid incident to her family appellant/convict under Section 376 and 506B of the IPC before the Chief Judicial Magistrate, Kabirdham, who, in turn, committed the same to the Court of Sessions Judge, Kabirdham (Kawardha) for trial. 3. During trial, the prosecution examined as many as 1 1 witnesses in support of its case. Statement of the appellant/convict was recorded under Section 313 of Cr.P.C., inwhich he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. Theappellant/convict examined two witnesses namely Bisahin and Rafiq Mohammad in his defence as DW-1 and DW-2. 4. Learned trial Court after hearing counsel for the respective parties the evidence, oral and documentary, and on close scrutiny of available on record, by the impugned judgment convicted and sentenced the appellant as mentioned above. 5. Heard learned counsel for the parties, perused the record of the trial Court as well as the impugned judgment. 6. In this appeal, the points forconsideration are as follows: (i) Whether on the date of incident i.e. 24.5.2005, the prosecutrix (PW-3) was under 16 years of age? (ii) Whether appellant/convict Mohan on the date of incident i.e. committed sexual intercourse with the 24.5.2005 had prosecutrix (PW-3) againsther will and without her consent? 7. So far as age of the prosecutrix (PW-3) prosecution has heavily relied upon the statement of Banshilal (PW-4), father of the prosecutrix, and copy of entry made in Dhakil- Kharij Register (Ex.P/10C), which has been proved by teacher is concerned, the '"fff^ /^^ti' fsr '7 l iili;. •s.l;8 s s:3&^ Rohitram (PW-7) by producing the original register in the Court, which has been marked as Ex.P/10. According to the copy of entry of Dhakil-Kharij Register (Ex.P/10C), date of birth of the prosecutrix (PW-3) has been mentioned as 8.10.1990, whereas the incident had occurred on 24.5.2005. If the same is taken as correct, then incident i.e. 24.5.2005, definitely on the date of the prosecutrix (PW-3) was below 16 years of age. Now the question is as towho got the prosecutrix (PW-3) admitted in schooL As per the statement of Banshilal (PW-4), father of the prosecutrix, and teacher Rohitram (PW-7), Banshilal (PW-4) had got the prosecutrix.admitted in school and as told by him, her date of birth was recorded as 8.10.1990 in the Dakhil-Kharij Register (Ex.P/10)of the concerned school. From is found that he does not the statement of Banshilal (PW-4), remember the date of birth of his daughter (prosecutrix) and had mentioned her date of birth on the basis of his estimation. He has it specifically stated that at the time of getting his daughter (prosecutrix) admitted fn school, he had not taken her Janmkundli (horoscope) alongwith him. He has stated that he is only 5 pass. As such, the age of the prosecutrix cannot be assessed with any amount of certainty oh the basis of statement of Banshilal (PW-4). Moreover, the prosecutrix (PW-3) hasstated that they are six sisters and one brotherand she is theyoungest sister amongst six sisters. She has also stated thatage of her eldest sister is about 26-27 ^^s^S^ years and thereis age difference of oneyear between each ofthe sisters. Kotwar Register has neither the seized been by Investigating Offieer during investigation, nor copyofthe same has been filed alongwith the eharge sheet. According to the statement bf the prosecutrix (PW-3), her age on the date of incident comes to about 20 years. Dr. (Mrs.) Anjanalal (PW-11) hasstatedthatshe has mentioned age ofthe prosecutrix (PW-3) as 15 years only as told by the prosecutrix and for getting her age assessed, she (PW-11) had referred the prosecutrix to Medical College Hospital Raipur radiological examination. However, despite being advised by Dr.(Mrs.) Anjanalal for (PW-11), the Investigating Officer did not care to get the age of the prosecutrix assessed by any scientific test. As per statement of Dr. (Mrs.) Anjanalal (PW-11) and the report (Ex.P/21) given by her after examining the prosecutrix (PW-3), it is found that all the secondary sexual characters of the prosecutrix (PW-3) were well developed and she was found to be habituated to sexual In such intercourse. a state of affairs, only on the basis of copy of entry made in Dakhil- Kharij Register (Ex.P/10C) of school as well as marksheet (Ex.P/9), it cannot be said that in the prosecution has been successful establishing that the date of birth of the prpsecutrix (PW-3) was 8.10.1990 and consequently, she was below 16 years of age on the date of incident i.e. 24.5.2005. 9. Now the next question is—whether the appellant/convict had intercourse with the prosecutrix (PW-3) on the 24.5.2005 against her will and without her consent? For this, committed sexual subsequent conduct ofthe prosecutrix (PW-3) is material. lO.The prosecutrix (PW-3) has admitted that on being asked by the appellant/convict, who is her brother-in-law in relation, she had accompanied him to Badi and as she had slept with him voluntarily, therefore, she had not raised any hue and cry when sexual intercourse was being committed by the appellant with her. She had not told about rape having been committed upon her by the appellanVconvict to anyone, especially even to her grand-father when he came to take her back. She has also admitted in para-24 of her statement thathad the appellant not arrived at her parents' house with his friends for taking her alongwith him, she would not have narratedabout the incident toanyone, nor had lodged the FIR. --ii^g ..^ssttSs^y Thus, from the above subsequent conduct of the prosecutrix (PW-3), it is crystal clear that she was a consenting part:y to the act intercourse and the same was committed with her of sexual consent. 11. On the basis ofaforesaid discussions, 1 am of the opinion that the finding recorded by the learned trial Court holding the appellant/convictguiltyoftheoffenceunderSection 376 ofthe IPC is erroneousand faulty, the same cannot be sustained and is liable to be set aside. /' "a!tas-[: 12.1n the result, the appeal is allowed. The impugned judgment dated 31 March, 2006 is hereby set aside. The appellant is acquitted of the charge under Section 376 of the IPC. He is on bail, therefore, his bail bonds are hereby discharged and he is set at liberty. The fine amount, if deposited, shall be refunded back to the appellant. Sd/- G. Minhajuddin Judge /^ s ^\