Nafr High Court
Case Details
1 2025:CGHC:27010 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 791 of 2005 Lakhanlal, S/o Harilal, Aged about 23 years, R/o Pulanga, Police Station : Chhal, District : Raigarh, Chhattisgarh. versus ... Appellant State Of Chhattisgarh, Through the District Magistrate Raigarh, District- Raigarh, Chhattisgarh. ... Respondent For Appellant : Mr. Kunal Das, Advocate appears along with Mr. R. For State : Mr. Sanjeev Pandey, Deputy Advocate General Thripati, Advocate
Legal Reasoning
Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board 23.06.2025 1. This appeal under Section 374 (2) of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) has been filed by the appellant, assailing the legality, validity and judicial propriety of judgment of conviction and order of sentence dated 21.09.2005 passed by the Special Judge {constituted under Scheduled Castes and Scheduled Tribes ( Prevention of Atrocities) Act, 1989 }, Raigarh, District Raigarh (C.G.) (for short trial Court) in Special Case No.27/2003 by which learned trial Court has held the appellant guilty of commission of offence and sentenced as described below - 2 Conviction Sentence Awarded U/s 363 of Indian Penal Code, 1860. 3 years months R.I. and Fine of Rs. 5000/-, in default of payment of fine 10 months additional R.I. 2. The prosecution's case, in nutshell, is that the prosecutrix whose date of birth is alleged to be 14.06.1985 was residing along with her father and mother in Village- Kansabahar. About 10-15 days prior to 25.12.2002, appellant stayed in the house of Govind of village Kansabahar as a guest. The prosecutrix PW- 01 used to go to the pond for bathing, boring, for fetching water, where the appellant used to see her, tease her and used to express her affection by holding her hands. He used to say that he would not be able to survive without her and would keep her as a wife. On 21.12.2002, at about 6:30 PM the prosecutrix had gone to jungle behind her house for releasing herself, at that time the appellant came and held her and slammed her into the ground and committed sexual intercourse. On being shouted, the appellant gagged her and after committing the sexual intercourse asked her to run away. The prosecutrix came to the home but nobody was present in the home. The appellant followed the prosecutrix and threatened her that if she does not came with her he would commit suicide by hanging himself in the tree in front of her house. The prosecutrix became frightened. On 03.01.2003 at about 10 PM, appellant came to the house of prosecutrix and by indication called the prosecutrix upon which she came out and she was taken to Chhal Chouksar by the appellant in his bicycle. The bicycle was left and they headed towards Dharamjaigarh Road on foot. They boarded the Marshall Jeep near Vrindavan and reached Dharamjaigarh. Thereafter, the appellant took the prosecutrix to various other places i.e. Dharamjaigarh, Pathalgaon, Kapu, Dak Guda, Sitapur, Ambikapur, Kisma, Pathrapali and other places by means of bus and other ways. 3 Prosecutrix was kept in these places on different dates and he committed sexual intercourse upon her on multiple occasions. Appellant impersonated as Satish Tiwari and stayed in Jimmi Lodge at Patal Gaon, portraying the prosecutrix as his wife. On 17.02.2003 at about 6 pm, the prosecutrix returned back to her house and informed the same to her parents. Thereafter, report Ex. P/1 bearing crime no. 0/03 was recorded upon which the FIR No. 04/2003 Ex. P/14 was recorded in the Police Station. 3. During the course of investigation spot map Ex. P/2 was prepared. Prosecutrix was medically examined by Dr. B. Toppo(PW-08) who gave report Ex. P/5 and opined that the prosecutrix was subjected to sexual intercourse. The appellant was medically examined by Dr. P.K. Patel (PW-09) and found her and capable of performing sexual intercourse. To ascertain the age of the prosecutrix her x-ray was conducted by Dr. D.K. Tandon (PW-14) and gave the report Ex. P/5 and opined that the prosecutrix was aged about 17 years. To ascertain the age of the prosecutrix, the statement of mark(marskheet) of primary school was seized vide Ex. P/3, according to which date of birth of the prosecutrix was 14.06.1985. Her domicile certificate and caste certificate were seized vide Ex. P/9 and P/8 respectively. Seizure memo Ex. P/4 was seized. The vaginal slide of the prosecutrix was seized vide Ex. P/10. Jimi lodge Register of Patal Gaon was seized vide Ex. P/7 and birth register of Police Station Chhal of the year 1985 was also seized. Seized slides and other articles went sent for chemical analysis to FSL, Raipur. 4. On completion of the investigation, charge sheet was prepared and submitted before the Competent Court. The appellant was charged for the offence punishable under Section 363, 376 and 366 of the Indian Penal Code, 1860 (for short ‘IPC’) and Section 3(1)(12) of Scheduled Caste & Scheduled Tribe 4 (Prevention of Atrocities) Act, 1989 (for short ‘Special Act’), who denied the charges the claimed to be tried. 5. Prosecution in order to prove its case, examined total 23 witnesses and exhibited 16 documents. Statements of appellant was also recorded under Section 313 of CrPC, in which he denied all incriminating evidence available against him, pleaded innocence and has submitted that he has been falsely implicated in the offence. By the judgment impugned the appellant was acquitted from the offence punishable under Section 366 and 376 of IPC, and Section 3(1)(12) of Special Act, however he was convicted and sentenced as stated in the first paragraph. 6. Learned counsel for appellant vehemently argues that the prosecutrix and the appellant were having a cordial love relationship. The prosecutrix accompanied the appellant on her sweet will without any protest or demur. He further submits that the age of the prosecutrix has not been proved as below 18 years entailing conviction under Section 363 of the IPC. He submits that the learned Trial Court has acquitted the appellant from Section 366 and 376 of the IPC which goes to show that the prosecutrix voluntarily accompanied the appellant. The conviction of the appellant under Section 363 of the IPC is only on the ground that the prosecutrix was found to be 16 years 9 months by learned Trial Court. He submits this finding with regard to the age of the prosecutrix is absolutely perverse as there is no admissible, cogent and prudent evidence on record to hold that the prosecutrix was minor at the time of commission of the crime. He submits that the witnesses themselves are not certain with regard to the age of the prosecutrix and on such flimsy evidence, the finding with regard to the age of the prosecutrix requires interference by this court and appellant deserves acquittal by this Court. 5 7. Per contra, Mr. Pandey, supported the impugned judgment and submits that the learned Trial Court has recorded the categorical finding that the prosecutrix was aged about 16 years and 9 months on the basis of meticulous examination of evidence available on record. In this regard, it does not require any interference. Even if the appellant was acquitted from other charges, but as the prosecutrix was minor, conviction of the appellant under Section 363 of the IPC is well founded. Therefore, the appeal sans merit and is liable to be dismissed. 8. I have heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment with rapt attention. 9. The moot question which is germane in this appeal is to whether the prosecutrix was less than 18 years for the conviction of the appellant under Section 363 of the IPC. Learned Trial Court has acquitted the appellant from the Section 366 and 376 of the IPC as the charges against the appellant could not be proved beyond reasonable doubt. In this context, it would be necessary to look into the evidence which has been brought by the prosecution to prove the age of the prosecutrix. The prosecution has relied upon the Ex. P/15(c) register maintained in the Police Station with regard to the birth of children taking place in the village. According to Ex. P/15(c) birth register maintained for the year 1986 the date of birth of the prosecutrix is 04.03.1986. The prosecution tried to prove this birth certificate by calling the PW-21 (Jwakhim Lakda), the head constable of Police Station- Chhal, District -Raigarh and he deposed in his statement that he is posted as the head constable in Police Station Chhal, District Raigarh since the year 2000 and he has brought the birth register of the village Kansa Bahar with him and in the column No. 158 the date of birth of the prosecutrix as per register is 04.03.1982. The original register was marked as Ex. P/15 and photocopy of same was marked as Ex. P- 6 15(c). In cross examination he states that the information given in the Ex. P-15 is by the Kotwari of the village. The Kotwari comes on every 21st of the month and provides the information of the birth of children in the village. He further submits that only on the basis of the information given by the Kotwar, the same is registered. He further submits that the entry in the register of the year 1986 has not been made by him. From this witness it appears that in the examination in chief he states the date of birth of the prosecutrix is 04.03.1982, whereas on the perusal of register Ex. P-15(c) it appears that it is prepared for the year 1986. This witness also states that he has not made the entry in the register and it is done only on the basis of the information received from the Kotwar of the said village. 10. The prosecutrix was medically examined by Dr. B. Toppo (PW-08). She in her statement before the court deposed that on examination of the private parts, the labia majora and labia minora were found to be fully developed. She stated that she did not find any external injury and she stated that the sexual intercourse was committed upon her and she has prepared the slides (vaginal swab). She further states that in order to ascertain the age of the prosecutrix, prosecutrix was sent to KGH Raigarh for x-ray. Her medical report is Ex. P/5. In her cross-examination She deposed that full development of secondary sexual character takes place between the age 18-20 years. She further deposed that full development of labia minora takes place only between 18 to 20 years. The prosecutrix was subjected to ossification test by Dr. D.K. Tandon(PW-14), who deposed in his statement before the learned Trial Court that the prosecutrix was brought before him to conduct her X-ray in order to ascertain her age. He conducted the x-ray of both elbows and x-ray no. was 1230. According to this witness, the prosectutrix was aged about 17 years and he gave the ossification report as Ex. P/11. In his cross-examination he states that 7 the union of the bones depends upon the eating habits of the person. From perusal of this witness it is apparent that the prosecutrix was said to be 17 years of age. At the same time, it would be worthy to note that the report of the ossification test is only an opinion and not conclusive. There is always a possibility of error of margin of 01-02 years on each side. Supreme Court in catena of decision has held that the ossification test could not be a conclusive evidence to ascertain the age of the person. 11. In the light of the above, the things which emerges from the evidence is that, according to the oral testimony of PW-21 the prosecutrix was born in the year 1982 whereas Ex. P 15(c) birth register of the village of the year 1986 states her date of birth to be 04.03.1986. Dr. D.K. Tandon (PW-14) has opined her age as 17 years. Seizure memo Ex. P/03 marksheet of the prosecutrix indicates her date of birth as 14.06.1985. Dr. B. Toppo (PW-08) found the labia minora of the prosecutrix fully developed. According to this witness it only takes place between 18-20 years of age. According to evidence of prosecutrix her date of birth is 14.06.1985. Therefore, from the evidence of record with certainty, it could not be said that the prosecutrix was minor on the time of incident. In the different evidence with regard to the age of the victim, it would not be safe to hold that she was less than 18 years of age. Therefore, finding of the learned Trial Court that the prosecutrix was less than 18 years is not based upon proper appreciation of evidence. Therefore the finding recorded by the learned Trial Court is set aside. 12. As stated above, the appellant is already acquitted from the other charges, and from the evidence of record it is quite vivid that the prosecutrix went along with the appellant on different occasions to different places without any protest or demur, she never raised any alarm, and therefore, her statement cannot be said to be statement of sterling quality. 8
Decision
13. Therefore, the impugned judgment is hereby set aside. Appellant is acquitted form the all the charges. Appeal thus allowed. Consequence to follow. 14. Copy of this judgment along with record be sent back to learned trial court for information and necessary compliance. sd/- alfiza (Sachin Singh Rajput) JUDGE