Jashpur Chhattisgarh v. State Of Chhattisgarh Through Arakshi Centre, Kansabell District
Case Details
1 VAIBHAV SINGH Digitally signed by VAIBHAV SINGH Date: 2025.03.18 17:27:28 +0530 2025:CGHC:5089 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1798 of 2019 Jagdeep @ Jagdish S/o Louis Tirki Aged About 24 Years R/o Peta Police Station - Bagicha District - Jashpur Chhattisgarh., ... Appellant versus State Of Chhattisgarh Through Arakshi Centre, Kansabell District - Jashpur Chhattisgarh. ... Respondent For Appellant : Mr. Basant Dewangan, Advocate For Respondent/State : Mr. R.C.S. Deo, P.L. for the respondent/State. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 28/01/2025 1. The present criminal appeal has been filed under Section 374(2) of Criminal Procedure Code 1973, by the appellant against the impugned judgment of conviction and sentenced dated 03.10.2015 passed by learned Additional Sessions Judge, (FTC) Jashpur, District - Jashpur in Sessions Case No.17 of 2015, whereby the appellant has been convicted and sentenced in the following manner:- Conviction Sentence Under Section 363 of I.P.C. : Imprisonment for 4 years and fine of 2 Rs.1,000/- in default of payment of fine further R.I. for 4 months. Under Section 366 of IPC : Imprisonment for 4 years and fine of Rs.1,000/- in default of payment of fine further R.I. for 4 months. Under Section 6 of POCSO : Imprisonment for 10 years and fine Act. of Rs. 2,000/- in default of payment (All the sentences were directed to run concurrently.) of fine further R.I. for 6 months. 2. The brief facts of the case are that the father of the victim PW-2 lodged a missing report on 10.10.2014 with the allegation that the appellant is his relative and he was residing with him since 7 days back from the date of incident. On 07.10.2014, when he could not found his daughter in her room and from that time the appellant was also missing he suspected that his minor daughter was kidnapped by the appellant and when she could not be found on search of her
Legal Reasoning
whereabouts, he lodged the report. The FIR Ex.P/6 was registered for the offence under Section 363 of IPC against the appellant. During the investigation the victim was recovered on 14.10.2014 from the possession of the appellant and recovery panchanama Ex.P/12 was prepared. The victim was sent for her medical examination to Community Health Center, Kansabel, where PW-5 Dr. Rosha Toppo has medically examined her and gave report Ex.P/13. While medically examined the victim, the doctor have not noticed any external injuries on her body and opined that she was suffered from sexual intercourse and for confirmation of age, she advised for x-ray of bone joint of the victim. Two slides of her vaginal swab were prepared sealed and 3 handed over to police for its chemical examination. Spot map Ex.P/2,Ex.P/3 & Ex.P/4 was prepared by the police and PW-7 was prepared by the patwari. With respect to the date of birth of the victim one progress report card of primary school has been seized vide seizure memo Ex.P/8. The school register has also been seized from the Janta middle School, Bashin vide seizure memo Ex.P/18 and after retaining the attested true copy of the school register Ex.P/21-C, the original register was return back to the school. The victim was also radiologically examined by PW-14 Dr. Sarita Singh, who after her examination gave report Ex.P/23 and opined that the radiological age of the victim is under 15 years. 3. The appellant was arrested on 13.11.2014 and he too was sent for his medical examination to community Healthy Center, Kansabel, where PW-6 Dr. Y. K. Toppo, has medically examined him and found him capable to perform sexual intercourse and gave his report Ex.P/15. The vaginal slides of the victim were sent for its chemical examination to regional FSL, Ambikapur from where report Ex.P/17 was received and according to the FSL report no sperm or semen were found on the vaginal swab of the victim. The statement of the victim under Section 161 as well as 164 of Cr.P.C. have been recorded and statement of the other witnesses under Section 161 of Cr.P.C. have also been recorded and after completion of usual investigation charge-sheet was filed against the appellant and two other co- accused persons Kanta Tirki, and Sandeep Yadav, for the offence under Sections 363, 366 A, 376 and 212 of IPC and Section 3 & 4 of 4 POCSO Act, before the Learned Judicial Magistrate First Class, Bagicha. The case was committed to the Learned Sessions Judge, Jashpur from where the same has been transferred to the learned trial Court for its trial. 4. The charge has been framed before the learned trial Court against the present appellant for the offence under Section 363, 366 & 376(2) of IPC and Section 6 of POCSO Act, whereas the charge under Section 212 of IPC have been framed against co-accused persons. The accused persons have denied the charge and claimed trial. 5. In order to prove the charge against the accused persons the prosecution has examined as many as 19 witnesses. The statement of the accused persons under Section 313 of Cr.P.C. has also been recorded in which they denied the circumstances appears against them, plead innocence and have submitted that they have been falsely implicated in the offence. 6. After appreciation of the oral as well as documentary evidence led by the prosecution, the learned trial court has acquitted the other two accused persons namely Kanta Tirki & Sandeep Yadav, whereas the present appellant has been convicted and sentenced as mentioned in the earlier part of the judgment. Hence this appeal. 7.
Legal Reasoning
Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses. Which can not made basis for his conviction. There is no legally admissible evidence with respect to the age and date of birth of 5 the victim that on the date of incident. She was minor. The school record as well as ossification test report is not the conclusive proof of the age of the victim and the same has not been proved in accordance with law. The victim being a major girl having love affair with the appellant, she herself eloped with the appellant and engaged in making consensual physical relation which does not comes under the definition of rape and when she herself eloped with the appellant no offence of either kidnapping or procuring a minor girl are made out against the appellant and he is entitled for acquittal. 8. On the other hand, learned counsel for the State opposes and have submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omission or contradictions, the evidence of prosecution witnesses are fully reliable. The evidence of victim herself is sufficient to prove the guilt of the appellant. The age of the victim has also been proved by the school record as well as the ossification test report that she was below 16 years of age on the date of incident. There is no material discrepancy in the evidence and the prosecution witnesses and the learned trail Court right considered the evidence available on record and thereby convicting the appellant for the offence in question. The appel filed by the appellant does not have any merits and is liable to be dismissed. 9. I have heard learned counsel for the parties and perused the record of the case. 6 10. The first and foremost question arises for consideration would be the age of the victim as to whether she was minor on the date of incident or not. 11. The prosecution has mainly relied upon the School register Ex.P/21-C and ossification test report Ex.P/23. The school register Ex.P/21-C is sought to be proved by PW-12 who is the Assistant Teacher in the school. He stated in his evidence that the mother of the victim has obtained the attested true copy of the school register. Which has been seized in the case which is marked as Ex.P/21-C. In the said document Ex.P/21-C his signature is there as the issuing authority, he brought the original school register with him and according to the school register Ex.P/21, the date of birth of the victim is 16.12.2001, In cross-examination he admitted that the entries made in school register is not in his hand writing and he did not know what has been written in her initial schooling mark-sheet. He further stated that he has not given any school register to the police persons. The author of the school register has not been examined and further the basis on which the entries have been made in the said school register has not been proved by the prosecution. It cannot be said that the school register and the entries made in the school register has been proved by the prosecution to determine of the age of the victim. No benefit could be extended to the prosecution on the basis of the said unproved school register. 12. The second part of the evidence to prove the age of the victim is the ossification test report Ex.P/23 which is proved by PW-14 Dr. Sarita 7 Singh. She stated in her evidence that she radiologically examined the victim on 17.10.2014 and after examination of X-ray of various bone joints of her body she was of the opinion that her age was under 15 years. In her cross-examination she admitted that there is an error of two years on either side she voluntarily stated that she disclosed the age of the victim after considering the margin of error of two years in positive sides. From the evidence of doctor PW-14 the age of the victim has duly been proved, she was below 16 years of age as she has already stated after considering the error of margin of two years in positive sides she disclosed the age of the victim on the basis of her bone joints. 13. In the matter of Ramdev chauhan Vs. State of Assam reported in (2001) 5 SCC 714, the Supreme Court has held in paras 51 & 52 which read as under:- “51. In his report the doctor has detained all the data on which he reached his conclusion. I do not propose to extract all such date her except pointing out that such data collected by Dr. B.C. Roy is in consonance with the guidelines provided in the textbooks on medical jurisprudence (vide Modi’s Medical Jurisprudence and Jhala & Raju’s Medical Jurisprudence). Ossification test is done for multiple joints, for which the radiological report was obtained. The margin of error according to authorities on medical jurisprudence can be two years either way as the maxinum. In this context it is useful to extraact the relevant passage from Jhala & Raju’s Medical Jurisprudence (6th Edn.,p.198) “If ossification test is done for a single bone the error may be two years either way. But if the test is done for multiple joints with overlapping age of fusion the margin of error may be reduced. Sometimes this margin is reduced to six months on either side.” 52. Of course the doctor’s estimate of age is not a sturdy substitute for proof as it is only his opinion. But such opinion of an expert cannot be sidelined in the realm where we grope in the dark to find out what would possibly have been the age of a citizen for the purpose of affording him a constitutional protection. In the absence of all other acceptable materials, if such opinion points to a reasonable possibility regarding the range of his age it has certainly to be considered……….. 14. From the evidence of victim PW-1 and her father PW-2 and mother 8 PW-3, it has further been proved that the victim was aged about 13 years on the date of incident and no any contradictory material brought by the defence in their cross-examination to hold that she was major on the date of incident and more than 18 years of age, therefore, from the evidence available on record as well as in view the law laid down by the of Hon’ble Supreme Court in the matter of Ramdev chauhan Vs. State of Assam (Supra), this Court does not have any hesitation to hold that the victim was minor on the date of incident and less than 16 years of age. 15. So for as the offence of kidnapping and rape upon the victim is concerned the victim PW-1 have clearly stated in her evidence that she knew the appellant because of the reason that he has taken her to his house. The marriage of the appellant was fixed with her sister but by alluring her that he is loving her, the appellant kidnapped her, he firstly taken her to his elder mother’s house at village Totpara, where she was kept for about three days and thereafter he has taken her to village Bataikela in the house of the other co-accused where she resided for about one day. At village Totpara & Bataikela the appellant committed rape upon her. When the appellant was about to sent her back to her parents house, the police person caught her and recovered her. In cross-examination she was mostly cross-examined on the point that she herself eloped with him as she was having love affair with the appellant and without raising any objection and without making any complaint. Thought, she admitted in her evidence that she 9 has not raised any alarm when the appellant was kidnapping her and also has not made any complaint to anyone while residing with the appellant for about four days but in the facts that victim was found to be minor and less than 16 years of age, she was not competent to give her consent for residing with the appellant and from the evidence it has been proved that she was kept away from her lawful guardianship by the appellant and the appellant has made physical relation with her. Making physical relation with a minor girl having less than 16 years of age, even if she was consented, it does amounts offence of rape because she was not attains the age majority to give any consent in making consensual physical relation. Due to her incapability to give consent if she engaged in making physical relation, the person with whom she make physical relation can be hold guilty for committing the offence of rape upon her that exactly the situation in the present case also. From the evidence of PW-2 and PW-3 the parents of the victim, it has also been established that the victim was missing and it was ultimately recovered from the possession of the appellant and there was allegation that she was subjected to kidnapped and commission of rape upon her. Therefore, in the facts and circumstances of the case I do not find any sufficient ground to disturb the finding recorded by the learned trial Court convicting the appellant for the alleged offences. 16. In the result, the appeal filed by the appellant fails and hereby dismissed. 17. It is submitted by the learned counsel for the appellant that the 10 appellant has already undergone his entire sentence and has been released form jail after completion of entire jail sentence. The report obtained from the Central Jail, Ambikapur, Surguja, is available in the case in which it has been mentioned that the present appellant Jagdeep @ Jagdish has been released from jail on 08.03.2022 after completion of his entire jail sentence awarded to him. 18. Therefore, in view of the above, the appellant is not required to surrender before the learned trial Court, as he has already undergone his entire jail sentence awarded to him. 19. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) JUDGE Vaibhav