Ajay Kumar @ Tekram vs State Of Chhattisgarh

The present appeal has been preferred against the judgment of conviction and order of sentence dated 05.03.2001 passed by the learned Special Judge, Special Court, Raipur (C.G.) under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, whereby the appellant has been convicted and sentenced as under:-

Sr.

Conviction

Sentence

1.

Section 363 of IPC

RI for 3 years with fine of Rs.500/- and in default of fine amount, additional RI for one month

2.

Section 366 of IPC

RI for 4 years with fine of Rs.500/- and in default of fine amount, additional RI for one month

3.

Section 376 of IPC read with Section 3 (2) (5) of the SC/ST (Prevention of Atrocities) Act, 1989

RI for 10 years with fine of Rs.1000/- and in default of fine amount, additional RI for two months

Brief facts of the case are that on 23.11.199, the accused/appellant kidnapped the minor girl/prosecutrix and took her to his relative Parasram Sahu’s house knowingly that she belongs to Scheduled Caste Community and committed sexual intercourse with her against her will. The father of the prosecutrix lodged missing report of her daughter. On search being made, the prosecutrix was recovered from the possession of the appellant, thereafter FIR was registered against the accused/appellant. After completion of investigation, the charge sheet was filed and the charges were framed against the appellant for the aforesaid offences.

In order to prove the guilt of the accused/appellant, the prosecution examined as many as 10 witnesses. Statement of the accused/appellant was also recorded under Section 313 of CrPC, in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. The accused/appellant did not examine any witness in his defence.

The learned Trial Court after appreciating the oral and documentary evidence available on record convicted the appellant, as mentioned in para 1 of this judgment. Hence, this appeal has been preferred by the appellant.

Learned counsel for the appellant submits that the impugned judgment is bad, illegal and against the law as well as the facts of the case. The learned Trial Court has grossly erred in holding that at the time of incident, the prosecutrix was a minor girl. PW-6 - Dr. Deepak Rajput and PW-9 - Dr. Smt. N. Mukherjee have not given the details of the development of the body of the prosecutrix and as per report of the doctor, the age of the prosecutrix is between 15-16 years, but as per settled legal propositions of medical jurisprudence, there is a possibility of 3 years plus or minus in the age, as such there is a possibility that her age might be over 18 years. He further submits that looking to the statement of the prosecutrix, she is a consenting party, therefore, no offence is made out against the appellant. The learned Trial Court has grossly erred in marshaling of evidence on record, as such the finding of Trial Court is not sustainable in the eyes of law, therefore, the judgment of conviction and order of sentence is liable to be set aside. Learned counsel has placed his reliance on the judgment rendered by the Hon’ble Supreme Court in the matter of Sunil vs State of Haryana (2010) 1 CCSC 258 (SC) and in the matter of Rajkumar and another vs State of C.G. 2016 (3) CGLJ 550 rendered by this Court.

On the other hand, learned State counsel supports the impugned judgment of conviction and order of sentence and submits that the prosecution has proved its case beyond reasonable doubt, therefore, the appeal deserves to be dismissed.

Heard learned counsel for the parties and perused the material available on record.

The learned Trial Court recorded a finding that as per the parents of the prosecutrix, age of their daughter is about 15 years and as per radio-logical report, the age of the prosecutrix is 15-16 years and gave its finding that on the date of incident, the age of the prosecutrix was below 18 years. PW-6 Dr. Deepak Rajput found that as per x-ray report, the age of the prosecutrix is 15-16 years and gave his report vide Ex-P/6. In cross-examination, he admitted that as per radio-logical report, age may be 2 years plus or minus. The prosecutrix (PW-2) admitted in her cross-examination that she went with the appellant by walking and thereafter by bus, but she did not tell to anybody about the same. She admitted in paras 8 & 9 that there were many passengers but she did not tell anybody about it. In para 11, she admitted that “;यह बात सही है कि जब आरोपी की बहन प्रसव कराने बाहर चली गई, तब घर का कामकाज और पानी भरने का काम मैं करती थी और पानी भरने के लिये मैं बाहर भी जाती थी। इस बीच मेरी पास-पड़ोस के लोगों से बातचीत होती थी।”. In para 12 on being asked about photo (Ex-D/1), she admitted that for photography, she was forcefully taken to the studio, but she did not tell the photographer that she has been brought forcefully. Thus, as per the statement of the prosecutrix, it is clear that she went with the appellant on her own will and the evidence in this regard clearly shows that she is a consenting party to the incident and out of her own free will she accompanied the accused. As per x-ray report, the age of the prosecutrix was 16-18 years, but as per medical jurisprudence, there is a possibility of 3 years plus or minus in the age, as such there was a possibility that her age may be over 18 years.

The learned Trial Court on the basis of caste certificate (Ex-P/5-A) recorded a finding that the prosecutrix belongs to the Scheduled Caste Community, but the said caste certificate was issued by the President, Administerial Committee, Village Panchayat Birgaon and not by competent authority, therefore, the prosecution has failed to prove the fact that the prosecutrix belongs to the Scheduled Caste Community and even otherwise she went with the appellant on her own free will.

The Hon’ble Apex Court as well as this Court in Sunil (supra) and Rajkumar (supra) held that where the prosecutrix is a consenting party and prosecution has failed to prove her age below 18 years, then the offence of kidnapping, abduction and rape is not proved. In the case in hand, the prosecution has failed to prove that the prosecutrix is below 18 years, as such the prosecution has utterly failed to prove its case beyond reasonable doubt. The learned Trial Court is not justified in making proper assessment of evidence while recording its finding. Under these circumstances, the benefit of doubt certainly has to go with the appellant.

In view of the foregoing discussions, particularly the statements of the prosecutrix, the medical evidence available on record as also the conduct of the prosecutrix, this Court has no hesitation to say that the prosecutrix was a consenting party to the act of the appellant. In these circumstances, the appellant is definitely entitled to be acquitted of the charges leveled against him by extending him benefit of doubt.

In the result, the appeal is allowed. The conviction of the accused/appellant under Sections 363, 366 & 376 of IPC read with Section 3 (2) (5) of the SC/ST (Prevention of Atrocities) Act, 1989 and sentenced imposed thereunder are hereby set aside. He is acquitted of the said charges by extending him benefit of doubt. The accused/appellant is on bail. His bail bonds shall stand discharged.