Dilip Sori vs State Of Chhattisgarh

This appeal arise out of the judgment of conviction and sentence dated 19.01.2023 passed by the Additional Sessions Judge (FTSC) Gariyaband in POCSO Case No.87/2020, whereby the appellant has been convicted for the offences under Sections 363, 366, 376(2)(n) IPC and Section 6 of the Prevention of Children from Sexual Offeces Act, 2012 (in short, the POCSO Act) and sentenced to undergo RI for 3 years with fine of Rs.300/-, RI for 5 years with fine of Rs.500/- and RI for 20 years with fine of Rs.2000/- with default stipulation. Since maximum sentence was awarded under Section 6 of the POCSO Act, no separate sentence was awarded under Section 376(2)(n) IPC.

Brief facts of the case is that, on 17.10.2019 the father of the prosecutrix lodged a written complaint to the Police Station Deobhog District Gariyaband to the effect that his daughter, aged about 16 years had gone to village Gohrapadar along with her sister and aunt on 09.10.2019 and missing somewhere. When he searched her from his relatives house, then he came to know that the appellant has abducted and kept his daughter in his house. On 16.10.2019 he went to the house of the appellant and taken his daughter back and thereafter his daughter informed him that when she went to see the dance programme, the appellant enticed and taken her to his house and made forceful physical relation with her.

Based on the written complaint, Ex. P/8, submitted by the father of the prosecutrix, an FIR, Ex.P/9, was registered on 17.10.2019 for the offence under Sections 363, 366, 376(2(n) IPC and Sections 4 & 6 of the POCSO Act. The prosecutrix was sent for medical examination to the District Hospital, Gariyaband where Dr. B. Bara, PW-14, examined her and gave her report vide Ex.P-27 and opined that no sign and symptoms were found regarding recent sexual intercourse. No external or internal injuries were seen. However, two slides of vaginal swab were prepared.

The statement of the prosecutrix as well as the witnesses were recorded under section 161 of CrPC. The statement under section 164 CrPC of the prosecutrix was also recorded. Marksheet of Class-VIIIth of the prosecutrix has been seized vide Ex.P/1 from Saraswati Sishu Mandir, Gohrapadar. A register from the Angan Badi Centre, Gohrapadar, has also been seized vide Ex.P/2. The spot map was prepared vide Ex. P/6 & P/10.

The appellant was arrested on 18.10.2019. He was also sent for his medical examination to Community Heath Centre, Deobhog, District Gariyaband from where he was examined by Dr. Laxmikant Jangde, PW-12. The Doctor gave its report vide Ex.P/15 and opined that the appellant is capable of sexual intercourse.

After completion of the investigation, the charge sheet was filed before the Additional Sessions Judge Gariyaband under Sections 363, 366, 376(2)(n) IPC and Section 6 of the POCSO Act. The trail Court has framed charges against the appellant under Sections 363,366, 376(2)(n) IPC and Section 6 of the POCSO Act. The appellant abjured his guilt and plead innocence.

In order to establish the charge against the appellant, the prosecution has examined 14 witnesses. The statement of appellant was also recorded under section 313 of CrPC in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case.

After appreciation of the evidence available on record, the learned trial court has convicted the accused appellant and sentenced him as mentioned in para 1 of this judgment. Hence this appeal.

Learned counsel for the appellant has argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubts. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of incident she was minor and less than 18 years of age. In absence of any authentic document with respect to the age of the prosecutrix, the certificate issued by the Anganbadi Worker can not be taken into consideration for determination of the age of the prosecutrix that on the date of incident she was minor. No any Kotwari register or ossification report are produced by the prosecution to determine the actual age of the prosecutrix that on the date of incident she was below 18 years of age. It is further argued by the learned counsel for the appellant that in the register seized from the Anganbadi Centre, there appears to be manipulation in the name of the prosecutrix. Further, the entry made in the register of Anganbadi Centre itself is suspicious because date of birth of any other children has not been mentioned in the register, except the prosecutrix whose date of birth has been registered as 15.10.2003. There is no any document on which the entry of the date of birth was made. Further, the prosecutrix, her sister, her aunt and even her father have not stated any specific date of birth of the prosecutrix. The prosecutrix herself went along with the appellant and no alarm has been raised by her. She stayed in the house of the appellant for a considerable period of time, however she has not made any complaint to the nearby persons. The conduct of the prosecutrix was highly suspicious. Thus, the prosecutrix, being a major lady, was a consenting party in the act of physical relation with the appellant. Hence, the offence under IPC and POCSO Act are not made out against the appellant and he is entitled for acquittal.

On the other hand, the learned counsel for the State opposes and contended that the prosecutrix was minor and below 18 years of age at the time of incident which is proved by the certificate issued by the Anganbadi Centre because it is the Anganbadi Worker who maintains the register of the children of the village and in the register maintained by them, the date of birth of the prosecutrix was mentioned as 15.10.2003. Therefore, there is no illegality or infirmity in the findings of the learned trial Court. The prosecutrix was abducted by the appellant and kept away from the lawful guardianship. The appellant kept her in an illegal confinement for a considerable period and committed forceful sexual intercourse with her, and therefore, the impugned judgment of conviction and sentence needs no interference.

We have heard the rival contentions put forth on either side and perused the materials available on record.

In order to consider the age of the prosecutrix, we have examined the evidence available on record produced by the prosecution. The prosecution relied upon a certificate, Article-2 issued by the Anganbadi worker of the Anganbadi Centre Gohrapadar as also the register maintained by the Anganbadi Centre which is Article-1/C. Anganbadi register, Article-1/C is sought to be proved by PW-5, Smt. Sonkumari Pandey, who has stated in her deposition that the police has seized the register from her and in serial No.33 of the register of the children of the village Gohrapadar of the year 2006, the date of birth of the prosecutrix is recorded as 15.10.2003. In cross examination she admits that in the register, Article1/C, there is manipulation in the serial number, name and date of birth of the prosecutrix. She further admits that she has not given the right side page of the register to the police. She also admits that she has not endorsed the complete details in the relevant column of the register.

PW-1, the prosecutrix, has not deposed her date of birth in her deposition. In cross examination she admits that she doesn’t know her date of birth. She was not apprised by any one about her age. She denied that she has disclosed her age as 16 years to the police. She admits that her age is 18 years.

PW-2, Namita Nagesh, the sister of the prosecutrix, has stated in her deposition that the prosecutrix is aged about 16 years. In cross examination she states that she has seen the date of birth of her sister in the Anganbadi register.

PW-9, Khirsingh Nagesh, the father of the prosecutrix, have stated in his deposition that in the year 2019 his daughter was aged about 16 years, but he doesn’t know her actual date of birth.

After considering the entire facts and circumstances of the case, it emerges that in the Anganbadi register, Article-1/C, there is manipulation in the serial number, name and date of birth of the prosecutrix and in the certificate issued by the Anganbadi worker which has been admitted by PW-5, Smt. Sonkumari Pandey, the Anganbadi worker. Though Article-2 which is the certificate said to have been issued by the Anganbadi worker, but PW-5, Smt. Sonkumari Pandey have not stated in her deposition that she has issued the said certificate, Article-2. There is no other evidence available on record with respect to the date of birth or age of the prosecutrix. Thus, on the basis of the above stated evidence with respect to the age of the prosecutrix, it would not be safe to hold that on the date of incident the prosecutrix was minor and was less than 18 years of age.

So far as the issue of forceful sexual intercourse by the appellant with the prosecutrix is concerned, we have carefully perused the statement of the prosecutrix. The prosecutrix, PW-1, has stated that at the time when she along with her elder sister had gone to answer the nature’s call, the appellant had taken her to his house forcibly. She was getting unconscious and at that time the appellant has forcefully made physical relation with her. She could not say as to how many days she stayed there in the house of the appellant because she was unconscious. The police persons have taken her from the house of the appellant. When the prosecutrix declared hostile, she stated that when the villagers saw us in compromising position, they chased the appellant, but he fled away. She admits that the appellant has made physical relation with her repeatedly on various occasions. In cross examination she has stated that the place where the dance programme was going on, mob of more than 1000 people were there. She further admits that mob was also there in the place where she had gone to attend the nature’s call along with her sister. She has stated that she has not disclosed the tease made by the appellant at dance place to her family members. She also admits that she and appellant went together. Since she was in unconscious condition, she could not tell as to whether the appellant has made physical relation with her or not. She admits that she has not disclosed the incident to anyone. She denied the fact that before the police she disclosed that along with the appellant she eloped. She further admits that after returning back to her house, she has not disclosed the incident to her parents.

PW-2, Namita Nagesh, the sister of the prosecutrix, have stated that when they had gone to see the dance programme and when her sister was missing, she started searching her, but could not disclose missing of her sister to anyone and returned back to her house. In the morning she came to know that her sister was along with the appellant. She states that when the prosecutrix returned back to her house she disclosed the fact that the appellant has made physical relation with her. In cross examination, she admits that the prosecutrix has eloped with the appellant twice. She further admits that on the day when her father taken her to her house, the prosecutrix has not informed any incident. She further admits that after three days the prosecutrix again eloped.

PW-3, Smt. Pushpa Nagesh, Aunt of the prosecutrix, has not stated any incriminating material against the appellant and she states that since she returned back to her house, she could not know the incident.

PW-9, Khirsingh Nagesh, father of the prosecutrix, have stated that upon searching of the prosecutrix, he came to know that his daughter was in the house of the appellant and then he along with the Kotwar of the village went to the house of the appellant and taken her along with him and then prosecutrix disclosed the fact that the appellant has committed forceful intercourse with her. After three days of taking her to his house, he lodged a report to the police.

In cross examination, this witness admits that in the house of the appellant, the elder brother, mother-father and sister are residing with him. He doesn’t know the room structure of the appellant’s house. He admits that when he went to the house of the appellant, all the family members were there except the elder brother of the appellant. He accepts that he went to the house of the appellant twice. He also admits that when he taken his daughter from the house of the appellant, she again went to the house of the appellant and again he has taken her back from his house. He fairly admits that his daughter stayed for about three days in the house of the appellant.

Close scrutiny of the evidence makes it clear that the prosecutrix appears to be a consenting party and she herself went along with the appellant towards his house from the place where the dance programming was going on. Her sister, with whom she was watching dance programme, have not made any hue and cry at that place, rather she returned back to her house. She has not made any complaint to the persons present at that palace. It appears that she herself accompanied the appellant on her own will and consent. Further, it is not a case that the appellant has committed forceful sexual intercourse without her will or consent. She was a consenting party in the act of sexual intercourse with the appellant. No external or internal injuries were found on the body of the prosecutrix as she was found to be habitual in sexual intercourse.

Considering the entire evidence available on record, the evidence with regard to the age and the conduct of the prosecutrix, we are of the opinion that the prosecutrix was more than 18 years of age at the time of incident and further she was a consenting party with the appellant. Therefore, in the above facts and circumstances of the case, the offence under Sections 363, 366, 376(2)(n) IPC and Section 6 of the POCSO Act would not be made out against the appellant.

For the forgoing reasons, the appeal is allowed. The judgment of conviction and sentence dated 19.01.2023 is set aside. The appellant is acquitted from all the charges framed against him. He is reported to be in jail since 19.01.2023 i.e. from the date of judgment. He be released forthwith, if not required in any other case.

Keeping in view the provisions of Section 437-A CrPC, the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court.

The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.