Hoshiyar Kumar Patel vs State of Chhattisgarh

Hon''ble Mr Justice Pritinker Diwaker

Criminal Appeal u/s 374 of The Code of Criminal Procedure

This appeal has been preferred against the judgment and order dated 31.7.2009 passed by Additional Sessions Judge (FTC), Balod, District Durg in Sessions trial No. 41/2008 holding the accused/appellant guilty under Sections 363, 366 376(1) and 342 IPC and sentencing him to undergo rigorous imprisonment for 3 years with fine of Rs. 200 u/s 363, rigorous imprisonment for 7 years with fine of Rs. 200 u/s 366, rigorous imprisonment for 7 years with fine of Rs. 300 u/s 376(1) and rigorous imprisonment for 3 months u/s 342 IPC plus default stipulations. Case of the prosecution in short is that on 6.8.2008 report (Ex.P-17) was made by one Sukhchand (PW-6) alleging that his daughter (the prosecutrix PW-1 herein) who at the relevant time was minor, went missing with effect from 5.8.2008. Vide Ex. P-1, she was recovered from the house of the accused/appellant and after making certain enquiry from her, FIR Ex. P-14 was registered on that day itself for the offences punishable under Sections 363, 366 376(1) and 342 IPC Further case of the prosecution is that on 5.8.2008 at about 9 a.m. the accused/appellant had taken the prosecutrix to his house and committed sexual intercourse with her against her wishes and without her consent. After completion of investigation, challan was filed by the police on 15.9.2008 for the said offences.

So as to hold the accused/appellant guilty, prosecution has examined 15 witnesses. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case.

After hearing the parties, the trial Court convicted and sentenced the accused/appellant as mentioned in paragraph No.1 of this judgment. Hence, this appeal.

Counsel for the appellant submits that it is a case of consent and secondly there is no legally admissible evidence to show that on the date of incident the prosecutrix was minor. He submits that though the prosecutrix remained in the custody of the accused/appellant for more than 24 hours, she did not offer any protest which clearly shows that she was a consenting party. He further submits that in respect of age of the prosecutrix, ossification report Ex. P-5 clearly shows that at the relevant time she was aged between 15 and 16 years and if a margin of two years is taken on the upper side, obviously on the date of incident she was major. He submits that the admission register of the prosecutrix Ex. P-8C is of no help to the prosecution because statement of Homan Singh Mandavi (PW-13) has failed prove as to on what basis he has recorded her date of birth on the said document. According to him, medical report Ex. P-10 also does not support the case of the prosecution. Counsel for the appellant further submits that the prosecutrix has nowhere stated that she was subjected to rape by the accused/appellant but that she was subjected to bad work only which cannot be termed as rape.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that there is absolutely no evidence to show that the prosecutrix was a consenting party to the act of the accused/appellant. He submits that apparently the prosecutrix was minor on the date of incident and this fact has been proved by the prosecution on the basis of ossification test and the admission register of the school vide Ex. P-8C. He submits that the record also shows that the prosecutrix was recovered from the house of the accused/appellant and thus it is clear that she was made captive by the appellant for the whole night.

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

Prosecutrix (PW-1) has stated in her evidence that she knew the accused/appellant as he was residing in the same village where she was living with her parents. As on the date of incident she was having some abdominal pain, she returned from school by taking leave and thereafter on pain being subsided while she was going to collect firewood, the accused/appellant dragged her inside his house, threatened to do away with in case she raised an alarm and committed bad work (as is done by husband and wife) with her against her will and without her consent. She has further stated that thereafter as she was captivated by the accused/appellant in a room, she did not know as to who had come there to take her back. According to her, when the door was opened by the mother of the accused/appellant, she came down to her house running and narrated the entire incident to her uncle and sister. This witness has further stated that at the time of commission of offence, the accused/appellant had asked to marry her but she had refused for the same. In cross examination, the prosecutrix has stated that she had left her study when she was in class VIII and that she failed in class III and IV. She has stated that at the time of her admission in the school in class I, she might be aged about 7-8 years. According to her, when the children are born in the village, their date of birth is recorded in the register maintained by the village Kotwar but she expressed her ignorance whether her father got the same done in respect of her brothers, sisters and herself. This witness is stated to have informed the police about her abdominal pain and that of her being subjected to bad work by the accused/appellant. According to this witness, she had not disclosed to the police about her being made captive by the accused/appellant for the whole night or with respect to her reaching home after the door was opened by the mother of the accused/appellant. Rohini Bai (PW-2) - mother of the prosecutrix has stated that at the relevant time the prosecutrix was aged about 16 years and studying in class VIII. On the date of incident when she returned from her field, her son told that on account of abdominal pain, the prosecutrix returned from school at about 1 p.m. This witness has further stated that as the prosecutrix was not at home, a search was made and on the next day missing report was lodged. Thereafter, the police came to the village and the prosecutrix was recovered from the house of the accused/appellant and then she told her of being detained by the appellant in his house and subjected to physical relations by him. This witness has stated that she was not aware about any affair between the accused and the prosecutrix. Sukhram (PW-3) is the witness to seizure of the clothes of the prosecutrix as well as of the accused vide Ex. P-2, P-6, P-7 and P-8. This witness however has been declared hostile by the prosecution. Avinash Das Manikpuri (PW-4) - the witness to recovery of the prosecutrix vide Ex. P-1 has been declared hostile. Dr. Parul Jogi (PW-5) is the witness who medically examined the prosecutrix and submitted her report Ex. P-10 stating that she was a fully grown-up girl, no internal injury was present on her person and that she was accustomed to sex. Sukhchain Nirmalkar (PW-6) - the father of the prosecutrix has made the similar statement as of his wife (PW-2). He however has stated that as earlier to the date of incident also the accused/appellant had eve- teased the prosecutrix on one-two occasions, after lodging the report he had gone to the house of the accused/appellant but he denied her presence in his house and thereafter when his mother opened the door the prosecutrix came out there- from and her recovery was made accordingly. This witness has however not made any authoritative statement regarding the age of the prosecutrix. Loonkaran (PW-7) has not supported the case of the prosecution and has been declared hostile. Meghnath Sahu (PW-8) is the witness to recovery of the prosecutrix from the house of the accused/appellant vide Ex. P-1. Dr. R.S. Bharadwaj (PW-9) is the witness who medically examined the accused/appellant and given his report Ex. P-16 stating that he was capable of performing sexual intercourse. Assistant Sub Inspector M.K. Rajak (PW- 10) is the investigating officer who has supported the case of the prosecution. Anil Kumar Sahu (PW-11) is the Patwari who prepared spot map Ex. P-4. Head Constable - Poonaram Dhruv (PW-12) is the witness who assisted the investigating officer at the time of investigation. Homan Singh Mandavi (PW-13) is the teacher of the school who has stated in his evidence that the admission register Ex. P-8C was seized by the police vide Ex. P-9 in which name of the prosecutrix finds place at S. No. 2203 and her date of birth is mentioned as 3.9.1992. According to this witness, the prosecutrix was admitted in the school in class VI on 25.7.2006. He has further stated that at the time when the register was seized by the police, the prosecutrix was studying in class VIII. According to this witness, the date of birth of the prosecutrix was recorded in the said school register on the basis of transfer certificate of Primary School, Tarri. In cross examination, this witness has stated that on account of her continuous long absence and also because of her crossing the age of 14, the name of the prosecutrix was struck-down from the school register. Rohit Netam (PW-14) is the witness who assisted the investigating officer in the investigation. Dr. A.K. Sahu (PW-15) is the witness who conducted ossification test on the prosecutrix and given his report Ex. P-5 stating that at the relevant time she was aged about 15-16 years.

Having thus seen the entire evidence on record, this Court is of the considered opinion that the prosecution has utterly failed to prove that on the date of incident the prosecutrix was minor. The radiologist has opined the age of the prosecutrix to be 15-16 years at the relevant time and that being so if a margin of two years is taken on the upper side, she obviously can be said to be major. Though the school register Ex. P-8C shows the date of birth of the prosecutrix as 3.9.1992, there is no legally admissible evidence to substantiate the fact as to on what basis said date of birth was recorded. Moreover, the teacher of the school (PW-13) has stated in his evidence that on account of the continuous long absence of the prosecutrix and also because of her crossing the age of 14 her name was struck down from the school register. Even the prosecutrix and her parents have not stated anything about her actual age. In these circumstances, conviction of the accused/appellant under Sections 363 and 366 IPC is not made out. Likewise, as there is no evidence to show that the prosecutrix was wrongfully confined by the accused/appellant in his house, his conviction u/s 342 IPC is also not made out. However, as regards conviction u/s 376 IPC, the evidence clearly shows that the prosecutrix was taken by the accused/appellant inside his house where she was subjected to forcible sexual intercourse against her will and without her consent. The prosecutrix has nowhere stated that she herself permitted the accused to have sex with her nor does her conduct reflect as such and therefore the argument of the counsel for the appellant that the prosecutrix was a consenting party, is struck down. The prosecutrix has categorically stated that the accused/appellant had made physical relations with her by putting her under threat of life. In cross examination, no question was put to the prosecutrix whether she made any protest at the time when she was being subjected to physical relations by the accused/appellant. In the evidence she has stated that she was subjected to bad work by the accused/appellant which she clarified referring to the relations between husband and wife. The word "bad work" used by the prosecutrix in her evidence cannot be construed otherwise in the sex related offences. Moreover, the prosecutrix has denied the fact that there was any affair between her and the accused/appellant for which she was once scolded by her father. Her evidence further makes it clear that at the time of the commission of offence the accused/appellant had given an assurance of marriage to the prosecutrix to which she completely refused. All these circumstances lead to an irresistible conclusion that the accused/appellant after taking the prosecutrix in his house, committed sexual intercourse with her against her will and without her consent. In the result, the appeal is partly allowed. Conviction of the accused/appellant under Sections 363, 366, & 342 IPC is set aside. However, the conviction u/s 376 IPC is hereby maintained. The appellant is already in jail and therefore no order regarding his arrest or surrender to undergo remaining part of sentence is necessary.