Maksudan Sahu vs State Of Chhattisgarh

This appeal arises out of the impugned judgment of conviction and order of sentence dated 24.01.2002 passed by learned Special Judge, Rajnandgaon (SC/ST Prevention of Atrocities) Rajnandgaon (C.G.) in Special Sessions Trial No. 138/2000 whereby and whereunder, learned Special Judge acquitted the appellant from Section 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and convicted him under Sections 366 and 376 of the IPC and sentenced him to undergo R.I. for 10 years with fine of Rs. 5,000/- and R.I. for 10 years with fine of Rs. 5,000/- respectively, plus default stipulation.

Brief facts of the case are that on the date of incident prosecutrix was going to her grandmother's house. On the way, she met with the appellant Maksudan Sahu. Appellant told her to go with him but the prosecutrix refused to go. Thereafter, appellant hold her hand and promised to marry with her. Based on the said promise she went with her and the appellant took her to Khairagarh, his friend's house, where he committed sexual intercourse with her and on the very next day he took the prosecutrix to his aunt's (Bua's) house and from there he left her to her father's house. On the next day, she narrated the whole story to her parents. Thereafter, they lodged a report against the appellant. The concerned police personnel got mark-sheet (Ex-P/1) and caste certificate of the prosecutrix. In the mark-sheet (Ex. P/1) date of birth of the prosecutrix was mentioned as 21.09.1983 (below 16 years at the time of incident). Thereafter, the prosecutrix was sent for the medical examination and after completion of investigation, charge-sheet was filed against the appellant and charge was framed under Sections 363, 366 & 376 of the IPC and Section 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

So as to hold the accused/appellant guilty, the prosecution has examined as many as 8 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the charges leveled against him and pleaded innocence and false implication in the case.

After examination of oral and documentary evidence, learned Special Judge acquitted the appellant of the charge under Section 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and convicted him under Sections 366 and 376 of the IPC and sentenced him as mentioned above in para 1 of this order. Hence, the present appeal filed by the appellant.

Learned counsel for the appellant submits that findings of the learned trial Court about age of the prosecutrix is erroneous because school leaving certificate is not the conclusive proof regarding the age of the prosecutrix. It is clear from the evidence of the witnesses that prosecutrix went with the appellant and resided with him of her own will therefore, ingredients of Section 376 and 366 of the IPC are not attracted. The conviction and sentence care contrary to the material available on recored, as the entire evidence shows that the prosecutrix was a consenting party, therefore, the impugned order passed by the learned trial Court be set-aside and the appellant may kindly be acquitted from the alleged charges.

On the other hand, learned State counsel has supported the impugned judgment of conviction and order of sentence of the Court below convicting the appellant under Section 366 and 376 of the IPC, being based on the material available on record, are just and proper and do not call for any interference in this appeal.

I have heard learned counsel for the parties and perused the records including the impugned judgment.

Before the trial Court statement of the prosecutrix was recored. The prosecutrix in her statement in paras 18 & 19 stated that:-

Mantheer Das PW-7 has stated in para 2 of his cross-examination that:

Thus, the abovementioned statement of Mantheer Das (PW-7) clearly shows that the prosecutrix was a consenting party and she was going with the appellant of her own will.

So far as the age of the prosecutrix is concerned, as per Ex. P/1, mark-sheet of the prosecutrix, her age is about 16 years and the same was also admitted by the prosecutrix. Kamalkant Malviya (PW-5) was the Principal of the 'Shashkiya Purva madhyamik Shala, Ghitiya' and stated that in Ex. P/11, 'Dakhil Kharij', the age of the prosecutrix is registered as 21.09.1983. In his cross-examination he admitted that:

In this case, during investigation, radiological examination of the prosecutrix for confirmation of her age was not done.

The Hon'ble Supreme Court in the matters of Sudhari Alias Shhivdhari Singh Vs. State of C.G. passed in 2006(2) CGLJ 328 held in para 11 that:-

The following facts thus emerge from the above discussion:-

(A) It could not be ruled out that the age of the prosecutrix was 16 years or more on the date of occurrence.

(B) It also could not be ruled out that the appellant was falsely implicated.

(C) The testimony of the prosecutrix about rape on her was wholly unworthy of any credit in view of her conduct during the sexual act, if any, the fact that she was menstruating and also since it was not corroborated by medical evidence or by the report of F.S.L.

(D) The possibility that sexual intercourse, if any had been committed with the consent of the prosecutrix could also not be ruled out.

In this case the age of the prosecutrix is not proved by the prosecution and testimony of the prosecutrix about rape on her was rendered fully unworthy of credit since the medical evidence has not supported the prosecution case. This Court find that the prosecution has failed to establish the guilt against the appellant beyond reasonable doubts.13. For the reasons mentioned above the appeal is allowed. The impugned judgment of the trial Court is set aside. The appellant is acquitted of the charge levelled against him. The appellant is reported to be on bail. His bail bond furnished by him stand discharged.