Raj Sonwani vs State

Pritinker Diwaker, J.—This appeal has been preferred against the judgment and order dated 10.6.97 passed by Additional Sessions Judge, Rajnandgaon, in Sessions Trial No. 135/95 convicting the accused/appellant u/s 376 I.P.C. and sentencing him to undergo rigorous imprisonment for seven years and pay fine of Rs. 200, in default of payment of fine to undergo simple imprisonment for three months, Facts of the case in brief are that on 4.3.1995 an unnumbered FIR Ex. P14 was lodged by Sukhwati (PW3) mother of the prosecutrix at police outpost Chikhli alleging that her daughter (prosecutrix) was missing since a day prior thereto i.e. 3.3.1995 from the house of one Arun at Rajnandgaon with whom she was living. It is alleged that accused/appellant was also missing since that very day and it is he who had taken her daughter away by alluring her. Later, numbered FIR. Ex. P15 was registered at police station Kotwali for the offences under Sections 363 and 366 I.P.C. On 4.3.1995 the prosecutrix was recovered from the house of accused/appellant vide Ex, P8 and her case diary statement was recorded on the same day vide Ex. D1 in which she has stated that accused/appellant had asked to accompany him and offered Sari, blouse, mangalsutra and that after applying vermillion, he committed forcible sexual intercourse with her. After investigation, charge sheet was filed by the police on 17.4.1995 for the offences under Sections 363, 366 and 376 I.P.C. Court below also framed the charge against him under the said sections.

In support of its case, prosecution has examined 9 witnesses. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case.

After hearing the parties, the Court below has acquitted the accused/appellant of the charges under Sections 363 and 366 I.P.C. but convicted and sentenced him as mentioned in paragraph No. 1 of this judgment.

Counsel for the accused/appellant submits that there is no legally admissible evidence on record in respect of the age of the prosecutrix and that the photocopy of the so-called school register which has been marked as Ex. P3(C) is not admissible in law as there is nothing on record to show as to from where the said document was procured by the prosecution and that it was not a part of the challan. He submits that the investigating officer (PW7) has categorically stated that the said register in respect of admission of the students was not available. He further submits that entry in this document has been made by one Lalita Yadav but she has not been examined by the prosecution and the said document has been proved by Smt. Ved Kumari Thakur, Head Mistress of the school. He submits that Sukhvati (PW3) mother of the prosecutrix has stated that he cannot tell the year of birth of the prosecutrix and that the entry in the school register was made on the basis of assumption by the teachers. He further submits that similar is the position with the document Ex. P12--the transfer certificate in which the entry has been made on the basis of Ex. P3C which is not permissible under the law. Counsel for the accused/appellant further submits that as per the statement of Sukhwati (PW3) prosecutrix was born in a government hospital at Durg and if it was the case, the prosecution should have produced the record of the Government Hospital. He further submits that the prosecutrix was medically examined by Dr. I. Chelani who had referred her for radiological examination but no such report has been by proved the prosecution. He submits that though un-exhibited x-ray report is there according to which age of the prosecutrix at the relevant time was between 15 and 16 years and if a margin of three years is taken with it, it cannot be said that prosecutrix was below 16 years of age at the time of incident.

On the other hand, supporting the judgment impugned, counsel for the respondent/State submits that the findings recorded by the Court below are, strictly in accordance with law and they do not suffer from any illegality or infirmity.

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

Prosecutrix (PW9) has stated that she has studied up to class III but she did not remember her date of birth. She has stated that at the relevant time she was aged about 16 years and that about two years prior thereto she got married. At the time of incident, she had come to Rajnandgaon in the house of her uncle Arvind where she came into contact with one lady who was residing near the house of her uncle. On the date of incident the said lady offered her some food and then the accused/appellant forcibly took her with him to some other village by bus. This witness has further stated that after taking her in a house he committed forcible sexual intercourse with her. She has stated that sister of the accused/appellant offered her salwar and that she knew the accused/appellant who was residing near the house of her uncle and further that she used to go to his house for watching TV where she also used to have food. On the date of incident when she was sleeping in the house of her uncle, sister of the accused/appellant had called her and then she went in the company of the accused/appellant. She has admitted the fact that when she boarded the bus, number of passengers were there in it but she did not disclose anyone about being forcibly taken by the accused/appellant. According to this witness, mother of the accused/appellant used to call her as daughter-in-law and this fact was disclosed to the police but if the same is not recorded in the report, she could not tell the reason for that. Paragraph No. 4 of her evidence goes to show that there are material contradictions and omissions in the same if compared to her case diary statement. Dr. S.K. Agrawal (PW2) is the witness who medically examined the accused/appellant and gave his report Ex. P1 stating that he was capable of performing sexual intercourse. Dr. I. Chelani (PW4) is the witness who medically examined the prosecutrix and gave her report Ex. P4 stating that she noticed injury on her private part with fresh bleeding and that she was complaining pain. This witness has further stated that said injury on the private part of the prosecutrix could be on account of sexual intercourse. However, she has not given any opinion regarding rape on the prosecutrix and for determination of age she had referred her to a radiologist. Smt. Ved Kumari Thakur (PW2) the Head Mistress of the school has stated that in the school register date of birth of the prosecutrix is recorded as 2.5.1982 and that she was admitted in the school by her -- mother. According to this witness, entry in the school register was made by her assistant Lalita Yadav on 4.7.1988 and the original register was marked as Ex. P3 and photocopy of the same as Ex. P3C, However, in the Court, though photocopy of the school register is available but same is not marked as Ex. P-3C nor in the list of exhibited documents this document is shown as such. In cross examination, this witness has admitted that entry was made in the school register on the basis of information given by the mother of the prosecutrix and no birth certificate was produced by her. Sukhvati (PW3) mother of the prosecutrix has stated that at the relevant time the prosecutrix was residing in the house of one Arun and that on the date of incident said Arun had informed her that someone had taken the prosecutrix with him. According to her, though said Arun had disclosed the name of the person taking the prosecutrix with him, she forgot the same. Thereafter, she went to Rajnandgaon along with said Arun and when she asked the parents of the accused/appellant for handing over the prosecutrix to her, they refused for that. According to this witness, when she saw her daughter, mother and father of the accused/appellant told her that she (prosecutrix) was in their house as their daughter-in-law, and then the report was lodged. In her examination-in-chief, this witness has stated that prosecutrix was aged about 13 years but in cross-examination she has stated that she was not having any record in relation to the date of birth of the prosecutrix nor could she tell in which year she (prosecutrix) was born. She is stated to have taken the prosecutrix for admission in the school and date of birth was told by her on the basis of assumption and that the school teachers may have made the entry in the register on the basis of assumption only. According to her, the prosecutrix was born in a government hospital but she did not remember whether any entry was made in the record of Municipal Corporation. She has further stated that when she had gone to take the prosecutrix from the house of the accused/appellant, she had refused to accompany her. There appear to be material contradictions and omissions in the Court statement of this witness if compared to her case diary statement. Tulsidas (PW5) is the Patwari who prepared spot map (Ex. P6). Meena Vishwakarma (PW6) is the constable who took the prosecutrix for medical examination and made seizure of her vaginal slides vide Ex. P5. R.A. Yadav (PW7) is the investigating officer who has duly supported the case of the prosecution. In paragraph No. 7 he has stated that he had gone to the school of the prosecutrix but school register was not available in which the entry was made in relation to her. Kamlesh Kumar (PW8) is the witness who had taken unnumbered FIR to police station Kotwali, Rajnandgon.

Minute examination of the evidence available on record makes it clear that the prosecutrix accompanied the accused/appellant of her own without offering any protest. Record also shows that after performing marriage with the prosecutrix the accused/appellant committed sexual intercourse with her. Thus it can be said that the prosecutrix was a consenting party to the act of the accused/appellant. Now the only question to be decided by this Court is as to the age of the prosecutrix at the relevant time. There is no legally admissible evidence on record on the basis of which age of the prosecutrix could be determined. Though head mistress of the school has been examined by the prosecution as PW2. She has stated that entry in the school register was made by her assistant Lalita Yadav who unfortunately has not been examined by the prosecution. Most importantly, mother of the prosecutrix also has failed to give exact date of birth of her daughter and she has categorically stated that her date of birth was recorded on the basis of assumption only. According to her, prosecutrix was born in a government hospital but the prosecution has failed to produce any such document. This apart, the prosecutrix was referred for radiological test for determination of her age but no such report has been proved by the prosecution as is required under the law and in these circumstances an adverse inference can be drawn against the prosecution. Thus the prosecution has not been able to prove its case particularly the age of the prosecutrix by adducing any cogent evidence and therefore, the accused/appellant is entitled to receive the benefit of doubt. In the result, the appeal is allowed. Judgment impugned is set aside. Accused/appellant is acquitted of the charge levelled against him. As he is already on bail, no further order regarding his release etc. is necessary.