Satyanarayan @ Kanabat vs State Of M.P. (Now Chhattisgarh)

The present appeal arises out of the impugned judgment of conviction and order of sentence dated 28.09.1999 passed by the learned IInd Additional Sessions Judge, Baloda-Bazar, District-Raipur, in S.T. No. 371/1991 whereby, the learned IInd Additional Sessions Judge convicted the appellants and sentenced them as under :-

Appellants

S. No.

Conviction

Sentence

Appellant No. 1 (Satyanarayan)

1.

U/s 368/366 of IPC

R.I. for 7 years and fine of Rs. 1,000/- in default of fine additional S.I. for 6 months.

2.

U/s 376 of IPC

R.I. for 7 years and fine of Rs. 1,000/- in default of fine additional S.I. for 6 months.

Appellant No. 2 & 3 (Bugalbai & Mangleenbai)

1

U/s 363 of IPC

R.I. for 3 years and fine of Rs. 500/- in default of fine additional S.I. for 3 months.

2

U/s 366 of IPC

R.I. for 7 years and fine of Rs. 1,000/- in default of fine additional S.I. for 6 months.

Brief facts of the case are that on 19.06.1990 at about 10 O'clock the prosecutrix had gone to the house of appellant No. 2 Bugalbai, at that time the other two appellants were also present there. It is alleged that Bugalbai and Mangleenbai told the prosecutrix to go to Kanabaat @ Satyanarayan's house, he will keep her as his wife. At this, prosecutrix told that she is married and why would she go with Satyanarayan, upon Satyanarayan is threatened her that he will kill her and then everybody returned to their houses, prosecutrix also returned to her house. It is alleged that at about 2 O'clock when the prosecutrix came out of her house, Mangleenbai and Bugalbai were sitting in front of the house of Bugalbai and they again threatened her, then the prosecutrix accompanied them to the house of Satyanarayan where he caught hold of her hand, took her inside the room, taking out her clothes and committed sexual intercourse with her. Thereafter, the appellant Satyanarayan closed the door and kept her in the house till 5 O'clock and when the father of the prosecutrix came there accused opened the door, dragged her to his house. The prosecutrix narrated about the incident to her parents, and on 20.06.1990, FIR was lodged against the appellants at the police station.

In order to collect evidence, the investigator, after obtaining permission from the Sub-Divisional Magistrate, Raipur to test the genitals of the complainant, and after obtaining consent from the complainant and his father to test his genitals, was sent to the Primary Health Center, Palari to be examined by a lady doctor. Thereby doctor Madhuri Lahate conducted the genital examination of the complainant in the District Hospital, Raipur and after receipt of the report, advised for ossification test for age determination, from X-ray was taken and the complainant was found to be of 15 to 16 years of age and seized the petticoat of the complainant, got it tested, in which human sperm found. The doctor was advised for chemical examination, and the accused was sent to the Primary Health Center, Palari to examine whether he is capable of performing sex, and the positive report was received and the underwear of the accused showed signs like human sperm. On being found, he was examined by doctor and chemical examination was advised. Spot map was prepared. The clothes of the accused and the complainant were seized and the slides were prepared. The accused was arrested after finding sufficient evidence against him and the seized material was sent to the Forensic Science Laboratory, Raipur for chemical examination. After completion of investigation charge-sheet was filed and charges were framed under Section 342, 368 and 376 of IPC against the appellant No. 1 (Satyanarayan) and under Section 363, 366 of IPC against the appellants No. 2 & 3 (Bugalbai & Mangleenbai).

So as to hold the accused/appellant guilty, the prosecution has examined as many as 15 witnesses. Statement of the accused/appellants were also recorded under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them and pleaded innocence and false implication in the case.

Upon consideration of oral and documentary evidence the trial Court held that the prosecution has established the guilt of the accused Satyanarayan under Sections 368/366 and 376 of IPC and accused persons Bugalbai and Mangleenbai under Sections 363 and 366 of IPC and sentenced them as mentioned above. Hence, this appeal.

Learned counsel for the appellant submits that impugned judgment of conviction and sentence is contrary to law and facts available on record. He next submitted that the impugned judgment suffers from serious irregularities and illegalities, prosecution has failed to prove the age of the prosecutrix below 16 years. He further submits that testimony of the father, mother and of the prosecutrix are contrary. It is clear from the statement of prosecutrix that she was a consenting party, she had gone to the house of the appellant and stayed of her own will. He lastly submits that the trial Court did not appreciate the oral and documentary evidence properly, therefore, the impugned judgment of conviction is liable to be set aside.

On the other hand State counsel supported the impugned judgment of conviction and order of sentence.

Heard counsel for both the parties and perused the material available on record including the impugned judgment.

Prosecutrix (PW-7) has stated in her examination-in-chief as under;

Prosecution has declared her hostile and in her cross-examination prosecutrix (PW-7) has stated as under;

It is clear from the statement of the prosecutrix, mother and father that prosecutrix had gone to appellant's house of her own sweet will and if she had sexual intercourse with the appellant, she was a willing partner.

In so far as evidence regarding age of the prosecutrix is concerned the trial Court has recorded the statement of the prosecutrix on 24.12.1996 and mentioned her estimated age on deposition sheet to be 22 years. Dr. S.C. Vishnoi (PW-3) gave X-ray report Ex.-P/2 with regard to the age of the prosecutrix in which he has stated that her age to be 15-16 years. In criminal case onus upon the prosecution to prove its case beyond reasonable doubt that the age of the prosecutrix was less than 18 years at the time of the occurrence. In this case prosecutrix was examined by a radiologist and he opined that age of the prosecutrix is 15-16 years. But it is well settled law that in ossification test there is a possibility of three years plus-minus in age determination. As per the radiological examination the bony age of the prosecutrix was 15-16 years, so there was a possibility of three years plus-minus and there was a possibility that her age was over 18 years.

The testimony of prosecutrix (PW-7) and her parents clearly shows that the prosecutrix is a married lady and, had gone to the house of the appellant of her own will and had sexual intercourse with the appellant. Thus, it can safely be inferred that she was a consenting party to the act of the appellant. The prosecution has failed to prove the age of the prosecutrix to be less than 18 years at the time of incident. Therefore, benefit of doubt on the point of age has to go to the appellant.

The learned trial Court failed to appreciate oral and documentary evidence available on record regarding age of the prosecutrix. The prosecution has failed to prove its case beyond reasonable doubt and has also failed to prove the age of the prosecutrix to be below 16 & 18 years.

As discussed above, offence under Section 363, 366, 368/366 and 376 are not sustainable in the eye of law, therefore, conviction and sentence of appellants is set aside. Accordingly, the appeal is allowed. The accused/appellants are acquitted of the charges levelled against them. As the appellants are on bail, they need not surrender and their bail bonds and sureties stand discharged.