Raghu vs State Of Chhattisgarh

Sanjay Kumar Jaiswal, J

The present Criminal Appeal is preferred against the judgment dated 15.03.2002 passed by the learned Second Additional Sessions Judge, Bastar place Jagdalpur, (C.G.) in Sessions Case No. 219/2001 whereby the appellant has been convicted for the offence punishable under Sections 363, 366 & 376 of the IPC and sentenced to undergo RI for 5 years with fine of Rs. 1,000/-, RI for 5 years with fine of Rs. 1,000/- and RI for 7 years with fine of Rs. 2,000/-, with default stipulations. All the sentences are directed to run concurrently.

Facts of the case, in brief is that on 12.10.2000, the prosecutrix and her friend have seated on the truck of appellant/accused at Kondagaon for Jagdalpur at about 6.30 P.M. when the said truck reached near Jagdalpur at village Kudalgaon near toll tax Dhaba, the Appellant bring liquor and also forced the prosecutrix to consume liquor and by threatening her the appellant/accused raped upon the prosecutrix and helper Ajay raped her friend. Thereafter, the appellant dropped the friend of the prosecutrix at village Keshloor and ran away with truck along with the prosecutrix. Thereafter, her friend, by help of two villagers, has telephonically informed the matter to the concerned police station. The police personnels have reached the spot and rescued the prosecutrix and caught the appellant/accused with truck at Jagdalpur -Gidam road at village Mawaliguda. Helper Ajay fled away from the spot. Thereafter, the prosecutrix reported the matter. On the basis of said report, FIR (Ex. P-9) has been registered against the Appellant. Medical examination of prosecutrix was conducted. No evidence regarding date of birth of the prosecutrix produced by the prosecution. Ossification test of the prosecutrix was conducted vide Ex. P-7 & P-8 by Dr. Govind Singh (PW-5). In ossification test, age of the prosecutrix was determined as 13-16 years. After completion of investigation, charge sheet was filed.

During the course of trial, in order to bring home the offence, the prosecution has examined as many as 9 witnesses and exhibited 29 documents. Statements of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication.

After hearing both the parties, the trial court passed the impugned judgment of conviction and order of sentence.

Learned counsel for the appellant submits that the date of birth of prosecutrix (PW-9) is not proved. In the present case, no evidence regarding age of the prosecutrix has been produced. Mother and father of the prosecutrix have not been examined by the prosecution. Further, eyewitness of the case which is said to have been a friend of the prosecutrix has also not been examined by the prosecution. To verify the age of prosecutrix (PW-9), her ossification test was conducted by Dr. Govind Singh (PW-5) and in his Court statement, he categorically admitted that the determined age could be 3 years less or 3 years more. Thus, as date of birth of prosecutrix (PW-9) was not proved, the prosecution has failed to prove that the prosecutrix was minor at the time of the incident. In support of his submission, he referred the judgment rendered by the Hon’ble Supreme Court in the matter of Manak Chand alias Mani v. State of Haryana, 2023 SCC Online SC 1397. He further submitted that prosecutrix was consenting party though prosecution has failed to prove its case, the appellant may be acquitted of the charges leveled against him by setting aside the judgment of conviction and order of sentence.

On the other hand, the learned counsel for the State submits that the conclusion given by the trial court regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal may be dismissed.

Heard learned counsel for the parties and perused the record.

Firstly, if looking to the statement of prosecutrix (PW-9), she stated that she know the Appellant. Chandabai taken her to a dhaba near Jagdalpur where the liquor is selling. Chanda asked her to come along with her to her sister’s place. As per the Chanda’s instruction, she traveled in truck from Kondagaon. The driver of the truck was drunk and he served her liquor as well. At around 9-10 PM, near the village Parpa, in the truck driver/appellant committed forcible sexual intercourse with her. In paragraph 14 of her cross-examination this witness stated that her age is 18-19 years. Chandabai taken her from Kondagaon to Jagalpur for wondering. They have taken a stop near Jagdalpur Toll Tax Dhaba where the prosecutrix, driver/appellant, helper Ajay and Chandabai consumed liquor and they also eaten food there. Appellant Raghu paid the money for liquor and food. Thereafter, they all again seated on a truck and with the consent of the prosecutrix, Appellant Raghu committed sexual intercourse with her.

Dr. Shraddha Das (PW-6) who medically examined the prosecutrix in her Court statement stated that no injuries were found on the body of the prosecutrix. Her hymen was old ruptured and she found no sign of forcible sexual intercourse with the prosecutrix.

In such a situation, on the basis of statement of the prosecutrix, she appears to be a consenting party.

If the prosecutrix is a consenting party then the offence will be made only if she is under 16 or 18 years of age?

The burden of proving the age of prosecutrix less than 16 or 18 years at the time of incident, is upon on the prosecution. In this context, prosecutrix herself was unable to tell her exact date of birth and her father and mother were not examined before the Court. Her friend with whom she went from Kondagaon to Jagdalpur has also not been examined by the prosecution. In this case, to prove the age of prosecutrix, ossification test was conducted vide Ex.P-7 & Ex.P-8 by Dr. Govind Singh (PW-5). In his Court statement, Dr. Singh determined the age of the prosecutrix as 13 to 16 years. He categorically stated that the determined age could be three years less or three years more.

In the view of above, the bone ossification test is not an exact science that can provide exact age of the prosecutrix. In the case on hand, except the ossification test report, no school certificates were produced by the prosecution in order to prove the age of the prosecutrix. Even otherwise if the age of the prosecutrix could be determined 16 years and in addition to three years, at the time of incident her age would be 19 years. The evidence presented by the prosecution in this case is not valid, reliable and clear evidence to establish the fact that on the date of incident, age of the prosecutrix was less than 16 or 18 years. In this case, prosecutrix was a consenting party. Consequently, case of prosecution is not proved against the appellant beyond reasonable doubt.

Accordingly, the appeal is allowed and the impugned judgment dated 15/03/2002 passed by the trial Court convicting and sentencing the appellant for the offence as mentioned in paragraph 1 of this judgment, is hereby set aside. The appellant is acquitted of the charges leveled against him.

It is reported that the appellant is on bail, the bail bond of the appellant shall remain in force for six months as per the provisions of Section 437-A of the Cr.P.C.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for information and necessary action, if any.