Chattisgarh High Court
Balmukund @ Mukund vs State Of Chhattisgarh on 1 July, 2024
Neutral Citation
2024:CGHC:23066 1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 66 of 2006
Balmukund @ Mukund S/o Hariram Nishad, Aged about 19 years,
R/o Village Lajhiya, P.S. Ambagarh Chowki, District Rajnandgaon,
Chhattisgarh
---- Appellant
Versus
State of Chhattisgarh
---- Respondent
____________________________________________________________ For Appellant : Mr. H.S. Ahluwalia, Advocate For Respondent/State : Mr. Pankaj Singh, Panel Lawyer ____________________________________________________________ Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 01/07/2024
1. The appeal has been preferred against the judgment of conviction and sentence dated 04.01.2006, passed by learned Special Judge (under the Scheduled Caste and Scheduled Tribe, Prevention of Atrocities Act), Rajnandgaon in Special Case No. 05/2005, whereby the appellant has been convicted for the offence under Section 376 of Indian Penal Code and sentenced for R.I. for 07 years with fine of Rs. 1000/-, in default of payment of fine further S.I. for 03 months.
2. Brief facts of the case are that on 21.11.2004, at about 9-10 p.m., when the prosecutrix was cleaning her teeth in her courtyard, the appellant, along with other co-accused persons, came there and asked her to come with him and took her to the threshing field of Neutral Citation 2024:CGHC:23066 2 Baldu and committed rape upon her. After committing rape upon her, he has given threatening to her with dire consequences. Her parents had gone to earn their livelihood to Pakhanjur. In the month of Shravan (Hindi Calendar Month), she feels that she conceived pregnancy and when her parents came from Pakanjur at the time of Deewali festival, she informed the incident to her parents. A village meeting was called and thereafter, she lodged a report (Ex.P/3). The FIR has been registered under Sections 376 & 506-B of IPC and 3(1)
(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.
3. The prosecutrix was sent for her medical examination to Community Health Centre, Ambagarh Chowki, where PW-4 Dr. Smt. P. Maheshwar examined her and gave report (Ex.P/7). After examining the prosecutrix, the doctor has opined that the patient is habitual for sexual intercourse. She was carrying pregnancy of about 28 weeks. The prosecutrix was also referred to Radiologist for ultrasonography of abdomen. Her ultrasonography test was done on 24.11.2004, in which 31 weeks of pregnancy was opined and USG (OBST) report is Ex.P/9-A. With respect to the age of prosecutrix, the Police has seized the school admission and discharge register from Primary School, Bogatola, in which the date of birth of the prosecutrix is recorded as 22.03.1988. After retaining the attested true copy of the school register, the original register was returned back to the school, which has been seized vide seizure memo Ex.P/12. With respect to social status of the prosecutrix, her social status certificate has been seized vide seizure memo Ex.P/9 and the certificate is Ex.P/8. Spot Neutral Citation 2024:CGHC:23066 3 map Ex.P/10 was prepared by the Police. The appellant has been arrested on 22.11.2004 and he too was sent for his medical examination to Community Health Center, Mohla, where he has been examined by PW-8 Dr. S.R. Mandavi, and after his examination, doctor has opined that he was capable to perform sexual intercourse. The statement of the witnesses under Section 161 of CrPC has been recorded and after completion of the investigation, the charge sheet was filed before the Learned Judicial Magistrate First Class, Ambagarh Chowki. Against the present appellant and two other accused persons, namely Santosh and Ku. Bilendri Bai @ Bilendra for the offence under Sections 376, 506-B, 34 of IPC and Section 3(1)(xii) of SC ST Act.
4. The learned trial Court has framed charges against the present appellant for the offence under Sections 376(2)(g), 506 Part-II of IPC and 3(1)(xii) & 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. The charges against co-accused, Santosh, has been framed for the offense under Section 376 (2)(g) of IPC and Sections 3(1)(xii) & 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, whereas the charge against Ku. Bilendri @ Bilendra has been framed for the offence under Section 376(2)(g) of IPC. The accused persons abjured their guilt and claimed trial.
5. In order to establish the charge against the accused persons, the prosecution has examined as many as 14 witnesses. Statement under Section 313 of CrPC of the accused persons have been recorded, in which they denied the circumstances appears against Neutral Citation 2024:CGHC:23066 4 them, plead innocence, and have submitted that they have been falsely implicated in the offence.
6. After appreciation of oral as well as documentary evidence, led by the prosecution, the appellant and other accused persons have been acquitted from the offence of Section 376(2)(g) of IPC and Sections 3(1)(xii) & 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. However, the present appellant has been convicted for the offence under Section 376 of IPC, and sentenced for R.I. for 7 years with a fine of Rs. 1000/- with default stipulation. Hence this appeal.
7. Learned counsel for the appellant would submit that the appellant is innocent and has been falsely implicated in the offence. There is material omissions and contradictions in the evidence of prosecution's witnesses, and the prosecution has failed to prove its case beyond reasonable doubt. He would further submit that although the learned trial Court has hold that the prosecutrix was the consenting party in making physical relation with the appellant, but he has been convicted only on the ground that the prosecutrix was found to be below 18 years of age on the date of incident, whereas the offence is of the year 2004, and at that time, the prosecutrix was more than 16 years of age, and therefore, she was capable to give her consent in making physical relation with the appellant. He would further submit that on the evidence of the prosecutrix, it is quite clear that she was the consenting party at the time of commission of alleged offence and has not raised any alarm. Even she has not made any complaint and has not informed till her pregnancy was Neutral Citation 2024:CGHC:23066 5 detected, which continued up to 7 months, when her parents returned from Prakhanjur at the time of Deewali festival. He would also submit that there is no satisfactory evidence available on record to hold that the prosecutrix was less than 16 years of age, and the learned trial Court has also held that the prosecutrix was more than 16 years, but less than 18 years of age, and therefore, no offence is made out against the appellant and he is entitled for his acquittal.
8. On the other hand, the learned counsel for the State opposes and would submit that from the evidence available on record, the guilt of the appellant is duly proved by the prosecution. Although, the learned trial Court has held that the prosecutrix was more than 16 years of age, and less than 18 years of age, yet the learned trial Court, while exercising its appellate powers, can reassess the evidence available on record. He would further submit that from the evidence of the prosecutrix, it appears that she was not the consenting party in the alleged offence, and therefore, the learned trial Court has rightly convicted the appellant for the alleged offence, and the judgment of his conviction needs no interference.
9. I have heard learned counsel for the parties and perused the record.
10. The first and foremost question for its determination is, as to whether the prosecutrix was of more than 16 years of age at the time of incident or not.
11. The prosecution has relied upon the School Admission and Discharge Register Ex.P/11-C, which is sought to be proved by PW- Neutral Citation 2024:CGHC:23066 6 12 Somnath Bhandhari, who was the Headmaster at Primary School, Bogatola. Although the PW-12 has stated that he did not know as to on what basis the date of birth of the prosecutrix was recorded in the School Register, and he is not the author of the same. Learned trial Court has considered the age of the prosecutrix on the basis of the age shown in the FIR, MLC Report, and also the said School Admission and Discharge Register Ex.P/11-C and held that the age of the prosecutrix was 16 years and held in para 14 of the judgment that 7 months prior to 21.11.2004 the prosecutrix was less than 18 years of age. From the evidence available on record, the finding with respect to the age of the prosecutrix cannot be said to be perverse or contrary to the evidence available on record.
12. So far as the allegation of rape is concerned, from the evidence of prosecutrix (PW-9) and other evidence, the learned trial Court has held that she was the consenting party in making physical relation with the appellant. The date of incident was in the month of Baisakh (Hindi Calendar Month). When she was alone in her house at about 8 p.m., the accused persons came to her house, asked her to come with them. The appellant dragged her to the threshing field of Ballu @ Kalar and committed rape upon her and threatened her. After the alleged incident, she came to her house and went for a sleep. Her parents have subsequently gone to Pakhanjur to earn their livelihood. When the other persons informed her that she conceived pregnancy, then she came to know that she is pregnant. At the time of Deewali festival, when her parents came from Pakhanjur, she informed the incident to them and thereafter a village meeting was convened. Neutral Citation 2024:CGHC:23066 7 Considering the fact that the house of the prosecutrix was situated in a closed vicinity, she has not raised any alarm while she was being dragged by the appellant and there is no sign of protest on her body, when she was allegedly subjected to forceful sexual intercourse by the appellant. She has not informed the incident to her parents despite having presence in their house and also considering the conduct of the prosecutrix, the learned trial Court has come to the conclusion that she was consenting party in making physical relation with the appellant. The finding recorded by the trial Court in para 36 that the prosecutrix was the consenting party in making physical relation with the appellant, cannot be said to be perverse in view of the evidence of the prosecutrix as well as other witnesses.
13. The descriptions sixthly of Section 375 of Indian Penal Code as on 2004, which are reproduced below for quick reference:
"375. Rape - A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First.-xxxxxx Secondly. xxxxxx Thirdly. xxxxxx Fourthly. xxxxxx Fifthly. xxxxxx Sixthly. With or without her consent, when she is under sixteen years of age. Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Neutral Citation 2024:CGHC:23066 8 Exception. Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
14. The learned trial Court has convicted the appellant holding that the prosecutrix was below 18 years of age, whereas in the year 2004, her age was found more than 16 years of age on the date of incident and therefore the act of the appellant is not rape in view of description sixthly of Section 375 of the IPC as the then provision was in the IPC, and thus by holding that the prosecutrix was more than 16 years of age on the date of incident and was consenting party in making physical relation with the appellant, the appellant cannot be held guilty for commission of the offence of rape and the impugned judgment of conviction and sentence is liable to be interfered.
15. In the result, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The appellant is acquitted from the offence of Section 376 of IPC.
16. The appellant is reported to be on bail. His bail bond shall continue for the further period of 6 months as provided under Section 437-A of CrPC.
17. The record of the trial Court be sent back along with the copy of this order.
Sd/-
(Ravindra Kumar Agrawal) Judge ved