Chattisgarh High Court

Maksudan Sahu vs State Of C.G on 3 December, 2021

                                   1

                                                                    NAFR

         HIGH COURT OF CHHATTISGARH, BILASPUR

                  Judgment reserved on : 21/09/2021
                  Judgment delivered on: 03 /12/2021
                       CRA No. 125 of 2002


        Maksudan Sahu S/o. Gendlal Sahu, aged about 24 years, R/o
         Village Ghotiya, PO- Baldeopur, District Rajnandgaon (C.G.)


                                                        ---- Appellant
                               Versus
        State of Chhattisgarh,        through   District     Magistrate,
         Rajnandgaon (C.G.)
                                                     ---- Respondent

For Appellant                  :       Ms. Indira Tripathi, Adv.
For State
[[
                               :       Ms. Ishwari Ghritlahre, PL

                  Hon'ble Smt. Justice Rajani Dubey
                              CAV Order

03/12/2021

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. I have heard learned counsel for the parties and perused the

records including the impugned judgment.

8. Before the trial Court statement of the prosecutrix was recored.

The prosecutrix in her statement in paras 18 & 19 stated that:-

Þgekjs xkao ls [kSjkx< djhc 7&8 fdyksehVj nwj gSA eSa jkLrs esa fpYykus dh

dksf'k'k dj jgh Fkh rks vkjksih eq>s ekj jgk Fkk] vkSj esjk xyk nck jgk Fkk]

og /kedk fn;k fQj eSa pqipki lkFk pyh xbZA

[kSjkx< vkjksih ds nksLr ds ;gka igqps ml le; og eq>s idM dj ugha j[kk

Fkk ysfdu fcydqy ikl esa j[kk FkkA mlds ?kjokyksa usa vkjksih ls iwNk Fkk fd

dkSu gSA rc vkjksih esjs fy, cksyk Fkk fd esS mlds nksLr dh cgu gWwA nksLr

ds ?kjokyksa us iwNk Fkk fd jkr dks dSls vk;s gks vkjksih us dgk fd LVkbZQaM

ysus vk;s Fks vkSj esjs HkkbZ usa mlds lkFk eq>s nsj gks tkus ds dkj.k cl ls ys

tkus ds fy, dgk Fkk vkSj HkkbZ us dgk Fkk fd lkbZdy ls og ihNs ls vk jgk

gSA eSa cksyuk pkg jgh Fkh ysfdu vkjksih eq>s bl rjg ls ns[k jgk Fkk fd

tSls fd [kk tk;sXkkA mu yksxksa us dgk Fkk fd bruh jkr rd LVkbZQaM ugha

caVrk gSA fQj vkjksih le> x;k fd mldh ckr idM esa vk xbZ gS rks og

mlds nksLr vkSj nksLr ds firk dks lgh ckr crk;k fd Hkxkdj yk;s gSA fQj

nksLr ds firk vkjksih dks MkVs FksAß

9. Mantheer Das PW-7 has stated in para 2 of his cross-

examination that:

ß;g ckr lgh gS fd nksuks iSny tk jgs FksA nksuks vkil esa cksyrs crkrs tk

jgs FksA deys'ojh us Hkh ;g dgk fd og vdsyh viuh cqvk ds ?kj tk jgh

gS blfy;s edlwnu dks og MqejMhg lkFk pyus dks cksyh FkhA vxj

deys'ojh edlwnu ds ckjs esa crkrh fd og mls Hkxkdj ys tk jgk gS rc

ge yksx mls Fkkuk esa fjiksVZ djus ds fy, tkrsA geus mlls dkQh iwNrkN

dh ijarq mlus edlwnu ds f[kykQ dqN ugha crk;kAß

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.

10. 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:

Þ;g ckr lgh gS fd izn'kZ ih 12 esa deys'ojh dh vk;q 21-09-83 izkFkfed

ikB'kkyk ds frfFk ds vk/kkj ij ntZ dh xbZ gSA mDr frfFk vkt eSa ugha

yk;k gWawA Vh-Lkh- ds vykok i`Fkd ls deys'ojh dh vk;q ds laca/k esa esjs }kjk

dksbZ rlnhdh ugha dh xbZ gSA deys'ojh ckbZ dks izkFkfed 'kkyk esa fdl

O;fDr us HkrhZ djk;k fdl vk/kkj ij tUefrfFk fy[kk;k vkSj fdlus mldh

tUefrfFk ds bUnzkt HkrhZ ds le; fd;k ;g eSa ugha TkkurkA izkFkfed 'kkyk esa

deys'ojh dh vk;q dh rkjh[k rlnhd dj fy[kh x;h rFkk fcuk rlnhd ds

fy[kh xbZ eSa ugha crk ldrkAß

In this case, during investigation, radiological examination of the

prosecutrix for confirmation of her age was not done.

11. 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:-

11. 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.