Sarvan vs State Of Chhattisgarh
2021 Latest Caselaw 1398 Chatt

                                                                           NAFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                              CRA No. 814 of 2016

   • Sarvan, S/o Manbahal, Aged About 25 Years, Caste Lohar, R/o Village
       Rangola, Dumartoli, P.S. Jashpur, District Jashpur, Chhattisgarh.

                                                                   ---- Appellant

                                     Versus

   • State of Chhattisgarh Through Police Station Jashpur, District Jashpur,
       Chhattisgarh.

                                                                ---- Respondent

For Appellant : Shri N.S. Dhurandhar and Shri Praveen Dhurandhar, Advocates.

For State/Respondent : Shri Ravi Maheshwari, Panel Lawyer.

Hon'ble Shri Justice Arvind Singh Chandel Judgment on Board

28/07/2021

1. This appeal has been preferred against the impugned judgment dated

25/01/2016 passed in Special Case No.07/2015 by the Special Judge

(Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act),

Jashpur, District - Jashpur, (C.G.) wherein appellant has been

convicted and sentenced as under :

                   Conviction                           Sentence
         U/s 366 (A) of the I.P.C.     R.I. for 6 years and fine of Rs.3,000/-
                                              with default stipulations.

        U/s 376 (2) of the I.P.C.     R.I. for 8 years and fine of Rs.4,000/-
                                              with default stipulations.

         U/s 4 of POCSO Act,           R.I. for 8 years and fine amount of
                                       Rs.4,000/- with default stipulations.

                        All sentences to run concurrently.

2. In the present case, age of the prosecutrix at the relevant time was

about 15 years and 7 month. As per the entries made in the Dakhil

Kharij panji, date of birth of the prosecutrix (PW-1) is 28.04.1999. Date

of incident is 09.11.2014. According to case of the prosecution, on

09.11.2014 at about 9:00 PM, prosecutrix went out of her house to

answer call of nature and on the relevant point of time, present

appellant came there and caught hold of her hands and dragged her to

a rocky place of the village and against her will, he committed forcible

sexual intercourse with her. Further on 09.11.2014 to 14.11.2014,

appellant kept the prosecutrix along with him by threatening her to life.

On non-returning of the prosecutrix, the mother of the prosecutrix

search her and on relevant time, friend of the prosecutrix informed her

that she has seen her going out of village along with appellant.

Thereafter, matter was reported by mother of the prosecutrix and on

the basis of the said, a missing report was lodged. During inquiry on

14.11.2014, prosecutrix was recovered from the possession of the

appellant. Statement of the prosecutrix and other witnesses were

recorded under Section 161 of the Cr.P.C. Thereafter, F.I.R. vide Ex.P-

5 was registered. After completion of the investigation, a charge-sheet

was filed. To prove the guilt of the accused/appellant, prosecution has examined as many as 15 witnesses. No defence witness has been

examined. Statement of appellant under Section 313 of the Cr.P.C.

was recorded, wherein accused/appellant has pleaded his innocence

and false implication in the matter.

3. After completion of trial, the trial Court has convicted and sentenced

the appellant as mentioned in paragraph 1 of this judgment. Hence,

this appeal.

4. Shri Praveen Dhurandhar, learned Counsel appearing on behalf of the

appellant submits that appellant is innocent and is falsely implicated in

the present case. He further submits that on perusal of the statement

of the prosecutrix, it is well-established that prosecutrix was the

consenting party in the alleged act and she herself had left her house

and stayed with the appellant for about three days. There is no

conclusive and clinching evidence available on record on the basis of

which it can be said that at the time of incident, age of the prosecutrix

was below 18 years. Also, the author of the entries of date of birth

made in Dakhil Kharij panji has not been examined before the trial

Court, therefore, entries made in Dakhil Kharij panji is also suspicious.

Since, prosecutrix was the consenting party and there is no conclusive

evidence available on record which shows that at the time of incident,

age of the prosecutrix was below 18 years, conviction of the appellant

is not sustainable.

5. Per contra, learned Counsel appearing for the State supports the

impugned judgment and submits that sentence awarded by the trial

Court is just and proper and requires no interference.

6. I have heard learned Counsel appearing for the parties, perused the

record, statement of the witnesses and other annexed documents

minutely.

7. With regard to the age of the prosecutrix (PW-1), Mele Tigga (PW-9),

Head Master of the school has deposed according to the entries made

in Dakhil Kharij Panji i.e. Ex.P-21 where date of birth of the prosecutrix

is mentioned as 28.04.1999. Though, he has admitted the fact that the

said handwritting in Dakhil Kharij panji is not similar to his handwritting,

but he deposed that at the relevant time, he was posted as the

Incharge Principal and the said entries were made by his subordinates.

Prosecutrix (PW-1) in her Court statement has deposed that at the

time of incident, her age was about 15 years. Mother of the prosecutrix

namely Lahiri Bai (PW-2) in her Court statement has deposed that at

the time of incident, age of her daughter was about 16 years and was

studying in class 10. Statement of above both witnesses were not duly

rebutted during their cross-examination. Therefore, looking to the

documentary evidence i.e. entries made in Dakhil Kharij Panji as well

as oral statement of prosecutrix (PW-1) and and her mother Lahari Bai

(PW-2), it is well-established that at the relevant time, age of the

prosecutrix was below 18 years. Thus, findings of the trial Court with

regard to age of the prosecutrix is in accordance with the evidence

available on record.

8. With regard to the alleged incident, prosecutrix (PW-1) in her Court

statement has supported the entire case of the prosecution and

deposed accordingly. She has categorically stated that on the date of

incident at about 9-10 P.M., when she went out to answer the call of nature, at that time, appellant came there and caught hold her hand,

took her with him and committed sexual intercourse with him. She

further deposed that appellant also kept her with him for about 3 days.

On perusal of her cross-examination, it appears that there was love

relationship between appellant and prosecutrix and she herself had left

her house and stayed with appellant for 3 days but as mentioned

above, at the time of alleged incident, she was below 18 years of age

and therefore, her consent in this regard is not liable to be a legal

consent.

9. On a minute examination of the evidence on record, it is clear that

there is sufficient evidence available on record against the appellant to

hold him guilty. In my considered view, the trial Court has rightly

convicted the appellant.

10. Consequently, the appeal has no merit and is, therefore, dismissed.

Sd/-

(Arvind Singh Chandel) Judge Prakash