Durgesh Chandrawanshi And Anr vs State Of Chhattisgarh
2021 Latest Caselaw 187 Chatt

                                                                                               NAFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR


                             Criminal Appeal No.1182 of 2014

                           Judgment Reserved on :               9.2.2021

                           Judgment Delivered on :              8.6.2021


    1. Durgesh Chandrawanshi, S/o Maniklal Chandrawanshi, aged about 22
       years, R/o Village Asra, Police Station Dongargaon, District
       Rajnandgaon, Chhattisgarh

    2. Subhash, S/o Late Asharam Valde, aged about 21 years, R/o Village
       Shikaritola, Police Station Chhuriya, District Rajnandgaon,
       Chhattisgarh
                                                                                    ---- Appellants
                                               versus
         State of Chhattisgarh through Police Station Dongargaon, District
         Rajnandgaon, Chhattisgarh
                                                           --- Respondent

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For Appellants                :        Shri B.P. Singh, Advocate
For Respondent                :        Shri Ghanshyam Patel, Government Advocate

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Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal has been preferred against judgment dated 30.10.2014

passed by the Additional Sessions Judge (FTC), Rajnandgaon in

Special Sessions Trial No.7 of 2014, whereby the Appellants have

been convicted and sentenced as under:

Conviction Sentence

Appellant No.1, Durgesh Chandrawanshi

Under Section 363 of the Rigorous Imprisonment for 5 Indian Penal Code years and fine of Rs.500 with default stipulation Under Section 366A of the Rigorous Imprisonment for 7

Indian Penal Code years and fine of Rs.500 with default stipulation Appellant No.2, Subhash

Under Section 363 of the Rigorous Imprisonment for 5 Indian Penal Code years and fine of Rs.500 with default stipulation Under Section 366A of the Rigorous Imprisonment for 7 Indian Penal Code years and fine of Rs.500 with default stipulation Under Section 376 of the Rigorous Imprisonment for 10 Indian Penal Code years and fine of Rs.500 with default stipulation Under Section 3, 4 of the Rigorous Imprisonment for 7 Protection of Children years and fine of Rs.500 with from Sexual Offences Act default stipulation

The jail sentences of the Appellants are directed to run concurrently

2. Prosecution case, in short, is that the prosecutrix (PW2) was aged

about 14 years. According to the entries of Dakhil Kharij Register

(Ex.P15), her date of birth is 15.8.1999. The date of incident is

19.10.2013. On 22.10.2013, the prosecutrix (PW2) lodged First

Information Report (Ex.P3) alleging that on 19.10.2013 at about 6

p.m., she had gone to the house of Vani (PW7) for getting tuition

from her. There, on getting call of nature, she went outside towards

the road to attend the call of nature. At that time, both the

Appellants came there on a motorcycle. Appellant No.1 was driving

the motorcycle and Appellant No.2 was a pillion rider. Appellant

No.2 forcibly made her sit on the motorcycle and they took her to

an agricultural field and thereafter Appellant No.2 committed

forcible sexual intercourse with her there. Thereafter, both the

Appellants took her back and left her at her house. She narrated

the incident to her mother and father. Offence was registered. She

was medically examined by Dr. Ekta Daniel (PW13). Her report is

Ex.P17. Statements of the prosecutrix and other witnesses were

recorded under Section 161 of the Code of Criminal Procedure. On

completion of the investigation, a charge-sheet was filed. The Trial

Court framed charges.

3. To bring home the offence, the prosecution examined as many as

15 witnesses. Statements of the Appellants were also recorded

under Section 313 of the Code of Criminal Procedure in which they

denied the guilt, pleaded innocence and false implication. No

witness has been examined in their defence.

4. On completion of the trial, the Trial Court convicted and sentenced

the Appellants as mentioned in 1st paragraph of this judgment.

Hence, this appeal.

5. Learned Counsel appearing for the Appellants submitted that the

Trial Court has convicted the Appellants without there being

sufficient and clinching evidence against them. There is no

conclusive evidence on record on the basis of which it could be

said that the prosecutrix was below 18 years of age. The

prosecution has relied on the entries of Dakhil Kharij Register

(Ex.P15), but author of the document has not been examined. It

was further submitted that date of birth recorded in the register

(Ex.P15) has also not been proved. According to the evidence led

by the prosecution, the entries were got recorded by Bua, sister of

Pardesi (PW4), father of the prosecutrix, but said Bua has not been

examined by the prosecution. Apart from that, on what basis the

entries were made in the Dakhil Kharij Register is not established.

From the statement of Dr. Ekta Daniel (PW13), it is also established

that at the time of examination of the prosecutrix, her secondary

sexual characters were found to be fully developed. Her breasts

were also fully developed. According to the statement of Dr. Ekta

Daniel, physical appearance/symptoms of the prosecutrix were of

an adult person. Therefore, it is not established that at the time of

alleged offence, the prosecutrix was below 18 years of age. It was

further submitted that there are material contradictions and

omissions in the statements of the prosecutrix and other witnesses.

Savitri (PW3), mother of the prosecutrix has not supported the case

of the prosecution and turned hostile. According to the statement

of the prosecutrix, after the incident, when the Appellants saw her

father coming towards them then they left her on their motorcycle at

her house. But, contrary to this, father of the prosecutrix has

deposed that the prosecutrix had come home weeping and told him

about the incident. Apart from that, Vani (PW7) deposed that when

the prosecutrix did not return after attending the call of nature then

she went to the house of the prosecutrix and informed her parents

that the prosecutrix had not returned after attending the call of

nature. According to Vani (PW7), the prosecutrix had returned after

1-2 hours. According to Learned Counsel appearing for the

Appellants, looking to the above contradicting statements of the

witnesses, it appears that the prosecutrix was a consenting party.

Due to love relationship with Appellant No.2, she herself went with

him and the alleged act was committed by him with her own

consent. Therefore, conviction of the Appellants is not sustainable.

6. Opposing the above arguments, Learned Counsel appearing for

the State supported the impugned judgment.

7. I have heard Learned Counsel appearing for the parties and

perused the entire record of the Trial Court including the statements

of witnesses with due care.

8. With regard to age of the prosecutrix (PW2), in her Court

statement, she deposed that her date of birth is 15.8.1999 and she

was studying in 9th standard. This witness has admitted the fact

that last year also she was studying in 9 th standard itself. According

to this witness, she has 1 elder brother, who is 3 years older than

her, but what is his date of birth was not known to her.

9. Savitri (PW3), mother of the prosecutrix has also not been able to

state her date of marriage and date of birth and age of her and of

her children.

10. Pardesi (PW4), father of the prosecutrix also admitted that his son

is older, but he is not able to state his date of birth. He further

admitted that he has stated his estimated age. According to this

witness, for admitting the prosecutrix in the school, his sister had

taken the prosecutrix to the school. But, the sister of this witness

has not been examined by the prosecution. Entries of the Dakhil

Kharij Register (Ex.P15) have been proved by D.S. Mandavi

(PW12), Headmaster of the school. He also admitted that the

entries made in the Dakhil Kharij Register were based on the

Middle School Certificate. He further admitted that the said entries

in the Dakhil Kharij Register were not made by him. He further

admitted that at the time of admission of the prosecutrix in the

school, who had filled in the school admission form was not known

to him.

11. Dr. Ekta Daniel (PW13), who examined the prosecutrix, deposed

that at the time of examination of the prosecutrix, her secondary

sexual characters were found to be fully developed. Her breasts

were also fully developed. Her physical appearance/symptoms

were like a major person.

12. Though according to the entries of Dakhil Kharij Register (Ex.P15),

date of birth of the prosecutrix is 15.8.1999, these entries were

made on the basis of certificate of 8 th standard and the entries

which were made in the Dakhil Kharij Register at the time of

admission of the prosecutrix in 1st standard have not been placed

on record. The author, i.e., the Bua of the prosecutrix, who got the

date of birth of the prosecutrix to be 15.8.1999 recorded in the

school record, has also not been examined. The prosecutrix

herself and her parents have also not been able to state exact date

of birth or age of the prosecutrix. Apart from that, as opined by Dr.

Ekta Daniel (PW13), secondary sexual characters and breasts of

the prosecutrix were fully developed and her physical

appearance/symptoms were also like a major person. Looking to

the totality of the case and the evidence adduced by the

prosecution in this regard, I find that the prosecution has not been

able to prove that at the time of alleged incident, the prosecutrix

was below 18 years of age.

13. With regard to the incident, the prosecutrix (PW2) deposed that she

had gone to the house of Vani (PW7) for getting tuition from her.

Thereafter, when she was going to an agricultural field to attend the

call of nature, at that time, the Appellants came there on a

motorcycle. They gagged her mouth, tied her hands and took her

on the motorcycle towards a field. There, Appellant No.2 made her

fall down and he committed forcible sexual intercourse with her.

The prosecutrix further deposed that when she did not return her

house then her father and other persons were coming for her

search. The Appellants having seen them took her back on the

motorcycle to the place from where they had picked up her and left

her there. During cross-examination, this witness deposed that

when her hands were tied up she had suffered injuries in her hands

and when she was made to fall down, at that time also, she had

suffered injury on her back. But, from perusal of her examination

report (Ex.P17), it appears that she had not sustained any bodily

injury and according to the opinion of the examining doctor, she

was found habitual to sexual intercourse.

14. Savitri (PW3), mother of the prosecutrix has not supported the case

of the prosecution and turned hostile.

15. Pardesi (PW4), father of the prosecutrix deposed that on the date

of incident, the prosecutrix returned home weeping and complained

him of the incident. During cross-examination, this witness

categorically stated that on that day, he, his wife and his son, all the

three members were present at home.

16. Vani (PW7) deposed that the prosecutrix had come to her house for

getting tuition from her and thereafter telling her that she was to

attend the call of nature, the prosecutrix went out, but she did not

return for about ½ hour. On this, she went to the house of the

prosecutrix and told about the circumstance to her parents.

According to this witness, the prosecutrix had returned home after

1-2 hours.

17. On a minute examination of the above evidence, it seems that the

entire story narrated by the prosecutrix is suspicious because as

alleged by the prosecutrix both the Appellants had forcibly taken

her on a motorcycle after tying up her hands and Appellant No.2

had committed forcible sexual intercourse with her in an agricultural

field and as a result of which she had sustained injuries in her

hands and back. But, in her medical examination, no bodily injury

was found. Furthermore, as stated by the prosecutrix, after the

incident, her parents and other persons were coming towards her in

her search and seeing them the Appellants took her on their

motorcycle and left her at the place from where they had picked up

her. But, Pardesi (PW4), father of the prosecutrix deposed that on

that day, he, his wife and his son were present at home and the

prosecutrix had returned home weeping and narrated there about

the incident. From the statement of Vani (PW7), it also appears

that after ½ hour, she had gone to the house of the prosecutrix and

informed that the prosecutrix had not returned after attending the

call of nature. After this information also, the parents of the

prosecutrix did not try to search out the prosecutrix. Vani (PW7)

further deposed that the prosecutrix herself had returned home

after 1-2 hours. From the above, it is clear that the prosecutrix

(PW2), Pardesi (PW4) and Vani (PW7) have contradicted their

statements. Furthermore, as per the prosecutrix, she was forcibly

taken by both the Appellants on their motorcycle, but the rape was

committed with her by Appellant No.2 only and she has not levelled

any allegation against Appellant No.1 of committing anything wrong

with her, which appears to be unnatural. This goes to show that

there was a relationship between the prosecutrix and Appellant

No.2 and, therefore, the alleged act of sexual intercourse was done

by Appellant No.2 only. Looking to the entire evidence adduced by

the prosecution, in my considered opinion, the Appellants are

entitled to get benefit of doubt.

18. Consequently, the appeal is allowed. The impugned judgment of

conviction and sentence is set aside. The Appellants are acquitted

of the charges framed against them.

Sd/-

(Arvind Singh Chandel) JUDGE Gopal