Takesh @ Takeshwar Prasad vs The State Of C.G
2021 Latest Caselaw 2658 Chatt

                                        1

                                                                        NAFR

           HIGH COURT OF CHHATTISGARH, BILASPUR
                       Order Reserved on 31/08/2021
                       Order Delivered on 01/10/2021
                             CRA No. 851 of 2002
     1. Takesh @ Takeshwar Prasad S/o Sakharam Kanth Satnami, aged
        about 19 years, R/o Sarkhor, Thana Kasdol, District-Raipur, C.G.
                                                               ---- Appellant
                                      Versus
      State of Chhattisgarh, Through : The District Magistrate, Raipur,
       Chhattisgarh.
                                                             ---- Respondent

For Appellant                     :     Ms. Seema Singh, Adv.
For State/Respondent              :     Ms. Ishwari Ghritlahre, PL.

                   Hon'ble Smt. Justice Rajani Dubey
                                 C A V Order

Date : 01/10/2021

1. The present appeal arises out of the impugned judgment of conviction and order of sentence dated 28.06.2002 passed by the learned Ist Additional Sessions Judge, Baloda-Bazar, District-Raipur, in S.T. No. 76/2002 whereby, the learned Ist Additional Sessions Judge has convicted and sentenced the appellant as under :-

S. No.        Conviction                         Sentence
            U/s 363 of IPC    R.I. for 3 years and fine of Rs. 200/- in default
     1.
                              of fine additional R.I. for one year.
            U/s 366 of IPC    R.I. for 3 years and fine of Rs. 200/- in default
     2.
                              of fine additional R.I. for one year.

U/s 376(1) of IPC R.I. for 7 years and fine of Rs. 500/- in default

3. of fine additional R.I. for one year.

2. Brief facts of the case are that father of the prosecutrix Satyanarayan had gone to Calcutta to earn livelihood and mother Vishmat Bai lives in village Sarkhor with her daughters, earn her living by farming. It is alleged that on 11.12.2001 at about 4:00 O'clock, when

the prosecutrix along with her younger sister was going to Byara, the accused enticed and took her to his house, then the younger sister of the prosecutrix came home and told her mother about the whole incident. Mother of the prosecutrix went to the house of appellant Takesh and said that her daughter is minor, then the accused stated that he will marry and keep her as wife and will not let her go. On 15.12.2001 when Satyanarayan came back, his wife told him about the whole incident, the prosecutrix was searched and on 20.12.2001 a report (Ex.-P/1) was lodged at the police station Kasdol.

3. On 20.12.2001 police recovered the prosecutrix from the house of accused Takeshwar, made a recovery Panchnama and handedover to her father Satyanarayan vide Ex.-P/3. School transfer certificate (Ex.-P-

2) of prosecutrix produced by her father was seized. During investigation the prosecutrix and the accused were medically examined. The clothes of the prosecutrix vide Ex.-P/4 and the accused vide Ex.-P/6 were seized and sent for medical examination. Spot map vide Ex.-P/9 was prepared by the Patwari, the slides received from the hospital were seized vide Ex.-P/11. The seized clothes and slides were sent for chemical examination vide Ex.-P/15'A'. The accused was arrested after being found guilty and after completion of investigation charge-sheet was filed before the lower Court and charges were framed.

4. So as to hold the accused/appellant guilty, the prosecution has examined as many as 15 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case.

4. Upon consideration of oral and documentary evidence the trial Court held that the prosecution has established the guilt of the accused under Sections 363, 366 and 376(1) of IPC and sentenced him as mentioned above. Hence, this appeal.

5. Learned counsel for the appellant submits that the impugned judgment of conviction and sentence is contrary to law and facts available on record. He next submits that the impugned judgment suffers from serious irregularities and illegalities, the statement of

prosecution witnesses do not tally each other and are omnibus in nature. He also submits that the trial Court has not appreciated oral and documentary evidence properly and even if the whole prosecution story is believed to be true, no offence of commission of rape and abduction by the present accused on the prosecutrix is made out. He further submits that the medical report has also not supported the prosecution version, according to the birth certificate, date of birth of the prosecutrix has been shown as thirteen and a half years. According to the ossification test, the age of the prosecutrix has been determined as 16 to 18 years, the learned trial Court committed grave error of law in disbelieving the opinion of the doctor who was the public servant. He also submits that there is no satisfactory explanation for the delay in lodging the FIR. It is clear from the statement of PW-3 (Shivkumari) that near the boring her sister and the accused were talking and her sister has not said anything at that time and they went together This statement of PW-3 (Shivkumari) shows that the appellant has not forcefully abducted the prosecutrix. He lastly submits that the learned trial Court has not considered the statement of PW-3 (Shivkumari) and committed grave error of law in holding that the prosecution has proved his case beyond reasonable doubt. Therefore, the impugned judgment and conviction is liable to be set aside.

6. On the other hand State counsel supported the impugned judgment of conviction and order of sentence.

7. Heard counsel for both the parties and perused the material available on record including the impugned judgment.

8. PW-2 prosecutrix has stated about the whole incident in her examination-in-chief. She has stated in her cross-examination as under;

10. The accused took her to village Bhilona at 4:00 O'clock in the morning. They had gone by walk, where the accused kept her at his maternal uncle's house. She used to go to the pond for taking bath and however meet other people she was not talked to anyone. After staying there for 3-4 days, they came back to village Sarkhor.

11. She has stated in her statement that she was in love with the accused and therefore she left with the accused to his

house.

12. She has also stated that the accused did not keep her by lying or hide her and they were living without any fighting or argument.

9. Shivkumari (PW-3) has stated in her statement that when her sister was standing near boring, at that time accused came there and told her that he will marry her and took her. She has stated in her cross- examination that her sister did not say anything at that time and they went together. It is clear from the statement of the prosecutrix and her sister that the prosecutrix had gone with the appellant of her own sweet will and if she had sexual intercourse with the appellant, she was a willing partner.

10. Dr. N. Bajpai (PW-13) has given her report Ex.-P/14 and opined that the age of the prosecutrix is between 16½ to 18½. Father of the prosecutrix Satyanarayan (PW-1) has stated in his statement that the transfer certificate of his daughter is Article 'A' and as per Article 'A' her date of birth is 12.07.1988. Hariprasad (PW-8) has stated in his statement that he was working as principal of Primary School, Sarkhor, Tehshil-Baloda-Bazar on 20.12.2001, and transfer certificate Article 'A' was issued by him. On the said date, he had issued the said certificate on the basis of the school record. In affidavit of prosecutrix's father in the register No. 1643 (Ex.-P/10'C'), he has mentioned the date of birth which was given by father of the prosecutrix. He has stated in his cross- examination that;

3. "gyQukek jftLVj iz-ih-&10^C^ esa ist dzekad ys[k ugha gS] izek.khdj.k jftLVj esa vkxs ihNs gSA izekf.kdj.k esjs iwoZ vf/kdkjh }kjk fd;k x;kA lR;ukjk;.k viuh nks yM+fd;ksa dk nkf[kyk Ldwy esa djk;k FkkA"

Satyanarayan (PW-1) has also stated in his cross-examination that ;

5. "eSa tc yM+dh dks Ldwy esa HkrhZ djus ds fy;s x;k Fkk ml le; yM+dh dh mez f'k{kd us dku ls gkFk yxkdj fy[kk FkkA eSa tUe frfFk dk dkxt fdlls fy[kckdj j[kk Fkk vkt eq>s ;kn ugha gSA eSaus dksbZ gyQukek ugha fn;k Fkk mez ds laca/k esa "

In such situation it cannot be presumed that the school record is showing the correct age of the prosecutrix. In terms of date of birth, it is

well settled that school record is not the ultimate proof of the age date of the birth cannot be proved by such basic evidence having date birth authenticity.

11. As per X-ray report (Ex.-P/14), age of prosecutrix is between 16 ½ to 18½. It is clear from the evidence of the father of the prosecutrix, Principal and the doctor that the prosecutrix might be of 18 ½ years, and therefore in view of the totality of circumstances of this case where the prosecutrix had gone with appellant of her own will and stayed with the appellant for sometime, as no satisfactory explanation has been given with regard to delay in lodging the report, prosecution has failed to prove its case beyond all reasonable doubt.

10. As discussed above offence under Sections 363, 366 and 376(1) are not sustainable. The prosecution has failed to prove the offence beyond reasonable doubt, therefore, conviction and sentence of the appellant set aside. The appeal is allowed and the accused/appellant is acquitted of the charges levelled against him. As the appellant is on bail, he need not surrender and his bail bonds and sureties stand discharged.

Sd/-

(Rajani Dubey) JUDGE

H.L. Sahu