Shiv Shanker @ Ajay @ Golu Bhat vs State Of Chhattisgarh
2021 Latest Caselaw 2390 Chatt

                                                                                               NAFR
                   HIGH COURT OF CHHATTISGARH, BILASPUR

                              Criminal Appeal No.254 of 2016

                          Judgment Reserved on :               24.8.2021

                          Judgment Delivered on :              17.9.2021

Shiv Shanker @ Ajay @ Golu Bhat, aged about 26 years, son of Jivan Bhat,
resident of Village Deogaon, Police Station Masturi, District Bilaspur,
Chhattisgarh
                                                                                      ---- Appellant
                                               versus
State of Chhattisgarh through Station House Officer, Police Station Pipariya,
District Kabirdham, Chhattisgarh
                                                                                   --- Respondent
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For Appellant                               :               Shri C.R. Sahu, Advocate
For Respondent                              :               Shri Sushil Sahu, Panel Lawyer

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Hon'ble Shri Justice Arvind Singh Chandel C.A.V. JUDGMENT

1. This appeal has been preferred against judgment dated 3.7.2015

passed by the Special Judge under the Protection of Children from

Sexual Offences Act, 2012 (henceforth 'the Pocso Act'), Fast Track

Court, Kabirdham in Special Sessions Trial No.102 of 2015,

whereby the Appellant has been convicted and sentenced as

under:

Conviction Sentence

Under Section 363 of the Rigorous Imprisonment for 4 years Indian Penal Code and fine of Rs.500 with default stipulation Under Section 366 of the Rigorous Imprisonment for 4 years Indian Penal Code and fine of Rs.500 with default stipulation Under Section 6 of the Rigorous Imprisonment for 10 years Pocso Act and fine of Rs.500 with default stipulation All the jail sentences are directed to run concurrently

2. According to the prosecution case, at the relevant time, age of the

prosecutrix (PW2) was 16 years. Mother of the prosecutrix,

namely, Chandrika (PW1) lodged a report (Ex.P7) against the

Appellant alleging therein that prior to 1½ months of lodging of the

report, the Appellant came her house and saying that some

problem was in her house and, therefore, a worship was required to

be performed and he also said that for the worship both of her

daughters will be required to go to a temple. On this, she sent the

prosecutrix (PW2) and her other daughter Shailu (PW10) along with

the Appellant. 15 days thereafter, Shailu (PW10) returned home.

On being inquired, the Appellant told her that on sending her son

and daughter-in-law he will send the prosecutrix (PW2) back to

home. Later on, she came to know that the Appellant and the

prosecutrix (PW2) performed a Jaimala marriage (wearing garland

to each other). On the basis of the said report, offence was

registered. During investigation, the prosecutrix (PW2) was

recovered. Her statement was recorded under Section 161 of the

Code of Criminal Procedure. Statements of other witnesses were

also recorded. On completion of the investigation, a charge-sheet

was filed against the Appellant. The Trial Court framed charges

against him.

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

12 witnesses. Statement of the Appellant was also recorded under

Section 313 of the Code of Criminal Procedure in which he denied

the guilt, pleaded innocence and false implication. No witness has

been examined in his defence.

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

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

Hence, this appeal.

5. Learned Counsel appearing for the Appellant submitted that the

Appellant has been wrongly convicted by the Trial Court without

there being sufficient evidence on record. From the statements of

the prosecutrix (PW2) and her mother Chandrika (PW1), it appears

that Chandrika (PW1) herself had sent the prosecutrix along with

the Appellant. Thereafter, the Appellant and the prosecutrix

performed marriage. Therefore, if any physical relationship took

place between them, that was with the consent of the prosecutrix.

It was further argued that 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 on the date of incident. Since she was a

consenting party and she herself left home and joined the company

of the Appellant, conviction of the Appellant is not sustainable.

6. Opposing the above arguments, Learned Counsel appearing for

the State supported the impugned judgment. Referring to the

statement of Head Constable Yogeshwar Singh (PW12), it was

argued by Learned State Counsel that according to the entries of

birth-death register (Ex.P19C), date of birth of the prosecutrix is

30.12.1998. Therefore, it is well established that she was below 18

years of age at the relevant time. Hence, her consent cannot be

considered to be a valid consent. Therefore, conviction of the

Appellant is in accordance with the evidence available on record.

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

minutely perused the record of the Trial Court including the

statements of the witnesses.

8. As regards the incident, from the statements of the prosecutrix

(PW2) and her mother Chandrika (PW1), it is well established that

the Appellant had come to their house and told them that a

touchwood had affected their house and for removal thereof he

took the prosecutrix (PW2) and Shailu (PW10), other daughter of

Chandrika (PW1) along with him to a temple for performing a

worship. 15 days thereafter, he sent back Shailu (PW10) to her

house. In her Court statement, the prosecutrix (PW2) further

deposed that the Appellant took her to the temple and committed

sexual intercourse with her there. Thereafter, he took her to

Sultanpur (Uttar Pradesh) and kept her there for about 1 month.

There also, he continued to commit sexual intercourse with her.

She further deposed that at Sultanpur, her brother and sister-in-law

had come to her. But, she did not make them any complaint about

the alleged rape with her. She further admitted that till she lived

with the Appellant she roamed with him here and there freely and

did not make any complaint to anyone against him. She further

admitted that later on the Appellant himself took her back to

Kawardha. Her own sister Shailu (PW10) also admitted that till she

lived with the Appellant and the prosecutrix for 15 days, during that

period, talks took place between the Appellant and her brother

Dhaniram (not examined).

9. Chandrika (PW1), mother of the prosecutrix also admitted the fact

that when the Appellant was taking the prosecutrix (PW2) along

with him, at that time, she had given some clothes to the

prosecutrix and sent them happily.

10. On a minute examination of the above evidence adduced by the

prosecution, it is clear that the prosecutrix (PW2) was taken by the

Appellant with the permission of her mother Chandrika (PW1).

Later on, physical relationship developed between the Appellant

and the prosecutrix. From the conduct of the prosecutrix, it is also

well established that she had ample opportunity to come out of the

clutches of the Appellant, but she did not even try to do so nor did

she make any complaint against him at any place of her visit along

with him. Furthermore, when her brother Dhaniram visited them, at

that time also, she did not make him any complaint against the

Appellant. Thus, it is well established that whatever physical

relationship developed between them, that was with the consent of

the prosecutrix.

11. With regard to the age of the prosecutrix (PW2), it is not in dispute

that she is not an educated person and she never went to a school.

Therefore, no documentary evidence of any school record is

available regarding her date of birth. Though her mother Chandrika

(PW1) was unable to state her age, she deposed that the

prosecutrix was her third child and her age was about 16 years at

the relevant time. This statement of Chandrika (PW1) is not duly

rebutted during her cross-examination nor has she been put any

contrary suggestion. The prosecutrix (PW2) herself deposed that

her age was about 16 years. According to the birth-death register

(Ex.P19C), date of birth of the prosecutrix (PW2) is 30.12.1998.

Though there is some overwriting over the name of the prosecutrix

in the said document, Chandrika (PW1) and Shatruhan are shown

there to be mother and father of the prosecutrix, respectively and

the prosecutrix has been shown to be their third child. Chandrika

(PW1) also deposed in her Court statement that the prosecutrix is

her third child and this statement has remained unrebutted.

Therefore, I do not find any reason to disbelieve the entries of

Ex.P19C. From the unrebutted oral evidence of Chandrika (PW1)

and documentary evidence (Ex.P19C), it is clear that the

prosecutrix (PW2) was below 18 years of age at the relevant time.

Therefore, her consent for the physical relationship cannot be

considered to be a valid consent. Hence, conviction of the

Appellant is in accordance with the evidence available on record. I

do not find any merit in the appeal.

12. Consequently, the appeal is dismissed.

Sd/-

(Arvind Singh Chandel) JUDGE Gopal