Bharat Chauhan vs State Of Chhattisgarh
2021 Latest Caselaw 2392 Chatt

                                                                                               NAFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR

                              Criminal Appeal No.580 of 2017

                          Judgment Reserved on :                 6.9.2021

                          Judgment Delivered on :              17.9.2021

Bharat Chauhan, son of Dileshwar Chauhan, aged 22 years, resident of
Village Katbitla Vijaynagar, P.S. Urga, District Korba, Chhattisgarh
                                                                    ---- Appellant
                                     versus
State of Chhattisgarh through Police Station Urga, District Korba,
Chhattisgarh
                                                                 --- Respondent
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For Appellant : Shri Krishna Kumar Dewangan, Advocate For Respondent : Shri Akhtar Hussain, 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 20.1.2017

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

Trial No.49 of 2015, whereby the Appellant has been convicted and

sentenced as under:

Conviction Sentence

Under Section 376(2)(i) of Rigorous Imprisonment for 10 years the Indian Penal Code and fine of Rs.2000 with default stipulation Under Section 6 of the Rigorous Imprisonment for 10 years Protection of Children from and fine of Rs.2000 with default Sexual Offences Act, 2012 stipulation (henceforth 'the Pocso Act') All the jail sentences are directed to run concurrently

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

prosecutrix (PW1) was about 13 years. On 24.10.2015, her mother

Mainabai (PW2) lodged a report (Ex.P2) alleging therein that she

saw an impression of pregnancy on the stomach of the prosecutrix.

On being asked, she told her that the Appellant had come to their

house 7 months before and committed forcible sexual intercourse

with her. Later on also, he continued to commit sexual intercourse

with her. He had promised her to marry and had asked her not to

disclose about the incident to anyone. On the basis of the said

report, offence was registered. Statements of the prosecutrix and

other witnesses were recorded under Section 161 of the Code of

Criminal Procedure. During the course of investigation, the

prosecutrix gave birth to a male child. According to the report of

DNA (Ex.P24), it was found that the Appellant and the prosecutrix

are the biological father and mother of the said child. 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

17 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 statement of

the prosecutrix (PW1), it is well established that she was a

consenting party and the alleged commission of sexual intercourse

was done by the Appellant with her own consent. With regard to

the age of the prosecutrix, there is no conclusive evidence on

record on the basis of which it could be said that she was below 18

years of age at the relevant time. Though as per the entries of

Dakhil Kharij Register (Ex.P4C), the date of birth of the prosecutrix

is 8.2.2002, but these entries relate to the period when the

prosecutrix was admitted in the school in 6th standard. On what

basis these entries were recorded is not established and the person

who got the said entries recorded has also not been examined.

Therefore, the entries of Ex.P4C cannot be said to be reliable.

Referring to the statement of Mainabai (PW2), mother of the

prosecutrix, it was argued that she admitted that elder brother of

the prosecutrix was 22 years old and the prosecutrix was 1 year

younger to him. Therefore also, it is established that the

prosecutrix was above the age of 18 years. Therefore, conviction

of the Appellant 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

minutely perused the record of the Trial Court including the

statements of the witnesses.

8. With regard to the incident, in her Court statement, the prosecutrix

(PW1) deposed that in the month of March when she had gone to

attend the engagement ceremony of her brother, at that time, the

Appellant had taken her to an agricultural field and there he

committed forcible sexual intercourse with her. Since he had

threatened her to beat her, she did not disclose about the incident

to anyone. She further deposed that 15 days thereafter, on the

date of marriage of her brother, when she had gone to attend the

call of nature, at that time also, the Appellant committed sexual

intercourse with her and, therefore, she got pregnant. Later on, a

social meeting took place in which she told her pregnancy to be

from the Appellant.

9. Mainabai (PW2), mother of the prosecutrix deposed that when the

villagers told her about the pregnancy of the prosecutrix then she

asked her in this regard. At that time, the prosecutrix did not tell

her anything. Later on, when she called a social meeting then the

prosecutrix told that her pregnancy was from the Appellant. Then

the Appellant was also called in the meeting. On being asked, he

admitted his guilt.

10. From the statements of the prosecutrix (PW1) and her mother

Mainabai (PW2), it appears that the prosecutrix was a consenting

party because as stated by her, the two incidents of commission of

sexual intercourse with her took place with a gap of 15 days, but

she did not make any complaint about any of the said incidents.

Later on also, she did not make any complaint in this regard. Even

when her mother asked about her pregnancy, she did not tell her

about her pregnancy to be from the Appellant and did not make any

complaint in this regard. She disclosed about the incident for the

first time in the social meeting. Thus, from her above conduct, it is

established that she was a consenting party.

11. As regards age of the prosecutrix (PW1), in her Court statement,

she deposed that her date of birth is 8.2.2002. But, in paragraph

15 of her cross-examination, first she stated that her elder brother

was aged 21 years and he was 4 years older than her. She further

deposed that she did not know anything in this regard. Her mother

Mainabai (PW2) also deposed that the prosecutrix (PW1) was aged

about 15 years, but what was her date of birth was not known to

her. In paragraph 6 of her cross-examination, she also admitted

that age of her second child, i.e., son was about 22 years and the

prosecutrix was 1 year younger to him. Looking to the above

statements of the prosecutrix (PW1) and her mother Mainabai

(PW2), it appears that elder brother of the prosecutrix was about

21-22 years and the prosecutrix was aged about 20-21 years.

There is no clinching oral evidence available on record to show that

the prosecutrix was below 18 years of age. With regard to the date

of birth of the prosecutrix, Dakhil Kharij Register (Ex.P4C) in which

date of birth of the prosecutrix is mentioned as 8.2.2002 is available

on record. According to Ex.P4C, admission of the prosecutrix was

done in the school in 6th standard on 16.6.2012. Asha Sahu (PW3),

Incharge Headmistress of the school admitted that the entries of

Ex.P4C were recorded on the basis of the transfer certificate of 5 th

standard. Initially when the prosecutrix was admitted in the school

in 1st standard, at that time, who got the prosecutrix admitted in the

school and on what basis entries regarding her date of birth were

recorded in the school record, evidence in this regard are not

produced by the prosecution. Therefore, the prosecution does not

get support from Ex.P4C, particularly, considering the statement of

Mainabai (PW2), mother of the prosecutrix that age of the

prosecutrix was about 20-21 years.

12. Since the prosecutrix was a consenting party and there is no

conclusive evidence available on record on the basis of which it

could be established that she was below 18 years of age,

conviction of the Appellant is not sustainable.

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

conviction and sentence is set aside. The Appellant is acquitted of

all the charges framed against him.

Sd/-

(Arvind Singh Chandel) JUDGE Gopal