Gajesh @ Gajendra Sahu vs State Of Chhattisgarh
2022 Latest Caselaw 2476 Chatt

                                   1

                                                                  NAFR

        HIGH COURT OF CHHATTISGARH, BILASPUR

                         CRA No. 1171 of 2017

                  Judgment Reserved on 22.02.2022

                  Judgment Delivered on 18.04.2022

    Gajesh @ Gajendra Sahu, S/o Kaushal Sahu, aged about 24
      Years, Labour Worker, R/o Village Kaitha, Police Station
      Bilaigarh, Civil and Revenue District Baloda Bazar Bhatapara,
      Chhattisgarh.

                                                            ----Appellant

                                Versus

    State of Chhattisgarh, Through the Station House Officer, Police
      Station Bilaigarh, Civil and Revenue District Baloda Bazar
      Bhatapara, Chhattisgarh.

                                                         ----Respondent

For Appellant           Mr. Uttam Pandey, Advocate.
For State               Ms. Deepti Shukla, Panel Lawyer.

                Hon'ble Shri Justice Gautam Chourdiya
                            C A V Judgment

1. In this appeal filed under Section 374(2) Cr.P.C., the appellant

has challenged the legality, validity and propriety of the judgment

of conviction and order of sentence dated 10.07.2017 passed by

the Additional District and Sessions Judge (F.T.C.), Baloda-Bazar,

C.G. in Special Sessions Trial No.07/2016, whereby and

whereunder the appellant stands convicted under Sections 363,

366A, 376(1) of Indian Penal Code and Section 6 of Protection of

Children from Sexual Offences Act, 2012, and considering the

provisions of Section 42 of the POCSO Act, he has been

sentenced as under:-

Conviction Sentence

Under Section 6 of the Rigorous Imprisonment for ten Protection of Children from years and fine of Rs.5,000/-, in Sexual Offences Act, 2012 default of payment of fine to further undergo rigorous imprisonment for one year

Under Section 363 of Indian Rigorous Imprisonment for three Penal Code (for short "IPC") years and fine of Rs.1,000/- in default of payment of fine to further undergo rigorous imprisonment for three months

Under Section 366(A) of IPC Rigorous Imprisonment for five years and fine of Rs.2,000/- in default of payment of fine to further undergo rigorous imprisonment for five months

(All sentences were directed to run concurrently)

2. Case of the prosecution, in brief, is that on 11.12.2015, father of

the prosecutrix, lodged an oral report at police station Bilaigarh

alleging in it that on 10.12.2015 at about 7:00 am her

daughter/prosecutrix, aged about 15 years, had gone to school

but at about 12:00 pm she did not return to her home. Then, he

started searching in village and one villager/relative namely Teras

Jaiswal informed him over telephone that clothes and identity

card of his daughter/prosecutrix are lying near canal. Thereafter,

he went there and identified the same. Based on this, a missing

report bearing No.39/2015 was registered and during enquiry, on

suspicion the appellant was arrested and FIR Ex.P-25 was

registered. During investigation, the prosecutrix was recovered

from the custody of Madav Ram as per recovery memo vide

Ex.P-1. It is alleged that prior to the date of incident i.e.

10.12.2015, the prosecutrix and the appellant were on talking

terms and both of them shared their mobile numbers to each

other. On the date of incident, appellant took away the

prosecutrix to Govidnan Talab on motorcycle and from there, they

went to the village Limtari and Maharaji Forest where appellant

committed forcible sexual intercourse with her. Thereafter,

appellant took the prosecutrix to the house of his maternal uncle

where they stayed at night. Next morning, appellant again took

her to the forest and told her that he loved her and if she left her

he would consume poison and repeatedly committed forcible

sexual intercourse with her. It is also alleged that when appellant

went Girodhpuri for bringing food, at that time father of the

prosecutrix saw him and asked him to stop but he did not stop

and ran away from there. Thereafter, he/father of the prosecutrix

followed the appellant and caught him. Then, appellant took him

to the forest where he found the prosecutrix. Then, father of the

prosecutrix and prosecutrix went to the police station Bilaigarh

and lodged the FIR Ex.P-25 against the appellant. After obtaining

consent of the prosecutrix and her parents vide Exs. P-11 and

P-13 respectively, prosecutrix was sent for medical examination

where she was examined by PW-6 Dr. Jayshree Shandilya and

she gave her MLC report dated 16.12.2015 vide Ex.P-9 wherein

she observed as under:-

Mark of identification - A mole on right side of face near eyes, her secondary sex character well developed, no sign of struggle on the body seen.

Advice - Urine pregnancy rest, result- negative

Examination of private parts - 1. Hymen old healed lacerated duration of which is more than one month. 2. White curdy discharge seen from vagina. 3. Vagina and vulwa appears normal in colour. Swab taken from vagina and vulwa respectively marked as 1 & 2. Slide seen under microscope show no sperm particles. Slide packed and sealed and handed over to some lady constable to be examined at Government Forensic Laboratory.

Opinion- She had gone act of intercourse.

3. Accused/appellant was also sent for medical examination where

he was examined by PW-9 Pushpendra Vaishnav vide Ex.P-17

and was found capable of performing sexual intercourse.

4. During investigation, undergarment of prosecutrix was seized

vide Ex.P-2, one class 8th progress report was also seized vide

Ex.P-4 showing the date of birth of prosecutrix is 06.09.2001,

slides prepared were seized vide Ex.P-5, one motorcycle Hero

Passion was seized from the appellant vide Ex.P-6, underwear of

appellant was also seized vide Ex.P-7, spot map was prepared

vide Ex.P-14, from the Maharaji Forest, clothes of the prosecutrix

and appellant were seized vide Exs. P-15 & P-16 respectively,

seized articles were sent to FSL for chemical examination vide

Ex.P-22 and appellant was arrested on 24.12.2015 vide Ex.P-20.

5. Statements of the witnesses were recorded. After completion of

investigation, charge sheet was filed against the appellant under

Sections 363, 366, 376 of Indian Penal Code and Sections 4, 6 &

10 of the Protection of Children from Sexual Offences Act, 2012.

The trial Court framed the charges under Sections 363, 366-d

and 376(1) of Indian Penal Code and Section 6 of the Protection

of Children from Sexual Offences Act, 2012 against the appellant

which were denied by him and he prayed for trial.

6. So as to hold the accused/appellant guilty, the prosecution

examined as many as 11 witnesses i.e. PW-1 Mother of the

Prosecutrix, PW-2 Prosecutrix, PW-3 Madhoram Rakesh, PW-4

Shivnarayan Rakesh, PW-5 Shiv Prasad Jaiswal, PW-6

Dr. Jayshree Shandilya, PW-7 Father of the Prosecutrix, PW-8

Horilal, PW-9 Dr. Pushpendra Vaishnav, PW-10 Mukesh Kumar

Patel and PW-11 U.K. Bhoi. Statement of the accused/appellant

was also recorded under Section 313 of Cr.P.C. in which he

denied the incriminating circumstances appearing against him in

the prosecution case, pleaded innocence and false implication. In

his defence, he has examined three witnesses i.e. DW-1

Purshottam Lal Teli, DW-2 Kaushal Prasad Sahu and DW-3

Maheshwar Sahu.

7. The trial Court after hearing counsel for the respective parties

and considering the material available on record, by the

impugned judgment convicted and sentenced the appellant as

mentioned in para-1 of this judgment.

8. Learned counsel for the appellant submits that the trial Court has

not properly appreciated the overall evidence available on record

for holding the appellant guilty. He submits that there is nothing

on record to show that the prosecutrix was minor at the time of

incident. There are material contradictions and omissions in the

statements of the prosecutrix and other witnesses. No cogent

evidence is available on record against the appellant. He also

submits that no specific date of birth of the prosecutrix was

proved by the prosecution nor any documentary evidence was

given by the parents of the prosecutrix regarding her age. He

further submits that an entirely a new fact has been developed by

the prosecution through the deposition of PW-7 Father of the

prosecutrix that when he along with the appellant went inside the

jungle, he found the prosecutrix tied with a tree whereas no such

fact is mentioned either in the statement of the prosecutrix under

Sections 161 of Cr.P.C. or 164 of Cr.P.C. or the deposition before

the Court. As per Ex.P-12, statement of the prosecutrix recorded

under Section 164 of Cr.P.C., both the appellant and prosecutrix

were known to each other, they were on talking terms and had

shared their mobile numbers with each other. He also submits

that on the date of incident, prosecutrix had gone with the

appellant at village Limtari and thereafter they visited several

places and at that point of time prosecutrix did not cry for any

help until her father saw her. Looking to the entire conduct of the

prosecutrix, it is clear that she was having affair with the

appellant and on the date of incident willingly accompanied him.

As such, she was a consenting party to the act of the appellant

and being so the impugned judgment is liable to be set aside and

the appellant be acquitted of the aforesaid charges.

9. On the other hand, supporting the impugned judgment learned

counsel for the State submits that conviction and sentence of the

accused/appellant are strictly in accordance with law and there is

no illegality or infirmity in the same warranting interference by this

Court.

10. Heard learned counsel for the parties and perused the material

available on record.

11. First this Court has to see whether on the date of incident the

prosecutrix was below the age of 18 years or not.

12. In the matter of Jarnail vs State of Haryana reported in (2013) 7

SCC 263, the Hon'ble Supreme Court has observed that a manner

of determining age of a minor conclusively has been expressed in

Rule 12(3) of the Juvenile Justice (Care and Protection of

Children) Rules, 2007, even though Rule 12 of the Rules 2007 is

strictly applicable only to determine age of a child in conflict with

law, the aforesaid statutory provision should be the basis for

determining age even of a child who is a victim of crime for there is

hardly any difference insofar as the issue of minority is concerned

between a child in conflict with law and a child who is a victim of

crime.

13. Section 94 of the Juvenile Justice (Care and Protection of

Children) Act, 2015 which deals with presumption and

determination of age reads as under:-

Presumption and determination of age:- (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.

14. In this case, no such document as contemplated under Rule 12

of the Rules 2007 concerning the age of the prosecutrix has been

either produced or proved by the prosecution. There is only one

document i.e. the progress report of class 8th of the prosecutrix

showing her date of birth as 06.09.2001 but that document was not

tendered in evidence and also not proved in accordance with law.

As per the prosecution, the prosecutrix was studying in class 9 th at

the relevant time but no school record of the prosecutrix has been

produced by the prosecution in the form of documentary evidence

to prove her minority on the date of incident.

15. PW-6 Dr. Jayshree Shandilya who medically examined the

prosecutrix on 16.12.2015 noticed that there was no sign of

struggle on her person, her secondary sexual characteristics were

fully developed, her hymen was old torn. This witness states that

as the prosecutrix was not sent to her for age determination, her

ossification test was not got conducted.

16. PW-1 Mother of the prosecutrix in para 10 of her cross-

examination states that she is unable to tell the day, month or year

of her marriage and likewise, she cannot tell the date of birth or

year or month of any of her children. She does not even know as

to on which date or year the prosecutrix was admitted to school.

Though, the prosecutrix in para 6 of her deposition states that she

is 14 years of age and her date of birth is 06.09.2001 but no

document to substantiate the aforesaid oral evidence has been

produced and proved by the prosecution.

17. PW-7 Father of the prosecutrix in para 10 of his deposition also

states that he is unable to tell the date of birth of his elder daughter

Durga. No specific date of birth of the prosecutrix or even the year

of her birth has been mentioned by her father. He has only stated

in para 1 of his deposition that the prosecutrix is 14 years and 3

months old. However, looking to the aforesaid oral evidence of the

prosecutrix and her parents regarding her age, their statements

recorded under Section 161 of Cr.P.C. need to be considered for

the purpose of determining the age of the prosecutrix.

18. PW-1 Mother of the prosecutrix in para 1 of her deposition states

that her elder daughter Durga is 18 years old whereas in her

statement under Section 161 of Cr.P.C., she states that Durga is

16 years old. As such, there is gap of two years in the age of her

elder daughter as per her deposition and case diary statement.

She does not state as to when her marriage was performed. In her

case diary statement, she states that the prosecutrix is 15 years

old whereas in her deposition, she mentions the age of the

prosecutrix as 14 years. Thus, the mother of the prosecutrix is

making different statement as to the age of the prosecutrix,

therefore, it would not be safe to hold the prosecutrix below the

age of 18 years on the basis of such oral evidence, particularly

when no school record concerning the age of the prosecutrix or

any document as contemplated under Section 94 of the Juvenile

Justice (Care and Protection of Children) Act, 2015 for

determination of age of the prosecutrix has been produced or

proved by the prosecution.

19. Likewise, PW-7 Father of the prosecutrix in his deposition states

that the prosecutrix is 14 years and 3 months old whereas in his

case diary statement, he mentions her age as 15 years. This

witness is unable to tell the specific date of birth of the prosecutrix

and even could not tell the year of her birth in his deposition.

20. In this case, no ossification test of the prosecutrix was conducted

by the prosecution though it is not a rule that such test must be

performed in all cases but in the instant case in absence of primary

evidence, ossification test of the prosecutrix would have helped in

arriving at the conclusion regarding the age of the prosecutrix.

21. Considering the contradictions in the statements of parents of the

prosecutrix as to the age of the prosecutrix and further for want of

any conclusive proof showing the prosecutrix to be minor on the

date of incident, this Court is of the opinion that the prosecution

has not been able to prove that the prosecutrix was below 18

years of age on the date of incident and as such, the finding of the

trial Court that the prosecutrix was minor at the relevant time is not

liable to be sustained.

22. The next question which now arises for consideration of this

Court is whether the prosecutrix was a consenting party to the act

of sexual intercourse of the appellant or not.

23. In her statement under Section 164 of Cr.P.C., the prosecutrix

states that the appellant was known to her, they were on talking

terms and exchanged their mobile numbers. In her statement

under Section 164 of Cr.P.C. as also in her deposition, she states

that on 10.12.2015 she was going to her school at 7:00 am and on

the way she went to buy a pen, at that time the accused came

there on bike and forcibly took her towards Maharaji Forest and

kept her there having tied her with a rope and committed forcible

sexual intercourse with her. In her cross-examination, she states

that the accused made her change her school dress and that while

she was being taken on motorcycle, she did not raise any hue and

cry nor did she try to jumpoff the vehicle. However, she clarifies

that she did not attempt to escape from there as the appellant had

threatened her of life.

She admits that when she was taken to village Limtari, she

also did not try to disclose about the incident to any of the villagers

and even while living in the house of maternal uncle of the

appellant, she did not tell anyone about the incident. In para 8 of

her deposition, she states as the appellant had told that he would

marry her and if she refused, he would commit suicide by

consuming poison, therefore, due to fear she did not offer any

resistance. On the contrary, in her cross-examination, she states

that she did not try to escape or raise hue and cry as the appellant

had threatened her of life. As per medical evidence, no bodily

injury was found on the body of the prosecutrix vide Ex.P-9. From

paras 9 to 15 of her deposition, it is evident despite having

opportunity of escaping from the clutches of the appellant, she

made no effort to do so and also did not disclose about the said

incident to anyone or raise any hue and cry to attract the attention

of the passers-by for her help. She remained with the appellant for

about 5-6 days and during this period at no point of time she

disclosed about the incident to anyone coming in contact with her.

24. The prosecutrix as also her father have stated in their depositions

that the prosecutrix was tied with a rope by the appellant.

However, no such rope has been seized by the police and from

perusal of their case diary statements as also the statement of the

prosecutrix under Section 164 of Cr.P.C., it is seen that they have

nowhere stated that the prosecutrix was tied with a rope by the

appellant in the forest. It appears that they have tried to develop a

new story to show that the sexual intercourse committed by the

appellant with the prosecutrix was against her will and without her

wishes.

25. PW-8 Horilal, Maternal Uncle of the appellant, states that the

appellant came to his home with the prosecutrix, introduced her to

him as sister of his friend and they stayed at his home in the night

and left his home next morning at 4 O'clock. He also states in his

examination-in-chief that the prosecutrix slept with his wife at night.

This witness has nowhere stated that the prosecutrix made any

complaint to them about her kidnapping or forcible sexual

intercourse by the appellant.

26. The appellant has examined three witnesses in his defence i.e.

DW-1 Purshottam Lal Teli (Uncle of the appellant), DW-2 Kaushal

Prasad Sahu (Co-worker in the welding shop) and DW-3

Maheshwar Sahu (Owner of the welding shop where the accused

worked). All these three witnesses have stated that on 14.12.2015,

the appellant was working in the welding shop and from there he

was taken away forcibly by the police. However, the evidence of

these defence witnesses, who are interested witnesses, does not

inspire confidence in view of the unrebutted oral and documentary

evidence on record proving the presence of the appellant with the

prosecutrix when she was recovered on 15.12.2015. As such, the

evidence of the defence witnesses is of no help to the appellant.

27. In the matter of Sunil vs State of Haryana reported in (2010) 1

SCC 742, the Hon'ble Supreme Court has observed that the

appellant and the prosecutrix belong to the same caste and Gotra,

he was visiting the house of the prosecutrix frequently, she fell in

love with the appellant and eloped with him. Though it was alleged

that the appellant abducted the minor prosecutrix and subjected

her to forcible sexual intercourse on the threat of life, the

prosecution failed to prove the minority of the prosecutrix, she was

found habitual to sexual intercourse and her secondary sexual

characteristics were well developed as per clinical report. It was

further observed by the Hon'ble Supreme Court that the

prosecutrix was in love with the appellant, never resisted being

repeatedly deflowered by him, non-performance of test for proving

the age of the prosecutrix prescribed by the Doctor is a serious

flaw in prosecution version and in such circumstances, it was held

that the appellant is clearly entitled to the benefit of doubt and

consequently the appeal filed by him was allowed acquitting him of

all the charges.

28. In the matter of Sushil Lohar vs. State of C.G. reported in

2013(1) C.G.L.J. 347, this Court considering the fact that age of

the prosecutrix was recorded in the school on the basis of

assumption as 24.06.1996 but there is no source for such

recording of date of birth, medical evidence shows development of

her secondary sexual characteristics, held that she was not minor

on the date of incident and further considering that she visited

several places with the appellant without protest held her a

consenting party to the act of the appellant and thus set aside the

conviction of the appellant.

29. In the present case, considering the entire facts and

circumstances of the case, the conduct of the prosecutrix during

the incident and subsequent thereto, she visited several places

with the appellant but at no point of time raised any hue and cry,

offered any resistance to the act of the appellant or disclosed

about his act to any of the persons despite having opportunity to

do so; the contradictions and omissions in the statements of

prosecutrix and her parents on material particulars, as discussed

above, the medical evidence lending no support to the prosecution

case, keeping in view the judgment of Hon'ble Supreme Court in

the matter of Sunil (supra) as also the judgment passed by this

Court in Sushil Lohar (supra), this Court is of the opinion that the

act of sexual intercourse between the prosecutrix and the

appellant was not forcible but was consensual one. Since, this

Court has already held in the preceding paragraph that the

prosecution has failed to prove beyond all reasonable doubt that

the prosecutrix was below 18 years of age on the date of incident,

the appellant is entitled to be given the benefit of doubt and

accordingly, the conviction of the appellant under Section 6 of the

Protection of Children from Sexual Offences Act, 2012 and

Sections 363 and 366(A) of IPC are liable to be set aside and he

deserves to be acquitted of the said charges.

30. In the result, the appeal is allowed. Conviction and sentence

imposed on the appellant under Section 6 of the Protection of

Children from Sexual Offences Act, 2012 and Sections 363 and

366(A) of IPC are set aside and he is acquitted of the said charges

by extending him benefit of doubt. The fine amount, if any,

deposited by the appellant be refunded to him.

31. The appellant is reported to be in jail, therefore, he is directed to

be released forthwith, if not required to be detained in connection

with any other offence, on his execution of a personal bond for a

sum of Rs.1,00,000/- with one equivalent surety to the satisfaction

of the concerned trial Court for his appearance before the higher

forum as and when required in view of provisions of Section 437A

of Cr.P.C.

Sd/-

Gautam Chourdiya Judge

Akhilesh