Chattisgarh High Court
Ajay Kumar @ Tekram vs State Of Chhattisgarh on 26 August, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No.281 of 2002
Judgment reserved on : 29.06.2022
Judgment delivered on : 26.08.2022
Ajay Kumar @ Tekram, S/o Gokaran Prasad Sahu, aged about 22
years, R/o Village Bhalapur, P. S. Kunda, District Bilaspur (C.G.) at
present Bhanpuri, Raipur, District Raipur (C.G.)
---- Appellant
Versus
State of Chhattisgarh through P. S. Urla, District Raipur (C.G.)
---- Respondent
For Appellant Mr. C. K. Kesharwani, Advocate
For Respondent Mr. Lalit Jangde, Dy. GA
Hon'ble Justice Smt. Rajani Dubey
C A V Order
1. The present appeal has been preferred against the judgment of
conviction and order of sentence dated 05.03.2001 passed by the
learned Special Judge, Special Court, Raipur (C.G.) under the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989, whereby the appellant has been convicted and
sentenced as under:-
Sr. Conviction Sentence
1. Section 363 of IPC RI for 3 years with fine of Rs.500/- and
in default of fine amount, additional RI
for one month
2. Section 366 of IPC RI for 4 years with fine of Rs.500/- and
in default of fine amount, additional RI
for one month
3. Section 376 of IPC RI for 10 years with fine of Rs.1000/-
read with Section 3 and in default of fine amount,
(2) (5) of the SC/ST additional RI for two months
(Prevention of
Atrocities) Act, 1989
2. Brief facts of the case are that on 23.11.199, the accused/appellant
kidnapped the minor girl/prosecutrix and took her to his relative
Parasram Sahu's house knowingly that she belongs to Scheduled
Caste Community and committed sexual intercourse with her
against her will. The father of the prosecutrix lodged missing report
of her daughter. On search being made, the prosecutrix was
recovered from the possession of the appellant, thereafter FIR was
registered against the accused/appellant. After completion of
investigation, the charge sheet was filed and the charges were
framed against the appellant for the aforesaid offences.
3. In order to prove the guilt of the accused/appellant, the prosecution
examined as many as 10 witnesses. Statement of the
accused/appellant was also recorded under Section 313 of CrPC, in
which he denied the circumstances appearing against him in the
prosecution case, pleaded innocence and false implication. The
accused/appellant did not examine any witness in his defence.
4. The learned Trial Court after appreciating the oral and documentary
evidence available on record convicted the appellant, as mentioned
in para 1 of this judgment. Hence, this appeal has been preferred by
the appellant.
5. Learned counsel for the appellant submits that the impugned
judgment is bad, illegal and against the law as well as the facts of
the case. The learned Trial Court has grossly erred in holding that at
the time of incident, the prosecutrix was a minor girl. PW-6 - Dr.
Deepak Rajput and PW-9 - Dr. Smt. N. Mukherjee have not given
the details of the development of the body of the prosecutrix and as
per report of the doctor, the age of the prosecutrix is between 15-16
years, but as per settled legal propositions of medical jurisprudence,
there is a possibility of 3 years plus or minus in the age, as such
there is a possibility that her age might be over 18 years. He further
submits that looking to the statement of the prosecutrix, she is a
consenting party, therefore, no offence is made out against the
appellant. The learned Trial Court has grossly erred in marshaling
of evidence on record, as such the finding of Trial Court is not
sustainable in the eyes of law, therefore, the judgment of conviction
and order of sentence is liable to be set aside. Learned counsel has
placed his reliance on the judgment rendered by the Hon'ble
Supreme Court in the matter of Sunil vs State of Haryana 1 and in
the matter of Rajkumar and another vs State of C.G. 2 rendered by
this Court.
6. On the other hand, learned State counsel supports the impugned
judgment of conviction and order of sentence and submits that the
prosecution has proved its case beyond reasonable doubt,
therefore, the appeal deserves to be dismissed.
7. Heard learned counsel for the parties and perused the material
available on record.
8. The learned Trial Court recorded a finding that as per the parents of
the prosecutrix, age of their daughter is about 15 years and as per
radio-logical report, the age of the prosecutrix is 15-16 years and
1 (2010) 1 CCSC 258 (SC)
2 2016 (3) CGLJ 550
gave its finding that on the date of incident, the age of the
prosecutrix was below 18 years. PW-6 Dr. Deepak Rajput found
that as per x-ray report, the age of the prosecutrix is 15-16 years
and gave his report vide Ex-P/6. In cross-examination, he admitted
that as per radio-logical report, age may be 2 years plus or minus.
The prosecutrix (PW-2) admitted in her cross-examination that she
went with the appellant by walking and thereafter by bus, but she
did not tell to anybody about the same. She admitted in paras 8 & 9
that there were many passengers but she did not tell anybody about
it. In para 11, she admitted that ";g ckr lgh gS fd tc vkjksih dh cgu
izlo djkus ckgj pyh xbZ] rc ?kj dk dkedkt vkSj ikuh Hkjus dk dke eSa
djrh Fkh vkSj ikuh Hkjus ds fy;s eSa ckgj Hkh tkrh FkhA bl chp esjh
ikl&iM+ksl ds yksxksa ls ckrphr gksrh FkhA". In para 12 on being asked
about photo (Ex-D/1), she admitted that for photography, she was
forcefully taken to the studio, but she did not tell the photographer
that she has been brought forcefully. Thus, as per the statement of
the prosecutrix, it is clear that she went with the appellant on her
own will and the evidence in this regard clearly shows that she is a
consenting party to the incident and out of her own free will she
accompanied the accused. As per x-ray report, the age of the
prosecutrix was 16-18 years, but as per medical jurisprudence,
there is a possibility of 3 years plus or minus in the age, as such
there was a possibility that her age may be over 18 years.
9. The learned Trial Court on the basis of caste certificate (Ex-P/5-A)
recorded a finding that the prosecutrix belongs to the Scheduled
Caste Community, but the said caste certificate was issued by the
President, Administerial Committee, Village Panchayat Birgaon and
not by competent authority, therefore, the prosecution has failed to
prove the fact that the prosecutrix belongs to the Scheduled Caste
Community and even otherwise she went with the appellant on her
own free will.
10. The Hon'ble Apex Court as well as this Court in Sunil (supra) and
Rajkumar (supra) held that where the prosecutrix is a consenting
party and prosecution has failed to prove her age below 18 years,
then the offence of kidnapping, abduction and rape is not proved. In
the case in hand, the prosecution has failed to prove that the
prosecutrix is below 18 years, as such the prosecution has utterly
failed to prove its case beyond reasonable doubt. The learned Trial
Court is not justified in making proper assessment of evidence while
recording its finding. Under these circumstances, the benefit of
doubt certainly has to go with the appellant.
11. In view of the foregoing discussions, particularly the statements of
the prosecutrix, the medical evidence available on record as also
the conduct of the prosecutrix, this Court has no hesitation to say
that the prosecutrix was a consenting party to the act of the
appellant. In these circumstances, the appellant is definitely entitled
to be acquitted of the charges leveled against him by extending him
benefit of doubt.
12. In the result, the appeal is allowed. The conviction of the
accused/appellant under Sections 363, 366 & 376 of IPC read with
Section 3 (2) (5) of the SC/ST (Prevention of Atrocities) Act, 1989
and sentenced imposed thereunder are hereby set aside. He is
acquitted of the said charges by extending him benefit of doubt. The
accused/appellant is on bail. His bail bonds shall stand discharged.
Sd/-
Rajani Dubey
Judge
Nirala
