Pradeep Yadav vs State Of Chhattisgarh
2022 Latest Caselaw 7541 Chatt

                                                  1

                                                                                           NAFR

                  HIGH COURT OF CHHATTISGARH, BILASPUR

                           Criminal Appeal No. 1012 of 2004

   Pradeep S/o. Roopdhar Yadav, Aged about 19 years, Occupation
   Labour, R/o. Gandhi Nagar, Udisa Road, P.S. Kotawali, District Raigarh
   (CG).

                                                                             ---------Appellant

                                              VERSUS



   State of Chhattisgarh through Police Station A.J. K. Raigarh, District
   Raigarh (Chhattisgarh)

                                                                        ----------Respondent

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For the Appellant : Mr. Anuroop Panda Advocate on behalf of Mr. B.D. Guru, Advocate For the State/Respondent : Ms. Ishwari Ghritlahare, PL

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Hon'ble Shri Justice Narendra Kumar Vyas Order on Board

14.12.2022

1. This appeal is directed against the judgment dated 18-11-2004 passed

by the Special Judge, Raigarh in Special Criminal Case No. 13/2004

whereby the appellant has been convicted under Sections 376 IPC and

3(1) (xii) of the Scheduled Castes and the Scheduled Tribes (Prevention

of Atrocities) Act, 1989 and sentenced him to undergo RI for 10 years

with fine of Rs. 5000/- and R.I. for 4 years with fine of Rs. 3,000/-

respectively and default stipulations with a direction to run the sentences

concurrently.

2. Brief facts of the case are that on 31.01.2004 FIR (Ex.P/1) was lodged

by the prosecutrix, alleging in it that eight months prior to the date of

incident, when the prosecutrix (PW-1) was returning after call of nature,

then the appellant caught hold of her, forcefully took her to the

unfinished house of Chhui Satnami, where he committed sexual

intercourse with her on the pretext of marriage. Thereafter, many a time,

he committed sexual intercourse with her on the assurance of marriage.

It is alleged that when she became pregnant, the appellant had tried to

give her abortion pill but she had refused to take the same and at that

time the prosecutrix was carrying five months of pregnancy and

thereafter a Panchayat meeting was convened at the village but the

appellant and his family members had refused to keep her in their

house. Based on the complaint, FIR (Ex.P/1) was lodged against the

appellant.

3. After completion of the investigation, charge sheet was filed against the

appellant for the offence under Sections 376 IPC and 3(1)(xii) of

Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act.

Statement of the accused/appellant was recorded under Section 313 of

the Code of Criminal Procedure in which he denied the allegation made

against him and pleaded his innocence and false implication in the case.

4. To bring home the guilt of the appellant the prosecution has examined

as many as 12 witnesses namely Sukhkunwar (PW-1), Sanjay Somawar

(PW-2), Manbodhiram (PW-3), Ramaiya Mahi (PW-4), in charge head

mistress Smt. Itishree Adhikari (PW-5),Dwarika Prasad (PW-6), Piplal

Nirala (PW-7), Sudhlal (PW-8), Sub-Inspector Arvind Minj (PW-9), Dr.

D.K. Tandon (PW-10), J.D. Kaushale (PW-11) and Dr. J. Ekka (PW-12)

and exhibited documents from Ex.P-1 to Ex.P19. The appellant in his

defense has examined Incharge head master Shesdeo Dubey (DW-1).

5. After hearing the parties, the Court below has convicted and sentenced

the appellant as mentioned in paragraph No.1 of this judgment.

6. Counsel for the appellant would submit that the trial Court has not

properly appreciated the evidence available on record for holding the

appellant guilty. He would further submit that the prosecution was unable

to prove the age of the victim/prosecutrix, according to the defence the

age of the victim is about 16 years. 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. Counsel for the appellant would further

submit that as per material placed on record there was love affair

between the appellant and the victim and the allegation of rape is

improbable and it is convincingly revealed from the materials available

that it was only consensual sexual inter course, therefore, no offence

under Section 376 IPC is made out. 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.

7. On the other hand, counsel for the respondent/State supports the

judgment impugned and submits that looking to the statement of the

prosecutrix describing the manner in which the incident of rape has

taken place, no interference with the same is called for.

8. I have heard learned counsel for the parties and perused the material

available on record.

9. This Court vide order dated 03.10.2007 had granted bail to the

appellant, again the appellant was put behind the bar as he has violated

certain conditions of the bail granted to him. He is in jail since

21.01.2020 and he has already suffered about six years and 4months of

jail sentence.

10. Prosecutrix (PW-1) has stated in her examination-in-chief that the

appellant has committed forceful sexual intercourse with her and when

she objected then the appellant assured her that he will marry with her

therefore, the prosecutrix had not disclosed the incident to anybody. She

has further stated that the appellant has committed 4-5 times sexual

intercourse with her and when she became pregnant then he refused to

marry her. She further stated that a Panchayat meeting was called in the

village in which the partents of the appellant were also present there but

they have denied to keep the prosecutrix with them, thereafter, she

lodged the FIR (Ex.P-1) against the appellant before the police station.

In the cross-examination, she has stated that the place of occurrence is

an open place where the people of locality used to go here and there for

call of nature. But in the police statement, the prosecutrix (PW-1) has

stated that the appellant had committed sexual intercourse with her in

the house of Chhui Satnami. This witness has voluntarily stated that the

appellant assured her that he will marry her, therefore, she has not made

any noise or complaint. Again in the cross-examination, she has stated

that she has not informed the incident to anybody until she became

pregnant. She has also admitted that whenever the accused/appellant

called her she met him and accused committed sexual intercourse with

her many a time. The witness has voluntarily stated that the accused

used to say that he will perform marriage with her therefore, whenever

he called she used to visit the appellant. She has also stated that the

parents of the accused refused to marry and also keep her in their house

then she lodged the FIR (Ex.P-1) against the appellant in police station.

11.Smt. Itishree Adhikari (PW-5) In-charge head mistress who had

exhibited Dakhil Kharij register (Ex.P-5) wherein the date of birth of

prosecutrix is mentioned as 24.06.1991. In the cross-examination, this

witness has stated that the date of birth has been recorded on the basis

of statement given by the parents of the prosecutrix but no enquiry has

been conducted with regard to the truthfulness of the date of birth of the

prosecutrix. No date of birth certificate was produced before the trial

Court to establish the date of birth of the prosecutrix and no one was

examined to prove the date of birth of the prosecutrix as recorded in the

Dakhil Kharij register.

12.Dr. J. Ekka (PW-12) conducted the medical examination of the

prosecutrix vide Ex.P-18. According to her, the prosecutrix was carrying

pregnancy of 3-4 months and the prosecutrix was habitual to sexual

intercourse. She has advised for x-ray for determination of age of the

prosecutrix.

13.The main limb of submission of the appellant is that there was

consensual sexual inter course on the victim and the age of the

prosecutrix has not been proved as per section 35 of the Evidence Act.

To examine the issue of age of the prosecutrix it is required that the

documents should have been proved as per the provisions of Section 35

of the Evidence Act. For better understanding this issue it is expident for

the Court to extract Section 35 of the Evidence Act reads as under:-

Section 35 of the Evidence Act:-

Relevancy of entry in public 1 [record or an electronic record] made in performance of duty.--An entry in any public or other official book, register or 1[record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or 1[record or an electronic record] is kept, is itself a relevant fact.

14. From bare perusal of provisions contained in Section 35 of the Evidence

Act, it is reflected that the date of birth recorded in the Dakhil Kharij

register should have been proved by examining the parents of the victim

or other person having special knowledge about their date of birth. The

parents or near relation having special knowledge are best persons to

depose about the date of birth of the victim. It is well settled that if entry

regarding date of birth in the register is made on the information given by

the parents or someone having special knowledge of the fact the same

would have probative value. From the evidence also it is not clear that

the entry was made by the PW-5 in the Dakhil Kharij register, therefore,

it has no evidenciary value. This issue has come up for consideration

before the Hon'ble Supreme Court in the case of Birad Mal Singhvi v.

Anand Purohi 1988 (Supp) SCC 604 wherein the Hon'ble Supreme

Court has held as under:-

15. The High Court held that in view of the entries contained in the Ex. 8, 9, 10, 11 and 12 proved by Anantram Sharma PW 3 and Kailash Chandra Taparia PW 5, the date of birth of Hukmichand and Suraj Prakash Joshi was proved and on that assumption it held that the two candidates had attained more than 25 years of age on the date of their nomination. In our opinion the High Court committed serious error. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. In Raja Janaki Nath Roy & Ors. v. Jyotish Chandra Acharya Chowdhury, AIR 1941 CAL. 41 a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence

to show on what material the entry in the register about the age of the plaintiff was made. The principle so laid down has been accepted by almost all the High Courts in the country, see Jagan Nath v. Moti Ram Moti Ram & Ors., [1951] Punjab 377; Sakhi Ram & ors. v. Presiding Officer, Labour Court, North Bihar, Muzzafarpur & Ors., [1966] Patna 459; Ghanchi Vora Samsuddish Isabhai vs. State of Gujarat,[1970] Gujarat 178 and Radha Kishan Tickoo & Anr. v. Bhushan Lal Tickoo & Anr., [1971] J & K 62. In addition to these decisions the High Courts of Allahabed, Bombay, Madras have considered the question of probative value of an entry regarding the date of birth made in the scholar's register or in school certificate in election cases. The Courts have consistently held that the date of birth mentioned in the scholar;s register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined,see Jagdamba prasad v. Sri Jagannath Prasad & Ors., 42 ELR 465; K. paramalali v. L.M. Alangam & Anr., 31 ELR 401 and Krishna Rao Maharu Patil v. Onkar Narayan Wagh, 14ELR 386.

15. Hon'ble Supreme Court in the case of Ravinder Singh Gorkhi Vs.

State of UP (2006) 5 SCC 584 wherein the Hon'ble Supreme Court has

held as under:-

16. In terms of the aforementioned decision of the Constitution Bench such determination is required to be made even if at the relevant time, the juvenile crossed the age of eighteen years. In absence of any other statute operating in the field, Sectiion 35 will have application and the court, while determining such age would depend upon the materials brought on records by the parties which would be admissible in evidence in terms of Section

35 of the Act.

26. In Birad Mal Singhvi v. Anand Purohi [1988 Supp. SCC 604], this Court held:-

"To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.".

16. In view of the above facts and circumstances, it does not appear to this

Court that in light of the evidence of the Head Mistress, further in light of

the evidence of prosecutrix (PW-1) and the entry made in the Dakhil

Kharij register regarding the date of the victim it cannot be held that the

victim was below the age of 16 years. Thus, finding recorded by the

learned trial Court that victim is below 16 years therefore, any consent

given by her for sexual intercourse cannot be said to be consent and

thus the victim is not consenting party is perverse contrary to the record

and deserves to be set aside.

17. From the evidence adduced by the prosecution, particularly the

statement of the prosecutrix who has categorically stated that the

appellant has done sexual intercourse with her on the pretext of

marriage and whenever the appellant has done the sexual intercouxe

she has not raised any objection and also did not make any noise to

escape from the hands of the appellant on the count that the appellant

will marry with her. She has also stated that she knew the accused. The

evidence of the prosecutrix would clearly demonstrate that there was

consensual sexual inter course. Since the prosecutrix was not below the

age 16 years and the evidence brought on record would demonstrate

that she is a consenting party, therefore, on the pretext of marriage,

sexual inter course committed by the appellant will fall within the ambit of

rape or not, has been examined by the Hon'ble Supreme Court in the

case Maheshwar Tigga vs. State of Jharkhand (2020)10 SCC 108

wherein the Hon'ble Supreme Court has held paragraph 17,18, 19 and

20 which is as under:-

17. This court recently in Dhruvaram Murlidhar Sonar vs. The State of Maharashtra and Others, AIR 2019 SC 327 and in Pramod Suryabhan Pawar vs. State of Maharashtra and another, (2019) 9 SCC 608 arising out of an application under Section 482 Cr.P.C. in similar circumstances where the relationship originated in a love affair, developed over a period of time accompanied by physical relations, consensual in nature, but the marriage could not fructify because the parties belonged to different castes and communities, quashed the proceedings.

18. We have given our thoughtful consideration to the facts and circumstances of the present case and are of the considered opinion that the appellant did not make any false promise or intentional misrepresentation of marriage leading to establishment of physical relationship between the parties. The prosecutrix was herself aware of the obstacles in their relationship because of different religious beliefs. An engagement ceremony was also held in the solemn belief that the societal obstacles would be overcome, but unfortunately differences also arose whether the marriage was to solemnised in the Church or in a Temple and ultimately failed. It is not possible to hold on the evidence available that the appellant right from the inception did not intend to marry the prosecutrix

ever and had fraudulently misrepresented only in order to establish physical relation with her. The prosecutrix in her letters acknowledged that the appellant's family was always very nice to her.

19. The appellant has been acquitted of the charge under Section 420 and 504 IPC. No appeal has been preferred against the acquittal. There is no medical evidence on record to sustain the conviction under Section 323 I.P.C. No offence is made out against the appellant under Section 341 I.P.C. considering the statement of prosecutrix that she had gone to live with the appellant for 15 days of her own volition.

20. We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deep-seated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love. The observations in this regard in Uday (supra) are considered relevant:

"25...It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual

intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent."

18. In light of evidence brought on record and on above stated legal

position, it is quite clear that on the pretext of marriage sexual

intercourse is not a rape, therefore, appellant deserves to be acquitted of

the charges framed under Section 376 IPC.

19. So far as conviction of the appellant under Section 3(1)(xii) of the

Scheduled Castes and Scheduled Tribes Act, 1989 is concerned, it is

quite vivid that the prosecution is unable to prove that the accused was

in a position to dominate the will of a woman belonging to a Scheduled

Caste or Scheduled Tribe, and uses that position to exploit her sexually,

to which she would not have otherwise agreed and the accused was in a

dominating position. But from the conduct and evidence of the

prosecutrix would show that she has consented for commission of

sexual intercourse and the sexual intercourse was committed for so

many times on account of the fact that both had to marry with each

other. If a girl gives consent for repeated sexual intercourse upto a very

long duration on the ground that they are going to marry recently and

she happens to be a member of Scheduled Caste or Scheduled Tribe,

by chance, an offence under Section 3(1) (xii) of the Special Act would

not be made out because it was her own will that her consent, may be

on account of love or the reason to marry with the appellant. In the given

facts and circumstances, the conviction of the appellant under Section

3(1)(xii) of the Special Act cannot be sustained.This issue has come up

for consideration before the Hon'ble Supreme Court in the case of Hitesh

Verma vs The State Of Uttarakhand 2020 (10) SCC 710 wherein the

Hon'ble Supreme Court has held as under:-

17.In another judgment reported as Khuman Singh v. State of Madhya Pradesh6, this Court held that in a case for applicability of Section 3(2)(v) of the Act, the fact that the deceased belonged to Scheduled Caste would not be enough to inflict enhanced punishment. This Court held that there was nothing to suggest that the offence was committed by the appellant only because the deceased belonged to Scheduled Caste. The Court held as under:

"15. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)

(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to "Khangar"-Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act is not sustainable."

18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out.

20. Considering the aforesaid law laid down by the Hon'ble Supreme Court

and the material placed on record by the prosecution it is quite vivid

that no offence under Section 3(1)(xii) of the Special Act 1989 is made

out against the appellant.

21. In the result, the appeal is allowed. The conviction and sentence

awarded to the appellant are set aside. The appellant is acquitted of the

charges framed under Section 376 IPC and Section 3(1)(xii) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act),

1989. It is reported that the appellant is in jail, he be released

immediately, if not required in any other offence.

22. Let a copy of this judgment be sent by the Registry to the trial Court

concerned as well as the jail authorities for communication and

compliance.

Sd/-

(Narendra Kumar Vyas) Judge Santosh