Sumil Minj vs The State Of C.G
2022 Latest Caselaw 7655 Chatt

                                   1

                                                                    AFR
         HIGH COURT OF CHHATTISGARH, BILASPUR
                        CRA No. 2436 of 2000
                                   Judgment Reserved on 29.8.2022
                                  Judgment delivered on 20/12/2022
  •   Sumil Minj S/o Kendva, aged about 20 years, Caste- Uranv,
      Occupation-Student, resident of village Kailary, Police Station
      Dhourpur, District Sarguja (CG)
                                                          ---- Appellant
                                                                (In Jail)
                                Versus
  •   State of M.P. through Police Station Dhourpur, Distt. Sarguja
      (CG)
                                                       ---- Respondent

For Appellant            :     Mr. V.K. Pandey, Advocate
For Respondent           :     Mr. R.M. Solapurkar, Govt. Advocate

             Hon'ble Shri Justice Parth Prateem Sahu

                              CAV Order

1. This appeal arises out of judgment of conviction and sentence

dated 9.9.2000 passed by the learned 2 nd Additional Sessions

Judge, Ambikapur, District Surguja in S.T. No.245/99 thereby

convicted accused/appellant under Sections 363, 366, 342 &

376 (1) of the Indian Penal Code (for short 'the IPC') and

sentenced him to undergo RI for 03 years; RI for 03 years, RI

for 06 months and RI for 06 years and fine of Rs.200/-, in

default to undergo additional RI for 01 year, respectively. All the

sentences were directed to run concurrently.

2. Case of the prosecution, in brief, is that on 6.6.1999 when the

prosecutrix along with her friends Hiramani (PW-2) and Virjita

(PW-3) was returning her home from Kanki village market. On

the way, appellant came on bicycle and caught hold of hand of

prosecutrix near an agriculture field in between Kakni &

Gangoli and started dragging her from her hairs. When PW-2

& PW-3 asked him not to do so, he threatened them due to

which they fled from there. Thereafter, appellant forcibly took

the prosecutrix with him to village Chitpur and kept her whole

night in the house of one Bokhibai. Next morning appellant took

the prosecutrix to his village where he kept her for two days

and during this period, he committed sexual intercourse with

her saying that he will keep her as his wife. Father of

prosecutrix came to house of appellant, freed her daughter

from custody of appellant and thereafter prosecutrix lodged

report of incident on 10.6.99. Based on aforementioned report,

police registered crime for offence defined under Sections 363,

366, 342 & 376 of IPC against appellant.

3. After completion of investigation, police filed charge sheet

before the Court of competent jurisdiction. The trial Court

framed charges under Sections 363, 366, 342, 376 (1) of IPC

against appellant. So as to hold appellant guilty, prosecution

examined 12 witness in all and exhibited 13 documents in all.

Statement of accused/appellant was recorded under Section

313 of Cr.P.C. in which he denied the circumstances appearing

against him in the prosecution case and pleaded innocence &

false implication. He examined one witness namely Bishu Dev

(DW-1) in his defence.

4. After conclusion of trial, trial Court upon appreciation of oral

and documentary evidence available on record, convicted and

sentenced appellant vide impugned judgment in the manner as

mentioned above, by recording finding that on the date of

incident, prosecutrix was less than 16 years of age; appellant

committed forcible sexual intercourse with her.

5. Learned counsel for appellant would submit that impugned

judgment of conviction passed by trial Court is per se illegal,

perverse to evidence available on record and also contrary to

law laid down by Hon'ble Supreme Court with regard to

determination of age of prosecutrix. He submits that on the

date of incident, prosecutrix was about 16 years of age, as

determined by the Radiologist in report of Ex.P-26 wherein

Radiologist (PW-11) has opined that as per test conducted by

him, he found the prosecutrix to be in between14 to 16 years.

He contended that if ossification test shows age of a person to

be 14-16 years then maximum age, as opined by the

Radiologist in report Ex.P-26 is to be taken into consideration.

He also submits that though Radiologist in report Ex.P-26 has

mentioned the range of error in age to be two years on either

side but as per law laid down in Subelal vs. State of MP (Now

CG) reported in (2011) 4 CGLJ 424, the range of error may be

up to 03 years on other side. In the given facts of case,

considering range of error in the age as three years, the

prosecutrix on the date of incident was more than 16 years. In

case at hand, as per report of Radiologist, age of prosecutrix

was above 16 years. He further submits that as per statement

of prosecutrix herself, after being kidnapped, she was taken by

appellant to the house of one lady in village Chitpur. She also

admitted that in the house where she stayed in first night

except one old lady, other members were in favour of appellant.

This old lady by name Bokhibai was examined before trial

Court as PW-4 and she had not made any allegation in her

statement that prosecutrix complained of kidnapping etc. In

fact, this witness stated that prosecutrix told her that one boy

brought her to her house on the assurance that he will keep her

with him for whole life. Next day, at the instance of prosecutrix,

when she was going to drop her to her parents house, on the

way the prosecutrix said that she will go home herself

Prosecutrix told her that she is going to village Dhimri and

saying so, she move forward and at that time, one boy came

on bicycle and she went along with that boy. Conduct of

prosecutrix shows that she was consenting party. In support of

submission that age of prosecutrix has not been proved in

accordance with law, learned counsel places reliance upon

decisions of Hon'ble Supreme Court in case of Birad Mal

Singhvi Vs. Anand Purohit reported in AIR 1988 SC 1796;

Babloo Pasi vs. State of Jharkhand reported in 2008 AIR

SCW 7332; Sunil vs. State of Haryana reported in 2010 (1)

SCC 742 & Alamelu & another vs. State represented by

Inspector of Police reported in (2011) 2 SCC 385.

6. On the other hand, learned Government Advocate for the State

opposing submissions of learned counsel for appellant, would

submit that case of prosecutrix is that when prosecutrix was

returning from village market along with her friends Hiramani

(PW-2) and Virjita (PW-3), appellant came there and caught

hold of her hand. Hiramani (PW-2) and Virjita (PW-3) are

independent witnesses and they have supported case of

prosecution that appellant forcefully caught hold prosecutrix,

assaulted her and due to fear, they ran away from the place of

incident. Further, prosecution duly proved the age of

prosecutrix by producing school register, which is a government

record, wherein date of birth of prosecutrix is mentioned as

28.1.1985, according to date of birth of prosecutrix, on the date

of incident she was about 14 years of age and therefore,

submission of learned counsel for appellant that prosecutrix

was a consenting party is having no force at all. He also

contended that prosecution proved allegation of forceful

kidnapping, abduction as also commission of rape upon minor

girl by producing cogent and admissible piece of evidence,

hence impugned judgment does not call for any interference.

7. I have heard learned counsel for parties and perused record of

trial Court.

8. Main contention raised by learned counsel for appellant is that

prosecution failed to prove age of prosecution to be below 16

years and in view of report of Radiologist (Ex.P-26), age of

prosecutrix was opined between 14 to 16 years and margin of

error is of two years.

9. To appreciate above submission of learned counsel for

appellant, I have perused oral and documentary evidence

available on record. Copy of FIR is marked as Ex.P-1. In FIR

there is allegation that on the date of incident, appellant

forcefully took prosecutrix to another village and next day she

was brought to house of appellant and during both nights,

appellant committed sexual intercourse with her. Date of

incident in FIR is mentioned to be of '6.6.1999' and date of birth

of prosecutrix is mentioned as '28.1.1985'. During investigation,

prosecution seized school certificate (Ex.P-6) of prosecutrix

stated to be issued by the Headmaster of Primary Girls School,

Nagpur, in which it is certified that as per school record,

prosecutrix took admission in school in Class-1 in the year

1990-91 and her date of birth is 28.1.1985. School register was

also produced before trial Court to prove date of birth

mentioned in Certificate (Ex.P-6). Headmaster, who issued

Certificate (Ex.P-6) was examined before trial Court as PW-6

and he admitted to have issued certificate (Ex.P-6) mentioning

date of birth of prosecutrix as 28.1.1985. Father of prosecutrix

was examined as PW-3. He stated in his evidence that date of

birth of prosecutrix is 28.1.1985, he got recorded date of birth

of prosecutrix in school and at the time of incident, age of

prosecutrix was about 13-14 years.

10. Hon'ble Supreme Court in case of Sunil v. State of

Haryana reported in (2010) 1 SCC 742 while considering issue

of determination of age of prosecutrix has held thus:

"25. The prosecution also failed to produce any admission form of the school which would have been primary evidence regarding the age of the prosecutrix. The School Leaving Certificate produced by the prosecution was also procured on 12.09.1996, six days after the incident and three days after the arrest of the appellant. As per that certificate also, she joined the school in the middle of the session and left the school in the middle of the session. The attendance in the school of 100 days is also not

reliable. The prosecutrix was admitted in the school by Ashok Kumar, her brother. The said Ashok Kumar was not examined. The alleged school leaving certificate on the basis of which, age was entered in the school was not produced."

11.In case of Alamelu & anr Vs. State represented by Inspector of

Police reported in (2011) 2 SCC 385, Hon'ble Supreme Court

held as under:-

"39. We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ex.P16 and the certificate issued by PW8 Dr. Gunasekaran, Radiologist, Ex.P4 and Ex.P5.

40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined."

12. In case of Subelal v. State of MP (now CG) reported in

2011 (4) CGLJ 424, considering issue of age of prosecutrix has

held thus;-

"11. Dr. S.C. Vishnoi (PW-6) determined the age of the

prosecutrix in between 15 to 16 years on the basis of ossification test performed by him. His report is Ex.- P/9. The X-ray plates are Ex.P/10, P/11 & P/12. In Modi's Jurisprudence (20th Edition), it is stated that too much reliance should not be placed on the table showing the age and years of the appearance and fusion of some of the epiphysis as observed by different authors as it merely indicates the average and is likely to vary in individual case even of the same province owing to the eccentricities of development. It is further stated that recent work has shown that the range of error may be up to 3 years on either side. In the present case, Dr. Vishnoi (PW-6) also admitted in the cross-examination that a difference of 3 years on either side may be there in the age determined on the basis of ossification test. In this matter, if we add 3 years towards upper side, the age of the prosecutrix would come to 19 years. Besides the above, there is no other evidence of the age of the prosecutrix. On appreciation of the above evidence, I am of the view that the prosecution could not establish that the prosecutrix was a minor and the finding recorded by the Session Judge cannot be sustained."

13. Report (Ex.P-3) is proved by Dr. M.K. Jain (PW-12), Radiologist

who examined prosecutrix and based on report opined that

prosecutrix is between 14 to 16 years of age. Hon'le Supreme

Court in case of Jaya Mala vs. Home Secretary, reported in

(1982) 2 SCC 538 has held that however, it is notorious and

one can take judicial notice that the margin of error in age

ascertained by radiological examination is two years on either

side. In case of Subelal (supra), referring to 20 th Edition of

Modi Jurisprudence, learned Single Judge observed that

according to recent work, margin of error may be three years

on either side. In case at hand, if margin of error of three years

is taken from higher side of age i.e.16 years, as opined by the

doctor (PW-26), then age of prosecutrix on the date of incident

would come to 19 years i.e. above 18 years of age. Certificate

(Ex.P-6) produced by prosecution and proved by PW-6, is

handwritten piece of paper prepared on 4.7.1999, whereas

date of incident, as mentioned in FIR, is 6.6.1999. Hence, this

handwritten certificate is issued after the date of incident.

Record based on which this certificate is issued mentioning

date of birth of prosecutrix as 28.1.1985 was not produced

before trial Court by prosecution. Considering report (Ex.P-6)

in light of above decisions of Hon'ble Supreme Court,

particularly in absence of original school record substantiating

date of birth mentioned in certificate (Ex.P-6), evidence of

Headmaster (PW-6), Certificate (Ex.P-6) and date of birth

mentioned in it, cannot be accepted as Gospel truth. When

any certificate with respect to date of birth found to be

unacceptable, than the age can be ascertained from

radiological report.

14. As discussed in preceding paragraphs, based on radiological

report (Ex.P-23), which is duly proved by doctor (Ex.P-12), as

also decision of this High Court in Subelal's case (supra), I am

of view that appellant is entitled to benefit of margin of error of

three years on higher side of age of prosecutrix assessed in

radiological examination. This being the position, the trial Court

fell into error in holding prosecutrix to be below 18 years of age.

Hence, finding of trial Court regarding age of prosecutrix is

erroneous and it is accordingly set aside. It is hereby held that

on the date of incident, prosecutrix was above 18 years of age.

15. Now this Court will consider whether appellant committed

sexual intercourse with prosecutrix against her wish?

16. Perusal of evidence of prosecutrix would show that on the date

of incident, prosecutrix along with her friends was returning

home from village market. On the way, appellant came on

bicycle, caught hold of hand of prosecutrix and when

prosecutrix somehow managed to free herself from clutches of

appellant, he caught hold of her hairs and started dragging her.

Friends of prosecutrix tried to intervene but appellant

threatened them. Thereafter appellant forcibly took prosecutrix

to village Chitarpur and kept her in the house of a guard in

night. One old lady was also residing there to whom she

requested to drop her at her home. When prosecutrix along

with that old lady was going to her house, appellant came on

the way, took prosecutrix to his own house on the point of knife,

locked her in a room and committed sexual intercourse with her

in night thrice. Next day father of prosecutrix came to house of

appellant and took back prosecutrix with him.

17. Friend of prosecutrix, who at the time of incident was returning

with prosecutrix, was examined as PW-2. In her evidence, this

witness supported allegation and statement of prosecutrix that

one boy came on bicycle, caught hold of hands of prosecutrix

and when prosecutrix somehow managed to free herself, he

caught hold of her hairs. She was threatened by appellant.

18. Father of prosecutrix was examined as PW-3 and mother of

prosecutrix was examined as PW-5. In cross-examination,

mother of prosecutrix stated that they informed villagers that

her daughter is in the house of appellant. Even after getting

knowledge that prosecutrix is in the house of appellant, she or

her uncle, who was residing in village, had not gone along with

other villagers to the house of appellant to bring back

prosecutrix.

19. Prosecutrix in her evidence stated that due to threat given by

appellant, she did not return with villagers who came to house

of appellant. She returned to her house only when her father

came to house of appellant.

20. Bokhibai (PW-4) is a lady with whom prosecutrix was going

back to her house. She stated that, on being asked,

prosecutrix told her that she is unmarried and resides in village

Koilari. After eating dinner, prosecutrix started crying and on

being asked, she said that boy who told her that he will keep

her with him whole life and is supposed to come, had not come.

21. In view of above evidence of prosecutrix (PW-1), PW-4, PW-5,

the allegation and statement of prosecutrix before trial Court

raises suspicion on allegation appellant forcibly took

prosecutrix and committed forcible sexual intercourse with her.

There are contradiction in evidence of material witnesses.

There is no doubt that conviction under Section 376 of IPC can

be based on solitary evidence of prosecutrix, but that evidence

should inspire confidence. In case at hand, prosecutrix though

stated that when villagers came to house of appellant to take

her back home, she refused to go with them due to threat given

by appellant, which is difficult to accept because appellant is

also resident of same village, particularly in the light of

evidence of PW-4. Prosecutrix resided in the house of

appellant, more than one person i.e. villagers came there to

take her back but she did not go with them or made allegation

against appellant to them. It has also come in evidence that

prior to incident in question, some dispute also took place

between family member of prosecutrix and appellant, but no

report was lodged.

22. Taking into consideration the entire evidence available on

record, this Court is of the view that prosecution failed to prove

beyond reasonable doubt that appellant committed offence

punishable under Sections 363, 366, 342 & 376 of IPC and

being so, appellant is entitled for benefit of doubt.

23. In the result, appeal is allowed. Conviction of appellant under

Sections 363, 366, 342 & 376 of IPC and sentenced imposed

under those sections are hereby set aside. Appellant is

acquitted from charge of Sections 363, 366, 342 & 376 of IPC.

He is reported to be on bail. His bail bonds stand discharged.

Sd/-

(Parth Prateem Sahu) Judge roshan/-