Jaisingh vs State Of Chhattisgarh
2022 Latest Caselaw 6379 Chatt

                                                                     Page No.1


                                                                   NAFR

             HIGH COURT OF CHHATTISGARH, BILASPUR

                  Judgment Reserved on : 16.08.2022

                 Judgment Delivered on : 19/ 10/2022

                           CR.A. No. 280 of 2001

Jai Singh, S/o. Sada Singh, aged 20 years, R/o. Village- Mavalipadar, P.S.
Darbha, District- Bastar (C.G.)

                                                               ---- Appellant

                                   Versus

State Of Chhattisgarh, Through : District Magistrate, Jagdalpur, District -
Bastar (C.G.)

                                                            -----Respondent


For Appellant                     : Mr. Prafull N. Bharat Sr. Advocate with
                                   Mr. Keshav Dewangan, Advocate
For Respondent/State              : Mr. Himanshu Sharma, Panel Lawyer



                Hon'ble Shri Justice Parth Prateem Sahu

                            C A V JUDGMENT

1.    This appeal is filed under Section 374       of the Code of Criminal

      Procedure challenging the legality and sustainability of impugned

      judgment of conviction and sentence dated 08.09.2001, in Special

      Sessions Trial No. 189 of 2000, whereby learned Special Judge,

      Jagdalpur convicted appellant for offence under Section 376 (1) of

      the Indian Penal Code and sentenced him to undergo rigorous

      imprisonment for 7 years and fine of Rs.1,000/-, in default of

      payment of fine to further undergo 6 months rigorous imprisonment

      and for offence under Section 3 (1) (XII) of Scheduled Castes and
                                                                  Page No.2

     Scheduled Tribes (Prevention of Atrocities) Act, 1989 (In short 'the

     Act, 1989) sentenced him to undergo R.I. for 1 year and fine of

     Rs.1,000/-, in default of payment of fine, further undergo 3 months

     rigorous imprisonment with a direction to run both the sentences

     concurrently.


2.   Facts

relevant for disposal of the appeal are that on 15.03.2000,

report was lodged by the prosecutrix in Police Station - Darbha,

District - Bastar stating there in that on 14.03.2000 at about 8.00

PM, after taking her dinner, while she was going to get Tobacco

from his brother Sonsai, appellant came and caught hold of her,

gagged her mouth, forcibly took her to nearby bushes and

committed forceful sexual intercourse with her. At the time of

incident, mother of the prosecutrix Sukari (P.W.-2) came there, who

saw the appellant committing offence with prosecutrix. She

assaulted the appellant by means of club upon which he ran away

from spot. On the basis of the report, offences under Section 376 of

I.P.C. and Section 3 (XII) of the Act, 1989 were registered against

appellant. He was arrested on 17.03.2000. After completion of

investigation, charge-sheet was filed, before Court of competent

jurisdiction.

3. Learned trial Court framed charges under Section 376 (1) of the

Indian Penal Code and Section 3 (1) (XII) of the Act, 1989.

Appellant denied the charges. During the course of trial, prosecution

examined as many as 11 witnesses namely (P.W.-1) prosecutrix,

(P.W.-2) Sukri (mother of the victim and eye-witness), (P.W.-3)

Kamlu (father of the victim), (P.W.-4) Kalavati, (P.W.-5) Dr. Smt.

B.A. More (who examined the prosecutrix), (P.W.-6) Dr. A.D. More Page No.3

(who examined the accused), (P.W.-7) Amar Dev Pandey, A.S.I.

(who registered FIR), (P.W.-8) Domu (Kotwar of village), (P.W.-9)

Chaman, (P.W.-10) Manoj Pandey, (P.W.-11) Gurubachan Singh

(S.D.O.P. and Investigating Officer). Prosecution exhibited 14

documents, which are FIR (Ex.P-1), medical examination report

(MLC) of prosecutrix (Ex.P-2), medical examination of accused

(Ex.P-3) and (Ex.P-4), medical examination of Kamlu (father of

prosecutrix) (Ex.P-5), medical examination of prosecutrix (Ex.P-6),

property seizure memo (Ex.P-9, Ex.P-10, Ex.P-11 and Ex.P-13),

statement of Chaman recorded under Section 161 of Cr.P.C. (Ex.P-

12) and arrest memo (Ex.P-14). The statement of appellant

recorded under Section 313 of Cr.P.C., he denied all the

incriminating evidence appearing against him, pleaded innocence

and false implication. No witness was examined in defence. After

conclusion of trial, learned trial Court arrived at a conclusion that on

the date of incident, appellant committed forceful sexual intercourse

with prosecutrix, who was a member belonging to Scheduled Tribe

community, and was below 16 years of age, convicted appellant for

commission of offences and sentenced him as mentioned here-in-

above.

4. Mr. Prafull N. Bharat, learned Sr. Advocate appearing on behalf of

the appellant would submit that impugned judgment of conviction

passed against appellant is without proper appreciation of evidence

available on record. He contended that though the prosecutrix is

stated to be below 16 years of age on the date of incident, but the

prosecution has failed to produce any documentary and admissible

piece of evidence in this regard in support of proof of age of Page No.4

prosecutrix. He contended that learned trial Court took note of age

of the prosecutrix as 13 years mentioned in MLC report by Dr. Smt.

B.A. More (P.W.-5), but there was no medical and scientific

examination to ascertain the age of prosecutrix. The age recorded is

only on the basis of assumption. The learned trial Court has also

taken note of one document in the form of birth certificate available

on record but the said birth certificate was not proved in accordance

with law. In absence of any proof, age stated by the prosecutrix

before the trial Court as also mentioned in MLC report can not be

taken into consideration to establish that on the date of incident the

prosecutrix was below 16 years. He next contended that

prosecutrix was a consenting party as appearing from material

available on record. Prosecutrix in the FIR (Ex.P-1) did not mention

that at the time when she was going to get Tobacco from her

brother, some other person is accompanied along with her. As per

case of the prosecution brother of prosecutrix saw appellant taking

prosecutrix forcefully, but he did not intercept or objected the act of

appellant and he was not examined as prosecution witness, before

the trial Court. Doctor, who examined the prosecutrix has not

mentioned about any external injury on person of the prosecutrix

when the allegation is of commission of forceful sexual intercourse

with the prosecutrix in open place more so behind the bushes. Dr.

Smt. B.A. More (P.W.-5) did not find any internal injury over the

private part of the prosecutrix and it is mentioned in her report that

prosecutrix was habitual of sexual intercourse, hence the allegation

leveled against appellant, prima-facie appears to be false and

fabricated. Finding of the learned trial Court with regard to age of Page No.5

the prosecutrix are without admissible piece of evidence. In support

of his contention, he placed reliance on the judgment passed in

case of Alamelu And Another Vs. State represented by

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

5. Shri Himanshu Sharma, learned counsel for State opposes the

submissions made by the learned counsel for appellant and would

submit that the incident is of 8.00 PM, when prosecutrix was going

to get Tobacco from his brother. It is specifically mentioned in the

FIR that appellant came from behind of prosecutrix, caught hold of

her, gagged her mouth and took her to nearby place and thereafter

committed forceful sexual intercourse. The incident was witnessed

by her mother Sukari (P.W.-2). Prosecutrix was examined before

the trial Court as (P.W.-1) and her statement regarding commission

of forceful sexual intercourse, remained unshaken in the cross-

examination. Sukari (P.W.-2) is an eye-witness to this incident, who

saw the appellant committing sexual intercourse with prosecutrix.

She also assaulted her and thereafter, appellant ran away from

spot. He submits that prosecutrix complained some injuries over her

person, breaking of bangles and the police also seized some pieces

of red bangles from spot. He contended that even if the age of the

prosecutrix is not proved, the fact remains that appellant committed

forceful sexual intercourse with a woman without her consent. The

learned trial Court has not committed any error in convicting

appellant for offence under Section 376 of the Indian Penal Code

and Section 3 (1) (XII) of the Act, 1989. It is submitted that only

because the prosecutrix is reported to be habitual of sexual

intercourse in the MLC report in itself would not be a ground to Page No.6

establish the fact that the prosecutrix was a consenting party at the

time of incident. Learned trial Court upon appreciating the entire

material and evidence available on record, have rightly convicted

appellant for offences and sentenced him as mentioned above,

which does not call for any interference.

6. I have heard learned counsel for the parties and also perused the

record of trial Court.

7. Prosecution to prove the charges levelled against appellant

examined as many as 11 prosecution witnesses and exhibited 14

documents. Prosecutrix was examined as (P.W.-1). She stated in

her evidence that in the night at about 8.00 PM while she was going

to her brother from her house, appellant came from behind, caught

hold of her, gagged her mouth and took her to a nearby place and

committed forceful sexual intercourse with her. She further stated

that in the said incident, she suffered injury over her person and her

bangles were also broken.

8. Mother of prosecutrix was examined as (P.W.-2), she stated that

she was informed by her son Sonsai that appellant forcefully took

prosecutrix by dragging her, upon which she immediately went to

search prosecutrix and saw appellant committing sexual intercourse

with prosecutrix. She assaulted appellant by stick and thereafter

appellant ran away.

9. Father of prosecutrix was examined as (P.W.-3), who stated that his

wife informed him that appellant committed sexual intercourse with

her daughter. He immediately went to the house of appellant upon

which, he was assaulted by appellant. Kalawati was examined as Page No.7

(P.W.-4). As per her statement, on the date of incident at about 8.00

PM, this witness and prosecutrix both were going to get Tobacco

from Sonsai. She was walking in front of prosecutrix, at that time

appellant took away prosecutrix.

10. Dr. Smt. B.A. More was examined as (P.W.-5). This witness

examined prosecutrix and stated that upon examination, she found

her hymen was old torn. No injury was found on her private part and

easily two fingers can be inserted. She has not given any definite

opinion of forceful sexual intercourse with prosecutrix in her MLC

report (Ex.P-2). Dr. A.D. More (P.W.-6) in his evidence stated that

upon examining, father of prosecutrix he found contusion on his

right hand caused by hard and blunt object.

11. In cross-examination, prosecutrix (P.W.-1), her mother (P.W.-2) and

father (P.W.-3), have not deviated from their statements made in-

chief and remained firm. From perusal of evidence of prosecutrix

(P.W.-1), even it is not suggestive of fact that there was any consent

of prosecutrix. She in clear terms has stated that she was taken

forcefully after gagging her mouth and thereafter appellant

committed sexual intercourse with her. One recent abrasion injury

was found on the person of prosecutrix vide (Ex.P-7). Police seized

pieces of broken red bangles from the spot and also seized

underwear of prosecutrix vide (Ex.P-10). Domu (P.W.-8), Kotwar of

village proved seizure of underwear and pieces of broken bangles

vide (Ex.P-9) & (Ex.P-10).

12. In the instant case, it is not only the allegation of the prosecutrix that

appellant committed forceful sexual intercourse with her but also her Page No.8

mother saw appellant committing sexual intercourse with her

daughter. The incident was informed by mother of prosecutrix to her

husband (father of prosecutrix) and on the same day when father of

prosecutrix went to the house of appellant, appellant assaulted him

by means of iron rod and corresponding injury was also found by

Dr. A.D. More (P.W.-6) vide his report (Ex.P-5).

13. Statement of appellant/accused was recorded under Section 313 of

Cr.P.C., in which he only stated that he was falsely implicated in the

crime and no other explanation is offered by him. The testimony of

material witnesses i.e. prosecutrix (P.W.1), mother of prosecutrix

(P.W.-2) and father of prosecutrix (P.W.-3) inspires confidence and

there is no reason on record to disbelieve their testimony. Merely

because the doctor examining prosecutrix found her hymen was old

torn and insertion of two fingers easily in itself would not falsify the

allegation. There is no material available on record to draw an

inference of her consent or the testimony of the prosecutrix (P.W.-1)

and her mother (P.W.-2) to be improbable.

14. Hon'ble Supreme Court in case of State of Rajasthan Vs. N.K., the

accused, reported in (2000) 5 SCC 30, in para-18 has held as

under :-

"18. Absence of injuries on the person of the prosecutrix has weighed with the High Court for inferring consent on the part of the prosecutrix. We are not at all convinced. We have already noticed that the delay in medical examination of the prosecutrix was occasioned by the factum of the lodging of the F.I.R. having been delayed for the reasons which we have already discussed. The prosecutrix was in her teens. The Page No.9

perpetrator of the crime was an able-bodied youth bustling with energy and determined to fulfill his lust armed with a knife in his hand and having succeeded in forcefully removing the victim to a secluded place where there was none around to help the prosecutrix in her defence. The injuries which the prosecutrix suffered or might have suffered in defending herself and offering resistance to the accused were abrasions or bruises which would heal up in ordinary course of nature within 2 to 3 days of the incident. The absence of visible marks of injuries on the person of the prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she had offered no resistance at the time of commission of the crime. Absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of consent on the part of the prosecutrix. It will all depend on the facts and circumstances of each case. In Sheikh Zakir, absence of any injuries on the person of the prosecutrix, who was the helpless victim of rape, belonging to a backward community, living in a remote area not knowing the need of rushing to a doctor after the occurrence of the incident, was held not enough for discrediting the statement of the prosecutrix if the other evidence was believable. In Balwant Singh this court held that every resistance need not necessarily be accompanied by some injury on the body of the victim;

the prosecutrix being a girl of 19/20 years of age was not in the facts and circumstances of the case expected to offer such resistance as would cause injuries to her body. In Karenel Singh the prosecutrix was made to lie down on a pile of sand. This court held that absence of marks of external injuries on the person of the prosecutrix cannot be adopted as a formula for inferring consent on the part of the prosecutrix and holding that Page No.10

she was a willing party to the act of sexual intercourse. It will all depend on the facts and circumstances of each case. A Judge of facts shall have to apply common sense rule while testing the reasonability of the prosecution case. The prosecutrix on account of age or infirmity or overpowered by fear or force may have been incapable of offering any resistance. She might have sustained injuries but on account of lapse of time the injuries might have healed and marks vanished."

15. For the forgoing discussions I do not find any reason to disbelieve

the testimony of prosecutrix (P.W.1), Sukari (P.W.-2) and Kamlu

(P.W.-3) stating that appellant committed forceful sexual intercourse

with prosecutrix.

16. The other grounds raised by learned counsel for appellant that

prosecution failed to prove that on the date of incident, prosecutrix

was below 16 years of age, true it is that prosecution has not

brought any admissible piece of evidence on record to prove that

prosecutrix was below 16 years of age. Though birth certificate is

available on record, but it was not proved by prosecution in

accordance with law. In the above facts of the case prosecution

failed to prove the age of prosecutrix to be below 16 years of age.

17. To prove the age of prosecutrix, prosecution is required to produce

and prove the documents like birth certificate, school register, mark-

sheet or ossification test report. In case at hand prosecution has not

proved any of the aforementioned documents through witness

concerned. Trial Court in para 14 of judgment observed birth

certificate is not proved by prosecution. Date of birth is to be proved

in accordance with law. In absence of any admissible piece of Page No.11

evidence, only on the basis of oral evidence it can not be held that

age of prosecutrix on the date of incident was below 16 years. In the

aforementioned facts, finding recorded by learned trial Court that

prosecutrix was below 16 years of age is not sustainable and that

finding of learned trial Court in the impugned judgment is set-aside.

18. The submission of learned counsel for appellant that the trial Court

convicted appellant only because she was under 16 years of age is

not substantial in view of the discussion of learned trial Court

considering entire evidence of witnesses. From the evidence

available on record I do not find any reason to disbelieve the

evidence of prosecutrix and her mother which is sufficient to prove

that prosecutrix was subjected to forceful sexual intercourse by

appellant. Hence, the conviction of appellant U/s. 376 of I.P.C. does

not call for any interference. No other grounds are raised by learned

counsel for appellant.

19. For the forgoing discussion, I do not find any merit in this appeal

which is liable to be and is hereby dismissed. Appellant is reported

to be on bail. Bail bonds of appellant are cancelled and he be sent

to jail immediately for serving the remaining period of jail sentence.

Sd/-

(Parth Prateem Sahu) Judge

Balram