Chattisgarh High Court

Balmukund @ Mukund vs State Of Chhattisgarh on 1 July, 2024

      Neutral Citation
      2024:CGHC:23066                  1




                                                                         NAFR

              HIGH COURT OF CHHATTISGARH, BILASPUR

                               CRA No. 66 of 2006

      Balmukund @ Mukund S/o Hariram Nishad, Aged about 19 years,
       R/o Village Lajhiya, P.S. Ambagarh Chowki, District Rajnandgaon,
       Chhattisgarh
                                                           ---- Appellant

                                    Versus

      State of Chhattisgarh
                                                              ---- Respondent

____________________________________________________________

For Appellant : Mr. H.S. Ahluwalia, Advocate For Respondent/State : Mr. Pankaj Singh, Panel Lawyer ____________________________________________________________

Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board

01/07/2024

1. The appeal has been preferred against the judgment of conviction

and sentence dated 04.01.2006, passed by learned Special Judge

(under the Scheduled Caste and Scheduled Tribe, Prevention of

Atrocities Act), Rajnandgaon in Special Case No. 05/2005, whereby

the appellant has been convicted for the offence under Section 376

of Indian Penal Code and sentenced for R.I. for 07 years with fine of

Rs. 1000/-, in default of payment of fine further S.I. for 03 months.

2. Brief facts of the case are that on 21.11.2004, at about 9-10 p.m.,

when the prosecutrix was cleaning her teeth in her courtyard, the

appellant, along with other co-accused persons, came there and

asked her to come with him and took her to the threshing field of Neutral Citation

Baldu and committed rape upon her. After committing rape upon her,

he has given threatening to her with dire consequences. Her parents

had gone to earn their livelihood to Pakhanjur. In the month of

Shravan (Hindi Calendar Month), she feels that she conceived

pregnancy and when her parents came from Pakanjur at the time of

Deewali festival, she informed the incident to her parents. A village

meeting was called and thereafter, she lodged a report (Ex.P/3). The

FIR has been registered under Sections 376 & 506-B of IPC and 3(1)

(xii) of Scheduled Caste and Scheduled Tribe (Prevention of

Atrocities) Act, 1989.

3. The prosecutrix was sent for her medical examination to Community

Health Centre, Ambagarh Chowki, where PW-4 Dr. Smt. P.

Maheshwar examined her and gave report (Ex.P/7). After examining

the prosecutrix, the doctor has opined that the patient is habitual for

sexual intercourse. She was carrying pregnancy of about 28 weeks.

The prosecutrix was also referred to Radiologist for ultrasonography

of abdomen. Her ultrasonography test was done on 24.11.2004, in

which 31 weeks of pregnancy was opined and USG (OBST) report is

Ex.P/9-A. With respect to the age of prosecutrix, the Police has

seized the school admission and discharge register from Primary

School, Bogatola, in which the date of birth of the prosecutrix is

recorded as 22.03.1988. After retaining the attested true copy of the

school register, the original register was returned back to the school,

which has been seized vide seizure memo Ex.P/12. With respect to

social status of the prosecutrix, her social status certificate has been

seized vide seizure memo Ex.P/9 and the certificate is Ex.P/8. Spot Neutral Citation

map Ex.P/10 was prepared by the Police. The appellant has been

arrested on 22.11.2004 and he too was sent for his medical

examination to Community Health Center, Mohla, where he has been

examined by PW-8 Dr. S.R. Mandavi, and after his examination,

doctor has opined that he was capable to perform sexual intercourse.

The statement of the witnesses under Section 161 of CrPC has been

recorded and after completion of the investigation, the charge sheet

was filed before the Learned Judicial Magistrate First Class,

Ambagarh Chowki. Against the present appellant and two other

accused persons, namely Santosh and Ku. Bilendri Bai @ Bilendra

for the offence under Sections 376, 506-B, 34 of IPC and Section

3(1)(xii) of SC ST Act.

4. The learned trial Court has framed charges against the present

appellant for the offence under Sections 376(2)(g), 506 Part-II of IPC

and 3(1)(xii) & 3(2)(v) of Scheduled Caste and Scheduled Tribe

(Prevention of Atrocities) Act, 1989. The charges against co-accused,

Santosh, has been framed for the offense under Section 376 (2)(g) of

IPC and Sections 3(1)(xii) & 3(2)(v) of Scheduled Caste and

Scheduled Tribe (Prevention of Atrocities) Act, 1989, whereas the

charge against Ku. Bilendri @ Bilendra has been framed for the

offence under Section 376(2)(g) of IPC. The accused persons

abjured their guilt and claimed trial.

5. In order to establish the charge against the accused persons, the

prosecution has examined as many as 14 witnesses. Statement

under Section 313 of CrPC of the accused persons have been

recorded, in which they denied the circumstances appears against Neutral Citation

them, plead innocence, and have submitted that they have been

falsely implicated in the offence.

6. After appreciation of oral as well as documentary evidence, led by

the prosecution, the appellant and other accused persons have been

acquitted from the offence of Section 376(2)(g) of IPC and Sections

3(1)(xii) & 3(2)(v) of Scheduled Caste and Scheduled Tribe

(Prevention of Atrocities) Act, 1989. However, the present appellant

has been convicted for the offence under Section 376 of IPC, and

sentenced for R.I. for 7 years with a fine of Rs. 1000/- with default

stipulation. Hence this appeal.

7. Learned counsel for the appellant would submit that the appellant is

innocent and has been falsely implicated in the offence. There is

material omissions and contradictions in the evidence of

prosecution's witnesses, and the prosecution has failed to prove its

case beyond reasonable doubt. He would further submit that

although the learned trial Court has hold that the prosecutrix was the

consenting party in making physical relation with the appellant, but

he has been convicted only on the ground that the prosecutrix was

found to be below 18 years of age on the date of incident, whereas

the offence is of the year 2004, and at that time, the prosecutrix was

more than 16 years of age, and therefore, she was capable to give

her consent in making physical relation with the appellant. He would

further submit that on the evidence of the prosecutrix, it is quite clear

that she was the consenting party at the time of commission of

alleged offence and has not raised any alarm. Even she has not

made any complaint and has not informed till her pregnancy was Neutral Citation

detected, which continued up to 7 months, when her parents

returned from Prakhanjur at the time of Deewali festival. He would

also submit that there is no satisfactory evidence available on record

to hold that the prosecutrix was less than 16 years of age, and the

learned trial Court has also held that the prosecutrix was more than

16 years, but less than 18 years of age, and therefore, no offence is

made out against the appellant and he is entitled for his acquittal.

8. On the other hand, the learned counsel for the State opposes and

would submit that from the evidence available on record, the guilt of

the appellant is duly proved by the prosecution. Although, the learned

trial Court has held that the prosecutrix was more than 16 years of

age, and less than 18 years of age, yet the learned trial Court, while

exercising its appellate powers, can reassess the evidence available

on record. He would further submit that from the evidence of the

prosecutrix, it appears that she was not the consenting party in the

alleged offence, and therefore, the learned trial Court has rightly

convicted the appellant for the alleged offence, and the judgment of

his conviction needs no interference.

9. I have heard learned counsel for the parties and perused the record.

10. The first and foremost question for its determination is, as to whether

the prosecutrix was of more than 16 years of age at the time of

incident or not.

11. The prosecution has relied upon the School Admission and

Discharge Register Ex.P/11-C, which is sought to be proved by PW- Neutral Citation

12 Somnath Bhandhari, who was the Headmaster at Primary School,

Bogatola. Although the PW-12 has stated that he did not know as to

on what basis the date of birth of the prosecutrix was recorded in the

School Register, and he is not the author of the same. Learned trial

Court has considered the age of the prosecutrix on the basis of the

age shown in the FIR, MLC Report, and also the said School

Admission and Discharge Register Ex.P/11-C and held that the age

of the prosecutrix was 16 years and held in para 14 of the judgment

that 7 months prior to 21.11.2004 the prosecutrix was less than 18

years of age. From the evidence available on record, the finding with

respect to the age of the prosecutrix cannot be said to be perverse or

contrary to the evidence available on record.

12. So far as the allegation of rape is concerned, from the evidence of

prosecutrix (PW-9) and other evidence, the learned trial Court has

held that she was the consenting party in making physical relation

with the appellant. The date of incident was in the month of Baisakh

(Hindi Calendar Month). When she was alone in her house at about 8

p.m., the accused persons came to her house, asked her to come

with them. The appellant dragged her to the threshing field of Ballu

@ Kalar and committed rape upon her and threatened her. After the

alleged incident, she came to her house and went for a sleep. Her

parents have subsequently gone to Pakhanjur to earn their livelihood.

When the other persons informed her that she conceived pregnancy,

then she came to know that she is pregnant. At the time of Deewali

festival, when her parents came from Pakhanjur, she informed the

incident to them and thereafter a village meeting was convened. Neutral Citation

Considering the fact that the house of the prosecutrix was situated in

a closed vicinity, she has not raised any alarm while she was being

dragged by the appellant and there is no sign of protest on her body,

when she was allegedly subjected to forceful sexual intercourse by

the appellant. She has not informed the incident to her parents

despite having presence in their house and also considering the

conduct of the prosecutrix, the learned trial Court has come to the

conclusion that she was consenting party in making physical relation

with the appellant. The finding recorded by the trial Court in para 36

that the prosecutrix was the consenting party in making physical

relation with the appellant, cannot be said to be perverse in view of

the evidence of the prosecutrix as well as other witnesses.

13. The descriptions sixthly of Section 375 of Indian Penal Code as on

2004, which are reproduced below for quick reference:

"375. Rape - A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

First.-xxxxxx

Secondly. xxxxxx

Thirdly. xxxxxx

Fourthly. xxxxxx

Fifthly. xxxxxx

Sixthly. With or without her consent, when she is under sixteen years of age.

Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.