High Court allowed appeal against conviction for abduction, kidnapping, and rape. Court acquitted appellant finding prosecutrix’s lack of protest during acquaintance suspicious and noting irreproachable evidence on her age.
Conviction under Sections 363, 366 & 376 IPC set aside; appellant acquitted; bail bonds continued for six months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Cr. Appeal No.88/2002
Sona Mahato, son of Shiv Dharan Mahato, aged 22 years, Caste-Dewar, R/o Dewanpara, Station Maroda, Nevai, Distt. APPELLANT Durg (Chhattisgarh (In Jail) Vs State of Chhattisgarh, through P.S. Nevai, Distt. Durg. RESPONDENT ---------------------------------------------------------------------------------------------For the appellant: Mr. Ravi Bhagat, Advocate. For the respondent: Mr. S.K. Mishra, Panel Lawyer. ----------------------------------------------------------------------------------------------
S.B.: Hon’ble Mr. Pritinker Diwaker, J
ORDER ON BOARD
01.07.2015
period of about 28 days, the accused/appellant had sexual intercourse with the prosecutrix. In the meanwhile, when the prosecutrix was found missing, a report (Ex.P-10) was lodged by PW-1 Ghasiram, father of the prosecutrix. After return of the accused/appellant & the prosecutrix, on the basis of statement made by the prosecutrix, FIR (Ex.P-9) was registered against the accused/appellant under Sections 363, 366 & 376 of the IPC. The prosecutrix was medically examined by Dr. Madhu Shrivastava (PW-4) on 01.07.2001 vide Ex.P-4. X-ray of the prosecutrix was taken on 2.7.2001 by Dr. S.A. Mangde (PW-6) who opined her age to be approximately 15 years with a margin of 1 to 3 years on either side. After filing of charge sheet, charges were framed against the accused/appellant under Sections 363, 366 & 376 of the IPC.
along with the accused/appellant, but she did not raise any hue & cry for help, therefore, it can easily be said that the prosecutrix was the consenting party.
(ii) that during 28 days of travelling along with accused/appellant, the prosecutrix had never offered any protest for having physical relation with the accused/appellant and therefore it cannot be said that any offence of rape has been committed by the accused/appellant.
(iii) that, the offence under Sections 363 & 366 of the IPC are also not made out against the accused/appellant because the prosecutrix accompanied the accused/appellant of her own and therefore the question of committing the aforesaid offences does not arise.
(iv) that there is no legally admissible evidence in support of the age of the prosecutrix. Even the parents of the prosecutrix had categorically stated that they are not aware about the exact date of birth of the prosecutrix and the mark-sheet (Ex.P-3A) has not been proved as required under the law as neither the author of it nor the person who got admitted the prosecutrix in the school has been examined.
(v) that, as per ossification test conducted by Dr. S.A. Mandge (PW-6), age of the prosecutrix was found to be 15 years which could vary from 01 to 03 years on either side and therefore also the prosecutrix cannot be said to be below sixteen years of age.
(vi) that the incident took place on 02.06.2001 and thereafter the prosecutrix got married with someone else and both the appellant
and the prosecutrix are living happily in their respective married life.
of birth. He has further admitted that while admitting the prosecutrix in the school, her date of birth is recorded on the basis of assumption.
prosecutrix vide Ex.P-19 and opined that the prosecutrix was aged about 15 years but also stated that there could be variation of 1 to 3 years in the age. PW-5 Aditya Hiradhar, Investigating Officer, has duly supported the prosecution case. PW-7 Omprakash is the witness of seizure and has not stated anything specifically.
birth of prosecutrix is mentioned as 25.5.87, but this document does not appear to be reliable because author of the same has not been examined. Even as per statement of PW-1 Ghasiram, father of the prosecutrix, age of the prosecutrix may have been recorded on the basis of assumption. He has stated that the prosecutrix was staying in the house of her maternal uncle and she was admitted in the school by her maternal grandfather. He has further stated that he is not aware about exact date of birth of prosecutrix or his other children. Similar statement has been made by PW-2 Smt. Devli Bai, mother of the prosecutrix. Even, if the ossification test is taken to be correct where the doctor has opined her to be of 15 years, the doctor has categorically stated that there could be variation of 1 to 3 years in age. Thus there is no evidence in respect of age of the prosecutrix on which basis her exact age can be determined and therefore it is difficult to hold that at the time of incident, age of the prosecutrix was below 16 or 18 years. In these circumstances, the appellant is definitely entitled to be acquitted of the charges leveled against him by extending him benefit of doubt.
Sd/ (Pritinker Diwaker) J U D G E
roshan/-
3 issues framed by the court
Whether the prosecutrix's conduct and the lack of protest during 28 days of travel with the accused proves consent rather than abduction.
Whether there is legally admissible evidence to establish the prosecutrix's exact age as below 16 or 18 years.
Whether the appellant is entitled to acquittal on the merit of benefit of doubt due to failures in prosecution evidence.
2 provisions across 2 enactments
Sona Mahato
State of Chhattisgarh
Pritinker Diwaker
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
