Allowed

Angad Kumar Ram v. State of Chhattisgarh

Chhattisgarh HC17 Aug 2023CRA/169/2020

Case brief

AI extract

What is this about?

Appellant appealed against conviction for kidnapping, abduction, and sexual intercourse under POCSO/IPC. High Court acquitted appellant as testimony regarding prosecutrix's age was unreliable due to suspicious school records and father's admission, and she appeared to be above 18.

What did the court decide?

Appellant acquitted; impugned judgment of conviction and sentence set aside; appellant released from jail immediately.

Angad Kumar Ram Vs State of Chhattisgarh — Child Custody and Guardianship | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No.169 of 2020

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Angad Kumar Ram, S/o Keshwar Ram, aged about 21 years, R/o Village Ranpura, P.S. Chiniya, District – Gadhwa (Jharkhand)

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---- Appellant

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Versus

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State of Chhattisgarh Through Station House Officer, Police Station Ramchandrapur, District Balrampur-Ramanujganj (Chhattisgarh)

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---- Respondent

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For Appellant : Shri Shakti Raj Sinha, Advocate For State/Respondent : Shri Ayaz Naved, Govt. Advocate

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Hon'ble Shri Justice Arvind Singh Chandel

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Judgment on Board

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17/08/2023

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This appeal has been preferred against the impugned judgment dated 23/01/2020 passed in Special Sessions Trial (POCSO) No. No.37/2018 by the Additional Sessions Judge/Special Judge, (POCSO/FTC), Ramanujganj, District – Balrampur, (C.G.) wherein appellant has been convicted and sentenced as under :

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Conviction	Sentence
U/s 363 of the Indian Penal Code, 1860 (in short ‘the IPC’)	R.I. for 5 years and fine of Rs.500/- with default stipulations
U/s 366 of the IPC	R.I. for 5 years and fine of Rs.500/- with default stipulations

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U/s 5(B)/6 of Protection of R.I. for 10 years and fine amount of Children from Sexual Rs.1,000/-, with default stipulations Offences Act, 2012 (in short 'the POCSO Act')

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All sentences are directed to run concurrently

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According to the case of prosecution, in the present case, at the relevant time, age of the prosecutrix (PW-4) was 16 years and 4 months. According to the entries made in the Dakhil Kharij Panji (Ex.P5), date of birth of the prosecutrix is 16.04.2002. On the date of incident, she was studying in class 10. On 17.08.2018 when father (PW-1) of the prosecutrix returned to his house from his duty, it was informed by his wife that their daughter is missing from the house. Thereafter, father of the prosecutrix lodged a missing report of her daughter i.e. Ex.P-1. On the basis of the said report, initially offence under Section 363 of the IPC was registered. During inquiry, on 23.08.2018, prosecutrix was recovered from the possession of the appellant vide recovery memo Ex.P-2. Statement of the prosecutrix and other witnesses were recorded under Section 161 of the Cr.P.C. She was medically examined by Dr. Kamini Rai (PW-7) and report submitted by her is Ex.P-21. After completion of the investigation, a charge-sheet was filed against the appellant. The Trial Court framed the charges under Section 363, 366 of the IPC and Section 5(B)/6 of POCSO Act in substitution of offence under Section 376(2)(<) of the IPC. To prove the guilt of the accused/appellant, prosecution has examined as many as 14 witnesses. No defence witness has been examined. Statement of appellant under Section 313 of the Cr.P.C.

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was recorded, wherein accused/appellant has pleaded innocence and false implication in the matter.

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After completion of trial, the trial Court has convicted and sentenced the appellant as mentioned in paragraph 1 of this judgment. Hence, this appeal.

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Learned Counsel appearing on behalf of the appellant submits that the Trial Court has wrongly convicted the appellant without there being sufficient and clinching evidence against him. Referring to the statement of the prosecutrix (PW-4), it is argued that she was the consenting party of the alleged act. There was love affairs between the appellant and prosecutrix, therefore, she herself left her house and joined the company of the appellant. With regard to the age of the prosecutrix, there is no conclusive evidence available on record which shows that at the time of alleged incident, prosecutrix was below 18 years of age. Referring to the statement of father (PW-1) of the prosecutrix, it is argued that father of the prosecutrix has admitted the fact that there is age difference of about 6 years between the prosecutrix and his second child who was aged about 12 years at the time of incident. Thus, from the admission made by father of the prosecutrix, it is appears that at the time of alleged incident, age of the prosecutrix was more than 18 years of age. Further referring to the statement of Mohd. Zafir Alam (PW-3) who is a private teacher in Morning Star School, Ramchandrapur, it is argued that this witness has admitted the fact that his school is a private school running up to class 8 only, but how the entry of date of birth of prosecutrix in Dakhil Kharij Panji has been made of class 9, it is not explained by this

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witness. Thus, entries made in Dakhil Kharij Panji appears to be suspicious. With regard to the medical report of the prosecutrix i.e. Ex.P-21, conducted by Dr. Kamini Rai (PW-7), it is opined that the secondary sexual character of the prosecutrix is fully developed . Further, the doctor had advised for ossification test for determination of age of the prosecutrix, despite that prosecution has not conducted ossification test which goes against the case of prosecution. Lastly, it is submitted that the prosecutrix was the consenting party of the alleged act and her age is not established that at the time of alleged incident, she was below 18 years of age, therefore, conviction of the appellant is not sustainable. Further, reliance has been placed in the case of P.Yuvaprakash v. State Rep. By Inspector of Police reported in (2023) SCC Online SC 846.

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Per contra, learned Counsel appearing for the State supports the impugned judgment and submits that sentence awarded by the trial Court is just and proper and requires no interference.

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I have heard learned Counsel appearing for the parties, perused the statement of witnesses, evidence adduced by the prosecution and other annexed documents available on record minutely.

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With regard to the incident, the prosecutrix (PW-4) in her Court statement has deposed that on the date of incident when she was in her house, then appellant called her through mobile phone and called her at Godarmana. Then she left her house and went to Godarmana on bus from her village Vishunpur. She further deposed that when she reached Godarnama, then appellant came there after 10-15 minutes on a motorcycle and from there they went to Gadhwa on a bus. She

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further deposed that they stayed there for about 7 days and during that period at one night appellant committed sexual intercourse with her. Then on next day, the appellant took the prosecutrix to a Court situated at Gadhwa saying that he would marry her. At that time police officials and her father reached there and found them. Then police took them to Ramanujganj. During course of examination, this witness admitted that she never made any complaint to anybody when she was travelling to Godarmana and Gadhwa with appellant. She also made no complaint to anyone at Gadhwa where she stayed for seven days along with the appellant.

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On minute examination of the statement of the prosecutrix (PW-4), it appears that she was the consenting party and the alleged act was committed by the appellant as there was love affairs between them. And due to said reason, prosecutrix herself left her house and joined the company of the appellant and stayed with him for seven days at Gadhwa.

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With regard to the age of the prosecutrix (PW-4), the Trial Court has relied upon the entries of Dakhil Kharij Panji and arrived on the conclusion that on the date of incident, prosecutrix was below 18 years of age. The entries of Dakhil Kharij Panji has been proved by Mohd. Zafir Alam (PW-3) who was the teacher of Morning Star School, Ramchandrapur where prosecutrix was studying. This witness in his statement deposed that the prosecutrix took admission in his school in class 9. However, during cross-examination, this witness admitted the fact that the school was earlier running from class 6 to 7 and from that year class 8 was started running. Thus, the fact was not explained by

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him that how the prosecutrix got admission in class 9 and how date of birth of prosecutrix in Dakhil Kharij Panji of class 9 was registered when the said school was running up to class 7 only. This has not been explained by this witness clearly. Thus, entries made in Dakhil Kharij Panji appears to be suspicious and doubtful. Further, the prosecution has not filed Dakhil Kharij Panji of class 1 where prosecutrix was firstly admitted in the school.

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The prosecutrix (PW-4) in her Court statement has deposed that her date of birth is 16.04.2002. But father (PW-1) of the prosecutrix in paragraph 7 of his cross-examination has admitted the fact that he has stated the date of birth of prosecutrix on the basis of presumption only. He further admitted that there is age difference of about 6 years between the prosecutrix and his second child who was aged about 12 years at the time of incident. He also admitted that he is not aware about the date of birth of his children. Considering the above and from the admission made by father of the prosecutrix, it appears that at the time of alleged incident, age of the prosecutrix was about18 years of age. There is no conclusive evidence available on record which shows that at the time of incident prosecutrix was below 18 years of age. Since, she was consenting party of the alleged act and at that time she was not below 18 years of age, therefore, conviction of the appellant for the aforesaid offences is not sustainable.

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Consequently, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The appellant is acquitted of the charge framed against him.

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The appellant is reported to be in jail. He be released forthwith, if not

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required in any other case.

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Record of the Court below be sent back along with copy of this judgment for information and necessary compliance.

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Sd/(Arvind Singh Chandel) Judge

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Prakash

Angad Kumar Ram v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Angad Kumar Ram v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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