Dismissed

Yohanna Masih @ Banti Jaan v. State of Chhattisgarh

Chhattisgarh HC16 Aug 2023CRA/745/2019

Case brief

AI extract

What is this about?

In Criminal Appeal No. 745 of 2019, the High Court of Chhattisgarh dismissed an appeal against a conviction for rape and abduction. The court held that despite the prosecutrix's consent and relationship with the appellant, she was a minor (approx. 16 years) at the time of the act, rendering the consent legally invalid and the conviction sustainable.

What did the court decide?

The appeal was dismissed; conviction and sentences were affirmed.

Yohanna Masih @ Banti Jaan Vs State of… — Child Sexual Offences (POCSO) | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.745 of 2019

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Yohanna Masih @ Banti Jaan Philip Masih, Aged About 23 Years, Resident of Nehru Nagar, Bhilai-3, Police Station Purani Bhilai, District Durg, Chhattisgarh,

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---- Appellant

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Versus

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State of Chhattisgarh Through Station House OfÏcer, Police Station Purani Bhilai, District Durg, Chhattisgarh,

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---- Respondent

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For Appellant : Shri Punit Ruparel, Advocate For State : Shri Ishwar Jaiswal, P.L.

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Hon'ble Shri Justice Arvind Singh Chandel

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Judgment on Board

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16/08/2023

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The instant appeal has been moved by the appellant against the judgment dated 26.09.2018 passed by the Additional Sessions Judge (FTC), Durg, District – Durg, (C.G.), in Special Criminal Case No.135/2016 whereby the appellant has been convicted for the offence punishable as under :

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Conviction	Sentence
U/s 376(2)(n) of the Indian Penal Code, 1860 ( in short ‘the IPC’)	R.I. for 10 years and fine of Rs.1,000/-, in default of payment of fine, further S.I. for six months
U/s 363 of the IPC	R.I. for 3 years and fine of Rs.500/-, in default of

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payment of fine, further S.I. for six months U/s 366 of the IPC R.I. for 5 years and fine of Rs.500/- in default to payment of fine, further S.I. for six months

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All sentences are directed to run concurrently

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According to the case of prosecution, at the relevant point of time prosecutrix (PW-1) was aged about 16 years. According to the entries of Dakhil Kharij Panji (Ex.P-9), date of birth of the prosecutrix is 19.07.2000. Further case of the prosecution is that on 25.07.2016 mother (PW-2) of the prosecutrix lodged a complaint against the appellant that on 9:30 PM appellant abducted her daughter. On the basis of the said report, offence under Section 363 of the IPC was registered. On 26.07.2016, prosecutrix was recovered from the possession of the appellant vide recovery memo Ex.P-10. Statement of the prosecutrix and other witnesses were recorded under Section 161 of the Cr.P.C. Prosecutrix was medically examined by Dr. Manju Rathore (PW12) and her report submitted by her is Ex.P-18. After completion of the investigation, charge-sheet was filed. Thereafter, the Trial Court framed charges under Sections 363, 366, 376(2)(<) of the IPC and Section 6 of POCSO Act against the appellant. Prosecution has examined as many as 12 witnesses. In examination under Section 313 of the Cr.P.C., the appellant denied the guilt and pleaded innocence. No witness was

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examined in defence.

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After hearing the parties, the Trial Court convicted and sentenced the appellant for the offences as mentioned in paragraph one of this judgment. Hence, this appeal.

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Learned Counsel appearing for the appellant submitted that the Trial Court has wrongly convicted the appellant without there being sufÏcient and clinching evidence available on record against him. He further submitted that from the statement of prosecutrix (PW-1), it is well established that she was the consenting party of the alleged act and she herself had left her house on her own will and stayed with the appellant at different places. With regard to the age of the prosecutrix, it is argued that though age of the prosecutrix is mentioned as 19.07.2000 in Dakhil Kharij Panji (Ex.P-9) but Ashok Kumar Soni (PW-3), the Headmaster of the Government School, in his statement has stated that on what basis date of birth of the prosecutrix was entered is not known to him. Therefore, it is not established that at the time of alleged incident, age of prosecutrix was below 18 years of age. Further, no ossification test was conducted by the prosecution to determine the age of the prosecutrix. As the prosecutrix was the consenting party of the alleged act and there is no conclusive evidence to show that the age of prosecutrix was below 18 years, the conviction of the appellant is not sustainable. Reliance has been placed on the judgment passed by the Co-ordinate Bench of this Court passed in

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Criminal Appeal No.1096 of 2012 (Sanjay Kumar Nayak v.

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State of C.G.) reported in 2017(2) CGLJ 579.

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Learned Counsel appearing for the State supported the impugned judgment passed by the Trial Court and submitted that on the basis of evidence adduced by the prosecution, the Court below has rightly convicted the appellant. As such, this appeal deserves to be dismissed.

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I have heard learned Counsel appearing for the parties and perused the entire evidence adduced by the prosecution both oral and documentary. I have also gone through the impugned judgment passed by the Court below.

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On careful perusal of the statement of the prosecutrix (PW-1), it is clear that she was the consenting party of the alleged act as there was love affairs between her and the appellant and due to that she herself left her house on her own will and joined the company of the appellant and visited different places like Bhilai, Rajnandgaon and again Bhilai through public transport. Further, the prosecutrix neither made any complaint to anyone nor she resisted. Thus, it is clear that there was love affairs between the appellant and the prosecutrix and alleged act was done with the consent of the prosecutrix.

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With regard to the age of the prosecutrix, there is documentary evidence available on record i.e. Dakhil Kharij Panji (Ex.P-9) which is proved by Ashok Kumar Soni (PW-3), the Headmaster of the

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Government School. According to the Dakhil Kharij Panji, date of birth of the prosecutrix is 19.07.2000. Though, this witness has admitted in his statement that on what basis date of birth of the prosecutrix was entered in the Dakhil Kharij Panji is not known to him, but considering the statement of prosecutrix (PW-1), her mother and father i.e. PW-2 and PW-4 respectively, it is established that at the time of alleged incident, age of the prosecutrix was below 18 years of age. The above witnesses in their Court statement have categorically deposed that at the time of alleged incident age of the prosecutrix was about 16 years. The said witnesses were not duly rebutted during their cross-examination. Thus, considering the evidence both oral and documentary adduced by the prosecution, the Trial Court rightly arrived on the conclusion that at the time of alleged incident, age of the prosecutrix was below 18 years. Though, prosecutrix was the consenting party of the alleged act, but at that point of time she was minor and her consent was not legal.

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Looking to the above, in the considered view of this Court, the Trial Court has rightly convicted the appellant for the aforesaid offences. As such, the conviction of the appellant is afÏrmed.

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Consequently, I do not find any merit in the instant appeal. The appeal is, therefore, dismissed.

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Sd/(Arvind Singh Chandel) Judge

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Prakash

Yohanna Masih @ Banti Jaan v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Yohanna Masih @ Banti Jaan v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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