Allowed

Sukhalram Dewangan v. State of Chhattisgarh

Chhattisgarh HC19 Jun 2024CRA/1280/2021

Case brief

AI extract

What is this about?

Appeal against conviction under Sections 363, 366A, 313 IPC and Section 6 POCSO Act for sexual intercourse on pretext of marriage. The High Court found no legally admissible evidence proving minority of the prosecutrix, deemed her a consenting party, found no conclusive evidence of abortion, acquitted the appellant and set him free.

What did the court decide?

Impugned judgment of conviction and sentence set aside; appellant acquitted of all charges and ordered to be set free forthwith if not required in any other case.

Sukhalram Dewangan Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Judgment reserved on :10/06/2024 Judgment delivered on : 20/06/2024

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Criminal Appeal No. 1280 of 2021

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Sukhalram Dewangan, son of Amarsai Dewangan, aged about 23 years, resident of Village-Rampur (Ramgarhpara), Police Station-Odgi, District-Surajpur (CG)

---- Appellant

(In Jail)

Versus

State of Chhattisgarh, through the Station House Officer, Police Station-Surajpur, District-Surajpur (CG)

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For Appellant : Mr. Mahendra Dubey, Advocate For State : Mr. Abhishek Singh, Panel Lawyer

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Division Bench:

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Hon'ble Shri Justice Goutam Bhaduri, J Hon'ble Smt. Justice Rajani Dubey, J

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CAV Judgment

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Per Rajani Dubey, J

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The appellant has filed the instant appeal challenging the legality and validity of the judgment of conviction and order of sentence dated 21.10.2021 passed by Additional Sessions Judge, Fast Track Special Court, Surajpur in Special Sessions Case No.29/2020 whereby the appellant stands convicted and

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sentenced as under:

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	Conviction	Sen	tence
Under	Section 363 of Indian Penal	RI for 07 year	s, pay a fine of
Code.		Rs.200/- and in suffer additional	default thereof to RI for 04 months.
Under	Section 366-A of Indian	RI for 10 year	s, pay a fine of
Penal	Code.	Rs.200/- and in suffer additional	default thereof to RI for 04 months.
Under	Section 313 of Indian Penal	RI for 10 year	s, pay a fine of
Code.		Rs.200/- and in suffer additional	default thereof to RI for 04 months.
Under	Section 6 of Protection of	RI for 20 year	s, pay a fine of
Childr	en from Sexual Offences	Rs.200/- and in	default thereof to
Act, 20	12.	suffer additional	RI for 04 months.

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All the sentences were directed to run concurrently.

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02. Case of the prosecution, in brief, is that on 19.05.2020 the prosecutrix made a written complaint (Ex.P/1) at Police StationSurajpur to the effect that the appellant has been committed forcible sexual intercourse with her for the last one year on the pretext of marriage and when she asked him for marriage, he refused. Based on this report, FIR (Ex.P/2) was registered against the appellant on the same date under Sections 363, 366, 376 of IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012 (in short "the Act of 2012"). With the consent of mother of the prosecutrix, medical examination of the prosecutrix was done and in respect of her age, copy of Dakhil-Kharij register of Primary School, Jobga was seized vide Ex.P/6. Statement of the

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prosecutrix was recorded under Section 164 of CrPC vide Ex.P/7. The appellant was arrested on 9.6.2020 and subjected to medical examination wherein he was found capable of performing sexual intercourse vide Ex.P/16. After completing usual investigation, charge sheet was filed against the accused/appellant under Sections 363, 366, 376 of IPC and Section 6 of the Act of 2012. The trial Court framed charges under Sections 363, 366A, 376(3) (2)(n), 313 of IPC and Sections 4(2) & 6 of the Act of 2012 against appellant, to which he abjured his guilt and prayed for trial.

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03. In order to prove its case, the prosecution examined 09 witnesses. Statement of the accused/appellant was also recorded under Section 313 of CrPC in which he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. However, no witness was examined by him in defence.

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04. Learned trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the appellant as mentioned in para 1 of this judgment.

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05. Learned counsel for the appellant would submit that the impugned judgment is perverse, erroneous and contrary to the oral and documentary evidence available on record. It ought to have seen that author of the entry made in the Dakhil-Kharij

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register as to the date of birth of the prosecutrix has not been examined by the prosecution and being so, it cannot be said conclusively that she was minor on the date of incident. The prosecutrix has also not supported the prosecution case and has turned hostile. He has submitted that according to the medical report, no external or internal injury was found over the body of the prosecutrix. Learned trial Court has failed to appreciate the fact that the doctor (PW-6) has not given any specific opinion regarding abortion of the prosecutrix. There are several omission and contradiction in the statements of the prosecution witnesses which were not considered properly by the learned trial court. Therefore, the impugned judgment is liable to be set aside and the appellant be acquitted of all the charges.

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06. On the other hand, learned counsel for the State supporting the impugned judgment submits that the prosecution based on the oral and documentary evidence adduced by it has duly proved the fact that prosecutrix was below 18 years of age on the date of incident and she was subjected to repeated forcible sexual intercourse by appellant on the pretext of marriage and when she conceived, he administered some medicine to her for abortion. Being so, the impugned judgment of the learned trial Court warrants no inference by this Court and the present appeal is liable to be dismissed.

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07. Heard learned counsel for the parties and perused the material available on record.

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08. The prosecution examined 9 witnesses in all to prove its case against the appellant. PW-1 prosecutrix has stated in her examination-in-chief that the appellant committed rape on her repeatedly on the pretext of marriage and subsequently refused to marry her. She states that when he was committing rape on her in the forest, at that time two persons caught them and by giving them money, they were gagged. When she conceived, the appellant forcibly administered Mifty Kit to her as a result of which she suffered abortion. In her cross-examination she admits that her mother and other relatives went to the house of the appellant to persuade him for marrying her as he had refused to marry her. She admits that had she been married to the appellant, she would not have lodged report against him. She states that she did not make any statement before the Magistrate regarding her abduction or administration of medicine by the appellant to her for abortion.

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09. PW-2 mother of the prosecutrix states that the appellant had abducted her daughter (prosecutrix) on the pretext of marriage and committed rape on her but later on he refused to marry her. She states that the prosecutrix consumed the pills for abortion at the instance of the appellant as a result of which she suffered

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abortion. In cross-examination she admits that they went to the house of the appellant for fixing the marriage of the prosecutrix with him and there it was decided that their marriage would be done in Baishakh month. She admits that they did not lodge any report against the appellant when he abducted the prosecutrix.

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10. The appellant is said to have been making sexual intercourse with the prosecutrix for the last one year of lodging the report. According to the prosecutrix, it was done on the pretext of marriage. In her deposition she has stated that when the appellant was committing rape on her in the forest, two persons caught them and by giving them money, they were gagged. It has also come in the evidence of the prosecutrix and her mother that they alongwith other family members went to the house of the appellant for the purpose of her marriage with him and if the marriage had been solemnized, they would not have lodged any report. Mother of the prosecutrix has admitted that when the appellant eloped with the prosecutrix, they did not lodge any report.

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11. Taking into account the evidence of the prosecutrix and her mother, conduct of the prosecutrix during the alleged incident and subsequent thereto, the manner in which the incident is said to have taken place, it appears that the prosecutrix was a consenting party to the act of the appellant and as such, no offence of rape or

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abduction is made out against the appellant.

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12. Now this Court proceeds to examine on the basis of evidence on record whether on the date of incident the prosecutrix was a minor?

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13. The prosecutrix (PW-1) has stated that her date of birth is 25.1.2004 which is recorded in her marksheet and her mother (PW-2) states that she only remembers the year of birth of the prosecutrix i.e. 2004. In para 4, PW-2 admits that she is stating the prosecutrix to be 17 years at the instance of the Guruji (teacher) and that she does not know the exact age of the prosecutrix.

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The prosecution has heavily relied upon the entry made in Dakhil-Kharij register of Primary School, Jobga, regarding date of birth of the prosecutrix. Though in the said register, her date of birth is recorded as 25.1.2004, but PW-4 Head Master of the school has admitted that he did not record the name or date of birth of the prosecutrix in the Dakhil-Kharij register and also has no knowledge as to who did this. He admits that no document pertaining to date of birth of the prosecutrix is attached with the said register and there is also no mention in the register as to on what basis her date of birth is recorded.

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14. The Hon'ble Apex Court in the matter of Alamelu and

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another Vs. State, represented by Inspector of Police, (2011)

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2 SCC 385 observed in paras 40 & 48 of its judgment as under:

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“40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded.

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48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:-

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"The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being

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represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."

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15. The Supreme Court in the matter of Manak Chand alias Mani vs. State of Haryana, 2023 SCC Online SC 1397 has reiterated the law laid down by it in the matter of Birad Mal Singhvi vs. Anand Purohit, 1988 (Supl.) SCC 604 and observed that the date of birth in the register of the school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. It was further reiterated that if the date of birth is disclosed by the parents, it would have some evidentiary value but in absence the same cannot be relied upon. For sake of brevity para No. 14 & 15 of the judgment are reproduced hereunder:-

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“14 This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC 604 had observed that the date of birth in the register of a school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth.

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“14…. The date of birth mentioned in the scholar’s register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar’s register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar’s register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth such an entry will have no evidentiary value.”

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15. In our opinion, the proof submitted by the prosecution with regard to the age of the prosecutrix in the form of the school register was not sufficient to arrive at a finding that the prosecutrix was less than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to the age of the prosecutrix. It was neither safe nor fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case.”

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16. In light of aforesaid decisions of the Hon'ble Supreme Court, we find that in the present case, there is no such clinching and legally admissible evidence brought on record by the prosecution to prove the fact that the prosecutrix was minor on the date of incident, yet the learned trial Court has recorded in the impugned judgment that she was minor. Hence we set aside the finding so recorded by the learned trial Court and hold that the prosecution has not been able to prove successfully that on the date of incident she was minor.

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17. As regards the offence under Section 313 of IPC, in her written report (Ex.P/1) the prosecutrix has nowhere stated that due to rape being committed on her by the appellant she conceived which was got aborted by the appellant through administration of some medicine. Further, in her statement under Section 164 of CrPC (Ex.P/7) also she has not stated about her abortion by the appellant. There is also no conclusive medical evidence to substantiate the above allegation. Thus, keeping in view of the nature of oral and documentary evidence in this regard, this Court finds it difficult to hold the appellant guilty of the offence under Section 313 of IPC.

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18. On the basis of aforesaid discussion, this Court is of the opinion that the prosecution has failed to prove that the

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prosecutrix was minor on the date of incident and the evidence on record suggests that she was a consenting party to the act of the appellant. As such, the learned trial Court was not justified in holding the appellant guilty under Sections 363, 366A, 313 of IPC and Section 6 of the Act of 2012. Being so, the appeal is allowed and the impugned judgment is, accordingly, set aside. The appellant is acquitted of all the aforesaid charges. He is reported to be in jail since 9.6.2020, therefore, he be set free forthwith if not

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required in any other case.

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Sd/	Sd/
(Goutam Bhaduri)	(Rajani Dubey)
Judge	Judge

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Khan

Sukhalram Dewangan v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Sukhalram Dewangan v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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