Tekram Sahu Vs State of Chhattisgarh

1. The appellant has filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, the Cr.P.C.) questioning the impugned judgment of conviction and order of sentence dated 02.01.2024 passed by the learned Special

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Judge (POCSO Act, 2012) Balod, District Balod, in Special Sessions Case No. 95/2020 whereby the appellant has been convicted and sentenced as under:

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Conviction under Section	Sentence (Rigorous imprisonment)	Fine	In default of payment of fine additional rigorous imprisonment
363 of the Indian Penal Code (for short, the IPC)	3 years	Rs. 1000/-	1 year
366 of the IPC	5 years	Rs. 2000/-	1 year
6 of the Protection of Children from Sexual Offences Act,2012	20 years	Rs. 2000/-	1 year

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2. Today, the matter is listed for hearing on IA No. 1 of 2024, which is an application for suspension of sentence and grant of bail to the appellant, however, with the consent of learned counsel for the parties, the matter is being heard finally.

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3. Case of the prosecution, in short, is that the appellant/accused allured the minor victim who belongs to Scheduled Tribe community, and took her away from the lawful guardianship of her parents and thereafter, the appellant committed sexual intercourse with the victim in between 03.05.2018 to 08.09.2020 on the pretext of marriage.

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4. The father of the victim (PW-3) made an oral complaint on 12.05.2018 at Police Outpost Pinkapar, that he is an agriculturist. On 03.05.2018, her minor daughter aged 17 years,

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who was a student of Class 10^th , had gone missing since morning. The said complaint was registered in Rojnamcha Sanha as missing person No. 9/2018 and since the victim was a minor, Crime No. 0/2018 for the offence under Section 363 IPC was also registered which, when presented before the Police Station Devri on 12.05.2018, numbered FIR (Exhibit P/23) being 41/2018 for the offence punishable under Section 363 IPC was registered against unknown person and the matter was taken for investigation. After investigation, the victim was recovered from Reddynagar, Hyderabad.

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5. After completion of the investigation, the police submitted the police report alongwith charge-sheet against the appellant for the offences under Sections 363, 366, 376 IPC and Section 4 and 6 of the POCSO Act and Section 3(2)(v)(a) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 ( for short, the Act of 1989 ), before the Sessions Judge, Balod.

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6. Accordingly, Special Sessions Trial No. 41/2018 was registered and the learned Special Judge (POCSO Act, 2012) Balod, District Balod, framed charges on 23.02.2021 against the convict/appellant under Sections 363, 366, 376(2)(n), Section 6 of the POCSO Act, 2012 and Section 3(2)(v) of the Act of 1989. The convict/appellant abjured the guilt and prayed for trial.

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7. Amongst others, the prosecution has exhibited the following documents in support of its case:

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Recovery Panchnama (Exhibit P/1)

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Consent Letter of prosecutrix (Exhibit P/2)

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Notice U/s 91 of Cr.P.C.(Exhibit P/3)

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Statement of prosecutrix U/s 164 of Cr.P.C.(Exhibit P/4)

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Police Statement of prosecutrix (Exhibit P/5)

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Memo of Head Master of providing of admission discharge register (Exhibit P/6)

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Unnumbered First Information Report (Exhibit P/7)

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Crime Details Form (Exhibit P/8)

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Property Seizure Memo (Exhibit P/9 and P/10)

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Memo of medical examination of prosecutrix and examination report (Exhibit P/11A and P/11)

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Memo to Additional Tahsildar for spot map (Exhibit P/12 and P/13)

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Memo for medical examination of accused and examination report (Exhibit P/14A and P/14)

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Spot Map (Exhibit P/15)

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Memo to FSL for chemical examination of seized articles (Exhibit P/16)

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Receipt of exhibits (Exhibit P/17)

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FSL report (Exhibit P/18)

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Notice U/s 91 of Cr.P.C. (Exhibit P/19)

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Arrest/Court Surrender Memo (Exhibit P/20)

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Information of arrest (Exhibit P/21)

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Property Seizure Memo (Exhibit P/22)

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Memo of JMFC requesting to record the statement of prosecutrix (Exhibit P/23)

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First Information Report (Exhibit P/23)

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8. In order to bring home the offence, prosecution examined as many as 12 witnesses, namely: the victim (PW-1), Ishwar Lal Singhare (PW-2) who is the Head Master who has proved the date of birth through the Admission/Discharge register, father of the victim (PW-3), Dr. Sujata (PW-4) who had examined the victim, Nilkanth Bhuarya (PW-5) who is the Investigating Officer, Dr. Rahul Kumar Govindani (PW-6) who had examined the appellant, Ghansuram Thakur (PW-7) who is the Patwari who had prepared the Spot Map, Dev Kumar Korram (PW-8) who is the Assistant Sub Inspector who had recovered the victim from Hyderabad, Padma Jagat (PW-9) who is the lady Inspector who had recorded the statement of the victim and who had given a memo to the Medical Officer of Community Health Centre, Dondilohara for examination of the victim, Dinesh Kumar Sinha (PW-10) who is the Deputy Superintendent of Police, who had also investigated a part of the crime as Atrocities Act was also included in this case, Navin Kumar Borkar (PW-11) who is the Inspector and also conducted some part of the investigation, and A.R.Yadav (PW-12) who is the Assistant Sub Inspector who had registered the numbered FIR (Exhibit P/23).

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9. The statement of the convict/appellant was recorded under section 313 CrPC on 13.10.2023. He has expressed his ignorance about most of the questions, however, some of them were denied as well. He stated that he was innocent and was falsely implicated.

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10. The learned trial Court, after considering the statement of witnesses and evidence available on record, convicted and sentenced the appellant/accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellant/convict.

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11. Ms. Maya Chaturvijani, learned counsel for the appellant/convict submits that the appellant has been falsely implicated in this case. In fact, the victim and the appellant had a love affair between them and they had performed marriage and two children were born from the wedlock. The appellant was neither minor nor any forceful intercourse was committed against her. She was a consenting party which is apparent from her deposition before the learned trial Court. The victim had left her house on her own sweet will and it is not a case of kidnapping as has been tried to portrayed before the learned trial Court. The victim remained with the appellant for quite long time and during this period, she had never made any complaint to anyone. Since the victim and the appellant belonged to different castes, the appellant has been roped in a false case. Even in the FSL report,

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which is in respect to vaginal slides of the victim, the same has been found to be negative.

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12. On the other hand, Mr. Malay Jain, learned Panel Lawyer appearing for the State/respondent submits that the learned Court below was fully justified in convicting and sentencing the convict/appellant as mentioned in the opening paragraph. There is ample evidence on record to hold the appellant guilty of the offence. The order passed by the learned Court below needs no interference and the appeal filed by the convicts/appellants be dismissed.

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13. Mr. Sanjay Sahu, learned counsel appearing for the victim submits that he has no objection if this Court allows the application for suspension of sentence and grant of bail to the appellant.

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14. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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15. The appellant/convict is alleged to have kidnapped the victim from the lawful custody of their guardian and thereafter committed sexual intercourse with her. According to the prosecution, the victim was minor on the date of incident and was aged about 17 years 5 months.

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16. The victim (PW-1) herself in her statement before the Court stated that she is the only child of her parents. She was acquainted with the accused since 2017 while she met him at village Kirgi. She was in love with the appellant. She herself stated that she accompanied the appellant for going to Hyderabad and thereafter they performed marriage in a temple and lived like husband and wife for about two years and physical relationship was also made between them with their consent because of which she became pregnant. She further states that the she belonged to Scheduled Tribe and this was within the knowledge of the appellant. She has clearly deposed that when she left her village for going to Hyderabad, she was more than 18 years of age. She has denied that she had given any statement (Exhibit P/5) to the police alleging commission of forceful sexual intercourse with her. She has further stated that till she was aged 9years, she was not admitted to any school and while she was admitted in the school in class I, her date of birth was reduced by 1 year by her parents. Her parents were knowing the relationship of the appellant and the victim and since the appellant belonged to Other Backward Community and she belonged to Scheduled Tribe community, her parents were not agreeable for their relationship and because of which the false FIR has been registered by her father. The victim further goes to show that she had signed on a document when she was asked by the police

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and before signing, neither she had seen as to what was written in it nor the police had read it over to her. Even in her statement under Section 164 Cr.P.C., the victim stated that she herself had gone with the appellant and she was not kidnapped and she wanted to live with the appellant only. She had stated that they had performed marriage also. Even in her statement under Section 161 Cr.P.C., similar statement has been made by the victim though before the Court, she stated that before signing her statement under Section 161 Cr.P.C., the same was neither read over to her nor she was aware as to what was written in it.

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17. Ishwar Lal Singhare (PW-2) is the Head Master of Government Primary School Ragho Nawagaon, Tahsil Dondilohara, District Balod where the victim had studied. According to him, the date of birth was recorded in the Admission/Discharge register as 03.12.2000 and was admitted in Class I on 22.06.2007. He could not inform the Court as to on what basis the said date of birth was recorded as he was not posted in that school at that time. Even the father of the victim (PW-3) in his deposition has stated that the age of the victim was more than 18 years when she had left the house, though in the marksheet and other documents, the date of birth has been recorded as 03.12.2000 but the actual date of birth is 03.12.1998. He has denied that the victim had informed him that the appellant used to commit forceful sexual intercourse with her. He further admitted that the appellant and

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the victim are living together as husband and wife. He, however, admitted that he had made a missing complaint of the victim.

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18. Dr. Sujata (PW-4) is the Medical Officer who had conducted the MLC of the victim and her report is at Exhibit P/11 wherein this witness, on examination found no external injury over the body. The secondary sexual characters of the victim were well developed and she was found to be habitual of sexual contact and she was carrying pregnancy of 5 months. She prepared two vaginal slides, which when examined at FSL, no human sperm was found which is evident from Exhibit P/18).

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19. The appellant was also examined by Dr. Rahul Kumar Govindani (PW-6) who in his report (Exhibit P/14) has opined that the appellant was fully capable of performing sexual intercourse.

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20. There is no doubt that the appellant and the victim had established physical relationship as two children have born from the said relationship. The victim has further deposed before the Court that they had performed marriage in a Temple at Hyderabad and were living as husband and wife. Further, from the statement of the victim herself and also from the statement of the father of the victim, it is clear that just because the appellant happened to be a member of other backward community and the victim belonged to Scheduled Tribe community, the parents were not agreeable to the said relationship. Even the father has also deposed that the victim was a major aged about 19 years at the

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time of incident. There is a clear deposition made by the victim that she was not kidnapped by the appellant but she had gone with her on her own will.

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21. When the victim went missing, she was studying in class 10^th and she was admitted in Class I when she was aged 9 years. There is no other document except the Dakhil Kharij register to show that the date of birth of the victim was 03.12.2000 and that on what basis the said date of birth was recorded. The incident is said to have taken place between 03.05.2018 to 08.09.2020 and if the date of birth is taken as 03.12.1998 as has been stated by the victim as well as the father of the victim, her age would have been 19 years and 5 months and as such, the finding arrived at by the learned trial Judge, based on the admission/discharge register that the victim was minor on the date of incident is an erroneous finding of fact. As such, the entire prosecution case becomes false.

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22. From perusal of the record, it transpires that the appellant was on bail and after his conviction, he was sent to jail vide order dated 02.01.2024 passed by the learned trial Court. According to the victim as well as the appellant, they were living as husband and wife and they have two children from their wedlock. Just because they both belonged to different communities, it appears that there was some anger in the heart of the father of the victim because of which the FIR seems to have been lodged. Even then, before

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the learned trial Court, the father has deposed that the victim was a major on the date of incident and the victim herself had deposed that she had gone with the appellant willingly and had been residing as husband and wife, we are of the opinion that the finding of the learned trial Court in convicting and sentencing the appellant for the offences, as aforesaid, is unjust and improper. It is a case of elopement and not kidnapping.

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23. In view of the above discussion, this Court is of the considered opinion that the judgment passed by the learned trial Court needs interference and as such, the judgment of conviction and order of sentence awarded to the appellant is hereby set aside and he is acquitted of the charges.

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24. Resultantly, this appeal is allowed.

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25. The learned trial Court has awarded a sum of Rs.5,00,000/- to the victim as compensation by its order dated 02.01.2024, however, since it is the case of the victim herself that she eloped with the appellant and married with him at Hyderabad, and thereafter she lived with the appellant for about two years as her wife and from the said wedlock, two children have also born, and as the appellant is acquitted of the charges levelled against him by the present judgment, we set aside the direction of the learned trial Court granting the aforesaid amount as compensation to the victim.

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26. The convict/appellant- Tekram Sahu is reported to be in jail. He is directed to be released forthwith unless wanted in any other case. However, keeping in view the provision of Section 437-A of the Cr.P.C., the accused-appellant is directed to furnish a personal bond for a sum of Rs. 25,000/- with two sureties in the like amount before the court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant, on receipt of notice thereof, shall appear before the Supreme Court.

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27. Registry is directed to transmit the lower court record along with a copy of this order to the court concerned forthwith for necessary information and compliance.

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Sd/Sd/(Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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Amit

Tekram Sahu v. State of Chhattisgarh

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Tekram Sahu v. State of Chhattisgarh

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