Laxmi Kant Vs State of Chhattisgarh

---- Respondent ------------------------------------------------------------------------------------------------------ For Appellant : Mr. M.P.S. Bhatia, Advocate For Respondent/State : Mr. Kanwaljeet Saini, Panel Lawyer ------------------------------------------------------------------------------------------------------

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Hon'ble Smt. Justice Rajani Dubey

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Order on Board

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08/05/2024

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This appeal is preferred under Section 374(2) of the Code of Criminal Procedure, 1973 against the judgment dated 10.04.2003 passed by the Sessions Judge, Durg, Chhattisgarh, in S.T. No. 271/2002, whereby the said Court convicted the appellant and sentenced him as under:-

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Conviction	Sentence
Under Section 376 of Indian Penal Code	Rigorous imprisonment for 10 years and fine of Rs.5000/-, in default of payment of fine 02 years additional rigorous imprisonment.
Under Section 506(B) of Indian Penal Code	Rigorous imprisonment for 02 years.
	(Both sentences to run concurrently)

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Brief facts of the case are that on the date of incident when the

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prosecutrix had gone to attend the call of nature near the canal of field, the accused/appellant reached there, pressed her mouth and committed forcible rape on her. The appellant had also threatened the prosecutrix that if she disclose about the incident to anyone, he will kill her. Due to fear, she did not inform to anyone about the incident, but one day, when the prosecutrix again came in the field for labour work, the appellant reached there and raped her, due to which the menstruation of the prosecutrix stopped and she became pregnant. When the mother of prosecutrix came to know about her pregnancy, she inquired about it and the prosecutrix told that it is accused/appellant on account of which she became pregnant. Thereafter, a Panchayat meeting was held in the village and it was decided to report the matter in the police station and, as such, the matter was reported in the concerned police station.

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Learned counsel for the appellant submits that the appellant has falsely been implicated in the case. The trial Court ought to have acquitted the appellant on the basis of material on record. He further submits that the learned trial Court ought to have seen that there has been a delay of about 7 months and the prosecutrix has not explained it properly. The prosecutrix has clearly mentioned the names of Amrit and Rameshwari, who were present at the place of incident in her deposition, but Rameshwari denied to have any knowledge about the incident in her deposition. The prosecutrix has narrated about the earlier incident also in her cross-examination, and she admits that at that time also there were 4-5 persons present in the field. She has not named those persons nor did the prosecution brought them before the learned trial court, However it is impossible to take away a woman

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before the other co-workers to commit rape upon her. The learned trial Court ought to have considered this fact and might have given the benefit of it to the appellant. It is further submitted by the counsel that Sewaram, who is the father of prosecutrix, has admitted in his deposition that he does not remember the date of birth of prosecutrix. He has also accepted that he has not kept any record of the date of birth of his children, therefore the date of birth as shown in the transfer certificate (Ex.P-6) is doubtful especially, in Admission register (Ex. P- 5) the entry regarding the date of birth of the prosecutrix was not made by Head Master of the school Gajanand Verma (PW4) and the entry of the T.C. (Ex.P-6) is based upon entry of Admission Register (Ex. P-7). In his cross-examination (PW4) Gajanand Verma deposed that generally people who are illiterate, ask the Head Master to make entry of date of birth of their children by his own guessing as they themselves do not know the exact date of birth. Under the circumstances the exact date of birth and age of the prosecutrix has not been established by the prosecution, the learned trial court must have acquitted the appellant. The prosecutrix has also admitted that her menstruation was started about 4-5 year ago. Moreover (PW9) Dr. Smt. Bhanu Deshlahra has also deposed that normally in our region in the age of 13-14 the girls have their first menstruation. The prosecution has failed to prove that the prosecutrix was minor on the date of incident. In support of his contention, he placed reliance on the judgment passed by this High Court in the case of “Dashrathbhuiyan v. State of Chhattisgarh” reported in 2014(1) C.G.L.J. 499 .

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Learned counsel for the State supported the impugned judgment and submits that the learned trial Court has rightly convicted the appellant

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for the offence and sentenced him under Sections 376 and 506(B) of Indian Penal Code. This appeal is without any merit and is liable to be dismissed.

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

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It is clear that the prosecutrix stated before the trial Court that on the date of incident in the afternoon, when she was in the courtyard, the accused caught her and taken to a abandoned place and committed rape. He threatened her not to disclose about the incident to anyone. When she got pregnant, she told to her mother about the incident. Thereafter a village meeting was convened and accused was present in the meeting. He denied to accept his guilt. Thereafter, they lodged F.I.R. against the accused/appellant. In cross-examination, the prosecutrix admitted that earlier also she had made relationship with the accused, but did not tell anyone about the same. Mother of prosecutrix Smt. Fekan Bai (PW-3) also stated that her daughter had conceived on account of the accused subjecting her to rape, therefore, a meeting was convened and she admitted suggestion of defense that if accused accepted her daughter then they will not lodge any report. Similar statement has been made by Sewaram (father of prosecutrix) as his daughter and wife. As such, it is clear from evidence of prosecutrix, her mother and father that she was a consenting party and after knowing about her pregnancy by her parents, a village meeting was called.

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Now this Court has to examine this fact that what was the age of prosecutrix at the time of incident. Sewaram (PW-7) stated that her

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daughter was aged about 15 years at the time of incident. He obtained a certificate (Ex.P/6) from school and given to the police, which has been seized by the police as seizure memo (Ex.P/8). Gajanand Sharma, Principal of the school (PW-4) stated that as per Dakhil Kharij Register (Ex.P/5), date of birth of prosecutrix is 12.02.1986, photocopy of the same is exhibited as Ex.P/5-A. School Leaving Certificate (Ex.P/6) is signed by him and as per this certificate, date of birth of prosecutrix is 12.02.1986. In cross-examination, he admitted this fact that in Dakhil Kharij Register entry was not made by him, therefore, it is clear that the prosecution did not produce any clinching evidence regarding age of prosecutrix.

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This Court in the matter of “ Dashrathbhuiyan ” (supra) in para 14, 15 and 18 held as under:

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“14. It is a trite law that the sole testimony of a prosecutrix can be based for conviction without further corroboration.

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15. Now, we shall examine whether the evidence of the prosecutrix is cogent, trustworthy and can be based for conviction?

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16. xxxxx

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17. xxxxx

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18. Belated lodging of FIR (Ex-P/12), written complaint (Ex-P/11), evidence of the prosecutrix (PW-11) and her unnatural conduct would go to show that she was the consenting party to the commission of sexual intercourse. Therefore, evidence of the prosecutrix cannot be based for conviction of the appellant.”

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In this case also F.I.R. was lodged against the appellant after 07 months and conduct of the prosecutrix go to show that she was the consenting party to the commission of sexual intercourse. The prosecution has failed to prove this fact that prosecutrix was minor on

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the date of incident.

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On the basis of aforesaid discussions, this Court is of the view that the learned trial Court has committed an error in convicting and sentencing the appellant under Sections 376 and 506(B) of Indian Penal Code.

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In the result, the appeal is allowed . Conviction and sentence awarded to the appellant under Sections 376 and 506(B) of Indian Penal Code are set aside. The appellant is acquitted of the chargesheet framed against him. The appellant is reported to be on bail, therefore, the same shall remain operative for a period of 06 months from today by virtue of the provisions of Section 437-A of Cr.P.C. bail bonds shall stand discharged.

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Keeping in view the provisions of Section 437-A of CrPC, the appellant is directed to furnish a personal bond in terms of form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs. 25,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith 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 thereon shall appear before the Hon'ble Supreme Court.

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The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

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Sd/(Rajani Dubey) Judge

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ved

Laxmi Kant v. State of Chhattisgarh

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Laxmi Kant v. State of Chhattisgarh

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