Allowed

Yogendra @ Jugnu v. State Of Chhattisgarh

Chhattisgarh HC21 Apr 2024CRA/661/2016

Case brief

AI extract

What is this about?

The High Court allowed the appeal and acquitted the appellant, holding that the prosecution failed to prove the prosecutrix was under 16 years of age solely on the basis of an ossification test report. The court further found inconsistencies in the prosecutrix's testimony, which cast doubt on the charges of kidnapping and rape.

What did the court decide?

Appellant acquitted from all charges and directed to be released forthwith if not required in any other case.

Yogendra @ Jugnu 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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CRA No. 661 of 2016

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Yogendra @ Jugnu S/o Lallu Panika, Aged About 22 Years, R/o Village - Narsingpur, Police Station - Pandaria, District - Kabirdham (Kawardha) Chhattisgarh, Chhattisgarh

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---- Appellant

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Versus

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State of Chhattisgarh Through the Station House Office, Police Station - Pandaria, District - Kabirdham (Kawardha) Chhattisgarh, Chhattisgarh

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---- Respondent

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(Cause-title taken from Case Information System)

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For Appellant : Ms. Itu Rani Mukherjee, Advocate. For State/Respondent : Mr. B.D. Guru, Addl. Advocate General.

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Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board

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22-04-2024

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This criminal appeal has been preferred by the appellant against the impugned judgment of conviction and order of sentence dated 05-05-2015 passed by learned F.T.C./Additional Sessions Judge and Special Judge, under the Protection of Children from Sexual Offences Act, 2012 (in short ‘the POCSO Act’), Kabirdham (Kawardha), (C.G.) in Special Sessions Case No.75/2015, whereby the appellant has been convicted under Sections 363, 366A and 376(2)(i) of the IPC and Section 4 of the POCSO Act and sentenced in the following manner with a direction to run all the jail sentences concurrently:-

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Sl. No.	Conviction	Sentence
1.	U/s 363 of the IPC	R.I. for 7 years and fine of Rs.500/-, in default of payment of fine additional imprisonment for 6 months
2.	U/s 366A of the IPC	R.I. for 7 years and fine of Rs.500/-, in default of payment of fine additional imprisonment for 6 months
3.	U/s 376(2)(i) of th IPC	e R.I. for 10 years and fine of Rs.500/-, in default of payment of fine,additional imprisonment for 1year

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U/s 4 of the POCSO R.I. for 7 years and fine of Rs.500/-, in default of Act payment of fine additional imprisonment for 1 year

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The brief facts of the are that, the father of the perosecutrix lodged a missing report on 05-11-2014 to the police of Police Station Pandariya with the effect that his daughter is missing since 04-11-2014 in the night at 11:00 p.m. who had gone to watch Gammat (dance) at Durga Chowk, Narsinghpur, but till morning she has not returned back. Despite having her search, her whereabouts could not be traced out. The missing report was reduced in writing in rojnamcha and ultimately the FIR Ex.-P/15 was registered for offence under Section 363 of the IPC against unknown person. During investigation the prosecutrix was recovered on 16-012015 from the possession of the appellant and the recovery panchnama Ex.-P/3 was prepared. The prosecutrix was sent for her medical examination to District Hospital Kabirdham where Doctor Smt. U. Suryavanshi (PW-7) has examined her and gave her report Ex.-P/19. After her examination she found no injury on her body and opined that no definite opinion can be given regarding time of sex due to patient is habitual for sexual intercourse. Two slides of vaginal swab was prepared, sealed and handed over to police for its FSL examination. The prosecutrix was referred to radiological department for determination of her age. Doctor G.K. Suryavanshi (PW-6) who is radiologist at District Hospital Kabirdham has examined the X-ray report of the prosecutrix and gave his opinion Ex.-P/18 whereby he opined that the average age of the prosecutrix is 15 years. Spot map Ex.-P/2 was prepared by police and Ex.-P/1 was prepared by Patwari. The appellant was arrested on 06-012015 and he too was sent for his medical examination to District Hospital

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Kabirdham where he was also examined by Doctor Balram Jaiswal and after his examination he found that he is able to do intercourse. The statement under Section 161 of the Cr.P.C. of the witnesses have been recorded. The statement under Section 164 of the Cr.P.C. of the prosecutrix has also been recorded. The vaginal slide and underwear of the prosecutrix was sent for FSL examination to regional FSL Raipur and after completion of usual investigation charge sheet was filed before the learned trial Court for offence under Sections 363, 366 and 376 of the IPC and Section 4 of the POCSO Act.

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The learned trial Court framed charges against the appellant for the offence under Sections 363, 366A and 376(2)(i) of the IPC and Section 4 of the POCSO Act. The appellant abjured his guilt and claimed trial. 4. In order to establish charges against the appellant the prosecution has examined 7 witnesses. The statement under Section 313 of the Cr.P.C. of the appellant has also been recorded in which he denied the material appeared against him, pleaded innocence and has submitted that he has not committed the offence.

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After appreciation of the oral as well as documentary evidence produced by the prosecution, the trial Court has convicted the appellant and sentenced him as mentioned in para 1 of this judgment. Hence, this appeal.

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Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There is no legally admissible evidence with respect to the age and date of birth of the prosecutrix. The learned trial Court has relied upon the ossification

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test report which is not conclusive to determine the age of the prosecutrix. There is no school record, birth certificate of the prosecutrix to corroborate the medical opinion with regard to her age. There is every possibility of error of margin of three years in either sides on the opinion of the doctor regarding her age. She would further submit that the prosecutrix being major girl having love affair with the appellant had gone herself with the appellant on her own will, stayed with him for about two months as his wife and had engaged in making physical relation with her on her own free will. Therefore, no offene either of kidnapping, procuring the girl or of rape is made out against the appellant and he is entitled for acquittal.

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On the other hand, learned counsel for the State/respondent opposes the submission made by learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt. The ossification test report submitted by the prosecution is sufficient to determine age of the prosecutrix, as the ossification test report has submitted by the PW-6, Doctor G.K. Suryavanshi who after radiologically examining the prosecutrix gave his report and opined that she is 15 years of age. The opinion of the doctor is based on physical condition of the prosecutrix which cannot be disbelieved in absence of any contrary evidence. He has further submitted that since the prosecutrix was minor, her consent, if any, would not have any effect in view of her age. The appellant has kidnapped her and procured her for illicit intercourse and has made physical relation with her which does amount to kidnapping and rape upon the prosecutrix and therefore, the appeal does not have any merits and is liable to be

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dismissed.

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I have heard learned counsel for the parties and perused the record of the trial Court.

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With respect to the age of the prosecutrix only evidence available on record is the ossification test report Ex.-P/18 which is sought to be proved by Doctor G.K. Suryavanshi (PW-6). He has stated in his deposition that he is posted as radiologist at District Hospital Kabirdham. On 17-01-2015 X-ray plates were produced before him for his opinion about the age of the prosecutrix and after its examination he found the following observation:-

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2@	Scapula -	(A) Acormion - (B) Coracoid -	Appear,oaFusenksuksa gks x;k gS] tks fd 13 ls 16 o"kZ ds chp esa gksrk gSA Appear,oaFusenksuksa gks x;k gS] tks fd 16 esa gksrk gSA
3@	Humerus	(A) Head - (B) Distal end -	Appear,oaFusenksuksa gks x;k gS] tks fd 14 ls 16 o"kZ ds chp esa gksrk gSA Appear,oaFusenksuksa gks x;k gS] tks fd 14 o"kZ esa gksrk gSA
4@	Radius -	(A) Head - (B) Distal end -	Appear,oaFusenksuksa gks x;k gS] tks fd 14 o"kZ esa gksrk gSA Appeargks pqdk gS] ysfduFuseugh gqvk gS] tks fd 16-5 o"kZ esa gksrk gSA
5@	Ulna -	(A) Ole cranon - (B) Distal end -	Appear,oaFusegks pqdk gS]tks 15 o"kZ esa gksrk gSA Appeargks pqdk gS] ysfduFuseugh gqvk gS] tks fd 17 o"kZ esa gksrk gSA
6@	Femur -	(A) Head - (B) Distal end -	Appear,oaFusegks pqdk gS]tks 14 ls 15 ds chp esa gksrk gSA Appear,oaFusegks pqdk gS]tks 14 ls 17 ds chp esa gksrk gSA
7@	Tibia Proximal end	-	Appeargks pqdk gS] ysfduFuseugh gqvk gS] tks fd 14 ls 15 ds chp esa gksrk gSA
8@	Fibula Proximal end	-	Appeargks pqdk gS] ysfduFuseugh gqvk gS] tks fd 14 ls 16 ds chp esa gksrk gSA
9@	Crest of Illium		Appeargks pqdk gS] tks 14 o"kZ esa gksrk gS] ysfduFuseugha gqvk gS] tks fd 17 ls 19 ds chp esa gksrk gSA

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After this examination the doctor has opined that the average age of the

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patient may be 15 years. In cross-examination he admitted that the prosecutrix was not brought before him. He further admitted that the development of bone of the person depends upon their diet, their environment in which they are residing and their lifestyle.

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Hon'ble Supreme Court in the case of Ramdeo Chauhan alias Raj Nath Vs. State of Assam , reported in (2001) 5 SCC 714 in para 51 and 52 of the judgment has dealt with relevancy of the ossification test report to determine age of the person which reads as under :-

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“ 51. In his report the doctor has detailed all the data on which he reached his conclusion. I do not propose to extract all such data here except pointing out that such data collected by Dr B.C. Roy is in consonance with the guidelines provided in the textbooks of medical jurisprudence (vide Modi's Medical Jurisprudence and Jhala & Raju's Medical Jurisprudence). Ossification test is done for multiple joints, for wich the radiological report was obtained. The margin of error according to authorities on medical jurisprudence can be two years either way as the maximum. In this context it is useful to extract the relevant passage from Jhala & Raju's Medical Jurisprudence (6^th Edn., p. 198):

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“If ossification test is done for a single bone the error may be two years either way. But if the test is done for multiple joints with overlapping age of fusion the margin of error may be reduced. Sometimes this margin is reduced to six months on either side.”

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52. Of course the doctor's estimate of age is not a sturdy substitute for proof as it is only his opinion. But such opinion of an expert cannot be sidelined in the realm where we grope in the dark to find out what would possibly have been the age of a citizen for the purpose of affording him a constitutional protection. In the absence of all other acceptable materials, if such opinion points to a reasonable possibility regarding the range of his age it has certainly to be considered. .........”

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In the matter of Jaya Mala Vs. Home Secretary, Government of Jammu & Kashmir and others , reported in (1982) 2 SCC 538 the Hon’ble Supreme Court has considered the error of margin of two years in either side in age ascertained by radiological examination. In para 9, the Hon’ble Supreme Court has held that:-

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“ 9. ………. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. ……..”

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There is no other evidence produced by the prosecution to determine the age of the prosecutrix that she was less than 16 years on the date of incident. The prosecutrix (PW-5) has only stated that she is aged about 15 years, but there is no basis on which her age is to be determined. She herself has not disclosed her date of birth, even her father (PW-2) has not disclosed her date of birth and only stated that is daughter is aged about 15 years, but in cross-examination he has stated that he disclosed the age of the prosecutrix on assumption, he did not know her age.

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From the above evidence produced by the prosecution it cannot be safe to hold that the prosecutrix was less than 16 years of age on the date of incident as alleged by the prosecution, yet the learned trial Court has held her minor and less than 16 years of age.

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So far as offence of kidnapping, procuring the minor girl and rape is concerned, I have again examined the evidence available on record carefully.

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The prosecutrix (PW-5) has stated in her deposition that at the time of Gaura Gauri celebration in Deepawali festival there was a dance organized by the villagers and she along with her friend had gone to watch the dance. From there, the appellant has taken her along with him and her friend has returned back to their own house. She stayed at Bilaspur for about 1-2 months. The appellant had gone to his work and she stayed in his house. The appellant has made physical relation with her for about 2-3 months. After 2-3 months the police persons have took them to Pandariya police station and she was sent for her medical examination. In cross-examination she has stated that at the place where the dance was organized she and the appellant were watching from some distance, after some time she herself had gone where the appellant was standing. She admitted in her deposition that she had gone to Village Bijhouri and on the way of Village Bijhouri her house was also situated, but she has not called any of her family members when she was passing through of her house. She further admitted that in the bus by which she was traveling with the appellant a large number of passengers were there, but she has not made any complaint to any of the passengers. She further admitted that at Bilaspur where she stayed

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with the appellant a number of adjoining houses are there, at about 8:00 in the morning the appellant used to go to his work and she remained alone in his house despite that she had not tried to flee away from his house. She further admitted that adjoining to the house of the appellant where she stayed, house of police man was also there. She also admitted that she had not tried to contact with her family members. She admitted that she was residing with the appellant as husband and wife.

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The father of the prosecutrix (PW-2) has stated in his deposition that after lodging of the missing report of his daughter, she could not be found and after about 4 months police persons have took her with them. In his evidence he has not stated anything that his daughter has informed him about any incident and in cross-examination he shown his ignorance about any incident.

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Doctor Smt. U. Suryavanshi (PW-7) who has medically examined the prosecutrix has not found any injury on her body and no definite opinion about recent sexual intercourse was given. There is no FSL report produced by the prosecution to connect the appellant in offence in question.

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The version of the prosecutrix commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the prosecutrix's evidence, then it will not be safe to rely on the said version of the prosecutrix. There is contradiction and omissions in the statement of the prosecutrix and her parents. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the

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testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case.

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For the foregoing reasons, the appeal succeeds and is allowed . The impugned judgment of conviction and order of sentence dated 0505-2015 is set aside. The appellant is acquitted from all the charges. The appellant is reported to be in jail since 16-01-2015, he be released forthwith if not required in any other case.

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

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Sd/-

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(Ravindra Kumar Agrawal) Judge

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Aadil

Yogendra @ Jugnu v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Yogendra @ Jugnu v. State Of Chhattisgarh

Case brief

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What did the court decide?

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