Sitaram Vs State Of Chhattisgarh

1 . This appeal under Section 374(2) of Cr.P.C. has been preferred by the appellant against the judgment of conviction and order of sentence dated 04.02.2016 passed by learned Additional Sessions Judge,

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Pratappur, District- Surajpur (C.G.) in Sessions Trial No. 31/2015 whereby the appellant has been convicted for the offence punishable under Sections 363, 376(1) of IPC and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012 and sentenced to undergo RI for 3 years, 10 years and 14 years with fine of Rs.200/-, 300/- and 500/- respectively with default stipulations.

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2 . Case of the prosecution, in brief, is that on 09.09.2014, mother of the prosecutrix lodged a report at Police Station- Chandaura on 09.09.2014 to the effect that on 12.08.2014 at about 9:00 am, her daughter (prosecutrix) went out to work in the corn field and did not return. On search and enquiry from the relatives, she could not be traced out. On the basis of said report, the offence under Sections 363, 366-A of IPC was registered against unknown person and during course of investigation, the prosecutrix was recovered from the house of the appellant. On being asked, she told that the accused/appellant used to visit her house earlier and used to have sexual relations with her on the pretext of marriage. When she became pregnant, he took her to his house on 12.08.2014 and kept her as his wife. Meanwhile, the 7-month-old child in her womb died. Since the victim was a minor below 16 years of age at the time of the incident, therefore, Section 376 of IPC and Section 4 of the POCSO Act have been added separately in the case. After completion of usual investigation, charge sheet was filed before the learned trial Court for the offence punishable under Sections 363, 366 and 376 of IPC & Section 4 of POCSO Act, 2012. Learned trial Court framed charges under Sections 363, 366A and 376 of IPC & Section 3/4 of POCSO Act, 2012, to which appellant abjured his guilt and claimed to be tried.

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3 . So as to hold the accused/appellant guilty, the prosecution examined as many as 11 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. However, he did not adduce any evidence in his defence.

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4 . Learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 04.02.2016 finding evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant as mentioned in para 1 of this judgment. Hence, this appeal.

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5 . Learned counsel for the appellant submits that the impugned judgment is contrary to law, facts and circumstances of the case, therefore liable to be set-aside. The lea rned trial Court has erred in convicting the appellant for the aforementioned offences, however the prosecutrix has not supported the case of prosecution and she turned hostile. The prosecutrix has categorically deposed before the trial Court that she gave her statement recorded under Section 164 of CrPC. under pressure, therefore the impugned conviction of the appellant solely based upon statement of prosecutrix recorded under Section 164 of Cr.P.C being baseless deserves to be quashed. The prosecutrix has further categorically deposed before the trial Court that she herself went to the house of appellant and stayed there for about 2 years, therefore it is clear that the appellant has not taken the prosecutrix from her lawful guardianship. The learned trial Court failed to appreciate this fact that at the time of incident, the prosecutrix was not

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below 18 years of age. Prosecution has completely failed to prove that at the time of incident, the prosecutrix was minor. Even the prosecution is not able to prove that as to on what basis the date of birth was recorded in the school record of prosecutrix. Therefore, the findings recorded by the trial Court in respect of age of prosecutrix, is bad in law. The learned trial Court failed to appreciate that the mother of the prosecutrix (PW-11) & father of the prosecutrix (PW-6) have also not supported the case of prosecution. Looking to the conduct of prosecutrix and material collected on behalf of prosecution agency, it is clear case of consent and willingness, therefore impugned conviction of the appellant deserves to be quashed. The learned trial Court failed to appreciate that statement recorded by the Magistrate under Section 164 of CrPC is totally denied by the prosecution and it is not reliable for conviction of any accused, as held by the Hon'ble Apex Court in various cases. The learned trial Court failed to appreciate that the prosecutrix and appellant both lived together for about 2 years, without any fear, protest or complaint. Therefore, the impugned judgment is liable to be set aside.

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Reliance has been placed on the decision of Hon’ble Supreme Court in the matter of Iqbal Vs. State of Kerala reported in AIR 2008 SC 288.

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6 . On the other hand, learned State counsel supporting the impugned judgment submits that the learned trial Court minutely appreciated oral and documentary evidence and found that the prosecutrix was below 18 years of age at the time of incident. Prosecutrix has clearly narrated in her evidence regarding the

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offence committed by the accused/appellant who is her uncle. Hence, the impugned judgment is well merited and does not call for any interference by this Court.

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7 . Heard learned counsel for the parties and perused the material placed on record including the impugned judgment.

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8 . It is clear from record of learned trial Court that the learned trial Court framed charges under Sections 363, 366(A), 376 of IPC and Section 3 /4 of POCSO Act and after appreciating oral and documentary evidence, acquitted the appellant of the charge under Section 366 (A) of IPC and convicted the appellant under Sections 363, 376(1) of IPC and Section 3 /4 of POCSO Act.

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9 . As per prosecution, at the time of incident, the prosecutrix was aged about 16 years and 3 months.

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10. Prosecutrix (P.W.-5) stated that she is educated up to 9^th class. Her birth year is 1998 and she does not remember her exact date of birth.

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11. Father of the prosecutrix (P.W.-6) stated that at the time of incident, his daughter was aged about 14 years. He made her daughter admitted in the Amari Hariharpur School when her daughter was 5 years old.

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12. Mother of the prosecutrix (P.W.-11) did not state anything regarding the age of her daughter (prosecutrix).

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13. Shri Sudarshan Gupta (P.W.-2), Principal of Primary School stated that as per admission discharge register of school, prosecutrix was got admitted on 09.07.2004 and as per her father’s statement, her date of birth was recorded. Police seized the admission discharge register as per seizure memo (Ex.P/1) and copy of register is Ex.P/1C and as per this register, the name of the prosecutrix was entered at serial No.674 and her date of birth is 12.05.1998.

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In his cross-examination, he admitted this suggestion of defence that he was not the Head Master of the school when the name of the prosecutrix was being enrolled in school.

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14. The Hon'ble Apex Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police, (2011) 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., 31^st 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

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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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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 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

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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. In light of aforesaid decision of the Hon'ble Supreme Court and in particular the evidence of Head Master of the School i.e. Sudarshan Gupta (P.W.-2) and mother of the prosecutrix (P.W.11), this Court finds 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 as to on what basis the entry regarding the age of the prosecutrix, was made in the school register. Therefore, the prosecution has failed to prove this 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, the finding so recorded by the learned trial Court is set aside and this Court holds that the prosecution has not been able to prove successfully that on the date of incident she was minor.

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16. Prosecutrix (P.W.-5) stated that the accused/appellant did not commit anything wrong with her and accused/appellant is her maternal uncle. She had gone to work in Ambikapur with Urmila. The accused/appellant also lived at the same place where they lived. She voluntary stated that she and the accused had not done anything wrong.

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She further stated that the police recovered her from the house of accused Sitaram in Village Shyamnagar and prepared recovery panchnama vide Ex.P/6. Prosecution declared her hostile and cross-examined her, then she admitted that her parents were discussing about her marriage with the accused. She further admitted that she had love affair with the accused and therefore they lived together.

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Further in her cross-examination, she admitted that she works thoughtfully. She again admitted that she gave her statement before the Magistrate, Surajpur under pressure.

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17. Father of the prosecutrix (P.W.-6) and mother of the prosecutrix (P.W.-11) stated that the prosecutrix (P.W.-5) ran away with the accused. Mother of the prosecutrix (P.W.-11) stated that she lodged the report at the concerned police station vide Ex.P/8. Prosecution declared her hostile and cross-examined her, then she admitted that her daughter was recovered from the house of the accused/appellant.

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18. Dr. Rajri Kishore Khalkho (P.W.-10) stated that she examined the prosecutrix and performed her pregnancy test wherein she found that the prosecutrix was not pregnant. She opined that the prosecutrix was habitual to sexual intercourse. She gave her report vide Ex.P/17 in this regard.

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In her cross-examination, she admitted that during examination of prosecutrix, she did not found any injury or any sign of struggle on her body.

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19. Having regard to the manner in which, the incident allegedly took place, the evidence of the prosecutrix coupled with her conduct during the incident and subsequent thereto and the fact that the medical evidence also lends no support to the prosecution case, it is clear that the prosecutrix was a consenting party to the act of the appellant. Upon perusal of record, it is also clear that the date of incident is 12.08.2014 and FIR was lodged on 09.09.2014. prosecutrix was recovered vide recovery memo (Ex.P/6) on 09.12.2015 i.e. after 16 months from the date of incident i.e. on 12.08.2014 which also creates doubt in the prosecution story. It has already been held by this Court that the prosecutrix was not minor on the date of incident. Thus, prosecution has failed to prove its case against the appellant beyond reasonable doubt. Therefore, no offence under Sections 363, 376(1) of IPC and Section 3/4 of POCSO Act, 2012 is made out against the appellant.

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20. On the basis of aforesaid discussions, the appeal is allowed. The appellant is acquitted of the charges under Sections 363, 376(1) of IPC and Section 3/4 of POCSO Act, 2012.

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21. The impugned judgment stands modified to the above extent.

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22. The appellant is reported to be on bail, keeping in view the

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provisions of Section 437-A of Cr.P.C. (481 of the B.N.S.S.), the appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety 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 Hon’ble Supreme Court.

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23. The trial Court record along with a copy of this judgment be sent

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back immediately to the trial Court concerned for compliance and necessary action .

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Sd/Sd/-

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(Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge

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Ruchi

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RUCHI YADAV Digitally signedby RUCHI YADAV

Sitaram v. State Of Chhattisgarh

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Sitaram v. State Of Chhattisgarh

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