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2007 Supreme(Chh) 443
HIGH COURT OF CHHATTISGARH
Dhirendra Mishra, J.
JAILAL - Appellant
Versus
STATE OF CHHATTISGARH - Respondents
Criminal Appeal 1972 Of 1996
Decided On : JULY 30, 2007
Chandresh Shrivastava, Pradeep Singh
Headnote:Indian Penal Code,1860—Sections 363, 36, 376(2)(g)—Prosecution of appellant accused persons two in number for stopping prosecutrix when she was coming back home from school, applying vermillion on her hair parting and for forcibly taking her on bicycle towards spring where one of accused committed rape on her while other accused stood guard—Prosecution case that when other students tried to intervene, they were threatened at knife point by A2—Conviction by Trial Court—Appeal against conviction—Photocopy of mark-sheets adduced in evidence as Ex. P3, P4 and P5 by Prosecution to prove age of prosecutrix less than 18 years—Documents of Ex. P3, P4 and P5 being mark-sheets were proved by prosecutrix herself who stated that she had given her date of birth on basis of mark-sheet and that date of birth was given by her father in school—Deposition of father of prosecutrix that he did not remember date of birth of his daughter—Hence, Prosecution was unable to establish that prosectrix was less than 16 years of age or less than 18 years of age at time of incident on basis of evidence available on record—Apart from statement of prosecutrix, categorical statement of witnesses who were students studying in same school that prosecutrix was forcibly taken by accused on knife point—Plea of appellants that prosecutrix was consenting party found unacceptable—No evidence available on record to show that A2 had at any point of time a common intention with Al to Commit rape—No evidence against A2 that before incident of abduction, during abduction or thereafter subsequent there to at any point of time, A2 had any common intention to commit rape with prosecutrix—Conviction of A2 under Section 376(2)(g) of IPC could not be sustained—Conviction of Al under Section 366, IPC affirmed while that under Section 376(2)(g) IPC altered to Section 376 of IPC—Conviction of A2 under Section 366 IPC was affirmed while that under Section 363 and 376(2)(g), was set aside—Appeal partly allowed. (Paras 6, 8, 9,10,11 & 12)
Facts of the Case:
1. Appellant accused persons two in number were prosecuted for stopping prosecutrix when she was coming back home from school, applying vermillion on her hair parting and for forcibly taking her on bicycle towards spring where one of accused committed rape on her while other accused stood guard. Trial Court convicted accused person for said offence.
2. Aggrieved by said order of conviction and sentence, accused person have preferred present appeal.
3. Findings of the Court: The Court held that photocopy of mark-sheets was adduced in evidence as Ex. P3, P4 and P5 by Prosecution to prove age of prosecutrix less than 18 years. Documents of Ex. P3, P4 and P5 being mark-sheets were proved by prosecutrix herself who stated that she had given her date of birth on basis of mark-sheet and that date of birth was given by her father in school. Deposition of father of prosecutrix that he did not remember date of birth of his daughter. Prosecution was unable to establish that prosecutrix was less than 16 years of age or less than 18 years of age at time of incident on basis of evidence available on record. Apart from statement of prosecutrix, categorical statement of witnesses who were students studying in same school that prosecutrix was forcibly taken by accused on knife point. Plea of appellants that prosecutrix was consenting party was found unacceptable. No evidence was available on record to show that A2 had at any point of time a common intention with A1 to commit rape. There was no evidence against A2 that before incident of abduction, during abduction or thereafter subse-quent thereto at any point of time, A2 had any common intention to commit rape with prosecutrix. Conviction of A2 under Section 376(2)(g) of IPC could not be sustained. Conviction of A1 under Section 366 IPC affirmed while that under Section 376(2)(g) IPC altered to Section 376 of IPC. Conviction of A2 under Section 366 IPC was affirmed while that under Section 363 and 376(2)(g), was set aside. Appeal partly allowed.
Result: Appeal partly allowed.
( 1 ) THE appellants have preferred this appeal against the judgment dated 31st October, 1996 passed in S. T. No. 239/1995 whereby learned Additional sessions Judge, Baikunthpur District sarguja has convicted the appellants under section 363, 366 and Section 376 (2) (g) of i. P. C. and sentenced each of them to undergo three years R. I. , to pay a fine of Rs. 500, in default of payment of fine to further undergo R. I. for three months, to undergo r. I. for 5 years, to pay a fine of Rs. 500, in default of payment of fine to further undergo r. I. for 3 months, and to undergo R. I. for 10 years, to pay a fine of Rs. 1,000 and in default of payment of fine to further undergo r. I. for 5 months respectively. All the substantive sentences are to run concurrently.
( 2 ) CASE of the prosecution, in brief, is that on 13. 2. 1995, the prosecutrix along with her friend Ku. Anjana Sahu was returning from her school to her home, at that time accused jailal stopped her on way, co-accused Ram prasad took out vermillion from his pocket and gave it to Jailal who put it in the hair parting of the prosecutrix which was objected to by the prosecutrix who tried to run away, however, the accused Jailal caught her braid. Vijay, Kamleshwar, Nareshwar etc. tried to intervene and Kamleshwar proceeded in that direction, appellant Ram prasad took out a knife from his pocket and threatened and also slapped 3-4 time to kamleshwar, thereafter Jailal took the prosecutrix on his shoulder and ultimately he took her on his bicycle and proceeded towards spring situated in hillock in golhapani road. The prosecutrix was weeping all through and was requesting to free her, however, the accused Jailal committed rape and accused Ram Prasad stood guard. After committing the offence, he took her to a temple and obtained vow and left her. The prosecutrix returned to her home and narrated the incident to her brother Rajendra who communicated the same to his father, thereafter report was lodged in the Police station, Baikunthpur vide Ex. P6. The prosecutrix was sent for medical examination to Community Health Centre, Baikunthpur where Dr. Rajni Sharma (PW11) examined her and gave report of Ex. P10.
( 3 ) THE appellants were charged by learned trial Court for offence under Sections 363, 366 and 376 (2) (g) of Indian Penal code, who abjured their guilt. The prosecution in order to establish the charges against the appellants examined 14 witnesses. The appellants in their statements under Section 313 of Criminal Procedure code denied the circumstances appearing against them in prosecution evidence and pleaded innocence and false implication. However, learned trial Court convicted and sentenced the appellants as mentioned above.
( 4 ) LEARNED counsel for the appellants submitted that the prosecution has failed to prove that the prosecutrix was less than 18 years old at the time of incident. No admissible documentary or medical evidence was adduced in this regard and the finding of the trial Court which is based on oral testimony of the prosecutrix herself and her parents and also based on photo copies of the mark-sheets of the prosecutrix, is not in accordance with law. Reliance is placed upon the judgments in the matter of ravinder Singh Gorkhi v. State of U. P. and ram Murti v. State of Haryana. It is further argued that the prosecutrix was a consenting party as is evident from her own testimony and the statement of other witnesses. She accompanied the accused of her own freewill on the carrier of his bicycle and did not make any attempt to flee from his clutches, though she had an opportunity to do so, and it is indicative of the fact that she was a consenting party. Reliance is placed upon the judgment in the matter of shyam and another v. State of maharashtra. It is further contended that the appellant Ram Prasad has not participated in the offence of rape. There is no evidence available on record that he had common intention along with accused Jailal
