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HIGH COURT OF CHHATTISGARH, BILASPUR
Pritinker Diwaker, J.
SHIVCHARAN ALIAS JARHA - Appellant
Vs.
STATE OF M.P. - Respondent
Criminal Appeal No. 1672 of 1996
Decided on: 21-6-2012
Consent - Criminal Law - IPC 363, 366, 376 - The judgment discusses the evidence and findings related to the accused's conviction under Sections 363, 366, and 376 of the Indian Penal Code. It highlights the issue of consent, age determination of the prosecutrix, and the reliability of evidence such as the baptism certificate and ossification test.
Fact of the Case:
The prosecutrix, aged about 14 years, was allegedly lured and taken to the accused's house, where she was subjected to forcible sexual intercourse. The accused was convicted under Sections 363, 366, and 376 IPC based on the prosecutrix's testimony and medical examination.
Finding of the Court:
The Court found that the evidence did not support the conviction, emphasizing the prosecutrix's silence during her journey and her prolonged stay with the accused without raising any alarm. The Court also questioned the reliability of the evidence regarding the prosecutrix's age, including the baptism certificate and ossification test.
Issues: The key issues revolved around the prosecutrix's consent, her age determination, and the reliability of the evidence presented in the case.
Ratio Decidendi: The Court's decision was influenced by the lack of evidence supporting the prosecutrix's lack of consent and the uncertainty surrounding her age determination, leading to the acquittal of the accused.
Final Decision: The appeal was allowed, the judgment was set aside, and the accused was acquitted of the charges.
1. This appeal has been preferred against the judgment and order dated 12.9.1996 passed by Additional Sessions Judge, Ambikapur, District Sarguja in Sessions Trial No. 159/1993 convicting the accused/appellant under Sections 363, 366 and 376 IPC and sentencing him to undergo rigorous imprisonment for five years u/s 363 and rigorous imprisonment for seven years with fine of Rs. 1000 u/s 366 and 376 IPC each, plus default stipulations.
2. Facts of the case in brief are that on 7.9.1991 FIR Ex. P-1 was lodged by Elthoris Tigga (PW-2) - cousin of the prosecutrix alleging that he had left the prosecutrix (PW -1) aged about 14 years in the house of one Alaxendor (PW-3) for the purpose of household work and pursuing studies. On 16.8.1991 he was informed by Alaxendor (PW-3) that the prosecutrix had left his house without informing him. Allegedly, while searing for her, he came to know that after being allured the prosecutrix had gone to the house of accused/appellant and was living with him. The prosecutrix was recovered on 15.9.1991 from the house of the accused/appellant vide recovery memo Ex. P-19. Based on this report, offences under Sections 363 and 368 IPC were registered against the accused/appellant. After investigation, charge sheet was filed by the police on 31.12.1991 for the offences under Sections 363, 366 and 376 IPC.
3. In support of its case, prosecution has examined 09 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case.
4. After hearing the parties, the Court below has convicted and sentenced the accused/appellant as mentioned in paragraph No.1 of this judgment.
5. Counsel for the accused/appellant submits that the conduct of the prosecutrix herself in visiting several places in bus and met number of passengers but did not disclose anything to them and kept silent shows that she was a consenting party to the act of the accused/appellant. According to him, medical report clearly says that at the relevant time the prosecutrix was aged about 18 years. He submits that the Court below ought to have seen the three years' margin with respect to the judgment of error has to be given to the opinion of the radiologist and that if the said margin of three years is added in the age given the radiologist, it can safely be said that on the date of incident she was major.
6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the findings of the Court below being based on the evidence of the witnesses, is just and proper and calls for no interference in this appeal.
7. Prosecutrix (PW -1) has stated in her evidence that she knew the accused/appellant who had come to her village for carpentry work and he stayed in the house of her uncle for about one month. According to her, she was brought by Elthoris Tigga (PW-2) to the house of one master to attend to his child and that on the date of incident when she was attending to the child, accused/appellant carne there and threatened her to accompany him otherwise she would be stabbed to death and on account of fear she accompanied him to his house at village Damali where she was kept for two weeks and subjected to forcible sexual intercourse all along this period. This witness has stated that whenever she asked him to go home, he would threaten to kill her. Thereafter, her cousin Elthoris Tigga (PW-2) came there and took her with him, report was lodged by him and she was medically examined. In cross examination, the prosecutrix has stated that she is an Oraon Christian whereas the accused/appellant is an Oraon Hindu and that she has four sisters and three brothers but she could not tell the age of her elder brother. According to her, she had accompanied the accused/appellant to village Kusmi by bus. She then stated that she was cheated by the accused/appellant. Furthe
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