RAJKUMAR Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) THE appellant has preferred this appeal against the judgment and order dated 10.1.2008 passed by Additional Sessions Judge (FTC) Korba in Sessions Trial No. 80/2007 convicting him under Sections 363 and 366 IPC and sentencing him to undergo rigorous imprisonment for two years and pay fine of Rs. 2000, u/s 363 and rigorous imprisonment for three years and pay fine of Rs. 3000 u/s 366 IPC, plus default stipulations.

(2.) FACTS of the case in brief are that on 29.4.1997 a report (unexhibited) was lodged by father of the prosecutrix namely Dashrath (PW-2) alleging that his daughter (the prosecutrix PW-3 herein) went missing since 27.4.1997 and that she had also taken with her a suitcase containing her clothes. On 10.11.1997 she is said to have been recovered from the house of co-accused Naresh and then FIR Ex. P-2 was registered on the same day at the instance of her father namely Dashrath (PW-2) to that effect. In the FIR it is stated that on 27.4.1997 prosecutrix aged about 14 years and studying in class VII at the relevant time had left the house without informing anyone and that during search on 10.11.1997 she was recovered from the house of co-accused Naresh and on being asked she informed him that both the accused persons had allured her away to Delhi and after keeping her there for one month they took her to Salihabhata where she was kept by accused Naresh in his house by putting her under threat. Based on this FIR offences under Sections 363 and 366 IPC were registered against both the accused persons. Case diary statement of the prosecutrix was recorded on 10.11.1997, on the same day she was medically examined by Dr. (Smt.) S. Sisodia (PW-1) and after completion of investigation challan was filed by the police on 26.12.1995 for the offences under Sections 376, 363 and 366 IPC.

(3.) DR. (Smt.) S. Sisodia (PW-1) who had medically examined the prosecutrix has stated in her evidence that secondary sexual characters of the prosecutrix were fully developed up, no external or internal injury was noticed on her person, that she was habitual to sexual intercourse and that her estimated age at the relevant time was 13-14 years. In cross examination she has stated that the prosecutrix was advised for age determination test. Dashrath (PW-2) - father of the prosecutrix has stated that in the year 1997 his daughter was studying in class VII and that on the date of incident i.e. 27.4.1997 when he reached his house, she was found missing and extensive search was made her. While searching for her he went towards the bus stand, people present there informed him that the present appellant and the co-accused had taken her away. According to this witness, when the prosecutrix could not be traced for two days, a missing report was lodged in police station Korba. He has further stated that after recovery of the prosecutrix, FIR Ex. P-2 was lodged by him. In cross examination, this witness has stated that while lodging the missing report, he had disclosed the names of the present appellant and the co-accused saying that these two persons had taken the prosecutrix away and if the same is not mentioned therein, he could not tell the reason for that. According to him, he performed two marriages and the prosecutrix was the fourth issue through his second wife. Prosecutrix was admitted in the school at the age of seven years and she studied in class I at village Khod and then she was shifted to another school at Salihabhata and admitted in class II where she studied upto class V. Thereafter, she was admitted in class VI in yet another school at village Barpali. This witness has however denied that at the time of incident the prosecutrix was 16-17 years of age. According to him, while leaving his house without informing anyone, the prosecutrix had taken one suitcase. According to this witness, he had not enquired from the prosecutrix as to for how many days she stayed in Sailhabhata or that how many places she visited with co- accused. Prosecutrix (PW-3) has stated in her evidence that even prior to the incident co-accused being in the company of the present appellant used to tease her and both of them used to demand money ( Rs. 3000 - 5000) from her by putting her under threat of killing her father if their demand was not fulfilled. According to her, on the date of incident when she was all alone in her house, both the accused persons took her away by dragging. They first took her to Champa and then to Bilaspur where they subjected her to beating also. Thereafter, they took her to a village near Bilaspur name of which she does not know and kept here there for a day where accused Naresh committed rape on her. According to her, at the time when accused Naresh raped her, present appellant was also there. Thereafter, they took her to Delhi where they kept her in a house. According to this witness, present appellant tore off her clothes and there also accused Naresh committed rape on her. In Delhi she was kept for two months and during this period accused Naresh committed rape on her for 8-9 times by tying her hands and legs. Thereafter, accused Naresh took her to his house at village Salihabhata and kept here there for about one month and during this period he used to subject her to beating. According to her, she was during her stay at village Salihabhata, accused used to keep the doors of his house bolted and there also he raped her thrice. While committing rape, accused Naresh used to put her under threat saying that if she did not give Rs. 10,000, he would finish her. According to her, when she was on the way to police station, accused Naresh and his relatives threatened her to finish her parents if she tried to get them jailed. On the point of medical examination she was declared hostile. This witness has admitted that no report was lodged by her when she was being teased by the accused persons nor did she inform her parents about the same. Demand of money by the accused persons was also not informed to her parents. She has stated that when she was dragged for the first time, she did raise her cries but as nobody was there, she could not be rescued. According to her, she was taken to Champa in a jeep which was driven by the present appellant. At Bilaspur she was taken to the house of maternal uncle of the present appellant but she did not inform him that the accused persons had abducted her and that the accused persons had introduced her to be the sister of their friend. According to her, in Delhi she was kept in a rented house and that accused Naresh used to bring food from hotel. She has stated that in the following year of the incident she got married. In respect of her age, she has stated in paragraph 33 of her deposition that she was not aware as to in what age she was admitted in class I and that she never failed in any class. In paragraph 28 of her deposition she has further stated that from Korba police station, her father and the police had sent her along with accused Naresh and thereafter this fact has been denied by her. Manoj Kumar Jha (PW-4) - witness to the seizure of certain articles made under Ex. P- 4 has not supported the case of the prosecution and has been declared hostile. Smt. Kiran Bai (PW-5) - mother of the prosecutrix has stated that on 27.4.1997 when she returned home after taking bath, she found the prosecutrix missing, extensive search was made and near bus stand she was informed by the people present there that the accused persons had taken the prosecutrix and thereafter missing report was lodged. In respect of the age of the prosecutrix this witness has stated that she was aged about 14 years. Thereafter, according to this witness, the prosecutrix was recovered from the house of accused Naresh. This witness has however denied that the prosecutrix lived with accused Naresh for 3-4 months. Kholbahra (PW-6) is the seizure witness before whom undergarments of the prosecutrix were seized by the police. In cross examination, he has stated that the documents were signed by him on the direction of the police and that he was not aware of any seizure. Dr. S.K. Agrawal (PW-7) is the witness who had medically examined the accused Naresh and given his report Ex. P-5 stating that he was capable of performing sexual intercourse. Navin Kumar (PW-8) is the police constable who assisted in the investigation. D.S. Thakur (PW-9) is the Assistant Sub Inspector who recorded the FIR and did part of the investigation. Chandrama Singh Rajput (PW-10) is the investigating officer who has duly supported the case of the prosecution. Ranvir Singh (PW-11) is the police constable who assisted in the investigation. Mina Bai (PW-12) is the Sarpanch who had issued birth certificate of the prosecutrix. She has stated that date of birth of the prosecutrix is 7.1.1983 and the said date of birth was recorded on the information provided by the father of the prosecutrix. Kashiram Gadhwal (PW-13) is the head master of the school who has stated that as per the admission register date of birth of the prosecutrix is 7.1.1983 and that she was admitted in the school on 18.7.1995 in class VI and that her date of birth was got recorded by her father. According to this witness, mark sheet of the prosecutrix of class VII Ex. P-12 was prepared from his school and she was declared as fail. According to him, in class VI the students are admitted on the basis of certificate of primary school but the said mark sheet of the prosecutrix of primary school has not been filed. This witness has admitted the fact that no affidavit whatsoever was being taken from the parents of the students in support of date of birth mentioned in the mark sheet of class V.