MAHESH RAM Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) In this appeal, appellant has challenged the legality and sustainability of the order of conviction dtd. 20/3/2017 passed in Sessions Trial No. 01/2016, whereby learned Sessions Judge, Manendragarh, District Koriya, Chhattisgarh, convicted the appellant and awarded sentence as mentioned below.

(2.) Facts relevant for disposal of this appeal are that the prosecutrix lodged the report on 11/11/2015 mentioning therein that complainant along with her family members approached to appellant for taking treatment through traditional method of jharphook. Appellant took her near Bachara Talab, her family members were restricted by appellant to go to the place and prosecutrix alone was taken to the other side of bank of talab. On the pretext of treatment through jharphook appellant asked the prosecutrix to remove her clothes and thereafter committed forceful intercourse with her. Based on the report offence under Sec. 376(2)(K)(N) of IPC and Sec. 4 and 6 of POCSO Act was registered against appellant. Police after investigation submitted charge sheet under the aforementioned offences and learned trial court considering the material available in the charge sheet had framed charges against appellant for commission of aforementioned offences. Prosecution examined 15 witnesses to bring home the guilt and exhibited 24 documents in its support. Prosecutrix was examined as PW-4 who at the time of incident was 15 years of age, she stood with the allegation levelled in the F.I.R. and statement under Sec. 161 and Sec. 164 CrPC, nothing adverse had come in her cross-examination. Mother of prosecutrix was examined as PW-1, she also narrated the story of taking her daughter for jharphook near Bachra Talab and stated that on the next day her daughter intimated about commission of rape upon her by appellant. Balveer Singh, uncle of prosecutrix, was examined as PW-2 who stated that the daughter of his brother /prosecutrix was suffering from Epilepsy disease for which she was taking treatment through traditional method of jharphook and he stated that his brother intimated about commission of offence by appellant. PW-3, Santosh Kumar, has proved that he along with Harinarayan and the prosecutrix went on motor cycle to the talab and appellant also came to the talab. He took the prosecutrix for treatment little far from them. Father of prosecutrix Harinarayan is examined as PW-5 who also stood with the allegation made by him in his statement recorded under Sec. 161 of CrPC. PW-9, Mahavir Prasad, Head Master of the Government Girls Primary School proved the admission register wherein name of prosecutrix is mentioned at serial no. 503 and her date of birth is mentioned as 20/3/1999 and date of admission is 23/6/2005. The admission register is marked as Exh. P-10. PW-14, Dr. Rajshree Singh, examined the prosecutrix, on internal examination found some penetrated injury over fabranated hymen with swelling and pain. She proved the MLC report Exh. P-13. Appellant's statement was recorded under Sec. 313 of CrPC in which he has shown his ignorance to all the questions put to him and further stated that he does not want to state in his defense.

(3.) From the aforementioned evidence available on record, prosecution proved that prosecutrix was taken by her father, neighbor and relatives for jharphook to the appellant where they went to near the pond and the appellant took her little far from other person present there and on the pretext of performing jharphook had committed sexual intercourse with her. Age of prosecutrix is proved to be below 16 years on the date of incident by producing the school admission register which is a Government document and therefore the entries made therein is admissible in evidence. Merely because the Head Master/ teacher who made the entries in the school register is not examined will not made the Government record inadmissible in the facts of the case. Hon'ble Supreme Court in the case of State of Chhattisgarh vs. Lekhram reported in (2006) 5 SCC 736 has held that entry in school Register is admissible in evidence. Paragraph 13 of the aforementioned rulings is extracted below for ready reference: