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Madhya Pradesh High Court · body

2003 DIGILAW 975 (MP)

AMARSINGH v. STATE OF M P

2003-08-13

A.K.SHRIVASTAVA

body2003
Judgment ( 1. ) FEELING aggrieved by the judgment of conviction and order of sentence passed by Sessions Judge, West Nimar, Mandleshwar in Sessions Trial no. 237/97 accused/appellant has preferred this appeal under Section 374 (2)of the Code of Criminal Procedure, 1973. ( 2. ) THE facts shorn of unnecessary details lie in a narrow compass that Premlibai aged 15 years was residing under the guardianship of his father ambaram. In the night of 21-2-1997 she came out of her house to ease but as she did not come back, Ambaram (the father of the prosecutrix) searched her and ultimately on 22-2-97 lodged a missing person report in the concerning police station. In course of the investigation of missing person, it came in the knowledge of the Investigating Agency that the prosecutrix is residing in the house of the accused and eventually on 12-4-97 she was recovered from the house of the accused. ( 3. ) THE prosecution agency thereafter recorded the statement of the prosecutrix in which it was found that she was kidnapped on the date of the incident and thereafter was carried to several places by the accused during that period he committed rape over her. Ultimately the accused brought the prosecutrix at Village Salipura and from where she was recovered by the police. The police registered a case under Sections 363, 366 and 376 of the Indian penal Code (hereinafter referred to as the IPC) against the appellant. He was arrested and was put to medical examination. The prosecutrix Premlibai was also got examined by the lady doctor. After completion of the investigation, a charge- sheet was filed against the accused in the Competent Court which committed the case to the Court of Session where the case was tried. ( 4. ) THE learned Trial Judge framed charges punishable under Sections 363,366 and 376 of the IPC which was refuted by the appellant, according to him he is innocent and has been implicated falsely. His defence is that his engagement ceremony was taken place with the prosecutrix and he paid rs. 10,000/- to the father of the prosecutrix. However, the father was making a demand of 2 bighas land and for this reason he has been falsely implicated. ( 5. ) IN order to prove the charges, the prosecution examined as many as 9 witnesses and placed Ex. P-l to Ex. P-15 the documents on record. 10,000/- to the father of the prosecutrix. However, the father was making a demand of 2 bighas land and for this reason he has been falsely implicated. ( 5. ) IN order to prove the charges, the prosecution examined as many as 9 witnesses and placed Ex. P-l to Ex. P-15 the documents on record. ( 6. ) THE learned Trial Judge after considering the evidence placed on record came to hold that the appellant did commit the offences for which he was charged and eventually convicted him to suffer rigorous imprisonment of 3 years under Sections 363,5 years R. I. under Section 366 and 7 years R. I. under Section 376 of the IPC. Needless to state the Trial Court directed all the sentences to run concurrently. Hence, this appeal. ( 7. ) IN this appeal none has appeared on behalf of the accused, however, I have heard Shri Mayank Upadhyaya learned Dy. G. A. for the State. ( 8. ) THE appellant has been prosecuted for the offences punishable under Sections 363,366 and 376 of the IPC. If an accused is tried under these sections the first burden which is required to be discharged by the prosecution is what was the age of the prosecutrix on the date of the incident. It is the case of the prosecution that on the date of the incident the age of the prosecutrix was 15 years and because she was below the age of 18 years, the offences under sections 363 and 366 are made out. Premlibai (P. W. 1) in her examination-in-chief though stated that her age was 15 years but in the cross-examination she admitted her signature on an affidavit (Ex. D-l) in which her age has been shown to be 23 years but according to her she did not give the affidavit, voluntarily. The father of the prosecutrix Aambar am has been examined as P. W. 5 by the prosecution. In his examination- in-chief though he has said that the age of prosecutrix was 15 years and 6 months on the date of the incident but in the cross- examination he has specifically stated that he is not acquainted with the samvat and the year. He has stated the approximate age of the prosecutrix. He is having seven children and the number of the prosecutrix is fourth. He has stated the approximate age of the prosecutrix. He is having seven children and the number of the prosecutrix is fourth. His eldest son is having age of 24-25 years and after the birth of his eldest son every year a child was born. In this manner if the age of the prosecutrix is calculated it would come to 20 years on the date of the incident. ( 9. ) THE prosecution has placed heavy reliance on Ex. P-l4 which is a report of the Radiologist indicating the age of the prosecutrix to be in between 16 to 18 years. The another document on which the prosecution is placing heavy reliance is Ex. P-7 which is a copy of the mark-sheet of the School of one Ku. Mamta. On bare perusal of these documents, one could not say that on the date of the incident the age of the prosecutrix was below 18 years. The radiologists report indicates that the age of the prosecutrix was between 16 to 18 years and hence, no credence could be attributed in favour of the prosecution on the contrary it goes against the prosecution and by placing reliance on this document one can not say safely that the age of the prosecutrix was below 18 years on the date of the incident. If the document (Ex. P-7) which is a copy of the mark-sheet is considered in a proper perspective manner it would reveal, that this document is in respect to some Ku. Mamta while the name of the prosecutrix is Premlibai. While cross-examining the prosecutrix, ex. D-l which is an affidavit of the prosecutrix was confronted to her, she vividly stated that her name is not Mamta. Shantabai (P. W. 2) who is the mother of the prosecutrix has not stated that the alias of the prosecutrix is mamta though Padam (P. W. 4) and Ambaram (P. W. 5) had stated that the prosecutrix alias is Mamta. On the contrary Haresingh (P. W. 3) and the prosecutrix herself says that her name is not Mamta. Thus, there is no definite evidence in this regard that the prosecutrix is also named by Mamta and hence, no credence could be attributed to the document (Ex. P-7) which is a copy of the mark-sheet issued by the Primary School, Salipura in the name of Mamta. ( 10. Thus, there is no definite evidence in this regard that the prosecutrix is also named by Mamta and hence, no credence could be attributed to the document (Ex. P-7) which is a copy of the mark-sheet issued by the Primary School, Salipura in the name of Mamta. ( 10. ) EVEN for the sake of argument if it is held that the document (Ex. P-7) pertains to the prosecutrix then also it has not been proved in its stricto sensu. This document can not be said to be a primary document because it has been prepared on the basis of some other document. Since the entries regarding the age of the prosecutrix made in the School Admission Register has not been filed, this document which appears to be prepared on the basis of the admission Register, can not be said to be a primary evidence. Moreover, this document is only a copy and neither the original was produced by the prosecution, nor this document has been proved by calling and examining the person who executed it. In this view of the matter, no reliance can be placed on this unproved document and it would be highly unsafe to base the conviction on this document. The burden of proof that the victim was below the age of 18 years on the date of the incident was on the prosecution and hence, the prosecution on the basis of strong reliable evidence should prove this fact. In the present case the prosecution having failed to do so, the benefit would go to the accused and on the basis of the evidence placed on record it can not be said that the prosecutrix was below the age of 18 years on the date of the incident. ( 11. ) AS it has been held hereinabove, that the prosecution utterly failed to prove that the age of the prosecutrix was below 18 years on the date of the incident hence, now the point for consideration is whether she voluntarily went along with the accused or she was taken away against her wishes. ( 11. ) AS it has been held hereinabove, that the prosecution utterly failed to prove that the age of the prosecutrix was below 18 years on the date of the incident hence, now the point for consideration is whether she voluntarily went along with the accused or she was taken away against her wishes. In this regard the evidence of the prosecutrix is that on the date of the incident she went to ease outside her house in the late night at that juncture appellant came and caught hold of her hand as a result of which, she shrieked, on hearing her shriek her mother came out and she also screamed as a result of which the inhabitants of the village arrived at the spot. In the night the accused carried her to Village Gothana. In the cross-examination she has stated that force was used on her by the appellant and he dragged her as a result of which blood came out. She has further stated that the accused dragged her for 2-3 miles but her mother did not try to refrain the accused. She lived in the Village Gothana for near about a month in a house of one Jama. In the said village she was regularly discharging the normal duties, she also stored the water from the well in presence of the bevy. But, surprisingly she did not make any complaint to anybody, which goes to show that she was a consenting party. ( 12. ) SHANTABAI (P. W. 2) who is the mother of the prosecutrix has stated that on hearing the scream of her daughter she came out from her house and saw the appellant taking away her daughter as a result, she screamed and on hearing her shriek her husband came there and thereafter he lodged the missing person report in the concerning police station which is Ex. P-12-C. On bare perusal of Ex. P-12-C, it is found that nowhere in this document it has been so stated by Ambaram, he did not name the accused, though it has come in the evidence of prosecutrix Premlibai and her mother Shantabai that accused dragged her daughter and took her away forcibly. In the report (Ex. P-12-C) it has been stated by Ambaram (P. W. 5) that her daughter went to discharge the excreta in the jungle but did not come back. In the report (Ex. P-12-C) it has been stated by Ambaram (P. W. 5) that her daughter went to discharge the excreta in the jungle but did not come back. Had there been any genuineness to the incident, it could have been very well said by Ambaram in his report that the accused has forcibly taken away his daughter. As this important fact, which goes to the root of the matter is missing from the missing report it would be highly unsafe to hold that the accused forcibly took away the prosecutrix against her wishes. It has come in the evidence that for a period more than l1/2 months the accused and the prosecutrix lived together but during this period she did not make any complaint to anybody though it has come in the evidence that she was regularly discharging her routine work in different villages. In this view of the matter, it can not be said, rather it can be said that the prosecutrix was living alongwith the appellant with her free consent and wishes. ( 13. ) AS it has been held hereinabove, that the age of the prosecutrix has not been proved to be below 18 years, and she was above 16 years and she was living on her own free will with the appellant. Hence, even if sexual intercourse has taken place between them it was on account of her consent and she was a consenting party to it. There is no evidence that she ever made any complaint to anybody regarding the sexual intercourse against her will and wishes though she was having ample opportunities to say so. She did not flee when the appellant was not present in the house. ( 14. ) IF the entire factual scenario is tested on the anvil of the evidence of the prosecution and after considering the evidence in a proper perspective manner it would reveal that no offence is made out against the appellant. ( 15. ) ON the basis of aforesaid premised reasons, I have no hesitation to hold that the learned Trial Judge erred in law in convicting the appellant under Sections 363,366 and 376 of the IPC. His conviction is accordingly, set aside. ( 16. ) IN the result, the appeal succeeds and is hereby allowed, the conviction of the appellant is hereby set aside. The appellant is in jail. His conviction is accordingly, set aside. ( 16. ) IN the result, the appeal succeeds and is hereby allowed, the conviction of the appellant is hereby set aside. The appellant is in jail. He be set at liberty forthwith if not required in any other case. Criminal Appeal allowed.