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Madhya Pradesh High Court · body

2007 DIGILAW 192 (MP)

Hansraj v. State of M. P.

2007-02-15

A.P.SHRIVASTAVA

body2007
JUDGMENT 1. Both these appeals arise from a common judgment passed by Second Additional Sessions Judge, Ashok Nagar (District Guna) in S.T. No. 201/ 99, dated 14.3.2000 by which both the appellants have been convicted under sections 363 and sentenced to undergo three years rigorous imprisonment with Rs. 500/- fine, under section 366-A, five years rigorous imprisonment with fine of Rs. 500/- and under section 376 (2) (G), ten years rigorous imprisonment with fine of Rs. 1,000/- each with default stipulation. 2. Being aggrieved by the judgment of conviction, appellants filed these appeals. Appeal No. 24512000 relates to appellant - Hansraj while appeal No. 271/200 relates to appellant - Dheeraj Singh. 3. In short, the story of the prosecution is that on 17.4.1999 at about 8 to 9 E.m. when the prosecutrix Babita PW 1 went to answer the call of nature but she did not return to her home, then her father Bhanwar PW 6 lodged the report to the police station for missing of his daughter vide Ex. P-4 and the FIR is Ex. P-15 which is written by the police. On 25.4.1999 as per the recovery memo Ex. P-l prosecutrix was recovered from the house of appellant-Hansraj. She was handed over by Supurdginama to her father vide Ex. P-2. Both appellants were arrested and prosecutrix was sent for medical examination. The appellant was also examined by the doctor and after completion of examination charge sheet has been filed before the Judicial Magistrate First Class, Ashok Nagar, Guna, from where the case came to the Court of Sessions Judge. Trial Judge framed charges under sections 363, 366-A read with section 34 of IPC and 376 (2) (g). After trial, the trial court convicted the appellants as stated in para No. 1 above. 4. This appeal has been filed by the appellants on the ground that the trial Court has not appreciated the evidence properly and has wrongly held that on the date of incident the prosecutrix was minior. It is also challenged that the prosecutrix was a consenting party and she was major, therefore, no offence is made out against the appellants. 5. It is submitted by the learned counsel for the appellants that the prosecutrix has examined herself as PW 1 whie Phool Bai examined as PW 5 and Bhanwar Lal as PW 6. The medical evidence of Dr. Sitaram Singh Raghuvanshi (PW 4) radiologist was examined. 5. It is submitted by the learned counsel for the appellants that the prosecutrix has examined herself as PW 1 whie Phool Bai examined as PW 5 and Bhanwar Lal as PW 6. The medical evidence of Dr. Sitaram Singh Raghuvanshi (PW 4) radiologist was examined. The prosecutrix was cinically examined by doctor Smt. Sharda (PW 8). The report of radiologist is Ex. P-6 while X-ray report is Ex. P-7 and clinical examination report is Ex. P-10. 6. The most crucial point of this appeal is regarding the age of the prosecutrix. According to the prosecution, she was below 18 years old at the time of incident but according to the defence, she was above 18 years at the time of incident. 7. Now, I will discuss the witnesses. Prosecutrix (PW 1) in her statement, deposed that on the date of incident, she went to answer the call of nature. When she was returning to her home, then Hansraj and Dheeraj Singh met her and caught hold of her and when she cried then the appellants have taken her to Tagar (Khet) and undressed her and appellant Hansraj committed sexual intercouse with her. From Tagar (khet) she was taken away to Ashok Nagar and in the morning from Ashok Nagar to Isagarh and from Isagarh to Chanderi, where the appellant - Dheeraj has not committed any rape with her and he was with them till they reached Chanderi. Thereafter they went to Halantpur and from Halantpur they returned to Chanderi, where the appellant Hansraj again committed sexual intercourse with her. She also told that she was recovered by the police and she was medically examined by a lady doctor. In para No.6 of her cross examination, she says that her elder brother is about 20 years and she is smaller than him about 1 1/2 or 2 years. She deposed that she has studied in a private school. She also stated that appellant committed the act of sexual intercourse with her. In cross examination para No. 10, it was also stated by her that she went from bus in which passengers were also sitting but she did not disclose about the incident to anybody when appellant-Hansraj was keeping her in his sister's house and when she used to go outside to meet the call of nature, she did not disclose to anybody about the incident. She also disclosed that the letter Ex. D-1 was not written by her but she admits that Ex. D-5 was written by herself. 8. Pran Singh (PW 2) stated that the age of the prosecutrix is 14 years and also stated that appellants had forcibly taken away the prosecutrix when she went out from her house. Phoolbai (PW 5) the mother of the prosecutrix, deposed that she has one son and three daughters, elder son Santosh is aged about 22 years and Babita is smaller than him for about 2 to 3 years, remaining two daughters are minors to Babita. After 5 to 6 days of the incident, she returned to home. Bhanwarlal (PW 6) who is father of the prosecutrix, also stated that his elder son Santosh is 18 years old and after Santosh prosecutrix Babita was born, her age is 14 years. In cross examination this witness told that at the age of 15 he was married and after 4 years of marriage his elder son Santosh was born and after three years the prosecutrix Babita was born. The age of the father of the prosecutrix is 46 years. 9. Now, we discussed the medical evidences. Dr. Sitaram Singh Raghuvanshi (PW 4) conducted examination of the prosecutrix. The report is Ex. P-6 and X-ray report is Ex. P-7. According to doctor, at the time of examination, the age of the prosecutrix was above 18 and below 20 years. In cross examination, he says that on the basis of X -ray report difference of two years has to be taken, it may be either 16 years of age or above 20 years. Dr. Smt. Sharda examined the prosecutrix on 26.4.1999. According to doctor, the prosecutrix has sustained some injury on her forehead but no mark of injury was found on other parts of her body or on her private part. According to the doctor, no hair was kept in her private part regarding the rape was done but she was looking habitual to sexual intercourse. This report is Ex. P-10. 10. From the above evidence, it is clear that no exact date of birth has been proved by the prosecution regarding the age of the prosecutrix and during the testimony of Phoolbai (PW 5) and Bhanwarlal (PW 6), it appears that she was younger than two years to her elder brother Santosh. This report is Ex. P-10. 10. From the above evidence, it is clear that no exact date of birth has been proved by the prosecution regarding the age of the prosecutrix and during the testimony of Phoolbai (PW 5) and Bhanwarlal (PW 6), it appears that she was younger than two years to her elder brother Santosh. The age of Santosh is 18 to 22 years. The medical report Ex. P-6 shows that her age is found to be above 18 years and below 20 years. 11. From the side of the respondent, learned counsel on behalf of the State submitted that the trial Court has assumed the age as 16 years is proper as per the voters list (Ex. D-3) in which the names of Phoolbai, Santosh and Bhanwar were shown. In the voters list Nos. 807, 808, 809, the age of Phoolbai was found 44 years, while Santosh was 22 years and his father Bhanwarlal was 46 years. The revised voters list was also filed but the name of the prosecutrix was not mentioned. This shows the prosecutrix has not attained the age of 18 years otherwise her name would be in the voters list. She also referred in paras 10, 11, 12 of the judgment in which the trial Court has held that the prosecutrix was minor at the time of incident while the counsel for the appellants submits that in para 15, the trial Court also held that the age of the prosecutrix is 19 years. 12. Regarding the age, the counsel for the appellant relied on Manharan v. State of M.P. reported in 2003 MPHT 114 , in which the benefit of age is given three years and in this case the benefit will have to be on higher side. Counsel for the appellant also relied on Rajendra Chandra v. State of C.G. and others reported in 2001 (2) BLJ 181 = 2002 (1) SC 748 and State of Karnataka v. Suresh Babu Puk Raj Porrai reported in 1994 CrLJ 1216 (SC). In these cases, it is held that in case of doubt and regarding the question of age, if two views are possible, the view favours the defence should not be interfered. Similar views are expressed in the case of Prem Chand v. The State reported in 1987 CrLJ 910 (Delhi High Court). In these cases, it is held that in case of doubt and regarding the question of age, if two views are possible, the view favours the defence should not be interfered. Similar views are expressed in the case of Prem Chand v. The State reported in 1987 CrLJ 910 (Delhi High Court). Similarly, in the case of Ravi Shankar v. State of M.P. reported in 2005 (1) MPWN 133, in which the age of the prosecutrix was found 15 to 16 years and the benefit was given to the defence. 13. From the above discussions and legal principles as laid down by various High Courts and apex Court in these cases, it is clear that the radiologist found at the time of incident, the age of the prosecutrix was above 18 years and below 20 years and he also admits that on the basis of X -ray report, plus minus of two years on either sides will have to be taken, therefore, referring to the above citations benefit will go to the defence and in the absence of any conclusive evidence adduced by the prosecution, it will not support to hold that the age of the prosecutrix was below 18 years. The statements of father and mother of the prosecutrix are also corroborated and according to them the prosecutrix was between 18 to 20 years. Therefore, the finding of the trial Court regarding the age of the prosecutrix is found to be erroneous and not in accordance with settled principles of law. 14. Now, the next question whether from the date of incident and thereafter sexual intercourse was committed against her or not. It is submitted by the counsel for the appellant that the prosecutrix was taken by the appellant from place to place where other persons were also available to inform about the incident but she did not disclose to anybody regarding the incident. Although she had denied to write the letter Ex. D-1 but subsequently, she admits that letter Ex. D-5 was written by her to Hansraj. The way the prosecutrix deposed in paras 20, 22 and 23, in the deposition she has stated that before her marriage and date of incident she was in love with the appellant Hansraj. She has given correct statement in the Court. 15. Looking to the evidence, it appears that there is no mark of injury in the clinical examination. The way the prosecutrix deposed in paras 20, 22 and 23, in the deposition she has stated that before her marriage and date of incident she was in love with the appellant Hansraj. She has given correct statement in the Court. 15. Looking to the evidence, it appears that there is no mark of injury in the clinical examination. It appears that there is no internal injury found on the body of the prosecutrix. Lady doctor admits that she was habitual to sexual intercourse. On this point, the counsel for the appellant relied on Mohanlal v. State of Rajasthan reported in 2003 (4) SC Today 220 and Ashok Kumar v. State of Haryana reported in 2003 (1) SC Today 426. 16. After having heard the counsel for both sides and after perusal of the records and evidence adduced by the prosecution and the legal position as stated above, it is crystle clear that on the date of incident, prosecutrix was not minor but was major and the way of conduct of prosecutrix shows that she went along with appellant Hansraj with her consent. Therefore, no offence is made out against the appellant Hansraj as well as appellant Dheeraj Singh. 17. Therefore, the finding recorded by the learned trial Court against the appellants deserves to be set aside and is hereby set aside. Both the appeals are allowed. The conviction and sentence of the appellants stand cancelled and the bail bonds of the appellants stand discharged. If the amount of fine is deposited by the appellants, it shall be returned to them. 18. Copy of the judgment be placed in Criminal Appeal No. 271/00.