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2007 DIGILAW 229 (CHH)

SHUDHA v. CHARAN SINGH

2007-03-22

MANJUSHA P.NAMJOSHI, S.L.KOCHAR

body2007
ORDER As per Hon 'ble Shri S.L. Kochar, J. :- 1. This revision has been filed by a private party against the impugned judgment of acquittal of non-applicant No. I, passed by the learned Sessions Judge, Jhabua in ST No. 342/05 dated 6th December, 2006. 2. According to the prosecution case on 19.6.2005, in the night, prosecutrix Shudha left the house of her parents residing in village Karwad. Her absence was noticed by her parents early in the morning at 5:30 a.m. They searched prosecutrix in the village and amongst their relatives, but she was not found. Therefore, report of missing, on 20.6.2005 was lodged and in the said report, doubt was shown on non-applicant No. 1 Charansingh. The police registered the crime after more than a month i.e., on 27.7.2005 and during investigation on 9.11.2005, prosecutrix Shudha and non-applicant No. I Charansingh were called in Police Station, Petlawad, Haryana on the basis of some compromise arrived between non-applicant No.1 and father of the prosecutrix. Police recorded the statement of the prosecutrix and after completion of investigation, filed the charge-sheet against the non-applicant No. 1 for commission of offence under sections 363, 366 and 376 of the IPC. 3. Non-applicant No. I Charansingh denied the charges and submitted that prosecutrix was major. Her age was 19 years and she went alongwith him voluntarily. He also submitted that because of tutoring and pressure, she deposed against him. 4. The learned trial Court, after examination of the prosecution witnesses and hearing both the parties, passed the impugned judgment of acquittal of non-applicant No. I Charansingh. The learned trial Court after detailed discussion on the issue of age, given finding in paragraph 14 that prosecution has failed to establish that prosecutrix was below 18 or 16 years of age on the date of incident i.e., on 19.6.2005. On the contrary, there is sufficient evidence available on record to establish that prosecutrix could be above 18 years of age. The learned trial Court has taken into consideration the evidence of Dr. Sureshchandra (PW 1) and Dr. Purnima Gadariya (PW 2). According to Dr. Gadariya, she examined prosecutrix and her age was 19 years. This statement of Dr. Gadariya has not been challenged in the Court. Dr. Suresh Chandra proved the ossification test report. The learned trial Court has taken into consideration the evidence of Dr. Sureshchandra (PW 1) and Dr. Purnima Gadariya (PW 2). According to Dr. Gadariya, she examined prosecutrix and her age was 19 years. This statement of Dr. Gadariya has not been challenged in the Court. Dr. Suresh Chandra proved the ossification test report. According to him, on the date of incident, prosecutrix could be between 14-17 years of age and there can be margin of 2 years on either side. 5. In view of opinion of Dr. Suresh (PW 1), prosecutrix could be 19 years of age on the date of incident. The learned trial Court after evaluation of the evidence of both the doctors has given finding in para 9 that on the basis of medical evidence, prosecution has failed to establish that prosecutrix was below 18 years of age. 6. The learned trial Court also examined statement of prosecutrix Sudha (PW 3), her father Kanhyalal (PW 4) and uncle Radheshyam (PW 6). Prosecutrix has admitted in cross-examination that her statements were recorded before the Magistrate Petlawad, Haryana, and in the said statement, she disclosed her age as 19 years. For this statement, she stated that because of fear, she disclosed her age as 19 years. The learned trial Court did not accept the explanation of the prosecutrix and rightly so, because before Magistrate there could not be any fear to the prosecutrix and if she was abducted or kidnapped against her consent and will, she could have stated this fact before the learned Magistrate. The prosecutrix has stated that in the school, at the time of admission, her date of birth was disclosed by her uncle Radheshyam (PW 6), but Radheshyam (PW 6) has no where stated about date of birth as well as admission of the prosecutrix by him. 7. The prosecution has heavily relied on the entry in school register about age of the prosecutrix i.e., 1.6.1989, but prosecution has failed to lead any evidence, as to who, and on what basis, this date of birth disclosed before the school authority. The father of the prosecutrix Kanhyalal (PW 4) has admitted that he did not get 'Janampatri' of the prosecutrix prepared and also not having in writing the date of birth of the prosecutrix. The father of the prosecutrix Kanhyalal (PW 4) has admitted that he did not get 'Janampatri' of the prosecutrix prepared and also not having in writing the date of birth of the prosecutrix. He also admitted that at the time of birth of the prosecutrix, the intimation was not given to village Kotwar, Sarpanch, or village chowkidar. He has stated that prosecutrix was taken to school for admission by his brother Radheshyam (PW 6), but as discussed herein above, PW 6 Radheshyam's statement is completely silent on this issue. Kanhyalal (PW 4) is not able to give his own date of birth and date of birth of other children. In the light of these factual situations, prosecution has failed to establish the basis for date of birth of the prosecutrix in the school register and in our considered view, the learned trial Court, after detailed evaluation of evidence has given correct finding about age of the prosecutrix and prosecution has failed to discharge this burden by adducing cogent and reliable evidence. 8. The prosecutrix left her parents house in the night of 19.6.2005 and, on the next day morning, she was found absent in the house. She remained in the company of non-applicant No. I Charansingh for four and half months and during this period, she moved on several places. Therefore, if she was not a consenting party, she could have escaped from the company of non-applicant No. 1 Charansingh. She has admitted that she had gone to the Court Petlawad. There they executed affidavits. Prosecutrix has also filed affidavits in the Punjab Haryana High Court as well in M.P. High Court of Indore Bench and in these affidavits, 19 years age is mentioned. For all these purposes, she stated that because of fear of non-applicant No. 1, she has given wrong statement regarding submission of affidavits and statement before the Magistrate. The learned trial Court has not accepted this explanation. In cross-examination, she has admitted that she disclosed before the police that she was in love with the non-applicant No. 1 and her parents were not happy with her relation with the non-applicant No. 1. But according to her, she gave this statement to police because of fear. The learned trial Court has not accepted this explanation. In cross-examination, she has admitted that she disclosed before the police that she was in love with the non-applicant No. 1 and her parents were not happy with her relation with the non-applicant No. 1. But according to her, she gave this statement to police because of fear. On detailed appreciation and perusal of the impugned judgment, we do not find any substance in the explanation given by the prosecutrix regarding submission of affidavit and statement before the Magistrate and statement before the police that same were given under pressure. It is a clear case of consent and prosecution has failed to establish that prosecutrix was below 18 years of age. 9. In our considered view, no illegality or perversity has been committed by the trial Court in passing the impugned judgment of acquittal. The learned trial Court has considered each and every aspect in detail and has given cogent and reliable reasons. This revision is filed by a private party against the acquittal in which this Court has no jurisdiction to convert acquittal into conviction. 10. The learned counsel has placed reliance on Supreme Court judgment, passed in case of Harpal Singh and another Vs. State of Himachal Pradesh 1 and Bhoop Ram Vs. State of U.P. In the case of Harpal Singh (supra), accused was convicted by the trial Court and the same was affirmed by the High Court. The appellant/accused filed a special leave petition before Supreme Court against the concurrent finding of fact. In para 3, the Supreme Court has considered that the prosecution has adduced overwhelming evidence to prove the age of the prosecutrix. For that purpose, both the Courts below relied on the ossification test opinion of doctor, entry in school register and the most important document i.e., certified copy of the birth register and in that birth certificate, name of mother of the prosecutrix and date of delivery of female child were mentioned as dated 11.11.1957. The facts and circumstances of the case at hand are completely different than the case of Harpal Singh I (supra). In the case of Bhoop Ram2 (supra) the date of birth of the accused has been considered on the basis of entry in school register and there was no material placed before the Court to doubt the entry. The facts and circumstances of the case at hand are completely different than the case of Harpal Singh I (supra). In the case of Bhoop Ram2 (supra) the date of birth of the accused has been considered on the basis of entry in school register and there was no material placed before the Court to doubt the entry. It is a case under the provision of U.P. Children Act and question of determination of age of juvenile accused was involved. The facts and circumstances of the case of Bhoop Ram2 (supra) are also altogether different and age of the accused was considered in different context. Both the judgments have absolutely no relevance with the facts and circumstances of the instant case. Therefore, no interference is called for and revision is hereby dismissed. Revision Dismissed.