Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 806 (MP)

Kailash v. State of M. P.

2008-07-02

S.L.KOCHAR

body2008
Judgement The appellant has preferred this appeal against the judgment dated 16/01/2007 passed in Sessions Trial No. 115/05 by learned Additional Sessions Judge, Narsinghgarh, whereby convicted the appellant for the offence punishable under Section 363 of the IPC, sentenced to R.I for three years and fine of Rs.1,000/-, in default of payment of fine additional imprisonment for three months and under Section 366 of the IPC, sentenced to R.I for three years and fine of Rs.2,000/-, in default of payment of fine additional R.I for six months, and under Section 376 (1) of the IPC, sentenced to R.I for seven years and fine of Rs.5,000/-, in default of payment of fine additional R.I for one and half year. 2. According to the prosecution case, mother of prosecutrix named Sorambai PW-1 lodged the report in the police station regarding missing of prosecutrix. During the course of enquiry on missing report, prosecutrix was recovered from the house of the appellant after more than one month The police recorded the statement of the prosecutrix who had deposed that she was induced by the appellant to go with him and appellant committed rape with her. According to Gumsudgi report dated 08.05.2005, father of the prosecutrix PW-2 Purilal had gone to another village at the house of his relative and mother had gone to work as labourer at the house of Laxmi Narayan. Prosecutrix aged 16 years alone was in the house. On return from the work, mother of the prosecutrix did not find her in the house and on search in village, she was not traced, thereafter on the next day she lodged the missing report vide Ex.P/1 recorded in daily diary. After recovery of the prosecutrix, police registered the FIR EX.P/8 and seized transfer certificate Ex.P/2 wherein her date of birth is mentioned i.e. 22.3.1991. Prosecutrix was sent for medical examination and her report is Ex.P/6 examined by PW-4 Dr. Seema Pathak. Doctor prepared slide of vaginal swab of the prosecutrix and also referred the prosecutrix for ossification test to determine her age. On completion of investigation, charge sheet was filed against the appellant for the abovementioned offences. 3. Appellant abjured his guilt and pleaded false implication because of ill will. The learned Trial Court, after examining the prosecution witnesses and hearing both the parties, convicted and sentenced the appellant as mentioned hereinabove. 4. On completion of investigation, charge sheet was filed against the appellant for the abovementioned offences. 3. Appellant abjured his guilt and pleaded false implication because of ill will. The learned Trial Court, after examining the prosecution witnesses and hearing both the parties, convicted and sentenced the appellant as mentioned hereinabove. 4. Having heard the learned counsel for the parties and after perusing entire record, this Court is of the view that prosecution has failed to prove its case beyond reasonable doubt against the appellant. 5. PW-1 Sorambai, mother of the prosecutrix has admitted about seizure of transfer certificate Ex.P/2 by the police. According to her prosecutrix was 15 years of age, but she failed to give the date of birth. She has deposed that she was married before 20 years and her elder daughter was aged 17 years, thereafter prosecutrix was born. This witness has stated in paragraph-7 that in School, the date of birth of the prosecutrix was mentioned, but she did not write her date of birth anywhere and the same was written by the Nurse at the time of birth and on that basis date of birth was mentioned in school. At the same time, she has also stated that she was not knowing whether her husband mentioned the date of birth only on the basis of assessment and voluntarily stated that date of birth might have been recorded by doctor on the basis of assessment. According to this witness, it appears that at the time of birth of prosecutrix, nurse was present, who recorded the date of birth. But investigating Agency had not tried to collect any such evidence which could be a primary evidence for the proof of date of birth of the prosecutrix. On the basis of statement of the mother PW-1 Sorambai, it is difficult to say that prosecutrix was minor or major. 6. PW-2 Purilal, father of the prosecutrix has also admitted that he gave transfer certificate Ex.P/2 to police. In cross-examination, he failed to state his age at the time of marriage and also admitted that he did not mention the date of birth of prosecutrix and other children in writing anywhere in his house. He was not sure who had gone to admit the prosecutrix in the school and also stated that in the school, date of birth was mentioned on the basis of assessment. He was not sure who had gone to admit the prosecutrix in the school and also stated that in the school, date of birth was mentioned on the basis of assessment. He expressed his ignorance that his age was 50 years on the date of his examination in the Court. In cross-examination, he admitted that appellant was having visiting terms with his family. He has specifically stated that police has not recorded his statement and he did not disclose about commission of rape with his daughter. He denied the contents of police statement Ex.D/3. The statement of father is also not sufficient to establish the date of birth of the prosecutrix for the purpose of assessment of her age. 7. PW-4 Dr.Seema Pathak medically examined the prosecutrix and did not find any external or internal injury on her person. Prosecutrix was a fully developed woman having old tear in hymen and her vagina admitting two fingers easily, she was under menses, her secondary sexual characters were fully developed. Dr. Seema Pathak has not given age of the prosecutrix and referred her to Radiologist for examination for the purpose of age. Dr. Seema Pathak proved her medical report Ex.P/6. 8. PW-6 Mangilal has deposed that appellant abducted the prosecutrix and on search, she was not traceable. After some aiays, she was found with the appellant in Bhopal and prosecutrix disclosed to him about her abduction and commission of rape by the appellant. He proved Supurdginama, panchnama Ex.P/4 of the prosecutrix. In cross-examination, he admitted that in his presence prosecutrix, was not found in the company of Kailash and he had seen prosecutrix with the police in police station. Police had not recorded any statement during the course of investigation and he disclosed nothing. For the first time he had talked with prosecutrix in presence of police. Prosecutrix in her statement has nowhere stated about disclosure of her abduction or about incident to Mangilal, therefore, statement of Mangilal on all these aspects is not admissible in evidence, being hit by law of hearsay evidence as per provision under Section 60 of the Evidence Act. 9. PW-9 Agastus Lakda, Head Master of Govt. School has testified that transfer certificate Ex.P/2 of the prosecutrix was issued by Principal of the School in which her date of birth 22.3.91 was written. 9. PW-9 Agastus Lakda, Head Master of Govt. School has testified that transfer certificate Ex.P/2 of the prosecutrix was issued by Principal of the School in which her date of birth 22.3.91 was written. He has stated that transfer certificate was issued on the basis of school scholar register and he brought the said register in the Court wherein date of birth of the prosecutrix was written 22.3.91 at Sr. No. 593, the copy of the scholar register was marked as Ex. P/12 and photostat copy as Ex.P/12-C In cross-examination, he expressed his ignorance about seizure of original record by the police because at the time of incident he was not posted in the said school. He has also admitted that at the time of admission of prosecutrix he was not present, therefore, he could not say whether mother and father of the prosecutrix had produced her birth certificate or not. He has also admitted that pages of scholar register were not certified and there was no paging and seal on the pages. This witness is also not able to state what was the basis for recording the date of birth of the prosecutrix. As discussed herein-above, father and mother of the prosecutrix were also not knowing the date of birth. In this view of the matter, when basis for recording date of birth of the prosecutrix is not established and same was not recorded in presence of PW-9 Head Master Agastus Lakda, the identity of the prosecutrix with the entry is also not established, therefore, for determination of the age of the prosecutrix, date of birth mentioned in school register on the basis of assessment, would not be sufficient. The prosecution case is further damaged by the statement of the prosecutrix PW-10 who has admitted regarding swearing of affidavit before the notary in Bhopal where she has mentioned her age 25 years, the affidavit is Ex.D/1. She has also admitted affixing her photograph on the affidavit. This Court has perused affidavit and photograph and from the photograph prosecutrix is not at all appearing minor girl below 18 years of age. She has also admitted affixing her photograph on the affidavit. This Court has perused affidavit and photograph and from the photograph prosecutrix is not at all appearing minor girl below 18 years of age. The prosecutrix has stated in Court while admitting affidavit Ex.D/1 that she signed on the affidavit because of threat delivered to her by the appellant She has also stated that she mentioned this fact to the advocate before whom the affidavit was sworn, but this fact is missing in the affidavit. Fact of signing on affidavit because of pressure is not mentioned in her case diary statement Ex.D/4. She has been confronted with the statement and failed to give any explanation for such material omission, which amounts to contradiction. The prosecutrix has admitted the fact of going with the appellant on simple asking by him, first she went to Narsinghgarh and from Narsinghgarh to Bhopal. In Bhopal she lived with him in a room for one month. She has stated that for whole one month she remained confined inside the room and was not even allowed to come out for answering the call of nature. Her this statement is not believable. She has stated that appellant was going to earn livelihood by working as labour and returning back in the evening or night. In these circumstance, if she was not a consenting party, she could have sought help held by raising cry from the neighbourers. The prosecutrix moved freely with the appellant from one place to another and passed more than one month time, also visited Court, executed affidavit and marriage agreement. Her photographs were also taken during the course of all these activities. If she was not a consenting party, she could have disclosed her forcible taking or taking by inducement or fraud to police, advocate and citizen of that area. In paragraph-7, prosecutrix has specifically stated that before 5 to 7 years she was married with one Rambabu and at that time she was aged about 18 or 19 years. This fact remained unchallenged and fortified her age 25 years in her affidavit Ex.D/1. She has also admitted in paragraph-9 that her in laws had come to take her, but she refused to go with them. 10. This fact remained unchallenged and fortified her age 25 years in her affidavit Ex.D/1. She has also admitted in paragraph-9 that her in laws had come to take her, but she refused to go with them. 10. Looking to the totality of the circumstances, there cannot be two opinion that prosecutrix was a consenting party, and prosecution has failed to prove that she was minor on the date of going with the appellant, therefore, in the considered opinion of this Court, no case is made out against the appellant. 11. Resultantly, this appeal is allowed, conviction arid sentence passed by the Trial Court are hereby set aside. Appellant is in jail. Learned Trial Court is directed to release the appellant forthwith if not wanted in any other criminal case. Office is directed to send a copy of this judgment along with the record to the Trial court. Appeal allowed.