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Madhya Pradesh High Court · body

2008 DIGILAW 829 (MP)

KALU s/o TARACHAND BHIL v. STATE OF M. P.

2008-07-07

S.L.KOCHAR

body2008
JUDGMENT : The appellant assails the judgment dated 3-9-2007 of the learned I Addl. Sessions Judge, Dhar in ST. No. 176/2006 by which the appellant has been convicted under sections 376 and 366 and 363 of the Indian Penal Code, sentenced to seven years RI with fine of Rs. 500/-, five years RI with fine of Rs. 250/- and three years RI with fine of Rs. 250/- in respective counts. In default of payment of fine he shall undergo one year RI, six months RI and six months RI under each count. However the substantive jail sentences were directed to run concurrently. 2. Briefly stated the prosecution case as unfolded before the trial Court is that prosecutrix had gone to Khalghat for reaping wheat crop along with villagers named Ramesh, Gitabai, Rangabai and Nirbhaisingh. After working in day time they used to sleep in the courtyard of Bhagwan Patidar and in the nearby room, appellant was residing. On 5-4-2006 prosecutrix alone in the night went to answer the call of nature towards forest, the appellant followed her and took her for marriage after inducement as well as threatening. Manglia, the father of the prosecutrix lodged the report of missing in P. S. Dhamnod. In the report, he had mentioned that his daughter had gone somewhere from Ghalghat. During the course of enquiry of this report, prosecutrix was recovered from the company of the appellant on 2-6-2006. Police recorded the statement of the prosecutrix wherein she has stated that she was induced by the appellant to go with him and she went along with the appellant and visited several places where appellant committed sexual intercourse with her. Police registered the FIR (Ex.P.12) vide Crime No. 218/2006 under sections 363, 366, 376 and 506 of the Indian Penal Code. Prosecutrix was medically examined by Dr. Kamna Sharma (PW.8). Her medical report is Ex.P.9. Prosecutrix was also examined by the Radiologist Dr. B. R. Bansal (PW.10). Ossification test report is Ex.P.10. Prosecutrix was given on supurdginama to her parents. Police seized school certificate (Ex.P.7) from government primary school, Dhabla. According to school record, her date of birth is 1-3-1993. On due investigation, appellant was charge-sheeted for abovementioned offences. 3. The appellant denied the charges, therefore, put to trial and learned trial Court finding him guilty, convicted him as mentioned hereinabove. 4. Prosecutrix was given on supurdginama to her parents. Police seized school certificate (Ex.P.7) from government primary school, Dhabla. According to school record, her date of birth is 1-3-1993. On due investigation, appellant was charge-sheeted for abovementioned offences. 3. The appellant denied the charges, therefore, put to trial and learned trial Court finding him guilty, convicted him as mentioned hereinabove. 4. Having heard the learned counsel for parties and after perusing the entire record, this Court is of the view that prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant. 5. The statement of the prosecutrix is clearly indicating that she was a consenting party and moved along with the appellant from one place to another place for about three months, but according to the FIR, she was in the company of the appellant for two months and visited several places. During this period, she had ample opportunity to leave the company of the appellant and also to sought help from the citizens, police and she could lodge the report to the police, but she did not make any effort for this and her explanation that she was under threat of the appellant is not acceptable. Prosecutrix and appellant comes from the same class. According to ossification test report (Ex.P.10) and evidence of radiologist Dr. B. R. Bansal (PW.10), she was between 16-18 years of age. It is well settled factual position that there is always margin of two years in either side, therefore, according to ossification test report, she could be above 18 years of age. 6. Dr. Kamna Sharma (PW.8) physically examined the prosecutrix and did not find any external or internal injuries on her person. According to Dr. Sharma, all secondary sex characters of the prosecutrix were fully developed and she did not opine regarding commission of rape with prosecutrix. She proved her report (Ex.P.9). 7. Learned trial Court in paras 35 and 36 of the impugned judgment has observed that since prosecutrix was below 16 years of age, her consent has no meaning. This shows that learned trial Court is of the opinion that though the prosecutrix was a consenting party but because of her minor age, appellant could not get any benefit and same could not be considered in his favour. This shows that learned trial Court is of the opinion that though the prosecutrix was a consenting party but because of her minor age, appellant could not get any benefit and same could not be considered in his favour. The learned trial Court given finding that prosecutrix was below 16 years of age mainly on the basis of school certificate. The prosecutrix has stated her age of 12 years in Court which is completely at variance with the medical evidence of both the Doctors. 8. Mangilal (PW.3), father of the prosecutrix has given the age of the prosecutrix between 12-13 years and in examination-in-chief he has nowhere stated the date of birth of the prosecutrix or even her admission and education in any school. He has not stated about school certificate of the prosecutrix. In cross-examination, he admitted that he received information from Ramesh regarding going of the prosecutrix along with the appellant but he had not mentioned his name in the report. In para eight he has stated that he was having acquaintance with Mansingh, Head Constable of Dhamnod police station and he had gone along with Mansingh Head Constable and five to seven persons to Mhow in a Trax Jeep to bring the prosecutrix and after return at Dhamnod police station they stayed in Dhamnod P. S. for seven days. He has also stated that he informed the SHO that if relations of the appellant would come to the police station and settled the dispute he would not like to continue any legal action against the appellant, but his relatives had not come to the police station. In para 10 he has admitted that he studied up to third standard having eight children, but he was not knowing date of birth of any children and in school, her date of birth was recorded by the teacher on assessment. He has also admitted that three elder sisters of the prosecutrix were already married and he married them at the age of 17 and 18 years, elder sister of the prosecutrix is having two children, then he has corrected his statement and said that she had no issue and married before three years. In para 13 he has stated that after bringing her daughter in the police station he signed on the documents after seven days. In para 13 he has stated that after bringing her daughter in the police station he signed on the documents after seven days. He denied the defence suggestion that prosecutrix was not willing to speak against the appellant and gave statement that she went along with the appellant at her own accord because of which she was detained in the police station for seven days and compelled to give statement. All these defence suggestions have been denied by this witness, but on going through the statement of this witness as well as the prosecutrix, it is crystal clear that she was a consenting party and only question remain before this Court to decide whether she was minor or not. 9. Bharatsingh Solanki (PW.6), teacher of Primary Government School, Dhapla has proved the entry of date of birth of the prosecutrix in school scholar register (Ex.P.6) wherein her date of birth is mentioned 1-3-1993. In examination-in-chief he has nowhere stated that on what basis, the date of birth of the prosecutrix was mentioned. He has also proved the certificate (Ex.P.7) issued by him to police. In cross-examination, he has admitted that entries available in school scholar register (Ex.P.6) were not made by him and same were written by former headmaster and he could not speak on what basis date of birth of prosecutrix was mentioned in school scholar register. He has also stated that since last two three years they were seeking certificate issued by Gram Panchayat for date of birth at the time of admission of the student and prior to that they were writing the date of birth of the student on the basis of information given by parents. He has admitted that he had not seen any certificate regarding date of birth of the prosecutrix. 10. On the basis of the statement of this witness Bharat Singh Solanki, it is not established that date of birth of the prosecutrix was disclosed by father or mother of the prosecutrix and what was the basis for writing of date of birth. Identity of the prosecutrix with entry available in Ex.P.6 is also not established in the Court. 10. On the basis of the statement of this witness Bharat Singh Solanki, it is not established that date of birth of the prosecutrix was disclosed by father or mother of the prosecutrix and what was the basis for writing of date of birth. Identity of the prosecutrix with entry available in Ex.P.6 is also not established in the Court. Unless prosecution is not able to establish what was the basis for making entry of date of birth in the school register and whether the said basis is correct and also establishing the identity of the prosecutrix or concerned persons, simple entry of date of birth in school register is not sufficient to establish that the prosecutrix was below 16 years of age. 11. According to the date of birth i.e. 1-3-1993 mentioned in school register (Ex.P.6), prosecutrix was 13 years of age on the date of incident i.e. 5-4-2006. This is belied by the medical evidence of both the Doctors. According to medical report, the secondary sex character of the prosecutrix were fully developed and according to ossification test report, she was between 16-18 years of age, therefore, in the considered opinion of this Court, the learned trial Court has erred in holding that prosecutrix was below 16 years of age on the date of incident. 12. Resultantly, this appeal is allowed on the foregoing reasons. Conviction and sentence of the appellant are hereby set aside. The learned trial Court is directed to release the appellant forthwith if not wanted in any other criminal case.