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Madhya Pradesh High Court · body

2010 DIGILAW 1170 (MP)

Chhaganlal Bhilala v. State of M. P.

2010-11-23

N.K.GUPTA

body2010
JUDGMENT N.K. Gupta, J. 1. This criminal appeal is filed by the Appellant being aggrieved by the judgment dated 28/07/2008 passed by the 11th Additional Sessions Judge (Fast Track Court), Bhopal in ST No. 133 of 2008 whereby the Appellant was convicted for commission of offence punishable under Sections 363, 366A and 376 of IPC and was inflicted with the sentence of 10 years with fine of Rs. 5,000/- for the offence under Section 366A of IPC and 7 years with fine of Rs. 5,000/- for the offence under Section 376 of IPC, whereas no separate sentence was inflicted for the offence under Section 363 of IPC. All the sentences were directed to run concurrently. It was also directed that a sum of Rs. 10,000/- be provided to the prosecutrix as a compensation out of the fine amount, if deposited. 2. It is admitted that the prosecutrix as well as the Appellant-accused belongs to Scheduled Tribe "Bhilala" and they were governed by their custom. 3. Prosecution case, in short, is that the prosecutrix aged 15 years was staying with her uncle viz. Naval Singh at Bhopal. She came to Bhopal to do some labour work to earn her livelihood. The Appellant-accused Chhaganlal was brother-in-law of the prosecutrix. Initially one cousin sister of the prosecutrix was married with the Appellant-accused Chhaganlal, but at the time of incident the Appellant-accused was a widower. On 2/1/2008 at about 9:00 AM in the morning the Appellant-accused Chhaganlal asked the prosecutrix to visit Habibganj with him for a labour work assigned by the contractor. Consequently she visited Habibganj with the Appellant-accused. The Appellant-accused took her to Goharganj by a truck, then from Goharganj he took her to village Agariya. In the midway the Appellant-accused committed rape on her. Thereafter the Appellant-accused took her to his uncle's house at Agariya where they stayed for two days and in the house of his uncle the Appellant-accused committed rape on her for 2-3 times. Then again the Appellant-accused took her to the house of his sister at village Sadoli where they stayed for four days and the Appellant-accused committed rape on the prosecutrix in each night. Again they came to village Agariya and stayed for one day. From Agariya they proceeded of Goharganj on foot. Then again the Appellant-accused took her to the house of his sister at village Sadoli where they stayed for four days and the Appellant-accused committed rape on the prosecutrix in each night. Again they came to village Agariya and stayed for one day. From Agariya they proceeded of Goharganj on foot. In the midway Jhuma Bai (PW-5), mother of the prosecutrix saw them and she recovered the prosecutrix and took her to Police Station Goharganj. The police referred the matter to the Police Station Piplani where after due enquiry the crime was registered by Ex.P-12. 4. The prosecutrix was directed for her medical examination. The Appellant-accused was also arrested and directed for his medical examination. The Investigating Officer examined so many witnesses in investigation. He had also sent two slides of the vaginal swab of the prosecutrix, sperm slides of the Appellant-accused, one underwear of the Appellant-accused and some pubic hair of the Appellant-accused to the Forensic Science Laboratory for examination. After due investigation, the police had filed a challan before the concerned committal Court against the Appellant-accused for commission of offence punishable under Sections 363, 366 & 376 of IPC. 5. The Appellant-accused abjured his guilt. He did not take any specific defence. He denied all the allegations appended upon him. He had stated that he was falsely implicated in the matter, but no defence witness was adduced by him before the trial Court. 6. After considering the evidence adduced by the parties, the learned Additional Sessions Judge found the Appellant-accused guilty for commission of offence punishable under Sections 363, 366A and 376 of IPC and inflicted the aforesaid sentence. 7. I have heard the learned Counsel for the parties at length. 8. Learned Counsel for the Appellant-accused has submitted that according to the custom of the tribe of the prosecutrix and the accused, the accused took the prosecutrix to marry with her, but since the accused could not pay the compensation as required by the parents of the prosecutrix, mother of the prosecutrix lodged an FIR. Actually the prosecutrix was a consenting party. She did not resist anywhere. She was sent with the Appellant-accused with the consent of her uncle Naval Singh and cousin Rajesh, and therefore no offence of kidnapping was made out. Actually the prosecutrix was a consenting party. She did not resist anywhere. She was sent with the Appellant-accused with the consent of her uncle Naval Singh and cousin Rajesh, and therefore no offence of kidnapping was made out. He has further submitted that actually the prosecutrix was above 18 years of age, and therefore no offence was constituted against the Appellant-accused, but unfortunately the learned Additional Sessions Judge did not consider the assessment of age as suggested by the defence. 9. If the entire evidence of the prosecutrix (PW-4) is considered, then it is clear that she remained with the Appellant-accused for nine days at various places like village Agariya and village Sadoli. She stayed at Agariya for two days initially and then one day in her return visit whereas she stayed at Sadoli for four days. She has admitted in cross examination that her cousin Rajesh was aware with the fact that she was going with the Appellant-accused to work at Habibganj. She was taken by the Appellant to Habibganj, then to Goharganj by a truck, but she did not inform anything to the driver etc. They dropped at bus stand Goharganj by truck, but she did not make any hue and cry. She did not shout in the public place and she went with the Appellant-accused without any resistance. In her case diary statement, she has stated that they went by bus, but in the trial Court she denied that she gave such a statement to the police. It is clear that she did not say anything to other co-passengers and did not resist in her visit, therefore now in the trial Court she was telling that she travelled by a truck and not by a bus. 10. At village Agariya or Sadoli she admits that there are so many houses of the persons belonging to her tribe. Her such a statement indicates that she was free to visit the houses of various persons of the locality belonging to the same tribe. She has admitted the custom that in her tribe if someone wants to marry with a girl, he takes her with him and then he has to pay some compensation to the parents of the girl and if he is unable to pay the compensation, then marriage cannot take place, though she denied that the accused took her due to that custom. 11. 11. Rato Singh (PW-8), who is uncle of the Appellant-accused has stated that the prosecutrix and the Appellant resided in his house for 3-4 days and the prosecutrix who was above 18 years of age was telling his kids that she is the wife of the Appellant-accused. She lived happily in his house. Neither this witness was declared hostile nor the prosecution disbelieved him. Rato Singh (PW-8) in his statement has directed the prosecutrix by word "laadi" that means wife of the Appellant-accused. Rato Singh is a prosecution witness on whose testimony the prosecution believes, therefore, looking to the statement of this witness, the conduct of the prosecutrix is clear that she lived with the Appellant-accused as a wife in village Agariya, therefore it appears that the prosecutrix was a consenting party in the said visit and such physical relations with the Appellant. 12. The entire matter rests on the assessment of age of the prosecutrix. The prosecutrix (PW-4) whose statements were taken in the trial Court after five months of the incident, she has still stated her age to be 15 years. Jhuma Bai (PW-5), mother of the prosecutrix and Than Singh (PW-7), father of the prosecutrix have stated that the prosecutrix was 15 years old at the time of incident. Than Singh (PW-7) reduced her age to 14 years at the time of incident, but he could not inform the Court that in which year his marriage took place. He did not mention the age of his wife. He has seven children, but he could not tell the age of anyone. Than Singh stated his age to be 30 years, whereas his wife stated her age to be 45 years, that clearly shows that these persons were rustic illiterate persons, who did not have any account of any age etc. Jhuma Bai has stated that her elder child is a daughter Anita whose age is not known to her and her younger child is a girl, who is aged 10 years. The prosecutrix (PW-4) in para 6 and 7 of her statement has stated that she was the second number child of the family and her elder sister Sunita was aged 17 to 18 years. 13. The prosecutrix (PW-4) in para 6 and 7 of her statement has stated that she was the second number child of the family and her elder sister Sunita was aged 17 to 18 years. 13. If the age of the Jhuma Bai (PW-5) is considered to be 45 years, then certainly since she was an illiterate triable girl, she must have married with her husband at the age of 16 to 18 years and she must have had her first child in the age of 20 years of age, therefore, age of the Sunita must be of 25 years on the basis of age of the witness Jhuma Bai. The prosecutrix (PW-4) has stated before the trial Court that she was 1 1/2 years younger than her sister Sunita, therefore she must be 18 1/2 years of age at the time of incident. In the present case, there is no certainty of age from the data given by the parents of the prosecutrix and the prosecutrix herself. No educational record is submitted for that purpose, therefore the medical evidence should be assessed on the basis of data provided by the parents of the prosecutrix. 14. Dr. Anita Peter (PW-6), who examined the prosecutrix has submitted a report Ex.P-1 and informed the Court that secondary sex characters of the prosecutrix were fully developed, however in the vaginal examination of the prosecutrix one finger could be inserted with a difficulty. She has admitted in the cross examination that axillary and pubic hairs of the prosecutrix were thick and hard. Position of the vagina is not a consideration in the computation of age. If a girl of 13 years is directed for cohabitation for several times, then two fingers may be easily inserted in her vagina, whereas if a grownup girl who has not experienced the intercourse for so many times, may not have such a vaginal position, therefore for assessment of the age, secondary sex characters should be observed. The secondary sex characters of the prosecutrix were fully developed. She had 28 teeth in her mouth. 15. Dr. C.S. Jain (PW-11) who examined the prosecutrix for assessment of her age, has submitted his report Ex.P-16. (Ex.P-16 is annexed at page No. 29 of the main file, which is incomplete. The secondary sex characters of the prosecutrix were fully developed. She had 28 teeth in her mouth. 15. Dr. C.S. Jain (PW-11) who examined the prosecutrix for assessment of her age, has submitted his report Ex.P-16. (Ex.P-16 is annexed at page No. 29 of the main file, which is incomplete. It is only 3rd page of the report, whereas first page of the report is at page No. 22 and it has no exhibit marking, whereas second page of the report is available in the file of JMFC Trupti Sharma in RT No. 3441/2008 at page No. 7. Concerned X-ray plates are also in the record of RT No. 3441/2008. To make the file complete, page No. 2 of the report and X-ray plates be shifted from the record of RT No. 3441/2008 to the main file of the Sessions Case). Dr. C.S. Jain (PW-11) has opined that looking to the fusion of meta carpal bones and lower arm of humerus and upper ends of radius and ulna bones, he found the age of the prosecutrix to be 15 years with an addition of six months on both the sides. He has admitted in para 7 of his statement that if according to the Medical Jurisprudence of Dr. Modi, if lower part of the radius bone was fused, then the prosecutrix could be of 18-19 years of age. He has further admitted in para 5 that nutrition and environment are also responsible for well development of a child, and therefore if the prosecutrix was not provided with nutrition diet etc., it was possible that she could not get her other bones fused, though she has completed her age of more than 18 years. 16. Looking to the diet, environment etc. a variation of 2-3 years may arise in computation of age. In the ossification test, Dr. 16. Looking to the diet, environment etc. a variation of 2-3 years may arise in computation of age. In the ossification test, Dr. Jain has admitted that if the lower part of radius bone was found fused, then she must be of 18 to 19 years of age, whereas other bones of her hand was found fused, therefore looking to the age of the mother of the prosecutrix and possible age of the prosecutrix in comparison to her sister Sunita's age, it appears that due to lack of nutrition etc., the prosecutrix could not get lower part of the radius bones fused, therefore in the result of ossification test, 2-3 years may be added to compute the actual age of the prosecutrix. 17. Dr. Jain has also found that one molar tooth of the prosecutrix was in a growth and molar tooth may erupt in the age of 17-18 years of age. It is also possible that last molar tooth may not erupt in the entire life. Looking to the various symptoms for computation of age given by Dr. Jain in his report, it appears that due to lack of nutrition etc. the physical development of the prosecutrix could not take place, but she was above 18 years of age at the time of incident. In this context, the judgment of the Hon'ble Apex Court in the case of State of Karnataka v. Suresh Babu Puk Raj Porral AIR 1994 SC 966 may be referred, in which it is observed that the Radiologist conducted all the necessary tests and then also took X-rays. From the ossification test, according to him, her age could be under 18 years. But according to Isshial Tuberosity, her age could be below 20 years. Like that, from the tests and examinations of Distal end femur and Tibia etc., the doctor gave the approximate age stating that it could be 16 years. But the data given would show that she could be aged 18 years also. 18. In the present case, according to the age of mother and sister of the prosecutrix, the prosecutrix could be more than 18 years of age and also data given by Dr. Jain, it was possible that she could be of more than 18 years of age. Dr. 18. In the present case, according to the age of mother and sister of the prosecutrix, the prosecutrix could be more than 18 years of age and also data given by Dr. Jain, it was possible that she could be of more than 18 years of age. Dr. Jain has based his computation on the X-ray plates of one hand only, whereas he could compute the age in a better manner if he has taken the X-ray of legs etc. Looking to the incomplete assessment of Dr. Jain, entire symptoms shown by him in his report Ex.P-16 and in the light of above observations of the Hon'ble Apex Court in the case of Suresh Babu Puk Raj (supra), it appears that the prosecutrix was above 18 years of age at the time of incident. If any doubt is created regarding the age of the prosecutrix, then the benefit of doubt is to be given to the accused. In the present case, a doubt is created that the prosecutrix was above 18 years of age at the time of incident. 19. Since the prosecutrix was above 16 years of age at the time of incident and she was a consenting party to have cohabitation with the Appellant-accused, no injury was found on her person and she did not make any hue and cry at the time of such cohabitation, therefore it appears that the prosecutrix was a consenting party in all the activities of the accused/Appellant, hence no offence under Section 376 of IPC is made out against the Appellant. 20. Similarly as per the evidence of the prosecutrix in para 8, she was residing with her cousin Rajesh at Siddharth Nagar and was working with a contractor where her uncle Naval Singh and aunt were working. She has further admitted in her evidence in para 8 that Rajesh was well aware that she was living with the Appellant-accused. Jhuma Bai (PW-5), mother of the prosecutrix has stated that when she was waiting for a bus at Goharganj, she saw the prosecutrix and the Appellant-accused. She did not shout on the Appellant-accused or on the prosecutrix, but she took them to Police Chowki Goharganj. But no documents were brought on record to show that there was any involvement of police Goharganj. The story of recovery of the prosecutrix as mentioned by Jhuma Bai (PW-5) seems to be unnatural. She did not shout on the Appellant-accused or on the prosecutrix, but she took them to Police Chowki Goharganj. But no documents were brought on record to show that there was any involvement of police Goharganj. The story of recovery of the prosecutrix as mentioned by Jhuma Bai (PW-5) seems to be unnatural. It was not possible that by co-incident Jhuma Bai saw the prosecutrix and the Appellant-accused. It appears that the Appellant-accused took the prosecutrix with the consent of Rajesh and Naval Singh and the prosecutrix and the accused were called back by the parents of the prosecutrix and since no settlement took place, then Jhuma Bai lodged an FIR against the Appellant-accused. If Jhuma Bai met the prosecutrix at Goharganj and she took her to Police Station Goharganj, then there must be some record of recovery of the prosecutrix prepared by police Goharganj, whereas recovery memo Ex.P-6 was prepared in Police Station Piplani, Bhopal. 21. The incident of recovery also confirms that the prosecutrix was sent with the Appellant-accused to marry with him by her uncle Naval Singh with the consent of Rajesh, and therefore the prosecutrix was a consenting party in going with the Appellant-accused, therefore offence under Section 363 as well as 366A of IPC is also not made out against the Appellant-accused. 22. On the basis of aforesaid discussion, it is clear that there is a doubt that the prosecutrix was above 18 years of age at the time of incident, and therefore benefit of doubt is to be given in favour of the Appellant-accused. The prosecutrix was a consenting party in her visits with the Appellant, hence no offence under Section 363 or 366A of IPC is made out against the Appellant-accused. Therefore, conviction directed by the trial Court for the alleged offence cannot be sustained in the eyes of law. 23. Learned Counsel for the Appellant-accused in support of his contention has placed his reliance on the judgment of this Court in the case of Bapulal v. State of Madhya Pradesh 2002 C.LR 139, in which it is observed that the prosecution failed to prove that the prosecutrix was minor or below 18 years of age on the date of incident. She remained in company of the Appellant for a long period and visited several places. She remained in company of the Appellant for a long period and visited several places. During this period she had sufficient time and opportunity to complain about her forcible kidnapping but she did not do so, therefore the prosecutrix was a consenting party and the Appellants were entitled to get the benefit of doubt. 24. Also she did not resist in cohabitation with the Appellant neither at Agariya nor at Sadoli. She did not make any hue & cry or raise any alarm at any place in those nine days. Therefore, she appears to be a consenting party and since she was above 16 years of the age, no offence under Section 376 of IPC is made out against the Appellant. In view of the above facts and circumstances of the case, the appeal of the Appellant deserves to be allowed and the Appellant-accused is entitled to be acquitted of all the charges. 25. Consequently, the appeal succeeds and is allowed. The conviction as well as sentence imposed on the Appellant-accused for the offence punishable under Sections 363, 366A and of IPC is hereby set aside. The Appellant-accused is acquitted of all the charges. The Appellant will get the fine amount back, if he has deposited any. 26. At present the Appellant is in custody, therefore a release warrant be issued in this regard forthwith.