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Madhya Pradesh High Court · body

2010 DIGILAW 468 (MP)

Sanjay @ Sanju v. State of M. P.

2010-04-23

N.K.MODY

body2010
JUDGMENT 1. Being aggrieved by the judgment dated 31.12.09 passed by special Sessions Judge, SC/ST (prevention of Atrocities), West Nimar Mandleshwar in ST. No. 86/09 whereby the appellant was convicted for an offence alleged to have been committed under sections 363, 367 of IPC and sentenced for a period of four years RI and fine of Rs. 2,000/- and in default of payment of fine amount further 12 months imprisonment and under section 376 (1) of IPC sentence for 10 years RI and fine of Rs. 3,000/- and in default of payment of fine further 30 months imprisonment, the present appeal has been filed. 2. In short the case of prosecution was that on 26.2.09 an FIR was lodged by one Narayan to the effect that Vidyabai is his wife and Pooja is his daughter who left the house on 24.2.09 at about 6:00 p.m. alleging that she is going to meet her friends. It was alleged that since Pooja has not returned back, therefore, search was made. Upon complaint of Narayan, case was registered at Crime No. 4/09 and on 24.3.09 Pooja came to the police station alongwith her parents and narrated the entire story how she was abducted and raped by the appellant. After investigation, challan was filed and after framing of charges and recording of evidence appellant was convicted as stated above, against which present appeal has been filed. 3. Learned counsel for appellant argued at length and submits that appellant was convicted illegally while appellant has not committed any offence. Learned counsel submits that the learned Court below committed error in not properly appreciating the evidence which resulted incorrect judgment and is liable to be set aside in tills appeal. It is submitted that the learned Court below committed error in not considering material omissions and contradictions appearing in the testimony of the prosecution witnesses. It is submitted that in view of the aforesaid facts and appeal filed by the appellant deserves to be allowed and the judgment of conviction deserves to be set aside. 4. In alternative, learned counsel submits that appellant was in jail w.e.f., 6.4.09 to 29.8.09 during trial and is again in jail from the date of judgment i.e. 31.12.09. It is submitted that in view of the aforesaid facts and appeal filed by the appellant deserves to be allowed and the judgment of conviction deserves to be set aside. 4. In alternative, learned counsel submits that appellant was in jail w.e.f., 6.4.09 to 29.8.09 during trial and is again in jail from the date of judgment i.e. 31.12.09. It is submitted that looking to the nature of offence and the fact that appellant has already served substantive part of jail sentence, the same may be reduced to the period already undergone and the amount of fine may reasonable be enhanced. 5. Learned counsel for respondent/State submits that after due appreciation of evidence, learned Court below has found the offence proved against the appellant, which requires no interference. It is submitted that the appeal filed by the appellant be dismissed. 6. To prove the case prosecution has filed the documents Ex. P/1 to Ex. P/10. Ex. P/1 is the FIR dated 26.2.09, Ex. P/2 is Crime Detail Form, Ex. P/3 is the site map, Ex. P/4 is intimation regarding lost of man, Ex. P/5 is Panchnama, Ex. P/6 is Mark-sheet of prosecutrix for Class-VII, wherein her date of birth is mentioned as 30.8.94, Ex. P/7 is transfer certificate which has been issued by Government Primary School, Nawalpura, wherein date of birth is also mentioned as 30.8.94, Ex. P/8 is the progress report wherein also the date of birth is mentioned as 30.8.94, Ex. P/9 is the seizure memo and Ex. P/10 is MLC of the appellant. Apart from this prosecution has examined the prosecutrix as PW/1, Narayan PW/2, Vidyabai PW/3, Narendra PW/4, Dilip PW/5, Lakhan PW/6, Lakshman PW/7 and Dr. K.K. Mandloi PW/8. 7. Appellant has also proved the documents Ex. D/1 and Ex. D/2 which are the letters alleged to have been written by the prosecutrix. Ex. D/3 is the photograph of the prosecutrix. Willie convicting the appellant learned Court below found that the prosecutrix was below 16 years, thus even if it is assumed that the prosecutrix was consenting party, then too, appellant is liable for conviction. 8. D/1 and Ex. D/2 which are the letters alleged to have been written by the prosecutrix. Ex. D/3 is the photograph of the prosecutrix. Willie convicting the appellant learned Court below found that the prosecutrix was below 16 years, thus even if it is assumed that the prosecutrix was consenting party, then too, appellant is liable for conviction. 8. From perusal of the record it is evident that number of important aspects were not taken consideration by the learned Court below while convicting the appellant, which are as under :- i. Prosecutrix Pooja was medically examined by the medical officer, but the doctor was not examined to prove the MLC of the prosecutrix. ii. She was also examined by the radiologist. Dr. Bhujalda has submitted the report, according to which her age was between 16-18 years, but neither the report was exhibited, nor radiologist was examined. iii Prosecutrix in her cross-examination has admitted that Ex. D/3 is her photographs, however, she has stated that it was not given by her to the appellant. In her cross-examination she has also denied that the letter Ex. D/1 & D/2 have been written by her. In para 5 & 9 of her cross-examination, prosecutrix has admitted that she set on the motor bike which was being driven by the appellant, as she was threatened by the appellant for dire consequences. In para-10 of her cross-examination, she has admitted that when she was travelling on the motor bike, at that time vehicles were coming and going on Badwah Road. She also passed through the Hospital, bus stand and police station, Badwah. She also passed through the bus stand of Mandleshwar. She has also admitted that all the time it was appellant who was driving the motor bike. She has also stated that she did not cry because she was threatened by the appellant for dire consequences. In cross-examination she has also admitted that the prosecutrix was cooking the food at the place where they were staying and also her hairs were burnt when she was cooking the food. In para-12 of her cross-examination she has stated that the appellant went to market for purchasing the house hold articles. iv. Statement of prosecutrix is enough to show that the prosecutrix was travelling with the appellant freely. 9. In para-12 of her cross-examination she has stated that the appellant went to market for purchasing the house hold articles. iv. Statement of prosecutrix is enough to show that the prosecutrix was travelling with the appellant freely. 9. In the matter of Ramniwas v. State of M.P., reported in 2002 (II) MPWN 196 , wherein it was held that where the prosecutrix was above 16 years and was a consenting party, no offence is made out. In the matter of Sukhman v. State of M.P., reported in 2002 (I) MPWN 37 , wherein this Court has held that in a case where the evidence of prosecutrix is not ruling out possibility of prosecutrix being more than 16 years old, conviction is set aside. In the matter of Lalta Prasad v. State of M.P. reported in AIR 1979 SC 1276 , wherein the victim was girl aged 16 years have gone with the accused with her free will and with consent of her mother, as she wanted to marry the accused appellant and she was not taken away by the appellant for the purpose of compelling her to marry against her will, it was held that the charge of abduction must fail. 10. In the matter of Diganta Mazumdar v. State of Assam reported in 2008 Cri. LJ 2856 Guahati High Court has observed that the testimony of prosecutrix was that she was forcibly taken by accused in a bicycle through a busy bazaar area, but when she cried nobody came for rescue is not inspiring confidence. It was further, observed that no other evidence except transfer certificate produced to prove age of prosecutrix to be a minor and the medical evidence also not showing any sign of rape, not any injury on external or internal parts of body of prosecutrix. It was further held that conduct of prosecutrix showing that she was not kidnapped but she had eloped with accused, hence conviction of accused was set aside. 11. In the matter of Pravakar Patil v. Ajaya Kumar Das, reported in 1996 Cri. It was further held that conduct of prosecutrix showing that she was not kidnapped but she had eloped with accused, hence conviction of accused was set aside. 11. In the matter of Pravakar Patil v. Ajaya Kumar Das, reported in 1996 Cri. LJ 2626 Orissa High Court in a case where prosecution produced school leaving certificate only and not horoscope though available, held that what is stated in the school Admission Registrar as to the age of a student cannot be treated to be correct since the guardians understate the age of their children than the real one at the time of admission in the school, hence the prosecution in the present case, ought to have some more acceptable evidence to prove that the girl was minor at the relevant time and as much as it should have brought in evidence her horoscope which according to her father was very much available in his house, in all fairness to assertion her age. 12. In the matter of Lalliram v. State of M.P. 2008 (3) JLJ 233 = (2009) I SCC (Cri) 17 Hon'ble Apex Court has observed that absence of any injury is an important factor. It was also observed that where testimony of prosecutrix found to be self-contradictory and also inconsistent with testimony of other prosecution witnesses as well as with medical evidence, accused cannot be convicted on the basis of her version. It was also observed that in criminal case the question of precedent particularly relating to appreciation of evidence is really of no consequence and a decision has to be considered in the background of the factual scenario. 13. In the matter of Aman Kumar v. State of Haryana (2004) 4 SCC 379 it was observed that prosecutrix complaining of having been a victim of offence of rape is not an accomplice and there is no rule of law that her testimony cannot be acted upon without corroboration in material particulars and she stands on a higher pedestal than the injured witness. In the latter case there is injury in the physical from while in the formar both physical as well as psychological and emotional. However, if the Court finds it difficult to accept the version of a prosecutrix on the face value, it may search for evidence direct or circumstantial. 14. In the latter case there is injury in the physical from while in the formar both physical as well as psychological and emotional. However, if the Court finds it difficult to accept the version of a prosecutrix on the face value, it may search for evidence direct or circumstantial. 14. After taking into consideration all the facts stated above and also keeping in view the position of law as stated above, this Court is of the view that the important witnesses were not examined by the prosecution. This Court is also of the view that the statement of the prosecutrix is unworthy and does not inspire confidence. 15. In the facts and circumstances of the case, this Court is of the opinion that the prosecution has failed to prove that the appellant has committed any offence. In the result the appeal filed by the appellant is allowed and the conviction of the appellant is set aside and the appellant is acquitted from the charge levelled against him. Appellant be released forthwith if not required in any other case. 16. With the aforesaid observations, appeal stands disposed of.