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Madhya Pradesh High Court · body

2011 DIGILAW 152 (MP)

Ajab Singh v. State of M. P.

2011-02-02

S.N.AGGARWAL

body2011
JUDGMENT :- 1. This criminal appeal under section 374 of Code of Criminal Procedure, 1973 filed by the appellants is directed against the impugned judgment of conviction and order on sentence dated 16th January, 2003 passed by the Sessions Court in Sessions Trial Case No.246/01 convicting appellant No.l for offences under sections 363,366 and 376 IPC and appellants No.2 to 8 for offences under sections 109/ 363 and 366 of IPC. They have been sentenced to varied terms of imprisonment maximum of which is ten years awarded to appellant No.l for offence under section 376 IPC. 2. I have heard the arguments of Mr. Sameer Shrivastava, learned counsel appearing on behalf of the appellants and Mr. Jai Prakash Sharma, learned Public Prosecutor appearing on behalf of respondent/State. I have also perused the record of the Trial Court. 3. Factual matrix of the case giving rise to this appeal is as follows : The father of the prosecutrix had triggered the criminal machinery into motion by lodging a written complaint (Ex.P-7) directly to the Superintendent of Police,Guna alleging therein that on 30th of May, 2001 around 12.00 midnight, when he returned after selling wheat crop in Anaj Mandi at Guna to his house in Bilakhedi, he found his daughter, then aged around 14 years, missing from his house and on being asked from his children, he was told that she was abducted and foreibly taken by the accused persons being the appellants herein and on being so told, when he enquired from the appellants about the whereabouts of his missing daughter, they refused to tell him her whereabouts and threatened him with dire consequences, in case he lodge complaint of the incident against them. On this complaint of the father of the prosecutrix, an FIR Ex.P-12 under sections 363 and 366 IPC was registered against them at Police Statiqn Dharnawada under the jurisdiction of district Guna. The said FIR was registered against them on 05th of June, 2001. Subsequent to the registration of the FIR, the prosecutrix alongwith one of the accused persons namely appellant No. 1 surrendered of their own before the Police at Police Post Ruthiyai on 15/6/2001. Prosecutrix was given in supurdgi to her father by the police on the same day, i.e. 15/6/2001. After completion of the investigation, charge sheet was filed by the prosecution against the appellants. Prosecutrix was given in supurdgi to her father by the police on the same day, i.e. 15/6/2001. After completion of the investigation, charge sheet was filed by the prosecution against the appellants. Appellant No. 1 was charged for offences under sections 363,366 and 376 IPC, while rest of the appellants being appellants No.2 to 8 were charged for offences under sections 363 and 366 read with section 109 IPC. 4. In order to prove its charges against the appellants, the prosecution had examined total 13 witnesses and out of these 13 witnesses examined by it, the main case of the prosecution rests upon the testimony of the prosecutrix examined as PW 7; her father Lalaram (PW6); Dr.Lekha Tiwari (PW 3); Dr.R.K.Jain (PW 4); and Dr.Aradhana Vijayavargiya (PW 9). After the prosecution had closed its evidence, statements of the appellants were recorded under section 313 Cr.P.C. in which they took a plea that they have been falsely implicated in the present case. Appellant No.l, who was arrayed as the main accused in the case, stated in his statement under section 313 Cr.P.C. that the prosecutrix and he, both were in love affair with each other and according to him, the prosecutrix herself was responsible for going with him from the house of her parents on the date of incident and they have solemnised Court marriage before the Court at Chabra (Rajasthan) and thereafter returned of their own and surrendered before the Police where they were implicated in a false case. The appellants examined three witnesses in their defence; two of them namely Shyambabu (DW 1) and Pahalwansingh (DW 2) are their neighbourers and Hemiaj Rathore (DW 3) is an advocate and was examined in defence to prove the affidavit (Ex.D-1) sworn by the prosecutrix before the notary public on 11/6/2001 wherein she has stated that she had married appellant No.l voluntarily as she did not want to live with her husband Prakash with whom she was married by her father against her wishes. 5. The learned Trial Court vide its impugned judgment has convicted appellant No. 1 for offences under sections 363,366 and 376 of IPC and rest of the appellants namely appellants No.2 to 8 for offences under sections 363 and 366 read with section 109 IPC. Aggrieved therefrom, they have preferred this appeal. 6. Mr. 5. The learned Trial Court vide its impugned judgment has convicted appellant No. 1 for offences under sections 363,366 and 376 of IPC and rest of the appellants namely appellants No.2 to 8 for offences under sections 363 and 366 read with section 109 IPC. Aggrieved therefrom, they have preferred this appeal. 6. Mr. Sameer Shrivastava, learned counsel appearing on behalf of the appellants has made two fold arguments in support of the present appeal. First argument made by him is in regard to the age of the prosecutrix at the time of incident and the second relates to consent of the prosecutrix. 7. Shri Jai Prakash Sharma, learned Public Prosecutor appearing for the respondent/State has argued in support of the findings contained in the impugned judgment of conviction and order on sentence. He submits that there is no infirmity or illegality in the said judgment which may require interference by this Court and has prayed for the dismissal of this appeal. 8. have given my anxious consideration to the rival arguments advanced by counsels for both the parties, but I am sorry, I could not persuade myself to agree with the arguments advanced by the learned Public Prosecutor for reasons to follow herein after. 9. Learned counsel appearing on behalf of the appellants has vehemently argued that the impugned judgment of the Court below is based only on assumptions and presumptions, without any support from legally admissible evidence. Learned counsel has argued that the Court below should not have laid over emphasis on the oral testimony of the father of the prosecutrix regarding her age in preference to the ossification report, Ex.P-4, to hold that the prosecutrix was 14 years old at the time of incident on 30/5/2001. He has further argued by reference to the testimony of the prosecutrix (PW 7) and that of her father Lalaram (PW 6) that the prosecutrix was over 18 years of age on the date of incident and even as per ossification report (Ex.P-4), her age was opined by the radiologist to be 17 years at the time of incident. Submission of Mr. Sameer Shrivastava is that the appellants are entitled to get benefit of two years ( plus / minus ) in the age of the prosecutrix determined by the ossification test. Submission of Mr. Sameer Shrivastava is that the appellants are entitled to get benefit of two years ( plus / minus ) in the age of the prosecutrix determined by the ossification test. The law on this aspect is well settled that when there is no direct evidence regarding age of the prosecutrix available with the Court, the only option available is to get her age determined by reference to ossification test. In this case, ossification test was got done on the prosecutrix and in terms of the ossification report, Ex.P-4 her age was opined by the radiologist to be 17 years and on giving benefit of two years, she is to be treated as major, over 18 years of age on the date of incident. It is an admitted case of the prosecution that neither birth certificate nor school leaving certificate of the prosecutrix was produced by it before the Trial Court. The Trial Court has acted merely on the oral testimony of the father of the prosecutrix regarding her age. 10. A close reading of the testimony of the prosecutrix and that of her father would show that they are not reliable witnesses as they have taken shifting stands on various significant aspects of the case. It shall be interesting to note that as per the prosecutrix herself as well as her father, the prosecutrix was a married woman prior to the date of incident. The prosecutrix's father Lalaram (PW 6) has testified in his.cross.examination that he had married the prosecutrix with Prakash ten years prior to the date of incident. Then he suddenly changed his stand and said that he did not marry the prosecutrix with Prakash son of Laxman Yadav. He then again changed this stand and said that he had done marriage of the prosecutrix only 15 days prior to the date of incident with Prakash son of Laxman Yadav. In the very next breath, he said that he had given the prosecutrix in Natra, a form of marriage, to one Hanumant Singh, resident of Badegaon fifteen days prior to the date of incident. Then he again said that name of the husband of the prosecutrix is Premsingh. He then deposed that he cannot definitely tell the name of the husband of the prosecutrix. Then he again said that name of the husband of the prosecutrix is Premsingh. He then deposed that he cannot definitely tell the name of the husband of the prosecutrix. In this context, it shall be necessary to refer to the relevant portion of the testimony of the prosecutrix's father (PW-6) which is extracted below : (Vernacular matter omitted.) 11. Admittedly, as per case of the prosecution, the prosecutrix was a married lady on the date of incident and it cannot be believed that her father had married her while she was less than 14 years. In absence of birth certificate or school leaving certificate of the prosecutrix, the trial Court should not have brushed aside the ossification report Ex.P-4. The trial Court has disbelieved the ossification report, Ex. P-4 for erroneous reasons merely on assumptions without referring to the testimony of the radiologist PW 4 Dr.R.K.Jain in the impugned judgment. Hence, the findings given by the Trial Court regarding age of the prosecutrix acting merely on the oral testimony of her father cannot be sustained and are liable to be set aside. There is ample evidence on record to suggest that the prosecutrix was a major girl over 18 years of age at the time of incident. 12. Now adverting to the next question whether the prosecutrix was a consenting party or not, it may be noted that the appellants, in order to establish their defence that the prosecutrix was a consenting party to the alleged rape, they have tendered an affidavit, Ex.D-1 sworn by the prosecutrix before a notary public, Chabra in Rajasthan on 11/6/2001, wherein she herself says that she had married appellant No. 1 voluntarily as she did not want to live with Prakash with whom she was married by her father against her wishes prior to the date of incident. The prosecutrix after swearing her affidavit, Ex.D-1 before the notary public, for reasons best known to her changed her mind and came outiWith an after thought that her affidavit, Ex.D-1 was procured by appellant No. 1 at gun point. The Trial Court has believed this plea without there being a slightest evidence to support the said conclusion. The plea that affidavit, Ex.D-1 was procured by appellant No. 1 at gun point was introduced for the first time during trial. The Trial Court has believed this plea without there being a slightest evidence to support the said conclusion. The plea that affidavit, Ex.D-1 was procured by appellant No. 1 at gun point was introduced for the first time during trial. It may be seen that the affidavit Ex.D-1 was prepared by an advocate examined by the appellants in their defence as DW 3 Mr. Hemraj Rathore. DW 3 Mr. Hemraj Rathore has deposed in his evidence that he had prepared the affidavit Ex.D-1 on the instructions of the prosecutrix and has identified her on her said affidavit at the time of its attestation by the notary public. This Court is of the opinion that while evaluating the evidence to ascertain the culpability of the accused persons, the Court has to give the same weightage to the defence evidence as is to be given to the prosecution evidence. In fact, it is the obligation of the Courts to separate chaff from grain and ascertain the real truth in the matter. 13. It may be significant to mention here that Ex.D-1 bears the photograph of the prosecutrix on the top of it and the same also bears the rubber stamp of notary public. It has come in the evidence of the prosecutrix that she had to pass through a village densely populated while she went for preparation of her affidavit Ex.D-1. In case, there was any attempt on the part of appellant No. 1 to procure the affidavit Ex.D-1, under threat, then she could have easily raised a voice in public while going to notary public for attestation of her said affidavit. Silence on the part of the prosecutrix coupled with the fact that her affidavit, Ex.D-1, was attested by notary public on her identification being done by an advocate DW 3 Mr. Hemraj Rathore, it is difficult to swallow that her affidavit, Ex.D-1 tendered in defence evidence was procured at gun point. I am quite conscious of the legal position that normally Courts should not discard the version of the prosecutrix, but at the same time, the Courts should also bear in mind that in the changed values of our society, false charges of rape also cannot be ruled out. I am quite conscious of the legal position that normally Courts should not discard the version of the prosecutrix, but at the same time, the Courts should also bear in mind that in the changed values of our society, false charges of rape also cannot be ruled out. There may be some rare instances where parentSvmight persuade their gullible or obedient daughter to make a charge of rape against an accused to wrap him in a false case either to take revenge or extort money or to get rid of financial liability. 14. In the present case, it is a matter of record that the prosecutrix at the time of her surrender before the Police on 15/6/2001 had not only refused her medical examination, but also told the Police that she had married appellant No. 1 of her own free will stating her age to be 20 years in her said statement. After the statement of the prosecutrix was recorded by the Police on 15/6/2001 she was given in supurdgi of her father. The whole scenario changed only thereafter while she was in the company of her parents overnight before she was taken for her medical examination on the next day, i.e. 16/6/2001 before PW 9 Dr.Vijayvargiya. Does it not show that the prosecutrix was under pressure of her father to falsely implicate the appellants as her father had married her with Prakash prior to the incident against her wishes. It seems that father of the prosecutrix was interested in roping the appellants in a false case of rape with a hope that the proecutrix may go and live with her husband Prakash with whom she was married prior to the date of incident. 15. The prosecutrix and the appellant No. 1 both belong to the same village and were in love affair with each other and this is so as deposed by DW 1 and DW 2. It seems that father of the prosecutrix wanted to give a cover to the love affair of his daughter (prosecutrix ) with appellant No.l by projecting a story of rape against the appellant. All these vital aspects of the case have been completely overlooked by the Trial Court. They all tend to show that the prosecutrix was a consenting party to the alleged rape with her. 16. All these vital aspects of the case have been completely overlooked by the Trial Court. They all tend to show that the prosecutrix was a consenting party to the alleged rape with her. 16. The Trial Court while convicting the appellants seems to have ignored many important aspects of the matter. It did not take into account that the prosecutrix and appellant No.l both had surrendered of their own before the Police of Police Post, Ruthiyai under the jurisdiction of District Guna. They had surrendered on 15/6/2001 and on their surrender, the statement of the prosecutrix under section 161 Cr.P.C. was recorded by the Police which is Ex.D-2. The prosecutrix in her said statement, Ex.D-2 had told the Police that she had left her parental house with appellant No. 1 of her own and had married with him before the Court at Chhabra in Rajasthan, as she did not want to live with Prakash with whom she was married by her father against her wishes. On that day, i.e. 15/6/2001 before the custody of the prosecutrix was given in supurdgi of her father, the prosecutrix was sent by the Police for her medical examination to PW 3 Dr. Lekha Tiwari before whom she refused to get herself medically examined. It was only after the father of the prosecutrix got her custody on 15/6/2001, the prosecutrix was again sent for her second medical examination on the next day, i.e. on 16/6/2001 before PW 9 Dr. Aradhana Vijayvargiya. MLC of the prosecutrix prepared by PW 9 Dr.Vijayvargiya is Ex.P-11 and the same shows that at the time of her examination by PW 9 Dr. Vijayvargiya, her hymen was torn and the prosecutrix was found habitual of sexual intercourse in the past. No fresh evidence of sexual intercourse was noticed by PW 9 Dr.Vijayvargiya at the time she examined the prosecutrix on 16/6/2001. Trial Court committed an error in not considering the effect of non-production of FSL report though swabs from private parts of the prosecutrix were taken and were sent for chemical examination. Trial Court also did not take into account that why the investigating officer did not get the statement of the prosecutrix recorded under section 164 Cr.P.C. before a Magistrate so that she could have been pinned down to her statement. Trial Court also did not take into account that why the investigating officer did not get the statement of the prosecutrix recorded under section 164 Cr.P.C. before a Magistrate so that she could have been pinned down to her statement. Trial Court has also ignored the testimony of DW 1 and DW 2 who both are neighbours of the parties and have testified that the prosecutrix was married by her father with Prakash prior to the date of incident against her wishes and that she was in love affair with appellant No.l. In the peculiar facts and circumstances of the case, it cannot be said that the prosecutrix was taken away by ihe appellants from the lawful guardianship of her parents so as to attract the penal provisions of sections 363 and 366 IPC against them. Therefore, I have no hesitation in holding that the impugned judgment of conviction and order on sentence passed by the Trial Court against the appellants cannot be sustained either on facts or in law. 17. In view of the foregoing, this appeal is allowed. Impugned judgment of conviction and order on sentence dated 16/1/2003 in Sessions Trial Case No. 246/01 is hereby set aside. Appellants are acquitted by giving them benefit of doubt. Their bail bonds and surety bonds are cancelled. Fine amount, if deposited by the appellants, be returned to them by the Trial Court forthwith.