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Madhya Pradesh High Court · body

2012 DIGILAW 1031 (MP)

Indrajeet v. State of M. P.

2012-10-09

N.K.GUPTA

body2012
Judgment N.K. Gupta, J.;- 1. The appellant has preferred this appeal against the judgment dated 29.6.1998 passed by the Additional Sessions Judge, Beohari, District Shahdol in ST. No. 142/1996 whereby the appellant was convicted for offence punishable under Section 376(1) of I.P.C. and sentenced for 7 years rigorous imprisonment with fine of Rs. 2000/- and in default of payment of fine, six months simple imprisonment in addition. The prosecution's case in short is that on 9.6.1996 at about 5.45 p.m. the prosecutrix (PW 1) had lodged an FIR (Ex. P/4) at Police Station, Jaisingh Nagar, District Shahdol that she was 14 years aged girl, who was visiting to the Primary School, Semra to make midday meals in absence of her mother and the appellant was a teacher in that School. 5-6 months prior to the FIR one day the appellant took her forcefully in the room and committed rape upon her. Thereafter, the appellant did such an act for so many time. The appellant had detained her till the closure of the School and thereafter, he committed rape upon the prosecutrix for so many times. The prosecutrix went to the house of her maternal aunt at Beohari and thereafter her cousin Vidya (PW 6) had asked about the enlargement of her abdomen and thereafter the prosecutrix told the entire mis-happenings to her and Indravati (PW 2) mother of the prosecutrix. The prosecutrix was taken by her mother Indravati (PW 2) to her house at Semra (Police Station Jaisingh Nagar, District Shahdol) and her father was also informed about the incidents and thereafter a report was lodged. The prosecutrix was directed for her medico legal examination. Dr. N.P. Dwivedi (PW 8) examined the prosecutrix and gave his report Ex. P/7. The pregnancy of 30-32 weeks was found to the prosecutrix and her age was assessed by Dr. Dwivedi to be 16 years. She was referred for ossification test. Dr. N.K. Soni (PW 7) after examining the prosecutrix radiologically gave his report Ex. P/7. He found the radiological age of the prosecutrix to be 17-20 years. The appellant was also arrested and he was directed for his medico legal examination. Dr. Sampurnanand (PW 4) examined the appellant and gave his report Ex. P/3. No abnormality was found but it was found that a V.T. operation was done to the appellant. P/7. He found the radiological age of the prosecutrix to be 17-20 years. The appellant was also arrested and he was directed for his medico legal examination. Dr. Sampurnanand (PW 4) examined the appellant and gave his report Ex. P/3. No abnormality was found but it was found that a V.T. operation was done to the appellant. However, two slides of semen sample were prepared and handed over to the concerned Constable for sealing. These slides were sent for forensic science analysis and in the report Ex. P/10 of the Forensic Science Laboratory, it was found that in the sample given by the appellant sperms were found whereas, the slides prepared from vaginal swab of the prosecutrix no semen particle or sperms were found. After due investigation a charge sheet was submitted before the JMFC Beohari who committed the case to the Sessions Judge, Shahdol and ultimately it was transferred to the IInd Additional Sessions Judge, Shahdol, Camp at Beohari. 2. The appellant abjured his guilt. He did not take any specific plea but, he has stated that he was falsely implicated in the matter. No defence evidence was adduced. 3. After considering the prosecution's evidence the learned Additional Sessions Judge convicted the appellant for offence punishable under Section 376(1) of the I.P.C. and sentenced him as mentioned above. 4. I have heard the learned counsel for the parties. 5. The learned counsel for the appellant has submitted that the appellant was 60 years old man at the time of incident and at present he is 75 years old. The appellant could not do such a crime in such an age. He was falsely implicated by the prosecutrix because mother of the prosecutrix was dismissed from her job by the appellant. In the alternate it is submitted that the prosecutrix was above 16 years of age at the time of incident and either she was a consenting party or she had falsely implicated the appellant in the matter. It is also submitted that looking to the age of the appellant, he may not be sent to the jail again because he would be unable to maintain himself in the jail in such an old age. 6. On the other hand the learned Panel Lawyer has submitted that the conviction as well as the sentence directed by the trial Court appears to be correct. 7. 6. On the other hand the learned Panel Lawyer has submitted that the conviction as well as the sentence directed by the trial Court appears to be correct. 7. After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case it is to be considered as to whether the appeal filed by the appellant can be accepted. 8. The learned Additional Sessions Judge found that the prosecutrix was below 16 years of age. However, the assessment of the age of the prosecutrix done by the trial Court appears to be incorrect. There were three types of evidence available in the case for computation of age. Firstly, the evidence of the parents. Secondly, educational record and lastly computation done on the basis of the ossification test. Head Master Shri Ramjanak Mishra (PW 12) has submitted a transfer certificate etc. that the date of birth of the prosecutrix was 15.7.1997. Shri Mishra was Headmaster in the Middle School, Chandol where the prosecutrix took her admission in Class VIth whereas, she was initially admitted in the Primary School, Semra and therefore, one Tej Pratap (CW1) was called by the Court. Tejpratap has shown the entry Ex. C/1 to prove that the date of birth was mentioned in the record of the Primary School Semra as 15.7.1981. However, Tej Pratap has stated that he was not present at the time of admission of the prosecutrix in that School and the admission form of the prosecutrix was not available and therefore, it was no where clear that what was the basis by which the date of birth was recorded to be 15.7.1981. 9. In this connection Siyasharan (PW 3) father of the prosecutrix, was examined who has accepted that he went to the school along with his daughter at the time of admission and date of birth was recorded according to his information but when he was asked to show the basis of the information then he could not give any basis for that information. He has replied that the entire admission form was filled up by the teacher and he simply signed. Under such circumstances, looking at the evidence given by Siyasharan (PW 3) father of the prosecutrix, it appears that there was no cognate basis shown to provide details relating to the date of birth in the school records. He has replied that the entire admission form was filled up by the teacher and he simply signed. Under such circumstances, looking at the evidence given by Siyasharan (PW 3) father of the prosecutrix, it appears that there was no cognate basis shown to provide details relating to the date of birth in the school records. Under such circumstances, school records cannot be considered as a conclusive proof relating to the date of birth of the prosecutrix. 10. On the other hand Siyasharan has admitted that he had two sons and five daughters. Out of that one son was eldest whose age was 18-19 years at that time. Thereafter, the second child was Gomti a daughter aged 17 years and third child was the prosecutrix aged 16 years and therefore, at the time of incident she was below 16 years of age. However, Indravati (PW 2) mother of the prosecutrix, has accepted in her statements that her eldest son was 20 years old whereas remaining children were born with the gap of 1 1/2 years and therefore, there was a difference of age between the eldest son and the prosecutrix to be three years and therefore, at the time of deposition given by the witness Indravati the prosecutrix was 17 years old. Indravati was examined before the trial Court on 18.1.1997 whereas the incident took place approximately in the month of June 1976 and therefore, according to the computation shown by the mother of the prosecutrix, the prosecutrix was above 16 years of age at the time of incident. 11. Dr. N.K. Soni (PW 7) examined the prosecutrix radiologically and he found that she was 17-18 years old at the time of her examination and therefore, she was above 16 years of age at the time of alleged first incident. It is true that two years may be added on both the sides in the computation done radiologically but, looking to the computation given by the witness Indravati, it appears that there is no need to add or subtract any number in the age computed by the radiological examination. However, if any doubt is created then benefit of doubt is to be given to the accused. Under such circumstances, it is apparent that age of the prosecutrix was above 16 years at the time of first incident. However, if any doubt is created then benefit of doubt is to be given to the accused. Under such circumstances, it is apparent that age of the prosecutrix was above 16 years at the time of first incident. The learned Additional Sessions Judge has committed an error in computation of the age of the prosecutrix. 12. The prosecutrix (PW 1), Indravati (PW 2), Siyasharan (PW 3) has stated that initially the prosecutrix had studied in the Primary School, Semra and thereafter, she took her admission in Middle School Chandol. Since the prosecutrix was studying in Middle School Chandol there was no opportunity to her to visit the School of the appellant for studies. However, these three witnesses have stated that Indravati was working in that School to prepare midday meals and when Indravati was not fit to go and make the meals then instead of Indravati the prosecutrix was visiting to the School and therefore, when the prosecutrix demanded some prepared meal for her brother, the appellant exploited her and committed rape with her. It is also apparent that the prosecutrix did not complain to anybody. Allegations are made that the prosecutrix was exploited when she went to make the midday meal. However, the prosecutrix had admitted that for preparation of the midday meal she was to go to the school at 12.00 o'clock and thereafter, midday meals was to be served to the students whereas the students had to continue up to 5.30 p.m. in the evening. The cooks who, prepared the midday meals could leave the School soon after the recess and therefore, where the appellant was only the male teacher in the School it was not possible for him to commit such an offence with the prosecutrix within the period of 2.30 p.m. to 5.30 p.m. There was no need to the prosecutrix to remain in the School after 2.30 p.m. However, she has submitted that rape was committed by the appellant after 5.30 p.m. in the evening. No reason has been shown by the prosecutrix for her stay at the school after 2.30 p.m. 13. It is also strange that Indravati (PW 2) could not know about the pregnancy of the prosecutrix for four months. Dr. N.P. Dubey found that the prosecutrix was pregnant with pregnancy of 30-32 weeks. No reason has been shown by the prosecutrix for her stay at the school after 2.30 p.m. 13. It is also strange that Indravati (PW 2) could not know about the pregnancy of the prosecutrix for four months. Dr. N.P. Dubey found that the prosecutrix was pregnant with pregnancy of 30-32 weeks. Indrawati has stated that the prosecutrix was also visiting to the house of the appellant in the evening and the appellant had also committed rape with her in his house. The entire story was told to the Sarpanch Phool Singh (PW 5). Phool Singh has stated that he was told by the prosecutrix that when she went to the house of the appellant to take his calf the appellant committed rape with her. It is strange that the prosecutrix and her parents did not inform the Sarpanch Phool Singh that the appellant committed rape with the prosecutrix when she went to the school for preparation of midday meals. 14. Under such circumstances, the prosecutrix told a different story to her parents and a different story to the Sarpanch Phool Singh. Evidence of witness Vidya (PW 6) is not of much importance. Vidya (PW 6) cousin of the prosecutrix, has stated that when the prosecutrix was asked about her enlarged abdomen then she had told the story. However, it is apparent that the prosecutrix kept silence for at least six months. She did not tell anyone about the incident. The prosecutrix and her parents were suggested that the prosecutrix was roaming with one Ramesh Ahirwar and Premlal. Ramesh Ahirwar and Premlal were the persons who were taking the prosecutrix to the Middle School Chandora for her studies. However, the prosecutrix and her parents did not accept the suggestion given by the defence counsel but silence of the prosecutrix for six months creates a doubt in her version. Similarly she told a different story to her parents about the first incident whereas she told a different story to the Sarpanch Phool Singh about the same instance. However, the prosecutrix and her parents did not accept the suggestion given by the defence counsel but silence of the prosecutrix for six months creates a doubt in her version. Similarly she told a different story to her parents about the first incident whereas she told a different story to the Sarpanch Phool Singh about the same instance. Also it was admitted by Indrawati and Siyasharan that since Indrawati was not regular in preparation of midday meals therefore, her services were terminated three months prior to the date of the FIR and therefore, it is possible that since Indravati (PW 2) mother of the prosecutrix, was terminated from the job by the appellant therefore, it was easy for the prosecutrix and her parents to lodge an FIR against the appellant because the parents were not aware that who was the culprit behind the crime. 15. Under such circumstances, it is highly doubtful that the appellant was the person who committed the crime to the prosecutrix. If it is presumed that the appellant was the person who, committed the crime then it would be clear that the prosecutrix who was above 16 years of age at that time and neither she resisted nor she told to anyone about the crime. On the contrary she participated with the appellant for so many times and when she was found pregnant with pregnancy of 32 weeks then she disclosed about the crime. The prosecutrix did not tell about any threat due to which she kept a silence for five months. Under such circumstances, looking to the overt act of the prosecutrix it appears that she was a consenting party. 16. On the basis of the aforesaid discussion, it is apparent that the prosecutrix was above 16 years of age at the time of incident and it is not proved beyond doubt that the appellant was the culprit who, committed rape upon the prosecutrix and if it is presumed the appellant had committed the intercourse to the prosecutrix then she was a consenting party. Under both the circumstances, the appellant cannot be convicted for the offence punishable under section 376(1) of the I.P.C. or any lesser offence of the similar nature. Hence the appeal filed by the appellant can be accepted. Consequently, the appeal filed by the appellant is hereby accepted. Under both the circumstances, the appellant cannot be convicted for the offence punishable under section 376(1) of the I.P.C. or any lesser offence of the similar nature. Hence the appeal filed by the appellant can be accepted. Consequently, the appeal filed by the appellant is hereby accepted. Conviction and sentence directed by the trial Court for offence punishable under section 376(1) of I.P.C. is hereby set aside. The appellant is acquitted from all the charges appended against him. He is entitled to get the fine amount back, if he has deposited before the trial Court. 17. The appellant is on bail. His presence is no more required. Hence it is directed that the bail bonds shall stand discharged. Copy of the judgment be sent to the trial Court along with its record for information and compliance.