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2012 DIGILAW 1086 (MP)

Ajju @ Afzal v. State of M. P.

2012-10-30

SHANTANU KEMKAR

body2012
JUDGMENT : This appeal under Section 374 of the Criminal Procedure Code is against the judgment dated 17.01.1998 passed by the Sessions Judge, Dewas in Sessions Trial No.160/1995 convicting the appellant for offence punishable under Sections 376 and 506- part II of the Indian Penal Code and sentencing him for 7 years and 1 year rigorous imprisonment, respectively. 2. The prosecution case in brief is that on first day of Ramjan (2.2.1995) in the early morning at about 4 AM the appellant who was residing across the road in front of the house of the prosecutrix called the prosecutrix in his house and committed rape on her. The prosecutrix could not make a cry as her mouth was gagged by him. The appellant then threatened her that if she informs anyone he will kill her and her father. After the said incident also the appellant used to call the prosecutrix at his house daily and use to commit sexual intercourse with her. Again on 18.02.1995 the appellant forcibly tried to take her to his house but the prosecutrix fled away and narrated the incident to her Aunt Naseem (PW-3). 3. On 25.02.1995 the incident was reported at Police Station Kotwali, Dewas. The police recorded the First Information Report Ex.P-1 and referred the prosecutrix to medical examination at Government District Hospital, Dewas where Dr. Indu Agrawal (PW-4) Assistant Surgeon examined the prosecutrix. The report of Dr. Indu Agrawal is Ex.P/2-A. She referred the prosecutrix to the Radiologist for Osification test as would be clear from Ex.P/2-A. It is also revealed from the record that Dr. Nashikkar, Radiologist after examining the prosecutrix submitted his report stating the Radiological report of prosecutrix to be above 16 years but below 18 years. The said report was filed by the prosecution with challan papers. After investigation the charge-sheet was submitted. 4. The trial Court recorded the evidence and held that the appellant guilty of the offences as aforesaid. It held that the prosecutrix was below 16 years of age and, therefore, the defence about she being consenting party cannot be accepted and as a result convicted the appellant. Aggrieved the appellant has filed this appeal. 5. Shri Kantesh Gupta, learned counsel for the appellant has strenuously urged that the trial Court was in error in holding that the age of the prosecutrix was below 16 years. Aggrieved the appellant has filed this appeal. 5. Shri Kantesh Gupta, learned counsel for the appellant has strenuously urged that the trial Court was in error in holding that the age of the prosecutrix was below 16 years. According to him there was no material evidence to prove that the age of the prosecutrix was below 16 years. On the other hand from the evidence of the prosecution itself it is clear that the prosecutrix was above 16 years of age and was a consenting party. He further argued that the evidence of the prosecutrix is not reliable and her version is not supported by the medical evidence. 6. Shri Rahul Vijayvargiya, learned panel lawyer for the respondent/State supported the impugned judgment of conviction and contended that the evidence about the age of the prosecutrix to be below 16 years and about the commission of rape by the appellant is fully trustworthy. 7. In order to prove the age of the prosecutrix no evidence was led by the prosecution. The prosecutrix in her statement stated that she is aged 15 to 16 years. Dr. Indu Agrawal in her report Ex.P/2- A stated that the age of the prosecutrix was 15 to 16 years. As per the said medical report Ex.P/2-A the sexual characters of the prosecutrix were well developed. No injury was found on the body of the prosecutrix. She was used to of intercourse. Dr. Indu Agrawal referred the prosecutrix for determination of age. As per the Radiologist report available on record, the age of prosecutrix was above 16 but below 18 years. True it is that the report of the Radiologist has not been proved but with respect to a prosecution document which remains unproved, though the prosecution cannot utilize the same to prove its story but the defence can certainly use it to support its case. [See Sheoprasad vs. Empror (AIR 1938 Nagpur 394), Samedas vs. State of M.P. (1969 Jab. L. J. SN 54) and Bharat Vs. State of M.P. (1962 Cr.L.J. 3218)]. In view of such legal position the X-ray report obtained vide Exhibit P-2A and filed by the prosecution alongwith the Challan papers showing age of the prosecutrix to be more than 16 years can certainly be used by the defence. L. J. SN 54) and Bharat Vs. State of M.P. (1962 Cr.L.J. 3218)]. In view of such legal position the X-ray report obtained vide Exhibit P-2A and filed by the prosecution alongwith the Challan papers showing age of the prosecutrix to be more than 16 years can certainly be used by the defence. Thus, the age of the prosecutrix in the absence of any other reliable evidence being tendered by the prosecution can be safely held to be above 16 years. In the circumstances in my considered view the trial Court has committed error in holding that the prosecutrix is less than 16 years of age. 8. In order to find out whether the prosecution has been able to prove the charge of rape against the appellant the evidence led by the prosecution to prove the offence is being scanned hereinafter. The prosecutrix (PW-2) in her evidence had testified that on the first day of Ramjan at about 4 A.M. the appellant committed rape on her at his house. When she tried to cry, he threatened her that he will kill his father and also threatened her that not to tell about the incident to anyone else he will kill her. Thereafter on Saturday when the appellant tried to forcibly take her to his house, she made a cry and fled away and narrated the incident to her Aunt. As per her version on the day when rape was committed on her she was washing her face at the courtyard of her house at about 4:00 A.M. At that time the appellant came and forcibly took her to his house. He gagged her mouth and committed rape. Naseem (PW-3) Aunt of the prosecutrix stated that the prosecutrix had narrated her the incident of rape on her by the appellant and also that he forcibly tried to take her to his house on Saturday. 9. On going through the evidence led by the prosecution it is clear that the prosecutrix has given a complete go-bye to the version, in material particulars, as recorded in the FIR in her evidence recorded in court. The medical evidence of Dr. Indu Agrawal does not at all support the allegations of prosecutrix. As per the medical report Ex.P/2-A there was no external injury on any part of the body of the prosecutrix and no injury was even found over her private part. The medical evidence of Dr. Indu Agrawal does not at all support the allegations of prosecutrix. As per the medical report Ex.P/2-A there was no external injury on any part of the body of the prosecutrix and no injury was even found over her private part. The opinion expressed by Dr. Indu Agrawal that the prosecutrix was used to intercourse indicates that she was a consenting party. Her version that the appellant gagged her mouth and forcibly committed rape on her is hardly convincing as it cannot be believed that she could be forcibly taken from the courtyard of her house to the house of the appellant situated across the road and then raped by him. 10. In the circumstances, it can be safely held that the prosecutrix who was aged above 16 years was a consenting party and no rape was committed on her and in such circumstances the appellant's conviction for the offences as above cannot be sustained. 11. The appeal is allowed. The judgment of conviction passed against the appellant is set aside.