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Madhya Pradesh High Court · body

2012 DIGILAW 938 (MP)

Gomti Bai. v. State of M. P.

2012-09-27

ANIL KUMAR SHARMA

body2012
JUDGMENT : (Deliveredon 27/09/ 2012 ) By this common judgment, Criminal Appeal No. 408/2009 andCriminal Appeal No. 478/2009 arising out of one judgment dated 19.06.2009passed in S.T. No.4/08 by learned Fifth Additional Sessions Judge (FTC), Morena , are being disposed of. 2.Appellants have filed two separate appeals against the judgment dated19.06.2009; whereby appellant Gomtibai (Cri.A.No.408/09) has been convicted for the offence punishable under Section366 (A) read with Section 120-B of IPC and sentenced to undergo R.I. for sevenyears and fine of Rs.500/- has been imposed upon her, while appellants Jawant and Pratap (Cri.A.No.478/09) have been convicted for the offence punishable under Section376 (2)(g) of IPC and each of them has been sentenced to undergo R.I. for tenyears and fine of Rs.1000/- each has been imposed upon them. Appellant Pratap has further been convicted for the offencepunishable under Section 366 (A) of IPC and sentenced to undergo R.I. for sevenyears and fine of Rs.500/- has been imposed upon him. 3.The brief facts of the case are that on 23.07.2007, prosecutrix ,P.W.1 (the name of the prosecutrix is not beingmentioned to hide her identity) went from her house with accused Gomtibai and when she did not return, her father lodged amissing person report. After about seven days i.e. on 29.7.2007, prosecutrix (PW-1) was produced before the Police by Hukum Singh, Premabai , Rambai and other four persons. Thereafter, she was handedover to her father on 2.8.2007. When brother of prosecutrix came from Rajkot , prosecutrix lodged an F.I.R. alleging that she wasabducted by Gomtibai and Pratap and she was taken to Delhi . Gomtibai came back after leaving her in a bus with Pratap and in Delhi she was kept in the house of Jaswant . Jaswant and Pratap subjected the prosecutrix for sexual intercourse several times. 4.After investigation challan has been filed againstappellants and Hukum Singh and Premabai ,who had brought the prosecutrix from Delhi and it is alleged that they threatened the prosecutrix not to lodge any report with the Police. Jaswant and Pratap subjected the prosecutrix for sexual intercourse several times. 4.After investigation challan has been filed againstappellants and Hukum Singh and Premabai ,who had brought the prosecutrix from Delhi and it is alleged that they threatened the prosecutrix not to lodge any report with the Police. Learned trial Court after trial of theappellants Pratap Singh for the offence punishableunder Section 366 (A), 376 (2)(G) and Section 190 of IPC, against appellant Jaswant charges for the offence punishable under Section366 (A), 376 (2)(G) and Section 190 of IPC., against Gomtibai ,charges for the offence punishable under Section 366(A) read with Section 120-Bof IPC, against co-accused Hukum Singh for theoffence punishale under Section 366 (A) read withSection 120-B and 190 of IPC and against Premabai ,charges for the offence punishable under Section 366 (A) read with Section120-B of IPC and acquitted the appellants Hukum Singhand Premabai and convicted the appellants Gomtibai , Pratap and Jaswant as mentioned in paragraph 1 of the impugnedjudgment. 5.Being aggrieved by the judgment, appellants have filed both these appeals thatlearned trial Court is not justified in convicting them on the basis of nonreliable and non corroborated testimony of prosecutrix PW-1. Further learned trial Court is not justified in holding that prosecutrix was minor at the time of incident. The learnedtrial Court has overlooked the fact that prosecutrix was knowing the appellant Pratap long before the offence and she has gone with her consent with Pratap . A false report has been lodged after consultationagainst the appellants who are close relatives of prosecutrix . 6.The main question for consideration in this appeal is whether learned trialCourt is justified in convicting the appellants by the impugned judgment. 7.Learned counsel for the appellants has drawn attention towards the fact that onbeing brought to the Police Station from Delhi, prosecutrix (PW-1) has given statement Exhibit D-1 to the appellants in which she hasstated that she came to the market with her bhabhi Gomtibai , where she met her brother-in-law Pratap who took her, with whom she went to her sister Rajkumari without informing her family members and she cameback from Delhi with her sister and she has gone with her own. Learned counselfor the appellants has further drawn attention towards the statement of prosecutrix (PW-1) who has reported in her examination inchief that in the morning of 23.07.2007, she asked her mother to go to marketwith Gomtibai and her mother has refused. Thereafter,at about 12.00 in the afternoon, Gomtibai took herfor getting medicines. Thereafter, Gomtibai took herto ghat tiraha where sheasked her to sit in a bus and she told the prosecutrix that she wants to meet her sister. Thereafter, she sat in the bus. Pratap joined from Jayaswar roadand he was also sitting in the bus. 8.Learned counsel for the appellants has submitted that the prosecutrix in her evidence made a false allegation regarding gang rape by appellants Jaswant and Pratap . Although, the statement of prosecutrix istotally unreliable. Prosecutrix herself, herfather Ramdas (PW-5) and brother Devendra (PW-7) have shown ignorance about the fact that they wereknowing Pratap before the incident. They havealso denied in relationship with Pratap and otherappellants. Learned counsel for the appellants has drawn attention towards thestatement of Ramnath (PW-8) who has stated that Ramdas is co-brother ( Sadu ) prosecutrix is daughter of Ramdas and wife of Ramdas , Vaikundibai is his sister-in-law. Surendera is father of Jaswant and brother-in-law of Ramdas (father of prosecutrix ). Jaswant has married to Sukram's daughter Rajkumari . Shanti ,who is sister of Ramdas and wife of Sukram . Pratap and Jaswant are brother-in-law. At thetime of marriage of Rajkumari , Pratap came to Ambah and prosecutrix must be knowing him very well because Pratap is relative of Ramdas andhe used to go to the house of Ramdas . In crossexamination, he has admitted that Gomtibai isdaughter-in-law of Ramdas ' brother-in-law. 9.Learned counsel for the appellants has further drawn attention towards thestatement of Hubblal (PW-9) who has also confirmedthe relations between appellants and family of prosecutrix . 10.Learned counsel for the appellants have further drawn attention towards thefact Hubbal (PW-9) has been witnessed, who hasinformed the father of prosecutrix that prosecutrix (PW-1) has gone to the market with Gomtibai and when in the evening Gomtibai came back from market and she was narrated the fact that prosecutrix has gone to Delhi with Pratap . Therefore, on23.07.2007, father of prosecutrix came to know aboutthe fact that she had gone with Pratap to Delhi , hehas lodged report of missing persons. Therefore, on23.07.2007, father of prosecutrix came to know aboutthe fact that she had gone with Pratap to Delhi , hehas lodged report of missing persons. Exhibit P-11 in which it has beenmentioned in 'B' to 'B' part that prosecutrix hasgone to the market, from where she had suddenly went some where. In ExhibitP-11, it has also mentioned that she had gone with Gomtibai . 11.Learned counsel for the appellants has further submitted that prosecutrix (PW-1) was produced before the Police on29.7.2007 by relatives who were also living in neibourhood .But she did not narrate anything about abduction or rape or gang rape in herstatement recorded on 29.07.2007. 12.Learned counsel for the appellants have submitted that prosecutrix has lodged F.I.R. on 2.8.2007 against Pratap and Jaswant alleging gangrape with her at Delhi in the houseof Jaswant . Reason for delay in lodging report hasbeen mentioned as threat given to her in the report Exhibit P-1 and allegationof threat is against Pratap and Prembai who brought to her from Delhi to Ambah . On the other hand prosecutrix (PW-7) in her statement mentioned different reason for delay in lodging reportwith her brother, who came from Rajkot on 29.7.2007. Thereafter, she went to Police to lodge report with her brother,father and mother. Thereafter, she was medically examined. 13.Learned counsel for the appellants has drawn attention towards the statement ofbrother of prosecutrix Devendra Singh (PW-7) who has stated that he was working in Gujarat for 4-5 months. Before that he was doing labour workat Ambah . Statement of six witnesses has beenrecorded on 17.04.2008 and offence has been committed on 23.07.2007 which ismore than six months which means that on the date of incident, the brother wasavailable at Ambah . 14.Learned counsel for the appellants has submitted that prosecutrix (PW-1) has, therefore, mentioned contradictory reasons for lodging delayedF.I.R. and none of which has been proved by evidence. 15.Learned counsel for the appellants has submitted that prosecutrix and accused Pratap were knowing each other long before the alleged incident. They have drawn attention towardsthe statement of Ajharali (PW-2) who has takenphotographs of prosecutrix and Pratap on 7.1.2006. 15.Learned counsel for the appellants has submitted that prosecutrix and accused Pratap were knowing each other long before the alleged incident. They have drawn attention towardsthe statement of Ajharali (PW-2) who has takenphotographs of prosecutrix and Pratap on 7.1.2006. Negative of which is Exhibit D-3(O) and photograph is Exhibit D-3.Therefore, brother of prosecutrix and prosecutrix have admitted that Exhibit D-3 is photograph of Pratap and prosecutrix .Learned counsel for the appellants has submitted that the photograph of prosecutrix is about one and a half year back before thealleged date of incidents shows that they were having intimate relations. 16.Learned counsel for the appellants has submitted that learned trial Court hasconvicted the appellants mainly on the ground that prosecutrix has produced mark-sheet Exhibit P-4 in which date of birth of prosecutrix has been shown as 07.03.1990. Exhibit P-4 iscertificate of primary examination held in 2000-2001. Learned counsel for theappellants has submitted that the Primary School certificate Exhibit P-4 hasnot been proved by producing the person who has given the certificate or whohas admitted the prosecutrix in his school.Appellants have produced Dilip Kumar Sharma (DW-1)who is Principal of Swami Vivekanand Sanskrit Vidyalay , Ambah , since 2006, whohas stated that prosecutrix had appeared in theexamination of Xth in the year 2007 from his school.Her mark-sheet was annexed as Exhibit D-7. In cross examination, he has statedthat prosecutrix was admitted in Class X afterpassing Class IX from other school. 17.Learned counsel for the appellant has drawn attention towards the statement ofDr. Ashok Singh (PW-13), who has stated that aftertaking X -ray of prosecutrix he has given opinionthat prosecutrix is above 16 ½ years and below 18years. His report is Exhibit P-23. In cross examination, he has admitted thatat medical examination definite age cannot be ascertained. He has furtherstated that age of prosecutrix is below 18 yearswhich is between 17 to 19 years. He has admitted in cross examination thatiliac bone is completed between 17 to 19 years. He has further admitted in hisreport that there is possibility of plus six or minus six months. 18.Learned counsel for the appellants has submitted that in the absence of anyevidence that for confirmation of age as mentioned in the school record by anyother reliable evidence and further considering the fact that if the age of prosecutrix as mentioned in mark-sheet is taken reliablethen she was about 17 years and four months. 18.Learned counsel for the appellants has submitted that in the absence of anyevidence that for confirmation of age as mentioned in the school record by anyother reliable evidence and further considering the fact that if the age of prosecutrix as mentioned in mark-sheet is taken reliablethen she was about 17 years and four months. 19.Learned counsel for the appellant has cited judgment of Hon'ble Apex Court in the matter of Alamelu and another Vs.State Represented by Inspector of Police, (2011) 1 S.C.C. ( Cri )688 in which it has been held that medical evidence showing age of to be between17 and 19 years, X-ray report giving approximate age to be between 17 and 18years. Transfer certificate of a government school showing age not having beenduly proved by witnesses who signed it. Therefore, prosecution failed to provethat girl was a minor at relevant date. There is no satisfactory evidence toindicate that she was a minor. Paragraphs 44, 45 and 46 ofthis judgment is reproduced as under:- “44.In our opinion, the aforesaid burden of proof has not been discharged by theprosecution. The father says nothing about the transfer certificate in hisevidence. The Headmaster has not been examined at all. Therefore, the entry inthe transfer certificate cannot be relied upon to definitely fix the age of thegirl. 45.In fixing the age of the girl as below 18 years, the High Court relied solelyon the certificate issued by P.W.8 Dr. Gunasekaran .However, the High Court failed to notice that in his evidence before the court,PW 8, the x-ray expert had clearly stated in the cross-examination that on thebasis of the medical evidence, generally, the age of an individual could befixed approximately. He had also stated that it is likely that the age may varyfrom individual to individual. The doctor had also stated that in view of thepossible variations in age, the certificate mentioned the possible age betweenone specific age to another specific age. On the basisof the above, it would not be possible to give a firm opinion that the girl wasdefinitely below 18 years of age. 46.In addition, the High Court failed to consider the expert evidence given by PW13 Dr. Manimegalaikumar , who had medically examinedthe victim. In his cross examination, he had clearly stated that a medicalexamination would only point out the age approximately with a variation of twoyears. 46.In addition, the High Court failed to consider the expert evidence given by PW13 Dr. Manimegalaikumar , who had medically examinedthe victim. In his cross examination, he had clearly stated that a medicalexamination would only point out the age approximately with a variation of twoyears. He had stated that in this case, the age of the girl could be from 17 to19 years. This margin of error in age has been judicially recognized by thisCourt in Jaya Mala V. Govt.of J & K. In the aforesaid judgment, it is observed as follows (SCC p. 541, para 9). “9.....However, it is notorious and one can take judicial notice that the margin oferror in age ascertained by radiological examination is two years on eitherside”. 20.Therefore, there is no conclusive evidence on record that prosecutrix was minor on the date of incident, therefore, learnedtrial Court is not justified by holding that prosecutrix was minor without considering the fact that there is possibility of plus 2 andminus 2 in the two years of age ascertained by radiologists. Prosecutrix has nowhere tried to escape or complained toanybody. She has admitted that she was travelled in abus, she lived in the house of Jaswant , where familymembers of Jaswant where living and in neighbourhood Hukum Singh and Premabai were also living as neighbours at Ambah also but she never tried to tell them thatshe was brought against her will. Prosecutrix was knowing the appellant Pratap before the incident as it is clear from the photograph Ex. D-3. Photograph withappellant Pratap is Ex.D-3 has also been produced andparticularly when she came back from Delhi to Ambah , she has not made any allegation to thePolice regarding any incident with her. On the other hand she has lodged thatshe has gone by her own to Delhi tomeet her sister Rajkumar . Her intention to go out isclear from her statement also in which she asked her mother to go with Gomtibai on the morning on 23.07.2007 and her motherrefused to go with Gomtibai but even then she wentwith Gomtibai . Although, she has alleged that katta was shown to her and she was threatened by Jaswant and Pratap but her ownstatement is not reliable and no katta or arm hasbeen seized from the Police. Therefore, it cannot be denied that prosecutrix had gone with Pratap due to her intimacy with her consent. Although, she has alleged that katta was shown to her and she was threatened by Jaswant and Pratap but her ownstatement is not reliable and no katta or arm hasbeen seized from the Police. Therefore, it cannot be denied that prosecutrix had gone with Pratap due to her intimacy with her consent. The reason of delay in lodging F.I.R. hasnot been explained is not reliable. Report has been lodged after three dayswhen prosecutrix came back from Delhi .Further her medical examination and chemical examination report cannot be takenas ground of conviction looking to the fact that prosecutrix PW-1 was consenting party in going with Pratap andallegation of gang rape after three days from coming back from Delhi may be inthe pressure of family members or with some ulterior motive relating to dowryor amount to be paid by the husband in the community of prosecutrix . 21.Therefore, learned trial Court is not justified in convicting the appellants bythe impugned judgment. Therefore, both the appeals are allowed setting asidethe impugned judgment appellant Gomtibai , isacquitted from the charges for the offence punishable under Section 366 (A)read with Section 120-B of IPC, Pratap is acquittedfrom the charges for the offence punishable under Section 366 (A) and 376 (2)(g) of IPC. Jaswant is acquitted from the charges forthe offence punishable under Section 376 (2 )( g) ofIPC. Appellants are in custody. They be released forthwith.