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Madhya Pradesh High Court · body

2014 DIGILAW 1068 (MP)

State of M. P. v. Babloo

2014-08-26

S.K.GANGELE, S.K.PALO

body2014
JUDGMENT S.K. Palo, J. 1. Aggrieved by the judgment passed by the Sessions Judge under Scheduled Caste and Scheduled Tribe (P.O.A.) Act, 1989 Vidisha on 11.10.2002 in Special Case No. 123/2000 whereby the learned Trial Court has acquitted the respondent under Section 376(1) of IPC and under Section 3(2)(5) of SC/ST (P.O.A.) Act, the State through Police Station Lateri, District Vidisha has filed this appeal under Section 378 of Cr.P.C. 2. It is not disputed that the prosecutrix is a member of Scheduled Tribe and the respondent is not a member of Scheduled Caste or Scheduled Tribe. 3. Brief facts just necessary for adjudication of this appeal is that as per the prosecution story on 26.06.1999 in between 1.30 pm to 2.00 pm when the prosecutrix had gone to the husk room to take husk by filling into her basket, the accused/respondent Babloo @ Balloo entered the room, caught her and forcibly committed sexual intercourse with her. She resisted. During this scuffle her left eye was injured. When she cried for help, her parents came to the spot. The accused tried to run away but was caught by the father of the prosecutrix. 4. Elder brother of the accused reached to the place of occurrence and forcibly took him away. Other witnesses Bhaiyalal, Bhagwan Singh, Umashankar (P.W. 8) and Kalyan Singh (P.W. 9) reached the spot. The whole story was narrated by Sardar Singh father of the prosecutrix to them. At the time of incident, the prosecutrix was a student of Class VII. On the next day, the prosecutrix lodged the report at Police Station Lateri. On the same day the villagers forced them not to make any complaint. After the crime was registered at Police Station Lateri, the prosecutrix was sent for medical examination. After completion of the investigation, charge-sheet was filed. The Trial Court framed charges under Section 376 of IPC and under Section 3(2)(5) of SC/ST (P.O.A.) Act. The accused abjured guilt. 5. The learned Trial Court pronounced the impugned judgment on 11th October, 2002 and acquitted the accused/respondent on all the charges. 6. The appellant/State has filed this appeal on several grounds claiming that the prosecutrix was below 16 years at the time of incident. The date of birth was recorded in the school record as 11.06.1989. The finding of the Trial Court is perverse with regard to her age. 7. 6. The appellant/State has filed this appeal on several grounds claiming that the prosecutrix was below 16 years at the time of incident. The date of birth was recorded in the school record as 11.06.1989. The finding of the Trial Court is perverse with regard to her age. 7. The appellant/State also claim that the prosecutrix sustained four injuries on her body as per the medical officer who examined her. The statement of the prosecutrix was corroborated by the medical evidence, beside other prosecution witnesses, there has been sufficient explanation as regarding delay in lodging the FIR. Therefore, the learned Trial Court erred in acquitting the accused respondent. 8. Heard the counsels for the respective parties. 9. On perusal of record, it is found that the date of birth of the prosecutrix has been stated to be 3.7.1998 by Faizan Ali (P.W. 7) on the basis of which it can be said that she was 15 years 11 months and 9 days on the date of incident. 10. In his cross-examination, Faizal Ali (P.W. 7), the teacher who had come with the scholar register (Exhibit P-7) has agreed that on the basis of the date of birth recorded in the mark-sheet of Class V her date of birth has been registered in the school. He also agreed to the suggestion that at the time of admission, admission form is being filled by the parents/guardian of the scholar, that form has not been brought at the time of evidence. 11. As regarding the age, Dr. Abha Shukla (P.W. 2) estimated the age of the prosecutrix as 14-15 years. Despite the direction given by Dr. Abha Shukla for assessing the age of the prosecutrix to conduct x-ray, the police has not complied with this direction. Radiological examination was not done to ascertain her age. No birth certificate has been filed. Nor the school register has been produced in which for the first time the prosecutrix was enrolled. The doctor while performing the medical examination of the prosecutrix has found her secondary sex organs developed. Therefore, the learned Trial Court assessed her age to be in the range of 14-18 years. 12. In Hansraj v. State of M.P., 2007 (II) MPWN 46 , P-139, it is held that "Penal Code, 1860-Ss. 376(2)(g), 363 and 363A read with Section 34 -Offences under question of age of prosecutrix involved-Benefit will go to accused person." 13. Therefore, the learned Trial Court assessed her age to be in the range of 14-18 years. 12. In Hansraj v. State of M.P., 2007 (II) MPWN 46 , P-139, it is held that "Penal Code, 1860-Ss. 376(2)(g), 363 and 363A read with Section 34 -Offences under question of age of prosecutrix involved-Benefit will go to accused person." 13. Similarly in Suresh v. State of M.P., 2011 (2) JLJ 316 , it has been laid down that "if two views are possible-the view favourable to the accused should be adopted". AIR 1974 SC 344 and AIR 1982 SC 1997 followed). 14. The doctor who examined the prosecutrix on 28.06.1999 and submitted report Exhibit P-2 has clearly and unambiguously stated that no definite opinion can be given as regarding rape. There was no internal injuries in her private parts. The hymen was old torn. There was no bleeding or swelling. The medical officer has also stated that the prosecutrix was habitual to sexual intercourse. 15. Sardar Singh (P.W. 4) father of the prosecutrix has stated that the report was lodged on the second day because they were asked to sit at the police station. That means, the story that the village people forced them not to report is not true. 16. Uma Shankar the neighbour of the prosecutrix has also stated that the questioned husk room was at a distance of 100 feet from his house. He has categorically stated that on the date and time of incident, he did not hear any shout from the husk room of the prosecutrix. This witness was declared hostile, however, this part of his statement may be considered. 17. Sardar Singh (P.W. 4) has stated that when he came to the spot, he saw his daughter crying in the husk room. He has also stated that when he caught the accused, the accused scuffled, therefore, he asked his wife to bring a rope and tied the accused. 18. The prosecutrix has stated that when she was trying to run away, she dashed in the wall and got injured. She negated the suggestions that her father Sardar Singh beaten her saying why did she come to the husk room with the accused. 19. The learned Trial Court has also given a specific finding that the accused was caught and was beaten by the father of the prosecutrix. She negated the suggestions that her father Sardar Singh beaten her saying why did she come to the husk room with the accused. 19. The learned Trial Court has also given a specific finding that the accused was caught and was beaten by the father of the prosecutrix. The injuries received by the prosecutrix has not been explained but the same must have been caused by her father. 20. Examining all the above, it can be ascertained that the prosecutrix is more than 16 years but below 18 years of age. Ossification test was not done, therefore, adverse inference can be drawn. 21. The prosecutrix and the accused both were beaten by the father of the prosecutrix which may be indicative that they were found together by the parents of the prosecutrix in the husk room. Following the law laid down in Suresh (supra), if two views are possible-the view favourable to the accused should be adopted, we decline to allow the appeal. 22. We are of the opinion that the learned trial Court has not committed any error in pronouncing the impugned judgment dated 11.10.2002. 23. Consequently, we maintain the judgment of the trial Court and dis-allow this appeal. The respondent is on bail, his bail bonds are discharged.