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2015 DIGILAW 185 (MP)

Raghuveer Prasad v. State of M. P.

2015-02-12

SUSHIL KUMAR GUPTA, U.C.MAHESHWARI

body2015
JUDGMENT : Maheshwari, J. -- 1. On behalf of the appellant- accused, this appeal is preferred under section 374 of the Code of Criminal Procedure, 1973 being aggrieved by the judgment dated 12th December, 2003 passed by the Special Judge, Vidisha (M.P.) constituted under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (in short ‘the Act’) in Special Case No.109/2003, whereby the appellant has been convicted and sentenced under sections 366, 376(1) of IPC and section 3(2)(v) of the Act with a direction to undergo ten years rigorous imprisonment with fine of Rs.1,000/- separately in first and second count, while life imprisonment with fine of Rs.1,000/- in the last count with stipulation of further imprisonment in default of depositing the fine amount, with a further direction that on depositing the fine amount, out of same Rs.2,500/- be given to the prosecutrix. 2. The facts giving rise to this appeal, in short, are that on 19.10.2002 at about 11:55 a.m. one Sheela Bai (PW1), mother of the prosecutrix, lodged a missing person report of the prosecutrix at Police Station Shironj, contending that on 18.10.2002 she went to grossery shop to bring the sugar, at the same time, her daughter prosecutrix aged 14 years had gone to answer the call of nature. When she came back to home from the grossery shop, she did not find her daughter as without asking her she had gone somewhere. Subsequent to that, she had tried to trace her out in the village in the whole night but could not get success. Initially, the said report was registered in the Rojnamcha Sanha Ex.P-1 and pursuant to that, an enquiry was started. In the course of such enquiry, a missing person report was registered at the same police station on 20.10.2002 vide Ex.P-3. In further enquiry, it was recorded that the appellant by taking away the prosecutrix committed the offence of kidnapping and rape on which the first information report at Crime No.324/2002 was registered at the same police station on 23.10.2002 and the matter was taken into investigation. In the course of investigation, the prosecutrix was sent to the hospital where after medical examination, her MLC report Ex.P-2 was prepared, the appellant was arrested, interrogatory statements of the witnesses including the prosecutrix were recorded. In the course of investigation, the prosecutrix was sent to the hospital where after medical examination, her MLC report Ex.P-2 was prepared, the appellant was arrested, interrogatory statements of the witnesses including the prosecutrix were recorded. After preparing all necessary papers and carrying out the formalities, on completion of the investigation, the appellant was charge-sheeted for the offence made punishable under sections 366 and 376 of the IPC, so also for the offence punishable under section 3(2)(v) of the Act because such act was committed by the appellant (who is not covered under the caste of the Act) with the prosecutrix, covered under the scheduled community of the Act. 3. On evaluation of the charge-sheet, the charges for the above mentioned offences were framed against the appellant. He abjured the guilt on which the trial was held, in which as many as nine witnesses have been examined by the prosecution while no one was examined on behalf of the defence. After recording the evidence and on appreciation of the same, by holding guilt to the appellant for above mentioned offences, he has been sentenced as stated above. Being aggrieved by such conviction and sentence, the appellant has come to this Court with this appeal. 4. The appellant’s counsel after taking us through the record of the trial Court including the evidence adduced by the prosecution along with the exhibited papers of the charge-sheet, so also the impugned judgment, argued that the evidence available on record has not been properly appreciated by the trial Court to ascertain the age of the prosecutrix and she was held to be minor or below 16 years contrary to the record under the wrong premises. In continuation, he said that it is an undisputed fact on record that in order to prove the actual age of the prosecutrix neither her birth certificate was filed, nor to prove her actual age the ossification test was carried out. In the lack of such primary basic evidence on the record, mere on the basis of contradictory and inconsistent testimony of the doctor in which somewhere she stated the age of the prosecutrix to be between 13 to 16 years, and somewhere she stated the same between 14 to 17 years, the trial Court did not have any authority to draw the inference to hold the age of the prosecutrix at lower side i.e. below 16 years. As per the settled principle of law, if two versions are available on record then the trial Court was bound to adopt the version which was favourable to the accused. In such premises, there are sufficient circumstances to draw an inference that the prosecutrix was more than 16 years of the age on the date of incident. In support of his contention, by referring the deposition of Sheela Bai (PW1) mother of the prosecutrix, stated that she got married before 40 years and after three years from the marriage the first child was born and other children were born on every interval of near about three years and the prosecutrix was the third child. So, looking to the age of such witness on the date of recording her deposition as stated by herself 46 years, for the sake of argument if it deemed that she was married before 28 to 30 years from the date of recording deposition then according to her deposition, the age of the prosecutrix comes to more than 18 years. Firstly, he said that the approach and finding of the trial Court holding the age of the prosecutrix is below 16 years deserves to be set aside by holding her age to be more than 17 years. 5. With the aforesaid background, by referring the deposition of the prosecutrix (PW2) specifically her cross-examination,he said that mere perusal of the same, it is apparent that the prosecutrix was not taken away by the appellant from her parents’ residence or from her family, but outside of her residence she herself accompanied with the appellant and went with him on her own will; till some distance on foot and thereafter she travelled with him in the bus to some other places of the relatives of the appellant where she remained with the appellant and during that period, the alleged intercourse was performed with her consent. Thereafter, she also visited some other places with the appellant and accordingly to her she was lastly left by the appellant at the residence of some Pyaremiyan. In continuation, he said that in such scenario, the prosecutrix had ample opportunities on various occasions to give alarm if she was being taken away forcefully by the appellant but it is apparent that no such alarm was given by her at any point of time during such period. In continuation, he said that in such scenario, the prosecutrix had ample opportunities on various occasions to give alarm if she was being taken away forcefully by the appellant but it is apparent that no such alarm was given by her at any point of time during such period. He further said that according to the prosecutrix she apprised such illegal act of the appellant to some other women where she was kept by the appellant, so also to some other persons then it is apparent on record that out of them none has been examined on behalf of the prosecution to prove the same. So, in the lack of the testimony of such witnesses, such version of the prosecutrix is not reliable. He further said that on taking into consideration the entire scenario, it is apparent that the alleged incident was neither happened nor committed by the appellant with intention to humiliate her on account of her caste covered under the Act. So, in such premises, the impugned case being case of consent, the appellant could not have been convicted by the trial Court. Consequently, the impugned judgment of conviction and sentence deserves to be set aside and prayed to extend the acquittal to the appellant to the alleged charges, by allowing this appeal. 6. On the other hand, responding the aforesaid argument, learned State counsel, has justified the impugned conviction and sentence of the appellant, by saying that the same being based on proper appreciation of the evidence is in conformity with law and does not require any interference at this stage. In continuation, he said that although the ossification test of the prosecutrix to prove her age was neither carried out nor any such report was placed on record but whatsoever evidence was produced by the prosecution to prove the age of the prosecutrix i.e. oral testimony of the doctor, the mother of the prosecutrix and the copy of entry of scholar register of the school and the admission form of the prosecutrix submitted by her father at the time of admission in the school was rightly considered by the trial Court to hold the age of the prosecutrix below 16 years and such finding being based on admissible evidence does not require any interference in this appeal. In such premises, the prosecutrix could not be deemed to be more than the age of 16 years. In such premises, the prosecutrix could not be deemed to be more than the age of 16 years. Pursuant to it, he said that if the prosecutrix was minor then the evidence of consent is not helping to the appellant in any manner for extending the acquittal because the consent of minor is not a valid consent and on such ground, no benefit could be extended to the appellant. He further said that even on reappreciation of the evidence, it is apparent that the prosecutrix was taken away by the appellant with intention to commit intercourse with her and the same was committed without her consent as stated by the prosecutrix in her deposition, thus, the trial Court has not committed any error in holding the appellant guilty for the offence of sections 366 and 376(1) of IPC. In continuation, he said that it is apparent from the deposition of the prosecutrix as well as her mother Sheela Bai (PW1) as well as her sister Pooja (PW3) that the prosecutrix was belonging to the caste covered under the Act and the appellant being member of the upper caste had committed the alleged act knowingly that she is from the caste covered under the Act, thus, the trial Court has not committed any error in holding the appellant guilty under section 3(2)(v) of the Act also. With these submissions, State counsel prayed for dismissal of this appeal. 7. Having heard the learned counsel at length, keeping in view their arguments advance, we have carefully gone through the record of the trial Court along with the impugned judgment. 8. Before considering the other question involving in this appeal, we deem fit to examine the matter first to ascertain the age of the prosecutrix because the impugned conviction was passed against the appellant by holding that he has committed the alleged offence with the prosecutrix of below 16 years of the age on the date of incident. 9, It is an undisputed fact on record that to prove the age of the prosecutrix, her ossification test was not carried out in entire investigation process and in such premises, such report was neither produced nor proved on record. 9, It is an undisputed fact on record that to prove the age of the prosecutrix, her ossification test was not carried out in entire investigation process and in such premises, such report was neither produced nor proved on record. In order to prove her age, besides the prosecutrix three witnesses, the mother of the prosecutrix Sheela Bai (PW1), Dr.(Smt.) Nirmala Tiwari (PW4) who medically examined the prosecutrix and prepared MLC report Ex.P-2 and Manoj Sharma (PW8), the Shiksha Karmi who posted in the school where the prosecutrix had prosecuted her study for some period, have been examined. 10. The mother of the prosecutrix Sheela Bai (PW1) by deposing her age to be 46 years stated that she got married before 40 years but such version appears to be incorrect because at the age of six years the marriage could neither be possible nor could be assumed. In the available scenario, it is presumed that she got married before 28 to 30 years from the date of recording deposition. As per further deposition, her first child was born after three years from the date of marriage and thereafter on every interval of near about three years she had given a birth to two children also. The prosecutrix is the third child. So, in such premises, on carrying out the calculation the age of the prosecutrix comes between 17-19 years. So, on the basis of the deposition of the mother of the prosecutrix herself, age of prosecutrix could not be deemed below 16 years on the date of incident. 11. Apart the aforesaid, on perusing the deposition of Dr.(Smt.) Nirmala Tiwari (PW4) who medically examined the prosecutrix and prepared her MLC report Ex.P-2, it is apparent that in para 2 of her deposition she stated that on account of the number of teeth the prosecutrix could be deemed to be the age of 13 to 16 years but in para 5 of her cross-examination in the light of physical development of the prosecutrix she stated that the age of the prosecutrix should be between 14 to 17 years. On asking a specific question as to ascertain the age of the prosecutrix why the ossification test was not carried out, on which she replied that the same was not deemed to be necessary. On asking a specific question as to ascertain the age of the prosecutrix why the ossification test was not carried out, on which she replied that the same was not deemed to be necessary. In the lack of ossification test report, there is no opinion except to surmised the matter on the basis of the testimony of this doctor. The doctor has given two versions regarding the age of the prosecutrix; one is 13 to 16 years, another is 14 to 17 years and if the age of the prosecutrix is deemed to be 17 years or near about 17 years or more than 16 years then it being a matter of the year 2002 when the definition of minor was not amended in the criminal law, then the Court is bound to consider the defence of consent as argued by the appellant’s counsel. 12. Apart the aforesaid, on perusing the deposition of Shiksha Karmi Manoj Sharma (PW8), who proved the concerning entry of scholar register of the school Ex.P-10 and the admission form of the prosecutrix Ex.P-11, it is apparent that on the basis of such documents, he stated the date of birth of the prosecutrix is 2.7.1991 and she was admitted in the school on 1.9.1997. He further stated that on account of her long absence the name of the prosecutrix was scrolled out from the school. In para 3 of his deposition, he categorically stated that he could not say with whom the prosecutrix came to the school for admission and who secured her admission in the school. In such premises, it appears that he is not the scribe or the author of such document. He has made statement only on the basis of record. For the sake of argument, if the testimony and documents are taken into consideration on merits, even then such documents could not be considered as sufficient and admissible evidence to draw the inference regarding the date of birth or age of the prosecutrix unless their basic document like birth certificate or any other equivalent document on which the date of birth was mentioned in the admission form or in the scholar register are proved on the record and it is apparent that such evidence has neither been seized nor produced by the prosecution. 13. 13. On considering the deposition of the aforesaid all three witnesses jointly, then in the light of the testimonies of the mother of the prosecutrix Sheela Bai (PW1) and Dr.(Smt) Nirmala Tiwari (PW4) who medically examined the prosecutrix and prepared MLC report Ex.P-2, the age of the prosecutrix could not be deemed to be below 17 years and in the lack of any preliminary evidence in support of the scholar register and admission form of the school as stated above, mere on the testimony Manoj Sharma (PW8) and the available school record, the age of the prosecutrix could not be held to be below 16 years. So, in such premises, the approach and finding of the trial Court holding the age of the prosecutrix below 16 years being contrary to record, deserves to be and is hereby set aside. Consequently, her age is held to be more than 16 years in the year 2002 when the alleged incident was happened. 14. After ascertaining the age of the prosecutrix to be more than 16 years, we proceed to appreciate the evidence to examine the sustainability of the impugned conviction and sentence of the appellant. 15. According to the missing person report of the mother of the prosecutrix Sheela Bai (PW1) initially recorded in the Rojnamcha Sanha Ex.P-1, the prosecutrix was not taken away by the appellant from the residence of her parents as such she went to answer the call of nature and from where she accompanied with the appellant, had gone to some other places initially on foot, thereafter by bus and remained with him in the family of some relatives of the appellant and during that period, the alleged intercourse had taken place between them, but after coming back of the prosecutrix to her parental home, from the place of Pyaremiya or some other place the original crime for the offence of sections 366 and 376 of the IPC was registered. The same was registered in continuation of the missing person report. 16. We deem fit to examine the matter in the light of deposition of the prosecutrix (PW2) herself. Mere perusal of her in-chief, it is apparent that she was taken away by the appellant or had gone from the outside of her residence from where she went to answer the call of nature. 16. We deem fit to examine the matter in the light of deposition of the prosecutrix (PW2) herself. Mere perusal of her in-chief, it is apparent that she was taken away by the appellant or had gone from the outside of her residence from where she went to answer the call of nature. Subsequent to that, she travelled with the appellant in bus in which besides the appellant and the prosecutrix, so many other persons were travelling but she did not tell to any one against the appellant with respect of her alleged kidnapping or the act. She also resided with the appellant at village Lateri and Kundankhedi and during this period, the alleged intercourse was performed between them. On going through the entire deposition, it is apparent that during such period on so many occasions the prosecutrix got the opportunities to give the alarm and to inform the other persons about the alleged offending act of the appellant but she did not inform to any one. As per her father’s deposition, for some time the appellant was remained admitted in the hospital for treatment and the prosecutrix was remained with him for entire time in such hospital but did not inform either to the doctor or other staff members of the hospital. So, in such premises, only one inference could be drawn that the alleged act had taken place between the appellant and the prosecutrix with their consent. Thus, it could not be deemed that she was taken away or kidnapped by the appellant from her lawful custody, her parents with intention to commit the intercourse with her and pursuant to it, it could not be said that the appellant had committed rape on her. In such premises, the approach and findings of the trial Court holding that the appellant had kidnapped the prosecutrix contrary to her wish with intention to commit the intercourse on her and committed the same contrary to her wish are not sustainable and deserves to be set aside. In the aforesaid premises, the appreciation of other evidence is not necessary. 17. In the aforesaid premises, the appreciation of other evidence is not necessary. 17. As the prosecutrix was a consenting party with the appellant to commit the alleged act, then the appellant is entitled to extend the acquittal from the alleged charges of substantive offence of sections 366 and 376(1) of the IPC, then in such circumstance even on assuming that the prosecutrix was belonging to the caste covered under the Act even then in the available circumstances discussed above, the appellant’s conviction under section 3(2)(v) of the Act is not sustainable. Consequently, the conviction and sentence under such section also deserves to be set aside. 18. In view of the aforesaid discussion, by allowing this appeal the impugned judgment of conviction and sentence of the appellant is hereby set aside and the appellant is acquitted from the aforesaid all charges. The bail bonds of the appellant are hereby discharged. 19. The appeal is allowed as indicated above. ..........