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2017 DIGILAW 568 (CHH)

Sukhdev v. State of M. P.

2017-09-20

SHARAD KUMAR GUPTA

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JUDGMENT : Sharad Kumar Gupta, J. 1. In this Criminal Appeal the challenge levied is to the judgment of conviction and order of sentence dated 04.06.1999 passed by the First Additional Sessions Judge, Raigarh District Raigarh in S.T. No. 205/1997 whereby and whereunder the appellant was convicted for the offences punishable under Section 366 of the Indian Penal Code (hereafter called as 'IPC') to undergo rigorous imprisonment for 3 years and under Section 376(1) IPC, rigorous imprisonment for 7 years. It is admitted by the appellant that the Prosecutrix is the daughter of PW-3 Biduram and sister of PW-2 Lochan Prasad. They are the resident of village Tukupathna Raghunathpur. On 19.05.1997 near about 9 pm the Prosecutrix had gone outside along with her sister to reply the nature's call. The appellant and co-accused Bhuneswar son of Namonarayan Sodhi had kept her in the house of brother-in-law of co-accused Bhuneswar in village Aminpur. PW-11 Dr. J. Minz has medically examined him on 26.05.1997, a sky blue underwear was seized from him. 2. In brief, the prosecution case is that on 19.05.1997 there was engagement of the Prosecutrix. Near about 9 pm she had gone to reply the nature's call and did not return back. Her family members searched her to their relatives nearby villages but she could not be traced out. Later she was found along with the appellant in village Kodekela (Orissa). Her father took her back from village Kodekela to PS - Paththalgaon on 25.05.1997 by 08 pm and given a written complaint, on the strength of which FIR was lodged. The appellant and the co-accused caught hold her hand and taken away by pulling on bicycle and forcibly committed sexual intercourse with her under a tree. In the morning the appellant took her to Kunkuri bus stand. Thereafter, he took her to Jharsuguda by bus. He kept her in a Dharmsala for the whole night and then after took her to village Pali by bus. During keeping her in his relative's house he had again raped her. Then he took her to village Kodekeda and again raped her. During the investigation, statements of the witnesses have been recorded, spot map was prepared, the Prosecutrix was examined by a lady Doctor, her ossification test was conducted. One underwear was seized from the Prosecutrix, one slide of vaginal swab was also seized. Then he took her to village Kodekeda and again raped her. During the investigation, statements of the witnesses have been recorded, spot map was prepared, the Prosecutrix was examined by a lady Doctor, her ossification test was conducted. One underwear was seized from the Prosecutrix, one slide of vaginal swab was also seized. Seized articles were sent to FSL and a report was obtained. After completion of the investigation a charge-sheet was filed against the appellant and the co-accused. Said co-accused was declared absconded under Section 299 Cr.P.C. 3. The Trial Court framed the charges against the appellant under Sections 366 and 376 IPC. To bring home the charges the prosecution examined as many as 11 witnesses. The accused abjured the charges and pleaded innocence. The appellant did not examine any witness in his defence. After conclusion of the trial, the trial Court convicted and sentenced the appellant as aforesaid. Hence, this, appeal. 4. Smt. Indira Tripathi, counsel for the appellant put forth that the trial Judge committed error not giving findings on the age of the prosecutrix. From the evidence available on record it clearly appears that the prosecutrix was consenting party. No case against the appellant and his aforesaid conviction and sentences are not sustainable. 5. Shri N.K. Mehta, Panel Lawyer for the State supported the impugned judgment of conviction and order of sentences. He urged that enough material is available on record, on the strength of which, the aforesaid conviction and sentences have been based. 6. Points for determination:- There are following points for determination in this case:- 1. Whether the appellant on 19.05.1997 near about 10 pm in village Tukupathna Raghunathpur had taken the Prosecutrix aged about 17 years, out of the keeping of her lawful guardian Bidu'-"-.., without the consent of him, with an intent that she may be forced or seduced to illicit intercourse? 2. Whether during 9 pm of 19.05.1997 to 8:10 pm of 25.05.1997 said appellant had raped the Prosecutrix. Points for determination No. 1 & 2 findings with reasons:- 7. Looking to the convenience points for determination No. 1 and 2 are being decided simultaneously. 8. PW-8 Dr. Arti Nande states in paras-1 and 2 of her statement on oath that, she had examined the Prosecutrix and found in her upper jaw 8+7 teeth and lower jaw 7+7 teeth were present. Looking to the convenience points for determination No. 1 and 2 are being decided simultaneously. 8. PW-8 Dr. Arti Nande states in paras-1 and 2 of her statement on oath that, she had examined the Prosecutrix and found in her upper jaw 8+7 teeth and lower jaw 7+7 teeth were present. No external or internal injury were found in her internal examination, her hymen membrane was old ruptured. In her opinion, she was habitual of sexual intercourse. 9. There is no such evidence on record on the strength of which it could be said that the said statements of PW-8 Dr. Arti Nande and her report Ex. P/9 regarding said statements are not believable. Thus, this Court believes said statements of PW-8 Dr. Arti Nande and Ex. P/9 with reference to said statements. 10. PW-7 Dr. M.D. Joshi states in para-1 of his statement on oath that he had taken X-ray of the both wrists, both elbows of the prosecutrix. 11. There is no such evidence on the strength of which it could be said that the said statement of PW-7 Dr. M.D. Joshi and his report Ex. P/8 with reference to the said statement, do not inspire confidence. Thus, this Court believes said statement of PW/7 Dr. M.D. Joshi and his report Ex. P/8 with reference to said statement. 12. PW/11 Dr. J. Minz states in paras-1 and 3 of his statement on oath that the said appellant was able to perform sexual intercourse. 13. There is no such evidence on record on the strength of which it could be said that said statement of PW/11 Dr. J. Minz and his report Ex. P/10 are not believable. Thus, this Court finds that said statement of PW/11 Dr. J. Minz and Ex. P/10 are trustworthy. 14. First and foremost, this Court is examining the age of the prosecutrix on 19.05.1997. 15. PW/2 Lochan Prasad states in para-1 of his statement on oath that at the time of the alleged incident the prosecutrix was 16-17 years old. 16. PW/3 Biduram states in para-1 of his statement on oath that at the time of the alleged incident the prosecutrix was 17 years old. 17. PW/9 Mukta Bai states in para-3 of her statement on oath that yet now her daughter is 18 years old. She further states that the age of her daughter is 17-18 years. 18. PW/7 Dr. PW/3 Biduram states in para-1 of his statement on oath that at the time of the alleged incident the prosecutrix was 17 years old. 17. PW/9 Mukta Bai states in para-3 of her statement on oath that yet now her daughter is 18 years old. She further states that the age of her daughter is 17-18 years. 18. PW/7 Dr. M.D. Joshi states in para-1 that as per the ossification test, age of the prosecutrix could have within 17 to 18 years. 19. In Subelal v. State of M.P. (Now C.G.), 2011(4) CGLJ 424 the learned Single Judge has observed in para-11 as under:- "11. Dr. S.C. Visnoi (PW-6) determined the age of the prosecutrix in between 15 to 16 years on the basis of ossification test performed by him. His report is Ex. -P/9. The X-ray plates are Ex. P/10, P/11 & P/12. In Modi's Jurisprudence (20th Edition), it is stated that too much reliance should not be placed on the table showing the age and years of the appearance and fusion of some of the epiphysis as observed by different authors as it merely indicates the average and is likely to vary in individual case even of the same province owing to the eccentricities of development. It is further stated that recent work has shown that the range of error may be up to 3 years on either side. In the present case, Dr. Visnoi (PW-6) also admitted in the cross-examination that a difference of 3 years on either side may be there in the age determined on the basis of ossification test. In this manner, if we add 3 years towards upper side, the age of the prosecutrix would come to 19 years. Besides the above, there is no other evidence of the age of the prosecutrix. On appreciation of the above evidence, I am of the view that the prosecution could not establish that the prosecutrix was a minor and the finding recorded by the Session Judge cannot be sustained" 20. In Jaya Mala v. Home Secretary, Government of Jammu and Kashmire And Others, AIR 1982 SC 1297 the Hon'ble Supreme Court has observed that margin of error in age ascertained by radiological examination is two years on either side. 21. In Jaya Mala v. Home Secretary, Government of Jammu and Kashmire And Others, AIR 1982 SC 1297 the Hon'ble Supreme Court has observed that margin of error in age ascertained by radiological examination is two years on either side. 21. It would be pertinent to mention the relevant part of Paras-16 and 17 of the judgment of the Supreme Court in Babloo Past v. State of Jharkhand and Another, 2008 AIR SCW 7332, which reads as under:- "16. ......... True, that a Medical Board's opinion based on the radiological examination is a useful guiding factor for determining the age of a person but is not incontrovertible. Commenting on the evidentiary value of the opinion of a doctor, based on x-ray tests, as to the age of a person, in Ramdeo Chauhan alias Raj Nath v. State of Assam, R.P. Sethi, J., speaking for the majority in a three-Judge Bench, had observed that:- "....An X-ray ossification test may provide a surer basis for determining the age of an individual than the opinion of a medical expert but it can by no means be so infallible and accurate a test as to indicate the exact date of birth of the person concerned. Too much of reliance cannot be placed upon textbooks, on medical jurisprudence and toxicology while determining the age of an accused. In this vast country with varied latitudes, heights, environment, vegetation and nutrition, the height and weight cannot be expected to be uniform." 17. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The Medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence." 22. On the strength of the aforesaid judicial precedents, this Court finds out that opinion of PW/7 Dr. M.D. Joshi is a guideline for assessing the approximate age of a person but it is not unassailable. It is also not unfailing. It is also not conclusive and margin of error of two years is possible on either side. It should be considered along with other cogent evidence. 23. M.D. Joshi is a guideline for assessing the approximate age of a person but it is not unassailable. It is also not unfailing. It is also not conclusive and margin of error of two years is possible on either side. It should be considered along with other cogent evidence. 23. It would be manifest to refer paras-25 and 26 the judgment of the Supreme Court in Sunil v. State of Haryana, 2010 (1) SCC 742 which is extracted as under:- "25. The prosecution also failed to produce any Admission Form of the school which would have been primary evidence regarding the age of the prosecutrix. The School Leaving Certificate produced by the prosecution was also procured on 12.9.1996, six days after the incident and three days after the arrest of the appellant. As per that certificate also, she joined the school in the middle of the session and left the school in the middle of the session. The attendance in the school of 100 days is also not reliable. The prosecutrix was admitted in the school by Ashok Kumar, her brother. The said Ashok Kumar was not examined. The alleged School Leaving Certificate on the basis of which the age was entered in the school was not produced. 26. Bishan, PW 8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date." 24. In State of Madhya Pradesh v. Munna @ Shambhoo Nath in Criminal Appeal No. 658 of 2011 decided on 18.09.2015 the Hon'ble Supreme Court has observed that the mother of the prosecutrix also was not able to give the exact age of the prosecutrix. No question was also asked to the prosecutrix by the prosecution about her age. Taking into account all these facts, the High Court correctly came to the conclusion that the prosecution has totally failed to prove beyond reasonable doubt that the girl was less than 16 years of age at the time of the incident. 25. PW/8 Dr. No question was also asked to the prosecutrix by the prosecution about her age. Taking into account all these facts, the High Court correctly came to the conclusion that the prosecution has totally failed to prove beyond reasonable doubt that the girl was less than 16 years of age at the time of the incident. 25. PW/8 Dr. Arti Nande states in para-4 during her cross-examination that in the age group of girls between 16 years to 22 years 15-14 teeth are found. 26. PW/2 Lochan Prasad, PW/3 Biduram, PW/4 the prosecutrix, do not state clearly and strongly that what is the actual date of birth of the prosecutrix. PW/3 Biduram states in para-5 during his cross- examination that he had got entered the date of birth of his children to Godaik, the prosecutrix studied up to class 2, but the prosecution has failed to prove any such documents, in accordance with law, wherein the date of birth of the prosecutrix was mentioned. 27. PW/2 Lochan Prasad states in para-3 during his cross-examination that his age is 24 years, his date of birth is 07.04.1974. His younger sister is VA-2 years younger than him. The prosecutrix is again 1 1/2 years younger than her. PW/4 the prosecutrix states in para-5 during her cross-examination that the age of eldest brother Lochan is 25-26 years, his younger sister is VA-2 years younger than him, two years after the birth of her elder sister, she was born. PW/9 Mukta Bai states in para-3 that, this is true that her eldest son is 35 years old, there is three years age difference between Lochan and the prosecutrix. 28. Looking to the above mentioned facts and circumstances, aforesaid judicial precedents, this Court disbelieves said statements in para-1 of PW/2 Lochan Prasad and PW/3 Biduram, para-2 of PW/9 Muktabai in this reference that on 19.05.1997 the prosecutrix was below 18 years and finds that the prosecution does get any help from said opinion of PW/7 Dr. M.D. Joshi and with this reference his report Ex. P/8, to prove that allegedly the prosecutrix was below 18 years at the time of the incident. 29. Now this Court examine that whether the prosecutrix was a "consensual party". 30. M.D. Joshi and with this reference his report Ex. P/8, to prove that allegedly the prosecutrix was below 18 years at the time of the incident. 29. Now this Court examine that whether the prosecutrix was a "consensual party". 30. PW/4 the prosecutrix states in para-1 & 2 that the appellant and the co-accused Bhuneshwar drove her away by bicycle from the place where she had gone to attend the nature's call and under a tree they committed sexual intercourse with her, they taken away to Kunkuri, thereafter Jharsuguda, then they kept her in the house of brother-in-law of the co-accused Bhuneshwar at village Aminpur and again committed sexual intercourse with her. Then after they had taken away her in Orissa. 31. PW/3 Biduram states in paras-1 and 3 that the appellant had driven away the prosecutrix, she had told him that the appellant had committed sexual intercourse with her twice. 32. PW/9 Mukta Bai states in para-1 that the appellant and co-accused Bhuneshwar had taken away the prosecutrix by enticing and committed sexual intercourse with her. She told that the prosecutrix had told her that the appellant and the co-accused had pointed knife at her. 33. In Subelal (supra) in para-12 the learned Single Judge has observed as follows:-- "12. Now we shall examine the conduct of the prosecutrix. The case of the prosecution is that the prosecutrix accompanied the appellant and she went from village Zoratarai to village Bhakara on his bicycle. From Bhakara, they boarded a bus and went to Dhamtari. Further, from Dhamtari, they went to village Utai to the house of the sister of the appellant, they again boarded a mini bus and went to Bhilai (Power House). The appellant took the prosecutrix to the house of his other sister who was residing in Bhilai. The prosecutrix alleges that she was subjected to forcible sexual intercourse by the appellant in the house of his sister. Though the prosecutrix visited many places with the appellant, but she did not make any compliant and accompanied him in normal manner. This shows that she was not abducted and was not taken by force and she accompanied the appellant on her own will and it was not a case that the appellant committed sexual intercourse without her consent. Though the prosecutrix visited many places with the appellant, but she did not make any compliant and accompanied him in normal manner. This shows that she was not abducted and was not taken by force and she accompanied the appellant on her own will and it was not a case that the appellant committed sexual intercourse without her consent. Considering the evidence of age and conduct of the prosecutrix, I am of the view that the prosecutrix was a consenting party with the appellant and in the above facts and circumstances of the case, the offences u/ss 363, 366 & 376 Indian Penal Code would not be made out against the appellant." 34. In Rajkumar Bajaj @ Raja v. State of C.G., 2012 (4) CGLJ 437 the learned Single Judge of this Court observed in para-9 as under:- "9. Minute examination of the evidence of the witnesses particularly that of the prosecutrix (PW-3), her parents (PW-1 and PW-2) and Laxmi Bai (PW-9) goes to show that she (prosecutrix) was a consenting party. Evidence further shows that the prosecutrix lived in the house of Dhaniram. (PW-4) along with accused Raja for five days and used to go out for answering the call of nature and fetching water from the hand pump but during this long period she, in spite of having full opportunity, did not make any complaint to anyone about her being confined by the accused/appellant Raja. This conduct of the prosecutrix also makes it clear that she was consenting party to the act of accused/appellant Raja." 35. In Bihari @ Bhim Prasad Soni v. State, of C.G., 2011 (2) CGLJ 515 the learned Single Judge of this Court observed in para-8 as follows: "8. From the evidence available on record, it is apparent that on the date of incident the prosecutrix was more than 16 years but less than 18 years of age and thus for the offence under Section 363 she was minor. However, the prosecution has not adduced any evidence to show that the prosecutrix was kidnapped or abducted by the accused/appellant from the lawful guardianship. Thus in view of the decision of the Supreme Court in the matter of S. Vardarajan (Supra) it can be said without hesitation that at the relevant time the prosecutrix had attained the age of exercising her discretion. Thus in view of the decision of the Supreme Court in the matter of S. Vardarajan (Supra) it can be said without hesitation that at the relevant time the prosecutrix had attained the age of exercising her discretion. Here is the case where the prosecutrix and her sister initially went in the company of the accused persons to have the photographs and from where her sister was dropped back home whereas she accompanied the appellant to various places and stayed for a considerable period of 13 days without offering any resistance thereto. Even as per the statement of the lady doctor the prosecutrix was a fully grown up girl." 36. In Sheikh Shariff v. State of Chhattisgarh, ILR 2017 Chh. 1317 the learned Single Judge in para-18 observed as follows:- "18. Now coming to the other Sections 363 and 366 of I.P.C., the statement of the prosecutrix (P.W. -1) are examined in between the lines, major contradictions appears in the Court statement. It was stated that she was administered with intoxicated substance thereafter, she was not in know of any fact that what happened. Further taking into the other documents, which are on record, which would show that she was recovered at Mominpara, Raipur from the custody of the appellant after about 10 days of incident. The evidence is also on record, the prosecutrix remained in custody from date of disappearance from 22.02.2012 to 05.03.2012 i.e. about two weeks. The statement would further show that she traveled from different place in the company of appellant and these facts remained unexplained." 37. The prosecution has failed to focus on the fact that why the sister of the prosecutrix did not scream, why she did not intimate the alleged incident immediately to her family members who may have lodged FIR without delay. 38. This is not the prosecution case that the prosecutrix from village Tukupathna to till recovery of her from village Kodekela, Orissa, specially in the bus stand, railway station, Dharmsala, which are the public places, did not shout, called the people for her help due to any such reason, during the alleged forcible intercourse she did not offer resistance by using force like snatching. The prosecutrix states in para-8 that she had attempted shouting, the appellant and co-accused gagged her mouth with clothes. The prosecutrix states in para-8 that she had attempted shouting, the appellant and co-accused gagged her mouth with clothes. She states in para-9 that due to fear she has not told about the incident to anyone on the way. But this is not the prosecution case. These facts also have not been mentioned in her police statement Ex. D/2. This is also not the prosecution case that the appellant and the co-accused had taken away the prosecutrix at the point of knife. This fact is omitted in police statement Ex. D/3 of PW/9 Mukta Bai. 39. As per Ex. D/1 on 19.05.1997 the engagement of the prosecutrix was solemnized with Bhuneshwar S/o Duhsashan. 40. If above mentioned circumstances may be considered then this possibility also cannot be ruled out that the prosecutrix was not liking Bhuneshwar with whom her marriages was fixed, thus she voluntarily left her paternal house and had gone away with the appellant and the co-accused. 41. Looking to the above mentioned circumstances, evidence and aforesaid judicial precedents this Court finds out that the prosecutrix was a consensual party. 42. Looking to above mentioned facts, circumstances, this Court finds that the prosecution does not get any help from spot map Ex. P/1, written complaint Ex. P/3, FIR Ex. P/4, alleged seizure of one lady's underwear Ex. P/5, alleged seizure of one slide Ex. P/6, alleged seizure of one gent's underwear Ex. P/7, alleged spot map made by 1.0. vide Ex. P/10 (wrongly numbered) and Ex. P/10 (dt. 03.05.1999- wrongly numbered) regarding these points for determination. 43. After the appreciation of the evidence this Court disbelieves said statements of para-1 of PW/3 Biduram, paras-1, 2 PW/4 Kamla Bai, para-1 of PW/9 Mukta Bai, in this reference that allegedly the appellant had taken away the prosecutrix and committed forcible sexual intercourse with her. 44. After the appreciation of the evidence this Court finds that the prosecution failed to prove beyond reasonable doubt that the appellant had taken the Prosecutrix aged about 17 years, out of the keeping of her lawful guardian Biduram, without the consent of him, with an intent that she may be forced or seduced to illicit intercourse and during 9 pm of 19.05.1997 to 8:10 pm of 25.05.1997 said appellant had raped the Prosecutrix. 45. 45. After the complete and full appreciation of the evidence, this Court allows the appeal and set aside the impugned judgment of conviction and order of sentence of the trial Court and acquit the appellant from the charges under Section 366, 376 IPC extending the benefit of doubt. The appellant is on bail. The bail bond of the appellant stands discharged subject to the provisions contained in Section 437-A of the Cr.P.C.