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2020 DIGILAW 155 (MP)

Dillu @ Dilip v. State of M. P.

2020-01-28

S.C.SHARMA, SHAILENDRA SHUKLA

body2020
JUDGMENT Shukla, J.--1. This criminal appeal has been filed under section 374(2) of CrPC preferred against the judgment dated 15.7.2015, passed by the 2nd Addl. Sessions Judge, Khargone in S.T.No. 243/2013, wherein the appellants - Dillu @ Dilip amnd Kamal, have been convicted under sections 363, 366A, 376D of IPC and under section 3/4 of the POCSO Act, 2012 and sentenced as under: S. No. Conviction under Sections Sentence Imprisonment Fine Amount Imprisonment in lieu of fine 1 376D, IPC Life Imprisonment each 10,000/- each 1 year RI 2 366 of IPC 7 years RI each 2,000/- each 6 months additional RI each 3 363 of IPC 5 years RI each 1,000/- 3 months additional RI each 2. The prosecution story in short was that on 15.5.2013 at about 11.45 PM in the night the prosecutrix, a minor lodged a report against the appellants that while prosecutrix was sleeping outside her house, the appellants came and tried to muffle her voice by holding a handkerchief against her mouth, she shouted, but the appellants took her to a deserted spot and committed rape upon her. She had named 3 persons as the accused. The two present appellants and one another accused was later found to be juvenile. On the basis of the report, FIR was registered and the investigation was carried out and charge sheet was filed under the same provisions which the appellants were charged later on. 3. The trial Court after recording the evidence, has found the appellants guilty and sentenced them as described earlier. In the appeal, it has been mentioned that there was no evidence available on record to form an opinion that the prosecutrix was a minor at the time of incident. The evidence of prosecutrix has also been termed to be unreliable and unnatural and that there was a huge delay in lodging of the FIR, that the prosecutrix was in fact, a consenting party and the impugned judgment has been sought to be set aside. 4. Submissions were made and record was perused. 5. The prosecution has examined 14 witnesses in all 6. 4. Submissions were made and record was perused. 5. The prosecution has examined 14 witnesses in all 6. Regarding determination of the age of the prosecutrix, no documentations such as birth certificate from school, Corporation Municipality Authority or Panchayat or Matriculation certificate have been adduced as evidence by the prosecution and thus, the only mode of determining the age as per rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 was medical opinion sought from duly constituted Board. The relevant provision is reproduced as under : "In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining - (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. (b) and only in the absence of either (i) (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. 7. In this matter Exhibit P-7 and Exhibit P-8 are the relevant medical documents exhibited by Dr. Satyam Tare (PW8). He states that he had examined the prosecutrix and he had conducted x-ray examination of radial ulna bone and concluded that the prosecutrix was between 15 to 17 years of age. 8. Learned counsel for the appellants has pointed out that for age determination the only course available was conducting examination by duly constituted medical Board, which is imperative in view of the statutory provision. 9. Learned counsel for the appellants submits that assessment by one medical specialist is inadequate to give a final report regarding the age of the prosecution. 10. There is substance in the aforesaid submissions. In absence of the opinion by duly constituted medical Board, it could not have been found proved that prosecutrix was minor at the time of incident. 11. Learned counsel for the appellants submits that assessment by one medical specialist is inadequate to give a final report regarding the age of the prosecution. 10. There is substance in the aforesaid submissions. In absence of the opinion by duly constituted medical Board, it could not have been found proved that prosecutrix was minor at the time of incident. 11. Learned counsel for the appellant has taken this Court through the evidence of the prosecutrix (PW1) and has pointed out that the alleged infirmities and inconsistencies which are as under : (i) The prosecutrix states that the incident occurred while she was sleeping outside in the Courtyard and her brother Sunil and his wife were also sleeping beside the prosecutrix. (ii) When she was attacked her brother woke up and ran after the accused. Such statements have been made in para 4 of the deposition. However, in para 5 she states that although brother and her sister-in-law woke up, they did not follow the accused. (iii) The prosecutrix in para 5 makes unnatural statement that the handkerchief placed on her mouth was withdrawn after sometime and then she did not cry aloud because accused was her acquaintance. (iv) Further, in para 5 prosecutrix states that even though she was taken through the village she did not shout. This is unnatural. (v) The prosecutrix in para 5 has stated that she was dragged and her hands and feets had bled due to such dragging. However, no injuries have been found on her person by Dr. Mahendra Badole (PW6). (iv) She admits in para 9 that while she was taken by the accused persons they passed through a bus-stand but she did not shout and complained regarding she being taken forcefully. This is unnatrual. (vii)That she has admitted in para 9 that if Panchayat would have resolved the dispute, she would have not filed a complaint. 12. These inconsistencies apart, learned counsel for the appellant has pointed to the evidence of Dr. Mahendra Badole (PW6) who stated that he did not find any sign of establishment of physical relations with the prosecutrix by any one. 13. On perusal of the evidence of prosecutrix (PW1) clearly shows that her evidence is unnatural and cannot be relied upon due to reasons already mentioned above. The prosecutrix has refused the suggestion given to her that she had left on her own accord. 13. On perusal of the evidence of prosecutrix (PW1) clearly shows that her evidence is unnatural and cannot be relied upon due to reasons already mentioned above. The prosecutrix has refused the suggestion given to her that she had left on her own accord. It is difficult to imagine that the prosecutrix (PW1) who was sleeping along with her brother and sister-in-law did not raise alarm when she was allegedly kidnapped by the appellants. It also looks quite natural that she would thereafter walk with the appellants and nor raise an alarm even she was taken through a populated spot such as busstand. It is also unnatural that though her brother and sister-in-law woke up on hearing cries of prosecutrix, they did nothing to rescue her. 14. The prosecutrix (PW1) has denied that it she had herself called Kamal and went with him. Although sperms have been detected on petticoat worn by the prosecutrix and also in her vaginal slide as per FSL report Exhibit P-16, the same by itself do not reveal that she had been raped as the ingredients of rape is defined under section 375 of IPC are missing. These ingredients are "absence of will or consent". 15. After due consideration of the evidence available on record the following position emerges : (i) The prosecution has not been able to prove that the prosecutrix was minor at the time of incident. (ii) The prosecutrix has not been able to prove that the prosecutrix was kidnapped from her lawful guardian by the appellants. (iii)The prosecution has not been able to prove that the prosecutrix was gang raped by the appellants. 16. Consequently, the appeal stands allowed and appellants stand acquitted from the charges framed under section 376(D), 366-A and section 363 of IPC. The bail bond shall discharge. 17. The order of the trial Court regarding disposal of the property is maintained. 18. A copy of this order be sent to the concerned trial Court.