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2020 DIGILAW 540 (MP)

Rakesh v. State of M. P.

2020-05-11

VIRENDER SINGH

body2020
JUDGMENT : Virender Singh, J. 1. The appellant has preferred this appeal against judgment and order dated 8th February 2016 passed in Session Trial No. 17/2013 by Ist Additional Sessions Judge, Ratlam, whereby the appellant was convicted under Section 366 & 376(1) IPC and under Section 4 of The Protection of Children From Sexual Offences Act, 2012 (here-in-after referred as POCSO, Act) and was awarded 7-7 years Rigorous Imprisonment with fine of Rs. 2000 each total Rs. 4000 and in default of payment of fine he is directed further to undergo 3-3 months RI. 2. The prosecution case in brief is that in the evening of 7.11.2012, the prosecutrix had gone to relieve herself but didn't return home. In the next morning i.e. 8.11.2012, her father intimated the Police Station Ringnod. The police registered missing person report Ex. P/4 & 14 and thereafter FIR Ex. P/15 and started investigation. During the investigation, the police visited the spot and on the pointing of father of the prosecutrix, prepared spot map Ex. P/16. The police obtained mark sheet of seventh standard of the prosecutrix from her father and also collected scholar register Ex. P/2 of government primary school of village Chowki having date of birth of the prosecutrix as 01.05.1995. 3. On 31.1.2013, the police recovered the prosecutrix near over bridge of Pithampur and prepared recovery memo Ex. P/6. The police recorded her statement wherein she alleged that on the pretext of marriage, along with other four accused persons, Rakesh had kidnapped her and under the threat of life, had taken her to several places. He first took her to by foot from her village Chowki to Ringnod, then to Kalali Fanta by a tractor, then Mandsaur by a bus, then Ratlam and from Ratlam they boarded a train with the help of Om Prakash and Suresh and reached village Panola of Gujarat. Suresh accompanied them and also arranged a room from Dharmendra Singh Chouhan on rent, where they stayed for 25 days. After about a month Rakesh took her back to Pithampur. Here also Suresh arranged a rented accommodation and they both stayed for about two months. At both the places viz. Panola and Pithampur Rakesh raped her almost daily. She was produced before the Judicial Magistrate First Class for recording of statement under Section 164 Cr.P.C., where she reiterated her allegation. After about a month Rakesh took her back to Pithampur. Here also Suresh arranged a rented accommodation and they both stayed for about two months. At both the places viz. Panola and Pithampur Rakesh raped her almost daily. She was produced before the Judicial Magistrate First Class for recording of statement under Section 164 Cr.P.C., where she reiterated her allegation. She was taken to the hospital for medical examination, where after taking her consent and also the consent of her father Ex. P/7 & 8, Dr. Preeti Raikwar PW-3 examined her. No injury; whether internal or external, was found on any of her body part. It was found that she was having pregnancy of 28 weeks. Doctor opined that the prosecutrix was habitual of intercourse. However, she prepared vaginal slides of the prosecutrix and handed them over to the police for chemical analysis (Ex. P/3 & 10). The same were sent to the FSL vide letter Ex. P/7. The appellant was arrested on 1.02.2013 vide memo Ex. P/12 and was medically examine by Dr. Vikram Rathor PW-1, who furnished report Ex. P/1. No injury was found, but the appellant was found capable of performing intercourse. His semen slide was prepared and was handed over to the police along with his pubic hair and underwear. On completing investigation, the police filed charge-sheet against five accused persons namely Rakesh, Om Prakash, Suresh, Rahul and Jagadish Chandra. 4. All five accused persons were charged under Section 363, 366, 366/34, 376(1), 376(2)(G) of IPC and Section 4 of The Protection Of Children From Sexual Offences Act, 2012. After the trial, except the appellant, all four accused persons namely Om Prakash, Suresh, Rahul and Jagadish Chandra were acquitted from all the charges; while the Appellant was held guilty and was punished as stated in para 1 above. 5. The appellant has preferred this appeal on the grounds that the judgment and order of the learned trial Court is contrary to the law and facts on record. The trial Court has drawn unwarranted inferences. It has not considered the material omissions and contradictions appeared in the statements of the prosecution witnesses. The prosecution could not prove his case beyond reasonable doubt. The trial Court has not considered the fact that the prosecutrix was a consenting party. The trial Court has drawn unwarranted inferences. It has not considered the material omissions and contradictions appeared in the statements of the prosecution witnesses. The prosecution could not prove his case beyond reasonable doubt. The trial Court has not considered the fact that the prosecutrix was a consenting party. Therefore, it is prayed for, that the impugned judgment be set aside and the appellant be acquitted from all the charges. 6. The learned public prosecutor has supported the impugned judgment and order of the learned trial Court. 7. I have considered rival contentions of the parties and have perused the record. 8. Assistant teacher, Government Primary School, Kamliya, PS Ringnod, Tehsil Jawra, Distt. Ratlam Om Prakash Shah PW2 has stated that as per entry of scholar register, the date of birth of the prosecutrix was 01.05.1995. His statement is supported by entry of the scholar register Ex. P/2 and has remained intact in the cross-examination. The appellant has not challenged this fact. According to the date of birth 01.05.1995, on the date of the incident i.e. 07.11.2012, the prosecutrix was 17 years six months and six days old. 9. The Protection Of Children From Sexual Offences Act, 2012 was introduced in the year 2012 and it has come into force from 14.11.2012, while the date of incident in the present case is 07.11.2012. Thus, on the date of the incident POCSO Act was not into the force. This Act was not made or introduced retrospectively. Therefore, the criminal liability prescribed under the POCSO Act cannot be fastened on the accused when the alleged act was committed prior to coming into force of the POCSO Act. Therefore, conviction of the appellant under Section 4 of POCSO Act is misconceived and the appellant is entitled for acquittal from this charge. 10. In this case, the entire allegation of the prosecution is primarily based on the statement of the prosecutrix. She has constantly changed her statement on several occasions. At the time of recovery, she did not make any allegation of threat (Ex. D/3). She had only stated that on the pretext of marriage, the appellant enticed her to go away from her house. Here she has only stated that during their stay, when the appellant used to go for work, he was secretly keeping watch on her, while, before the Court she has stated that she was abducted forcibly. D/3). She had only stated that on the pretext of marriage, the appellant enticed her to go away from her house. Here she has only stated that during their stay, when the appellant used to go for work, he was secretly keeping watch on her, while, before the Court she has stated that she was abducted forcibly. The appellant and his four accomplices, tied her mouth, did not allow her to speak, sedated her, took her to several places and always tied her hands and legs and covered her face by clothe. Her story of involvement of 4 other persons in the crime was not found trustworthy by the trial Court itself and all other co-accused persons were acquitted by the learned trial Court. Undisputedly, at the time of recovery she was carrying a foetus of 28 weeks, but before the Court she has stated that she does not know with whom she conceived it. She made allegations against the appellant that he repeatedly raped her forcibly, but she never tried to get rid of the foetus. Such a prosecutrix cannot be believed to the extent of convicting someone. Medical evidence produced by the prosecution before the trial Court does not support her allegation. Scientific evidence like FSL report is not produced by the prosecution. Rather statement of the prosecutrix shows that if there was any relation between her and the appellant then it was with her consent and considering her age, she was competent enough to give consent. Therefore, the prosecutrix is not a trustworthy witness. 11. After recovery, the police recorded statement of the prosecutrix, wherein she stated that on the pretext of a marriage the appellant forced her to come with him. They both left home by foot and went up to police station Ringnod, which is 2-3 km away from her house. There they took lift in a tractor carrying sand and reached Kalalia Fanta, here they caught a bus and went to Mandsaur. On the next day, they went Ratlam and boarded a train and reached village Palona, Gujrat. In village Panola, co-accused Suresh arranged a room from Dharmendra Chauhan on rent. They stayed there for about 25 days. Thereafter they came back to Pithampur. Here, they again hired a room and stayed for the next 6-7 months. Even in the Court she has admitted almost all of these facts. In village Panola, co-accused Suresh arranged a room from Dharmendra Chauhan on rent. They stayed there for about 25 days. Thereafter they came back to Pithampur. Here, they again hired a room and stayed for the next 6-7 months. Even in the Court she has admitted almost all of these facts. Though hesitatingly, she states that the appellant had taken her under the threat of life and kept watch on her all the time. In Court, she has further admitted that all that time she remained in a populated area or had access to the public, but during her travel from the Village up to the police station, then from Mandsaur to Ratlam or from Ratlam to village Palona, Gujarat or from Gujrat to Pithampur or during her stay at Palona or Pithampur, she never tried to seek help while admittedly she met with several people or had an opportunity to do so. 12. At the time of medical examination, she even mentioned the name of the appellant as her husband. 13. Further, she has admitted photographs Ex. D/4-8 showing solemnization of marriage between her and the appellant and also affidavit Ex. P/9 of marriage having her photograph and signature along with the photo and signature of the appellate. These photographs do not reflect that she performed traditional rituals of marriage under any threat or pressure. It appears that she solemnised marriage with the appellant voluntarily. 14. Dr Preeti Raikwar PW3 has stated in her statement that on the request of Police Station Ringnod, she had examined the prosecutrix on 01.02.2013 and found no external or internal injury on any of the body part of the prosecutrix. Dr Raikwar has further stated that the prosecutrix was habitual of sexual intercourse and that at the time of examination she was carrying 28 weeks pregnancy. Dr Raikwar did not opined that there was any recent intercourse with the prosecutrix, however she prepared vaginal smear slides and handed them over to the police for chemical examination. No analysis report confirming the allegation of the prosecutrix is the produced or proved by the prosecution before the trial Court. The prosecutrix has not furnished any explanation about her pregnancy or as to why she never tried for abortion. Thus, medical as well as scientific evidence does not support the allegation of the prosecutrix. 15. No analysis report confirming the allegation of the prosecutrix is the produced or proved by the prosecution before the trial Court. The prosecutrix has not furnished any explanation about her pregnancy or as to why she never tried for abortion. Thus, medical as well as scientific evidence does not support the allegation of the prosecutrix. 15. Hence, from all this evidence, it clearly appears that the prosecutrix was a consenting party. 16. Though, before the trial Court, the prosecutrix has stated that she was kidnapped by the appellant on the point of knife and during her stay in Gujarat or in Pithampur she was kept under strict vigilance. All the time she was kept under the watch of the appellant or of one or the other co-accused. They always covered her face by clothe and did not permit her to move away. She has further stated that the appellant had sedated her or administered her some tablet and she felt drowsy and could not resist. But she has admitted that during their stay in Gujarat or in Pithampur, the appellant used to go for work. Though she has stated that he always kept her under the watch of co-accused persons and always threatened her that in case of any resistance, he will kill her; but all these facts have not been stated before the police at the time of recovery or before the Court at the time of recording of her statement under section 164 CRPC by the Judicial Magistrate First Class. Story narrated by her regarding involvement of co-accused persons is disbelieved by the trial Court itself. 17. Thus, there is no evidence of resistance by the prosecutrix at the time of leaving the village with the appellant or during her travel of several places like from village to police station, from police station to Calali Fanta, from calali fanta to Mandsaur, Mandsaur to Ratlam, or from Ratlam to village Palona, Gujarat and from Gujarat to Pithampur. On medical examination of the prosecutrix as well as of the appellant signs of resistance were not observed by Dr. Raikwar or Dr. Rathor. Scientific evidence to support the allegation of the prosecutrix is not available. On the contrary photographs as well as affidavit admitted by the prosecutrix contradict or rebut her allegations made before the Court. On medical examination of the prosecutrix as well as of the appellant signs of resistance were not observed by Dr. Raikwar or Dr. Rathor. Scientific evidence to support the allegation of the prosecutrix is not available. On the contrary photographs as well as affidavit admitted by the prosecutrix contradict or rebut her allegations made before the Court. Entire statements of the prosecutrix before the police as well as before the Court show that she was a consenting party. 18. In para 19 of the impugned judgment, the trial Court has observed that at the time of examination before the Court, the prosecutrix was having pregnancy of 28 weeks, which means she had conceived about 01.07.2012 which is four months prior to the date of incident i.e. 07.11.2012. This shows that even prior to the incident, the prosecutrix was in physical relations with the appellant. There is no evidence that during this period, she never resisted or made any complaint that the accused forced her against her wish for making such relations. This also shows that the prosecutrix was a consenting party. 19. Now the question remains as to whether the appellant can be convicted for the charges framed against him under section 376(1) of the IPC when the prosecutrix was a consenting party. Admittedly, on the date of the incident, the prosecutrix was seventeen years six months and six days old. Section 375 IPC, which defines the rape, says that a man is said to commit 'rape' if he has sexual intercourse with a woman under the circumstances falling under any of the six descriptions prescribed in the Section itself. Out of these, sixth description is relevant in the present case, which says that sexual inter course with a woman is 'rape' irrelevant of her consent, if she is under the age of 18 years. But this provision is introduced by the Act 13 of 2013 with effective from 03.02.2013. Prior to this substitution, the age for giving a valid consent was 16 years and undisputedly, at the time of commission of the alleged crime, the age of the prosecutrix was seventeen and half years, which means that she was more than 16 years old. Thus, the evidence shows that in the present case, the prosecutrix was a consenting party and she was competent to give consent for the act. Thus, the evidence shows that in the present case, the prosecutrix was a consenting party and she was competent to give consent for the act. Therefore, it cannot be said that the appellant has committed any offence alleged against him and hence, cannot be convicted or punished under section 366 or 376(1) of the IPC. 20. In view of the foregoing discussion, both the charges levelled against the appellant cannot be found proved or he cannot be convicted for any of the offence charged against him. The trial Court has not appreciated the evidence particularly the statement of the prosecutrix and has missed to consider the law in force at the time of commission of the alleged crime. Therefore, the judgment rendered by the trial Court is not sustainable in the eyes of law. Consequently, the appeal is allowed. The appellant is acquitted from the charges under section 376(1) and 366 IPC and Section 4 of The Protection of Children from Sexual Offences Act, 2012. 21. The appellant be set at liberty forthwith, if not required in any other case. 22. The order of the trial Court regarding disposal of the case property is here by confirmed.