Amoliram Sahu vs State of Madhya Pradesh

Pritinker Diwaker, J.—This appeal is directed against the judgment dated 27.10.1993 passed by Additional Sessions Judge, Kheragarh, Link Court, Kawardha, in Sessions Trial No. 58/1993 convicting the accused/appellant for the offence punishable u/s 376 IPC and sentencing him to undergo rigorous imprisonment for five years.

Case of the prosecution in brief is that on 31.10.1992 FIR (Ex.P-9) was lodged by Mehtar Sahu (PW-3) - the father of the prosecutrix alleging that on that day his daughter (prosecutrix PW-2) had eloped with the present appellant. On 4.1.1993 the accused and the prosecutrix returned to their village and the prosecutrix was recovered from his possession. Based on her statement recorded u/s 161 of the Code of Criminal Procedure, investigation was done and challan was filed against him for the offences under Sections 363, 366 and 376 IPC.

So as to hold the accused/appellant guilty, prosecution has examined 09 witnesses in support of its case. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case.

After hearing the parties the trial Court has acquitted the accused/appellant of the offences punishable under Sections 363 and 366 IPC but convicted and sentenced him for the offence as mentioned above.

Heard counsel for the parties and perused the material available on record including the judgment impugned.

Counsel for the accused/appellant submits that when on the same set of evidence the Court below has acquitted the accused/appellant of the offences punishable under Sections 363 and 366 IPC, there was no reason for it to convict him u/s 376 IPC. He submits that the prosecution has utterly failed to prove the age of the prosecutrix and from the evidence collected by the prosecution, the prosecution appears to be more than 15 years of age as her date of birth has not been correctly established by the prosecution. Even the report of ossification test of the prosecutrix suggests that on the date of incident she was 15-16 years of age and if according to the medical jurisprudence a margin of two years on the either side is applied, her age at the relevant time would come to 17-18 years.

On the other hand counsel for the respondent/State supports the judgment impugned and submits that the prosecution has rightly proved the age of the prosecutrix as her date of birth is 15.6.1978 and as such on the date of incident her age comes to be less than 15 years.

Prosecutrix (PW-2) has stated in her evidence that when on the date of incident at about 8 o''clock in the morning she was coming back after answering the call of nature, the accused/appellant and his uncle namely Ghurau came there on two bicycles, Ghurau made her sit on the bicycle of the accused/appellant and then they went to village Charbhanta. Thereafter, they boarded the bus and went to Vicharpur. From there they went to village Silhati on foot, from Silhati to village Gandai by bus, from Gandai to Khairagarh again by another bus and then from Khairagarh they went to Nandgaon. From Nandgaon they went to Dhamtari by bus and from Dhamtari to Jagdalpur again by bus. At Jagdalpur, the accused took a room on rent where they stayed for about one month and during this period she was subjected to sexual intercourse also. Thereafter, from Jagdalpur they went to Raipur by bus and then from Raipur they went to Allahabad by train and then from Allahabad they went to Lucknow again by train. At Lucknow also the appellant took a room on rent where they stayed for about one month. Then after visiting these places, she came back and lived in the house of the accused/appellant for about 10 days where her father and the police people came and took her with them. Thereafter, accused was arrested by the police. From the statement of the prosecutrix it is apparent that she was a consenting party to the act of the accused/appellant as she visited various places along with him. From the evidence available on record it also appears that she was in love with the accused/appellant as number of love letters Ex. D-1 to Ex. D-55 were written by her.

Now the sole question to be decided by this Court is whether at the relevant time the prosecutrix was minor or not. After considering the entire material available on record the trial Court has recorded a finding that at the time of incident, she was less than 16 years of age. Main witnesses examined by the prosecution are Vishnu Prasad Chaturvedi, Headmaster of the school (PW-1) Naresh Kumar, Principal of the school (PW-3), Phulsing (PW- 4) and A.K. Sahare - in-charge principal of the school (PW-5). Vishnu Prasad Chaturvedi (PW-1) - the Headmaster of the school has stated in his evidence that he was posted at primary school Kosmanda since 19.7.1988 and he had brought the register of the school showing the fact that in the year 1984 the prosecutrix was admitted in the school and her date of birth was recorded as 15.6.1978. According to him, the date of birth of the students was recorded on the basis of disclosure made by the parents or on the basis of the entry made in the Kotwari register. He has stated that according to the admission register, after passing the 5th standard, the prosecutrix had left the school on 16.5.1989. He has stated that he was not aware as to who had recorded the date of birth of the prosecutrix as at that time he was not posted in the said school. He has admitted that in the register Ex. P-1 the date of birth of the prosecutrix is recorded as 15.6.1978 but in the register Ex. P-2 by which she had left the school it is mentioned as 5.6.1978. He also admits that the page numbers are not mentioned in the said register. Phul Singh (PW-4), the Kotwar of the village has stated in his evidence that he was the Kotwar of the village since 1971 and before that his father was holding that post. According to him, he being an illiterate person used to get the entries made by the village Patel or the educated people of the village. He has stated that he used to make entries regarding birth and death in the village on the basis of the information given to him by the people of the family concerned. Entry with regard to date of birth of the prosecutrix is made in register Ex. P-13 in which her date of birth is recorded as 28.7.1978 which was recorded on the basis of information given by the grand father of the prosecutrix namely Ramprasad. In cross examination, this witness has admitted that proper paging was not done in the said register. This witness was also not aware as to when the date of birth of the prosecutrix was informed to him and the said entry does not even have the signature of the village Patel. Another important witness in respect of the age of the prosecutrix is father of the prosecutrix namely Mehtarram (PW-3) who has stated that he had handed over the mark sheet of the prosecutrix to the police and her date of birth was entered in the register on the basis of entry made in the Kotwari register. He has stated that the date of birth of the prosecutrix was informed by him to the Kotwar of the village. However, in cross examination, this witness has stated that he had given the date of birth of his children on the basis of guess work. He has stated that if he Kotwar is illiterate, entry with respect to age is recorded in the Kotwari register with the help of literate Panch and Sarpanch of the village. He has further stated that he was not aware of the fact whether date of birth of his children recorded in the Kotwari register was correct or not. Kotwar Phul Singh (PW- 4) has stated in his evidence that the date of birth of the prosecutrix was recorded on the basis of information furnished to him by the grand father of the prosecutrix namely Ram Prasad but said person has not been examined by the prosecution.

Minute examination of the evidence of the witnesses in respect of age of the prosecutrix on the date of incident does not make it clear as what was her exact date of birth especially when her dates of birth have been given differently by different persons. Record also shows the date of birth of the prosecutrix was furnished to the Kotwar by her grand father namely Ram Prasad but as he has not been examined by the prosecution, the information given by him is of not much significance. Further, village Kotwar himself has admitted that as he was an illiterate person, the entries were recorded in the register with the help of village Patel. In these circumstances, this Court finds it extremely difficult to believe the date of birth of prosecutrix particularly when the different witnesses have stated the same differently. Dr. L.D. Jindani (PW-9) who had medically examined the prosecutrix has stated that the age of the prosecutrix at the relevant time was 15-16 years. According to the x-ray report of the prosecutrix Ex. P-25 given by Dr. D.R. Jindani she was aged about 15 years and if a margin of two years is taken with it, the same comes to about 17 years. Thus, as the prosecution has failed to prove the exact age of the prosecutrix beyond reasonable doubt, it would not be safe to hold that on the date of incident she was below 16 years of age. This apart, there being so many variations in the date of birth stated by different witnesses, this Court finds it difficult to rely thereon to convict the accused/appellant u/s 376 IPC. Number of love letters seized by the prosecution and the fact that she spent months together in the company of the accused/appellant without raising any protest to that and permitted him to have sex with her, go to show that she was a consenting party to the act of the accused/appellant.

In view of the aforesaid discussion, the appeal is allowed. Impugned judgment dated 27.10.1993 is hereby set aside. Accused/appellant is acquitted of the charge levelled against him. He is reported to be on bail. His bail bonds stand discharged.