Mittar Singh vs State Of Madhya Pradesh

The appellant has preferred this appeal being aggrieved by the judgment dated 16/05/2013 passed by the 2nd Additional Sessions Judge, Waraseoni, District Balaghat in S.T. No. 150/2012 whereby the ap-pellant has been convicted for the offence under Section 376 of the IPC and sentenced to undergo RI for 10 years with fine of Rs. 5000/- and also convicted under section 506-II of the IPC and sentenced to undergo R.I for 1 year with fine of Rs.1000/-, with default stipulation as men-tioned in the impugned judgment.

In brief the facts of the prosecution case are that on 23/06/2013 the prosecutrix (PW-1) lodged report at police station Waraseoni, District Balaghat that the appellant resides near her house and near about 6 months back he called her for filling the water where none was present except him where he committed sexual intercourse with her despite of her resistence. Thereafter he again called her 3-4 times and committed sexual intercourse with her and she bacame pra-genant. After 4-5 months she disclosed this fact to her mother Anita (PW-2), then her mother called the village panchayat where the pros-ecutrix narrated the incident and the accused was also called for but he did not accepted his guilt. Thereafter the report was lodged and Crime No. 235/2012 under section 376, 506 of the IPC was registered. During the investigation, it was found that the prosecutrix was having 16th week pragnency and her age was below 16 years. After completion of the investigation, the charge sheet was filed before the Session Court Balaghat and the case was tried by the 2nd Additional Session Judge, Waraseoni, Balaghat.

During trial, the trial Court framed charges under Sections 376 and 506 of IPC against the appellant and his plea was recorded he denied the charges and claimed to be tried. His defence was that he is innocent and falsely implicated and learned trial court after completion of the trial, convicted and sentenced the appellant as mentioned earlier.

Learned counsel appearing on behalf of the appellant sub-mitted that learned trial court has failed to appreciate the evidence in right prespective. The prosecution story is very unnatural and appellant has family and every time some member of the family remain in the house and the prosecution witnessess are not reliable. During the argu-ment, it is submitted that if prosecution case is seen prima facie it ap-pears to be a case of consensual sexual relationship and age of the prosecutrix was more than 6 years. Prosecution has failed to establish the fact that the prosecutrix was below 16 years at the time of incident by adducing evidence beyond the reasonable doubt. Therefore, it is a case of acquittal. Hence the appeal be allowed and appellant be acquit-ted of the aforesaid charges.

Learned GA has argued in support of the aforesaid judgment of the trial court and stated that at the time of the incident the age of the prosecutrix was below 16 years and this fact has been proved by the statement of the father of the prosecutrix and medical expert and learned trial court has not committed legal error in arriving at the con-clusion that the age of the prosecutrix was below 16 years. Therefore, there is no need to interfere in the finding of the learned trial court and prayed that the appeal be dismissed.

Having heard the learned counsel for both the parties and perusal of the record, in view of this Court the following questions are to be determined in this case:-

(1) Whether the appellant committed repeated sexual inter-course with the prosecutrix without her consent ?

(2) Whether at the time of the incident the age of the pros-ecutrix was below 16 years ?

The prosecutrix (PW-1) categorically has stated that first time the appellant called her with the pretext of filling water and then despite of her resistence committed sexual intercourse. Thereafter 3-4 times he called her and committed sexual intercourse with her. There-after she became pragnent and disclosed this fact to her mother. Her mother Anita (PW-2) and her father Khinesh (PW-3) have corroborated the aforesaid statement. Dr. B. Pagare (PW-14), who examined the prosecutrix on 25th June, 2012 has stated that on examination he found that the prosecutrix was carrying 16th week old pragnency. The aforesaid evi-dence categorically establish the fact that the prosecutrix was sub-jected to repeated sexual intercourse by the appellant/accused. So far other witnesses Keshav (PW-4), Borelal (PW-5), Bastiram (PW-6), Meer-aBai (PW-7), and Chain Singh (PW-8) are concerned, they are not rele-vant witnesses as before them incident was narrated after lapse of so many days, which do not come under the purview of section 157 of the Evidence Act.

Prosecutrix (PW-1) has admitted that after first incident of sexual intercourse, she did not narrated the fact to anybody and re-mained mum and also allowed the appellant to commit same thing 3 to 4 times and also remained silent near about 4 months. Therefore it can't be said that the prosecutrix was not consenting party or the act was done forcibly or subjecting her under threat. Learned trial court has committed legal error deeming the prosecutrix was subjected to sexual intercourse under threat.

Now the next question is that whether at the time of the in-cident the prosecutrix (PW-1) was below 16 years. In this regard the statement of the prosecutrix herself has no meaning. So far mother Anita (PW-2) is concerned she has categorically stated that the age of her daughter is 17 years and this statement was recorded on 8th Novem-ber, 2012 and the incident firstly was taken place near about February 2012, it means the age of the prosecutrix was above 16 years. Her father Khinesh (PW-3) has stated the age of the prosecutrix was 14 years and also admitted in his cross examination that age has been disclosed on assumption and there may be difference of 4 months in both sides. So far Pragati Patra (Ex.P-3) relating to 5th Class is concerned, it is not a rel-evant document to determine the age of the prosecutrix (PW-1). In such type of document, the age is mentioned on the basis of other docu-ment and only the original document if admissible in evidence is rele-vant. So far medical evidence is concerned, Dr. D.K. Raut (PW-13) has stated that after conducting ossification test on 26th June 2012 in his opinion the age of the prosecutrix was 15 years and it may be 13 years or 17 years and in this regard he prepared his report Ex.P-11.

The aforesaid evidence adduced by the prosecution is not sufficient to establish the fact beyond the reasonable doubt that the age of the prosecutrix (PW-1) was below 16 years. If the statement of the mother Anita (PW-2) read with medical opinion given by Dr. D.K. Raut (PW-13), the age of the prosecutrix was above 16 years. If state-ment of the father Khinesh (PW-3) read with medical opinion given by Dr. D.K. Raut (PW-13), the age of the prosecutrix was below 16 years. In such circumstance, the view or evidence supporting to the accused is to be accepted. Therefore the statement given by mother of the pros-ecutrix Anita (PW-3) read with the statement of Dr. D.K. Raut (PW-13), it is determined that the age of the prosecutrix was above 16 years and learned trial court has failed to appreciate the evidence in right prospec-tive and committed legal error.

In view of the aforesaid discussion, the finding of the learned trial court is found to be incorrect, illegal and contrary to law and can't be upheld. Hence this appeal is allowed and conviction and sentence of the appellant is set aside. He is in custody if not required in any other case, he be released forthwith.

In this case on behalf of the appellant/accused, learned Shri D.D Bhargav, Advocate was appointed as Amicus Curiae, but it is a mat-ter of concern that this Court does not found expected assistance from him and he took the matter very casually without going through the evi-dence. Therefore, learned Amicus Curiae is directed that in future he should appear in such cases with full preparation otherwise his name will be deleted from the list of Panel of the Advocate of Legal Aid Ser-vice Committee.

A copy of this judgment be sent to the concerned trial court for information and necessary action.