Rambabu Prajapati vs State Of Madhya Pradesh

This Criminal Appeal under Section 374 (2) of Cr.P.C. has been filed by the appellant/accused being aggrieved by judgment and order dated

30.4.2007 passed by Forth Additional Sessions Judge (Fast Track), Shivpuri in Sessions Trial No.16/2007 convicting the appellant under Section 376 of

IPC with seven years RI and also under Section 366 of IPC with seven years RI.

As per prosecution story, on 17.9.2006 complainant Raman Kumar (PW-1) had lodged a report that his niece had gone to answer call of nature at

about 7 pm when she did not return and then he was informed by Raju (PW-8) that one Rambabu has taken away the prosecutrix towards Jagatpura,

therefore, FIR (Ex.P/1) was registered under the provisions of Sections 363, 366 of IPC. After investigation, charge-sheet was filed under Sections

363, 366 and 376 of IPC. The appellant abjured his guilt and took a defence that prosecutrix is major/adult and he was engaged in the work of

manufacturing of bricks at the place of the complainant. Appellant had manufactured about 50,000/- bricks but such bricks were not given to the

accused and used by the family members of the complainant, and therefore, to counter any claim of the accused, false report has been lodged.

Learned counsel for the appellant submits that prosecutrix (PW-5) has herself admitted in note below para 8 of her cross-examination that she had

signed on Ex.D/2. She also admitted that her photo was clicked as is affixed on Ex.D/2. She also admitted that before entering into the marriage

alliance, she had gone to Shivpuri Hospital where x-ray was taken. She had made a complaint in regard to her abduction to the doctor, however, she

admitted that she did not raise any alarm at the time of such abduction or untoward incident though there were several other patients were available in

the hospital. She also admitted that police was available in the hospital and she had not made any complaint to the police in regard to abduction or any

other untoward incident. In para 10 of her cross-examination, she has admitted that to execute affidavit (Ex.D/2) she had visited Shivpuri Court and

had affixed her signature on Ex.D/2. She admitted that there were police personnel in the Court premises but she had not informed anything to the

police personnel. She also admitted that accused got a photograph clicked with her but improvised the statement saying that such photo was clicked

under compulsion as she was under threat.

It is further submitted by learned counsel for the appellant that in para 12 prosecutrix has admitted that when she had reached Padora, then time

was about 1.30 pm and police personnel were available. At Padora Tri- junction except her father nobody else was available. She also admitted that

on Ex.P/4 she had put her signatures at police Station. Ex.P/4 is the recovery Panchnama allegedly prepared at Padora tri- junction Kolaras on

16.11.2006 at 2 pm to show that she was recovered from Padora Tri- Junction. It is submitted that when her signatures were obtained in the police

Station, then such recovery Panchnama showing that she was recovered from the custody of the appellant at Padora tri- junction does not inspire

confidence.

Attention of this Court is also drawn to Ex.P/8, arrest memo of appellant Rambabu, showing timing of surrender as 15.00 hours on 16.11.2006. It is

submitted that when prosecutrix was recovered from the possession of appellant Rambabu as per Ex.P/4 at 2 pm, then showing timing of his

surrender as 15.00 hours vide Ex.P/8 is false and incorrect inasmuch as as soon as the prosecutrix was recovered from the custody of the appellant,

accused was taken into custody. It is submitted that all these documents have been prepared as an afterthought.

Learned counsel for the appellant submits that Ex.P/10 is a mark-sheet of Pre- Middle School Certificate Examination conducted in the year 2005

but the mark-sheet does not contain any date though there is a mention that examination was conducted in the year 2004-05. It is also submitted that

there is lot of variation in the age deduced by the doctor through ossification test and the age which is mentioned in the 5th class mark-sheet. It is

submitted that there is no FSL report to substantiate the allegation of rape and since prosecutrix was major, she had gone on her volition and later on

falsely implicated the appellant. It is also submitted that if variance of age of six months as is prescribed in the medical jurisprudence is deducted, then

also as per the ossification test report (Ex.D/6) Radiologist and Medical Officer, In-charge X-ray Section, Distt. Hospital, Shivpuri, had since

radiologically certified the age of the prosecutrix to be more than 19 years, her age was more than 18 years, and therefore, provisions of Sections 363

and 366 of IPC will not be attracted. Attention of this Court has also been drawn to Ex.D/10 wherein on 20.9.2006 Radiologist had certified her age to

be more than 18 years. It is also submitted that in defence accused had examined Dr. O.P.Sharma, author of Ex.D/6 who has testified x-ray plates

Ex.D/7 and Ex.D/8 besides his report and has denied the suggestion in cross-examination that age of the prosecutrix was 17 years. He has also denied

the suggestion that prosecutrix was of 13 years of age. He also denied the suggestion that report Ex.D/6 was falsely prepared.

Similarly, author of Ex.D/10 Dr. M.L.Agrawal has categorically deposed that when he had carried out x-ray on 20.9.2006 age of the prosecutrix

was more than 18 years. In view of such facts, he prays for allowing the appeal and setting aside the judgment of conviction.

Learned Public Prosecutor on the other hand submits that date of incident is 17.9.2006 and as per the provisions contained in Juvenile Justice Act

there are three parameters for determining the age strictly in that order of chronology, namely if matriculation mark-sheet is available, then that is to

be seen and if such mark-sheet is not available, then first school entry register is to be seen to verify the date of birth (except play group admission

register) and if that too is not available, then age is to be determined through radiological examination. It is submitted that since mark-sheet of the

prosecutrix for 5th class is available as Ex.P/10 showing her date of birth to be 1.6.1993, at the time of incident prosecutrix was 13 years of age, and

therefore, all the pleadings put forth by learned counsel for the appellant are of no avail and the appeal deserves to be dismissed and be dismissed.

After hearing learned counsel for the parties, going through the record and the evidence available on record, few facts are undisputed. Prosecutrix

was taken away on 17.9.2006 and she was allegedly recovered on 16.11.2006. Raman Kumar (PW-1) has admitted that toilet where the prosecutrix

had gone to answer call of nature was about 25-30 steps away from the farm of complainant Raman Kumar (PW-1). Report was lodged after two

days for which there is no satisfactory explanation supported by document. Dr. Sandhya Mor (PW-3) who was posted as Medical Officer at

Community Health Center, Kolaras, had examined the prosecutrix on 16.11.2006 and mentioned that there were no external injury marks on the body

of the prosecutrix. Her all secondary sexual characters were well developed. She was used to sexual intercourse. Her hymen was broken. She had

referred the prosecutrix for x-ray examination and sonography so to determine her age and find out whether she was pregnant or not. She had not

given any definite opinion about rape vide Ex.P/3, MLC prepared by her. She had prepared vaginal smear slide and handed over the same to

Constable of police Station, Kolaras. The doctor had also sealed her under garments and handed over to the police Station, Kolaras. These materials

were forwarded to the Regional Forensic Science Laboratory, Gwalior, by the concerned Superintendent of Police, Shivpuri, on 20.11.2006 vide

Ex.P./9. No FSL report was produced on record by the Investigating Officer. Rajendra Prasad Sharma (PW-4) has admitted that in Ex.P/1 there is no

mention of dispatch number showing its dispatch to the concerned Court. He also admitted that while lodging FIR and giving police Statement, Ex.D/1,

witness Raman had not informed him that Raju and Deena had informed him that prosecutrix was abducted by Rambabu. He admitted that he could

not meet with the parents of the prosecutrix and therefore, he had not made any enquiry from the parents of the prosecutrix.

Prosecutrix (PW-5) in her statement as has been mentioned above has admitted that when she had gone to answer call of nature, appellant

Rambabu met her and asked her to come alongwith him in the name of performing marriage with her. Thereafter, he took her to his house where they

stayed for a day and on next day in the jeep he took her to Shivpuri. They stayed at Shivpuri for about 5 days where he had made intercourse with

her, then he took the prosecutrix to Bhawargarh (Rajasthan) in the jeep where there were 4-5 other persons in the jeep. At Bhawargarh he had taken

a house on rent and there also he had committed rape on the prosecutrix and informed her that he will keep her as his wife. On 16th November, she

was coming from Bhawargarh to Shivpuri and at Padora junction she saw her father and police officials to whom she alerted and they recovered her

from the custody of appellant Rambabu. She has admitted that she changed three schools till 7th. She has admitted that the place from where she was

abducted is closed to railway tracks and there is “Aabadi†between the place of abduction and the house of abductor. She had met several

persons on the way. She admitted that accused had not threatened her with any arm but had threatened her orally only. On the next day, she boarded

the jeep alongwith the accused at Kolaras Mandi and there were 4-5 persons in the jeep. She also admitted that house at Shivpuri where accused had

kept her is surrounded by several other houses. In view of such facts and also the fact that before marriage Ex.D/2, joint affidavit containing photo of

the prosecutrix, was executed, in which she has mentioned her date of birth as 12.3.1988 and that of the accused as 1.7.1984 and her admission that

she had put her signatures on such affidavit in the Court premises and prior to that she had undertaken medical examination, report of which is

Ex.D/10, so to facilitate her marriage and also in absence of there being any matriculation mark-sheet or first school admission register on record, as

per the contention of learned Public Prosecutor, this Court is of the opinion that age of the prosecutrix is to be determined on the basis of radiological

examination which has placed age of the prosecutrix to be above 19 years as per Ex.D/6 and over 18 years as per Ex.D/10, therefore, she was major

on the date of incident. Prosecution has also not examined any independent witness from the concerning school or Board to prove the date of birth of

the prosecutrix

The attending circumstances show that not only she was major but there was consent of the prosecutrix to go with the accused and the elements

of kidnapping as defined in Section 361 of IPC and that of abduction as defined under Section 362 of IPC are missing, therefore, offence under

Section 366 of IPC cannot be said to have been made out. It is admitted position that prosecutrix had gone to the hospital for radiological examination

before swearing in affidavit Ex.D/2 so to show her age to be more than 18 years and despite presence of doctor, several patients and police personnel

in the hospital, she had not narrated her story of kidnapping or abduction to any of the independent persons even at a public place. Similarly, she had

not narrated any such incident in the jeep when she was taken by a public conveyance from Shivpuri to Bhawargarh in Rajasthan. Raju (PW-8) who

had allegedly informed Raman Kumar (PW-1) about the prosecutrix being taken by the accused, has categorically deposed that on the date of incident

itself he had informed father and uncle of the prosecutrix that Rambabu had taken her by holding her hands towards the side of Jagatpur. In cross-

examination, he has admitted that Rambabu was walking ahead and the girl was following him. This statement also belies the theory of abduction

because girl was walking behind the accused as per the only eye-witness of the incident and that being a public place she was always free to have

informed any of the member of the public or Raju (PW-8) who was known to the girl about abduction or kidnapping. Therefore, conviction of

appellant under Section 366 of IPC cannot be sustained.

Similarly, as per the evidence of Dr.Sandhya Mor (PW-3) all the secondary sexual characters were well developed in the body of the prosecutrix.

She was admittedly used to sexual intercourse and there were no signs of any injury on any part of her body to show that she was subjected to rape

so to constitute the offence under Section 375 of IPC. Prosecution has failed to produce even the FSL report for which vaginal swab and under

garments of the prosecutrix were sent to show presence of any sperms confirming rape being committed by the accused on the body of the

prosecutrix. Since prosecutrix was major on the date of incident, therefore, this Court is of the opinion that learned Sessions Court has failed to

appreciate the evidence correctly and has wrongly recorded a finding of conviction without appreciating the evidence on record. Prosecution has

failed to meet out the evidence which has come on record in the form of radiological examination so also expert medical opinion and then there are

contradictions in the testimony of so called prosecution witnesses.

In view of aforesaid discussion, this appeal is allowed. Conviction of appellant under Sections 376 and 366 of IPC is set aside and he is acquitted

from such charges. The appellant is on bail, his bail bonds shall stand discharged.