Rampal Kol vs State Of Madhya Pradesh

The appellant has preferred the present appeal being aggrieved by the judgment dated 13.3.2013 passed by the Additional Sessions Judge, Anuppur, District Anuppur, in S.T.No.145/2012 whereby the appellant has been convicted for the offence punishable under Section 376 (1) of the IPC and sentenced to undergo RI for 7 years with fine of Rs.500/- , under Section 363 of the IPC and sentenced to undergo RI for 3 years with fine of Rs.500/- and under Section 366(A) of the IPC and sentenced to undergo RI for 7 years with fine of Rs.500/- with default stipulations, as mentioned in the impugned judgment.

The prosecution case, in brief, is that on 9.2.2012, Ram Awatar Kol (PW-9) father of the prosecutrix lodged a report at Police Station Chachai District Anuppur with regard to the missing of her minor daughter. During enquiry of the missing person, the prosecutrix was recovered on 5.9.2012 from the house of the appellant situated at village Chakothi Police Station Chachai, District Anuppur. Statement of the prosecutrix was recorded and it was revealed that nearbout seven months ago, the appellant used to call the prosecutrix at his agricultural fields situated at village Chakothi, where he committed sexual intercourse with her without her consent due to which she became pregnant. Nearabout 17 days before the date she recovered, the appellant took her to his house on the false pretext of marrying with her, kept her as wife and committed sexual intercourse with her. Thereafter, First Information Report, Ex.P/12 was registered at Police Station Chachai District Anuppur vide Crime No.138/12. After completion of investigation, charge-sheet was filed and the charges under Sections 363, 366, 376 and 344 of the IPC were framed. During investigation it was found that the prosecutrix was subjected to sexual intercourse without her consent repeatedly and at that time her age was below 16 years and she was kidnapped from the custody of her legal guardians. The appellant abjured the guilt. His defence was that he is innocent and has been falsely implicated. The learned trial Court after completion of trial, convicted and sentenced the appellant as mentioned earlier. Hence, this appeal.

Learned counsel for the appellant submitted that this appeal has been filed on the ground that the learned trial Court has failed to appreciate the evidence in the right perspective. The prosecutrix herself has stated that she voluntarily went with the appellant and resided with him as husband and wife. She also expressed her willingness to live with the appellant. So far as age of the prosecutrix is concerned, she was 18 years old and the prosecution has failed to prove her actual age. The finding is based on surmises and conjectures without any relevant, cogent and reliable evidence. Hence, the appellant be acquitted.

On the other hand, learned Govt. Advocate has supported the finding of the learned trial Court and prayed for rejection of the appeal, as all the ingredients have been proved by the prosecution beyond the reasonable doubt.

Having considered the contention advanced by learned counsel for the parties and on perusal of record, in this case first of all it should be seen as to whether the prosecution has succeeded in establishing the age of the prosecutrix below 18 years or 16 years. The learned trial Court considering the statement of father of the prosecutrix Ram Awatar Kol (PW-9), mother Bhagwati Bai (PW-2), Dr. Shaili Jain (PW-5) and Jiyalal Sant (PW-08) Teacher, Primary School, Bakantola District Anuppur, who has proved the scholar Register came at the conclusion that the age of the prosecutrix was below 18 years.

On perusal of the aforesaid evidence, in view of this Court, the conclusion arrived at by the learned trial Court is erroneous and the evidence has not been appreciated in the right perspective. Bhagwati Bai (PW-2) is the step mother of the prosecutrix. Bhagwatibai, PW2, has admitted that she is step mother of the prosecutrix, therefore, any statement with regard to the age of the prosecutrix, based on the assumption or opinion received from other persons, is not admissible. So far as father of the prosecutrix is concerned, he is not firm in his statement about the age of the prosecutrix. In the examination-in-chief, he has stated that age of her daughter (prosecutrix) was 10 to 12 years at the time of incident. In the examination-in-chief, he has also admitted that at present the age of the prosecutrix is 16 to 17 years and her statement was taken after six months of lodging of FIR (Ex. P/12). According to his statement, age of the prosecutrix may be above 16 years at the time of incident. In other words, witnesses have failed to disclose the actual date of birth of the prosecutrix, which means that the statement has no significance, as the fact has been narrated on the assumption, which may be wrong. Jiyalal Santh (PW- 8) has deposed that the prosecutrix has studied in the primary School, Bakantola. At the time of admission in Class-I, her date of birth was recorded as 15.1.2000. In the School Register (Ex.P/11) it was recorded on the basis of the application (Ex.P/13) submitted by mother of the prosecutrix Sohgibai (DW-1). While mother of the prosecutrix Sohgibai has stated that she never went with the prosecutrix for admitting in the school. In such circumstances, application Ex.P/13 and entry in the school register is based on Ex.P/13, cannot be said to be proved. Hence, the aforesaid evidence is also immaterial.

So far as Dr.Shaili Jain (PW-5) is concerned, she has stated that on 5.9.2012, she examined the prosecutrix who was carrying 28 weeks pregnancy. She examined X-Ray plates and opined that age of the prosecutrix was 12 to 13 years and further advised to take the opinion of Radiologist for determining the age of the prosecutrix however on record, there is no opinion of the Radiologist. The statement of Dr. Jain discloses that the opinion was given casually without complete test and examination required to arrive at final opinion about the age of the prosecutrix. Merely, opinion of such nature in criminal cases, cannot be said to be sufficient to prove beyond reasonable doubt that the age of the prosecutrix was below 16 years.

In view of the foregoing discussions, it is held that in the present case the prosecution has failed to prove that the age of the prosecutrix was below 16 years at the time of incident.

The prosecutrix (PW-1) has categorically stated that she was living with the appellant on her own will as the wife of the appellant. She has also denied the fact that the appellant took her with him under false pretext to marry with her. She also stated that Bhagwati Bai (PW-2) is her step mother and she used to harass her and her father was ignoring the behaviour of her step mother despite of complaint made by her and they were interested to solemnise her marriage with some other person without her consent, therefore, she herself was living with the appellant.

Considering the aforesaid statement of the prosecutrix, it cannot be said that the appellant committed sexual intercourse with the prosecutrix without her consent and her age was not below 16 years at the time of incident. Therefore, he cannot be held liable to commit rape with the prosecutrix and his conviction under Section 376 of the IPC is illegal.

So far as the offence of kidnapping with an intention to compel the prosecutrix to marry the appellant against her will or she was forced to have sexual intercourse is concerned, looking to the statement of the prosecutrix, it cannot be said that the appellant took the prosecutrix forcefully or without the consent of the prosecutrix solemnized marriage or she was compelled to have illegal sexual intercourse, cannot be said to be proved. Therefore, in view of this Court, conviction under Section 363 and 366-A of the IPC are also not sustainable as the appellant did not take her, she herself went to his house and lived with him.

Accordingly, this appeal is allowed and the conviction and sentence of the appellant under Section 376(1), 363 and 366(A) of the I.P.C are set aside. The appellant is on bail. His bail bond stands discharged.

Learned trial Court is directed to inform the Jail Authorities as the appellant is in jail in connection with another matter. If the appellant is not required in any other case, he be released forthwith.

Let the record be sent back to the trial Court immediately along with a copy of this judgment for information and necessary action.

CC as per rules.