Sayaba and others vs State of Madhya Pradesh

Hon''ble Shri. Justice Anil Kumar Sharma

Appellants have filed this appeal against judgment dated 31.01.1998 passed in Sessions Trial No. 85/1996 by learned 1st Additional Sessions Judge, Khargone (MP), convicting the appellants for the offence punishable u/s 366 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for five years and fine of Rs.1,000/-each. Appellant Sayaba has further been convicted for the offence punishable u/s 376 (1) of the IPC and sentenced to undergo rigorous imprisonment for seven years and fine of Rs.1,000/-has also been imposed upon him, with default stipulation. Brief facts of the case are that prosecutrix (PW-1) (name of the prosecutrix is not mentioned to hide her identity) went to pick up cotton on 07.01.1996 at about 04.00 PM along with her friends. It is alleged that appellants came there and after beating prosecutrix took her for marrying her with appellant Sayaba. Thereafter, she was taken to village Jhirpanjariya and kept in the house of Gurlibai for twenty days, where appellant Sayaba committed rape with her. On report of prosecutrix, after investigation, Police has filed challan against the appellants and learned trial Court, after trial of appellants Onkar and Devisingh for offence the punishable u/s 366 IPC and appellant Sayaba for the offence punishable under Sections 366 and 376 (1) IPC, convicted them by the impugned judgment, as mentioned in paragraph No. 1 of the judgment.

Being aggrieved by the impugned judgment, appellants have filed this appeal on the ground that the appellants have been falsely implicated for the offence and convicted them on unreliable testimony of prosecutrix.

Only question for consideration in this appeal is whether learned trial Court is justified in convicting the appellants by the impugned judgment.

Learned counsel for the appellants has submitted that prosecutrix (PW-1) has admitted that both, appellant and prosecutrix, belong to Scheduled Tribe and there is a recognized system of abducting a girl for marriage and thereafter on settlement of marriage between parents of girl and boy. Therefore, the statement of the prosecutrix may be looked into, in the light of the above background.

Prosecutrix (PW-1) in her statement has admitted that she was kept in the house of Gurlibai, who is her sister. She further admitted that she did not know whether she has been abducted or not. She further admitted that she has no talks with her sister Gurlibai at that time. It is submitted by the learned counsel for the appellants that if prosecutrix has been brought forcibly against her will, then she must have narrated the incident to her sister. It is further submitted by learned counsel for the appellants that prosecutrix has admitted that she has been taken to Burhanpur and some document was written at Burhanpur. She further admitted that she was taken by appellant Sayaba to Dhulkot, where Police has recorded her statement also, but she has not narrated to the Police at Dhulkot that she has been abducted and raped.

Dr. (Smt.) Usha Sirhatti (PW-5) has found no injury on the body of the prosecutrix and she has been found habitual for sexual intercourse, with advice for X-ray for confirmation of her age. There is no evidence regarding definite age of the prosecutrix on record, as Radiologist X-ray report has not been filed. Further prosecutrix herself has admitted her age as 18 years, at the time of evidence and there is no evidence regarding her date of birth. Her father Jirtiya (PW-2) has stated that age of his daughter is 14 years, which is against the statement of the prosecutrix herself. He has further admitted that before abducting his daughter, Sayaba must have asked him. He further stated that whether he will give all his daughters to one house.

Considering the fact that age of the prosecutrix is more than 17 years, as admitted by her at the time of incident and there is no definite evidence about her definite age and she has gone with appellant Sayaba to Burhanpur and Dhulkot and also given statement to Police at Dhulkot, but nowhere she tried to escape or tell anybody that she has been abducted forcibly by the appellant. Even she did not tell her sister that she has been forcibly brought by appellant Sayaba and raped by appellant Sayaba. Therefore, considering the conduct of the prosecutrix, it is clear that she went with the appellant on her own will (consent) for marriage with appellant Sayaba and in absence of any definite evidence regarding her age, it cannot be held that prosecutrix was minor at the time of incident. Therefore, learned trial Court is not justified in convicting appellant for the offence punishable under Sections 366 and 376 IPC. Therefore, appeal is allowed, setting aside the impugned judgment. Appellants Onkar and Devisingh are acquitted of the charges for the offence punishable u/s 366 and appellant Sayaba is also acquitted of the charge for offence punishable u/s 376 IPC. Fine amount, if deposited by the appellants, be refunded to them. Bail bonds of the appellants are discharged.