Shankarlal S/O Shyamlal vs State Of Madhya Pradesh

The appellant has preferred this appeal against the judgment and order dated 28/06/2012 passed in S.T. No.109/2009 by I ASJ, Neemuch whereby the

learned trial Court has held the appellant guilty for the offence punishable under Section 363, 366, 376 of IPC and sentenced him to undergo 3 years, 3

years and 10 years RI with fine of Rs.2,000/-, Rs.2,000/and Rs.3,000/- respectively, in default on payment of fine further to go six months, six months

and two years RI.

According to the prosecution case on 03/10/2009 between 10:30 to 18 hours, the prosecutrix went missing from her house. Her father intimated the

fact to the police and police registered missing person report No.19/2009 at Police Station â€" Jawad and started inquiry. On 08/10/2009, the

prosecutrix was recovered, who revealed before the police that on 03/10/2009, when she had gone to school, the appellant allured her on promise to

marry and asked her to sit on his motor-cycle and took her to Shani Maharaj, Rajasthan. From Shani Maharaj, he took her to Kapasan by Bus,

thereafter took her to Ratlam by Train. They stayed at Ratan Shri Lodge, Ratlam, where he raped her. Police registered crime No.286/2009 under

Section 363, 366, 376 of IPCÂ and sent the prosecutrix for medical examination, collected document regarding her age, arrested the accused and

seized the motorcycle and after completing usual investigation, filed the chargesheet.

The accused was charged, tried and convicted for the offence as stated in para 1 above.

Grounds for appeal are that the judgment of the trial Court is perverse and contrary to the facts and the law. The learned trial Court committed

error in holding the prosecutrix minor only on the basis of school certificate mentioning her date of birth 20/10/1995, while this certificate was not

proved. Neither the Principal of the school, who issued this certificate has been examined before the Court nor original scholar register was produced

by the prosecution. Father and mother of the prosecutrix has not been examined before the learned trial Court, though they are alive. Ossification test

as directed by the High Court has not been conducted by the prosecution and no such report was produced before the learned trial Court. The

prosecutrix was a consented party, as she has admitted in para 28 to 31. Further allegation of rape is also not supported by the medical evidence or the

statement of Dr. Sonali Goyal â€" PW/9, as she has stated that no definite opinion can be given in this regard, therefore, conviction of the appellant is

not proper and he is entitled for acquittal.

Per contra, learned Public Prosecutor has supported the judgment of the trial Court.

In para 23 to 27 & 31, the prosecutrix has stated thus :-

**23- eSa u;kxkao ls tc xbZ rc jkr dks 'kfu egkjkt esa gh :dh FkhA diklu ls 'kke dks Vsªu esa jryke ds fy, cSBs FksA fVdhV vkjksih us fy;k FkkA

fVdhV ykbZu esa [kM+s gksdj fy;k Fkk ykbZu esa dkQh HkhM+ FkhA ;g dguk lgh gS fd vfHk;qDr tc fVdhV ys jgk Fkk rc esa vfHk;qDr dk bra tkj

dj jgh FkhA jYs os LVs'ku ij Hkh cgqr lkjs ykxs FksA ge fjtZo's ku ls ugha x, FkAs

24- ge ykxs tuZy ckxs h ls x, Fks ftlesa lHkh yksx cSBrs gSA Vªsu esa gesa txg fey xbZ FkhA iqjh jkr dk lQj diklu ls jryke rd dk FkkA ;g dguk lgh

gS fd eS vkjke ls cSBdj xbZ lksrs gq, ugh xbZA ge jryke lqcg vkB cts igqps FkAs geus jYs os LV's ku ij gh uk'rk fd;k FkkA ge jYs os LV's ku ls

ykWt esa x, FkAs ykWt esa 'kke dks x;s FksA ge fnuHkj jYs os LVs'ku ij gh jgs FksA geus jYs os LV's ku ij ugkuk /kksuk ugh fd;k FkkA

25- ge ykxs jYs os LV's ku ij cl cSBs jgAs ;g dguk lgh gS fd jYs os LVs'ku ij cgqr ls ykxs Fks cgqr lh xkM+h;k vkbZ vkSj xbZA ;g dguk lgh gS fd

geus fnu esa [kkuk Hkh jYs os LV's ku ij gh [kk;k FkkA ykWt esa ge ykxs vkVks esa cSBdj x, FksA vfHk;qDr us izdk'k vkSj y{eh uke ejs s lkeus gh

fy[kok;k FkkA eSus xyr uke fy[kokus ds lca a/k esa vfHk;qDr dks euk ugha fd;kA

26- ge yksx jkr Hkj ykWt esa gh jgs FksA eSa ykWt esa :dus ds ckn ugkbZ /kkbs Z ugha FkhA ;g dguk lgh gS fd ge ykWt esa vna j ls rkyk yxkdj

ugha :ds FksA

27- geus ykWt esa [kkuk ugha [kk;kA ge [kkuk [kkus ykWt ds ckgj x, FksA ge [kkuk [kkdj vk/ks ?k.Vs esa okil vk x, FkAs geus gkVs y esa [kkuk

[kk;k FkkA

ukVs %& lk{kh us Lor% dgk fd eS vfHk;qDr ds lkFk jguk pkgrh gWwA

 31- ;g dguk lgh gS fd eSa vkjksih ds lkFk jkth[kq'kh xbZ

Fkh vkSj jkth[kq'kh okil vkbZA ;g dguk lgh gS fd

vfHk;qDr us ejs s lkFk dkbs Z tcjnLrh ugha dhA ;g dguk lgh gS fd vfHk;qDr us ejs s lkFk cykRdkj ugha fd;kA lk{kh us Lor% dgk fd eSa vfHk;qDr

ds lkFk ;gk ls tkuk pkgrh gWwA**

Otherwise also ample evidence is available in the crossexamination of the prosecutrix, which is more than sufficient to establish that she was a

consenting party, as she has admitted that she went with the appellant voluntarily on his motor-cycle and during their journey from the village upto

Ratlam, she had plenty of opportunities to call for help but she did not avail them. On the contrary, she has admitted that she was with the accused on

her own will, therefore, there was no doubt that prosecutrix was consenting party.

Now, the only question remains as to what was the age of the prosecutrix on the date of the incident. In this regard, the prosecution has only

produced certificate â€" Ex.P/21 issued by Principal of Government Girl's Middle School, Nayagaon, District-Neemuch certifying her date of birth as

20/10/1995, on the basis of scholar register of the school but neither the Principal was examined before the trial Court nor original scholar register was

produced or proved by the prosecution. This document is exhibited by the Investigating Officer Avinash Shrivastava â€" PW/11 who has only stated

that he obtained certificate from the Principal. Equally important fact is that the father and mother or any elder member from the family of the

prosecutrix has not been examined by the prosecution before the trial Court. No explanation was putforth by the prosecution for the lapse.

Undoubtedly, this lapse is fatal to the case of prosecution.

Though the prosecutrix has stated that in the mark-sheet of primary examination, 2009, her date of birth is mentioned as 20/10/1995 but she has

stated that her age is more than that mentioned in the mark-sheet and that her parents have mentioned her age in the mark-sheet on the lesser side.

She has admitted that her age may be 18 years. As stated above, parents have not been examined by the prosecution, though they are alive. Perhaps

in such circumstances while granting bail in M.Cr.C. No.465/2010 this Court has directed to conduct ossification test of the prosecutrix but such

ossification has never been conducted. This fact is also noticed by the learned trial Court in para 4 of the judgment. This further strengthened the

doubt regarding the age of the prosecutrix.

In Rajkumar and another vs. State of Chhattisgarh 2016 Cri.L.J. (NOC) 267 (CHH.), it is held that certificates mentioning date of birth of

prosecutrix cannot be held proved in absence of examination of its author.

In Raju vs. State of M.P. this Court passed order dated 22/03/2018 in Cri. Appeal No.1644/2015, para 10 of the judgment is relevant, which reads

thus :

The Hon'ble Supreme Court while dealing with the almost similar matter in the case of State of M.P. Vs. Munna, (2016) I SCC 696, para 6 to 13

has held as under:-

The High Court while setting aside the Trial Court judgment rightly appraised the evidence on record and held that the sexual intercourse was

consensual. In her statement the prosecutrix (PW5) states that she was sleeping between her mother and brother and the accused had reached her

after hopping over them and he dragged her into another room on the point of a knife. However, sneaking in with such ease is highly doubtful. Evene

if the accused made it through to the prosecutrix, it seems unnatural that the prosecutrix was not alarmed by the knife upon being awaken from her

sleep. It is also to be noted that the prosecution never recovered any knife. Further examination of the statement of PW5 that the accused and the

prosecutrix remained in the room for couple of hours and it was only when her mother and elder sister came searching for her that the prosecutrix

was found in the room with the accused, hiding behind the bags. The above narration leads to the inference that the prosecutrix was a consenting

party.

Section 375 (as it stood before the Criminal Law Amendment Act, 2013) of the Indian Penal Code, 1860 states -

Rape â€" A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under

circumstances falling under any of the six following descreiptions :Sixthly â€" With or without her consent, when she is under sixteen years of age."" In

light of the aforementioned provision, the second issue regarding the determination of age of the prosecutrix is crucial to establish whether the

respondent is liable for rape or not.

To prove its case, the prosecution produced evidences including school certificate, opinion of the doctor who conducted medical examination of the

prosecutrix, bonee ossification test, but the High Court held that none of them could bring home the case of the prosecution. The prosecution produced

school certificate of the prosecutrix and examined the Principal of Babu Manmohandas Hitkarini Girls Higher Secondary School, Dixitpura (PW1),

where the prosecutrix studied in her 9th standard. In his cross-examination, PW1 stated that the age of the prosecutrix was noted at the time of

admission but he had no knowledge about the fact as to what date of birth would have been mentioned in her letter of declaratikon. The examination-

in-chief of PW8 (Dr. Nisha Sahu) does not support the prosecution story. In her opinion, the girl could not have attained the age of 14 years, but

further in her examination-in-chief and cross-examination, she stated that she could not opine about the present intercourse. Other findings of PW8

are mere opinions and cannot be relied upon completely to establish the guilt of the accused.

From the X-ray report of the ossification test, the doctor opined that the age of the prosecutrix could not be more than 14 years. However, since the

doctor was never examined, the X-ray report is not sufficient to prove the age of the prosecutrix. The prosecutrix was examined as PW5 but the

prosecutrix failed to question the prosecutrix on her age, therefore no fact could be gathered from her regarding the issue of age. PW6 malti devi

mother of the prosecutreix was examined where she stated the age of prosecutrix to be 13 years. However, in her cross-examination, she stated that

her marriage was performed about 20 years ago and after two years of her marriage the elder daugher (sunita) was born, and 2-3 years thereafter the

prosecutrix was born. It means that the prosecutrix was aged about 15-16 years at the time of the incident. But this is not sufficient to come to any

conclusion about the exact age of the prosecutrix. It appears that the Ossification test x-ray report is not sufficient to prove the age of the girl. Further,

the mother of the prosecutrix also was not able to give the exact age of the prosecutrix. No question was also asked to the prosecutrix by the

prosecution about her age. Taking into account all these facts, the High court correctly came to the conclusion that the prosecution has totally failed to

prove beyod reasonable doubt that the girl was less then 16 years of age at the time of the incident. Therefore, the high court presumed that the girl

was more than 16 years of age was competent to give her consent.

10 this court in the case of Birad mal singhvi V. Anand purohit, (1988) supp. SCC 604, has held:

.... the entries regarding dates of birth contained in the scholar's register and the secondary school examination have no progative value, as no

person on whose information the dates of birth of the aforesaid candidates were mentioned in the school record was examined.

Further it was held by this court in the case of sunil v. State of haryana that : (SCC p. 750, para 26)

.... In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be

quite unsafe to base convition on an approximate date."" 12. In view of the evidence on record and the rationale in the aforementioned cases, we are of

a considered view that the prosecution has totally failed to prove beyond reasonable doubt that the girl was less than 16 years of age at the time of the

incident. Therefore, it can be held that the girl was more than 16 years of age and she was competent to give her consent as held by the high court

hence, in the present case, the question of rape does not arise as consensual intercourse has been proved.

Thus, in the light of the above discussion we are of the view that the present appeal is devoid of any merit, and we find no ground to interfere with

the judgment passed by the High Court. The appeal is, accordingly, dismissed.

It appears that substantial evidence has been withheld by the prosecution for reasons to the best of their knowledge but certainly it makes the case

of prosecution suspicious and benefit of suspicion or doubt will definitely go to the accused. The learned trial Court has not considered all these

evidence in right perspective, therefore, conclusions of the learned trial Court are not sustainable in the eyes of law.

The case of the prosecution is doubtful. The appellant is entitled for benefit of doubt. Consequently, extending the same, I acquit him from the

charges under Section 363, 366 and 376 of IPC by allowing the present appeal and setting-aside the judgment and order dated 28/06/2012 passed in

S.T. No.109/2009 by I ASJ, Neemuch. Appellant be set at liberty forthwith, if not required in any other case. Fine amount, if any deposited by the

appellant, be refunded him back. Motor-cycle, cash of Rs.960/- and Mobile Phone be released to the appellant and his Supurdaginama stands

discharged.

Order of the trial Court regarding disposal of rest of theproperty is hereby confirmed.