Sonoodas vs State of Madhya Pradesh

Pritinker Diwaker, J.—This appeal is directed against the judgment and order dated 19-1-1995 passed by Additional Sessions Judge, Baloda Bazar, District Raipur, in Sessions Trial No. 40/1987 convicting the accused/appellant for the offences punishable under Sections 366 and 376(A) IPC and sentencing him to undergo rigorous imprisonment for seven years on each count. Case of the prosecution in brief is that on 2-11-1986 written report Ex. P-8 was lodged by father of the prosecutrix namely Tara Chand Kurre alleging that his daughter had eloped with the present appellant. Based on this written report, FIR (Ex. P-21) was registered on 8-11-1986 at Police Station, Simga for the offences under sections 363, 366 and 376 IPC. Further case of the prosecution is that on 24-10-1986 accused/appellant had taken the prosecutrix by alluring to village Rohra where he committed forcible sexual intercourse with her. On 25-10-1986 he took the prosecutrix to Bhatapara where also he had physical relations with her. Thereafter, they came back to village Rohra where they stayed for one hour and then they went to village Khapri where they stayed in a house for three days where also she was subjected to sexual intercourse daily in the day and night as well. Then on 2-11-1986 they came back to village Rohra where on receiving the information police party reached and recovered the prosecutrix from the custody of the accused/appellant vide Ex. P-7.

So as to hold the accused/appellant guilty, prosecution has examined 12 witnesses in support of its case. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. Father of the posecutrix namely Tara Chand Kurre who had lodged the FIR could not be examined as he died during the pendency of trial.

After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned above.

Counsel for the accused/appellant submits that present is a case of consent where the prosecutrix (PW-4) visited various places in the company of the accused/appellant and remained with him for a period of 10 days but she did not make any effort to get herself freed from his clutches. He submits that in respect of age of the prosecutrix no concrete evidence is available on record on the basis of which it can be said that on the date of incident she was below 18 years of age. He submits that in respect of the age of the prosecutrix, the prosecution has filed her progress report Ex. P-5 but author of the same has not been examined nor there is any evidence available on record to show that on what basis her date of birth was recorded in the said document as 20-2-1971. According to the counsel for the appellant, the other piece of evidence in respect of her age is the report of ossification test given by Dr. S.C. Bishnoi (PW-12) running from Ex. P-22 to Ex. P-24 according to which the age of the prosecutirx at the relevant time was 15-16 years and it could be 18-19 years also.

On the other hand counsel for the respondent/State supports the judgment impugned and submits that present is a case where a minor girl was kidnapped by the accused/appellant and subjected to sexual intercourse during their visit to various places and therefore his conviction under sections 366 and 376 IPC is just and proper.

Prosecutrix (PW-4) has stated in her evidence that in the year 1987 when she was atone in her house, accused/appellant came there and asked for a glass of water. He then showed knife to her and asked her to accompany him. On account of fear she accompanied the accused/appellant who took her to village Rohra where she was kept in his house and then after staying there for one hour, they had gone to village Khapri where they stayed in a house for three days. According to her, when she was kept at village Rohra for one hour, the accused/appellant had committed forcible sexual intercourse with her. At village Khapri also where they had stayed for three days she was subjected to sexual intercourse daily in day and night. From village Khapri the accused/appellant took her to village Rohra and it is from that village the accused/appellant was arrested by the police. Undergarments of the prosecutrix were seized vide Ex, P-2 and then she was sent for medical examination. In respect of her age, the prosecutrix has stated that on the date of incident she was aged about 15 years. According to the progress report of the prosecutrix Ex. P-5 her date of birth is 20-2-1971. In cross examination this witness has stated that she has four brothers and one sister and amongst them her sister Kamala is the eldest and that she was born after her brother Vimal. According to her, at the relevant time her sister Kamala must have been 30 years of age though she could not tell it exactly. Her brother Kamal must have been aged about 28 years and one year after Kamal her another brother Vimal was born. However, according to this witness she is not aware of the exact age of her brothers but she has stated that she was born after her brother Vimal. She has stated that while traveling in the bus along with the accused/appellant she did not disclose to anyone about her being forcibly taken by him. She has stated that as accused/appellant was not permitting her to meet anyone and used to threaten her, she had not disclosed the incident to anyone. She has also stated that from Rohra she went to Bhatapara by bus in the company of the accused/appellant and then they boarded a train to go ahead but even then she did not disclose the incident to any of the passengers of the train. Lala (PW-1) is the witness of seizure of petticoat, underwear and certain other articles vide Ex. P-1. Fekuram (PW-2) is the witness of seizure of blood stained petticoat, underwear and progress report of the prosecutrix which were seized vide Ex. P-2 to P-5. This witness has stated that for some work he had gone to Bhatapara police station where his signature was obtained by the police on the documents of Ex. P-2 to P-5. Hiralal Tiwari (PW-3) Assistant Sub Inspector is the investigating officer who has fully supported the case of the prosecution. Dr. (Smt.) Vina Chandra (PW-5) who had medically examined the prosecutrix has stated vide medial report Ex. P-20 that she had not found any injury on her person and her hymen was old ruptured. Gaurishankar (PW-6) is the witness of Ex. P-7 by which the prosecutrix was recovered from the custody of the accused/appellant. Hiramandas (PW-7)-the Kotwar of the village is also the witness of Ex. P-7 by which the prosecutrix was recovered from the custody of the accused/appellant. Ramta Singh (PW-8) the Head Constable who had recorded the FIR Ex. P-21 has proved the same. Sharif Baeg (PW-9) is the witness of Ex. P-2 to P-4 by which the clothes of the prosecutrix were seized. Devcharan Verma (PW-10)-the witness of seizure of petticoat and blouse of the prosecutrix has not supported the case of the prosecution and has been declared hostile. Dr. S.C. Bishnoi (PW-12) who had conducted the radiological examination of the prosecutrix has stated vide report Ex. P-22 to P-24 that her age at the relevant time was between 15 and 16 years but this age is not decisive and there may be variation of three years on either side and that way her age at the relevant time could be 18-19 years also.

The core question to be decided by this Court is whether the prosecutrix was below 16 or 18 years of age on the date of incident. Dr. S.C. Bishnoi (PW-12) who had conducted radiological examination of the prosecutrix has stated in his evidence that at the relevant time she could be 18 and 19 years of age also. Other piece of evidence in this regard is her progress report in which her date of birth is mentioned as 20-2-1971. This document has been exhibited at the instance of the prosecutrix but author of the same has not been examined by the prosecution. Thus there is no primary evidence available on record to show as to on what basis her date of birth was recorded as 20-2-1971. Neither the principal of the school nor any teacher thereof has been examined by the prosecution in this regard. The prosecution has also not established the fact as from where the progress report of the prosecutrix mentioning her date of birth as 20-2-1971 has been seized. Even if the statement of the prosecutrix that age of her eldest sister Kamla at the relevant time was 30 years and after her, brother Kamal was born whose age at the relevant time was 28 years and then another brother Vimal was born and it is after him she was born is taken to be correct; uncertainty regarding the same remains as it is, Moreover, the prosecutrix herself has categorically stated that the age of her elder brother Kamal and sister Kamla has been disclosed on assumption only.

Thus the prosecution has utterly failed to collect any concrete material to the effect that on the date of incident the prosecutrix was below 16 or 18 years of age. The so called progress report mentioning the date of birth of the prosecutrix as 20-2-1971 has no value in the eye of law unless its origin is proved by the prosecution. In this view of the matter, the benefit of doubt has to go to the accused/appellant. This apart, while being in the custody of the accused/appellant the prosecutrix visited various places by walk, by train and by bus also but her being mum throughout this period reflects that she was a consenting party to the act of the accused/appellant.

Accordingly, this Court is of the considered view that the Court below has not considered the evidence on record in its proper perspective and thereby has fallen in a serious legal error in convicting and sentencing the accused/appellant as mentioned above, by the judgment impugned. Resultantly, the appeal is allowed. Impugned judgment dated 19-1-1995 is hereby set aside. Appellant is acquitted of the charge levelled against him. He is already on bail. His bail bonds stand discharged.