Sukhdeo vs State of M.P.

U.C. Maheswari, J.—The appellant/accused has preferred this appeal being aggrieved by the judgment dated 19.9.1996 passed by IInd Additional Sessions Judge, Kami in Sessions Trial No. 380/92, convicting him u/s 376 of I.P.C. for RI seven years with fine of Rs. 1000/- and in default of depositing the same, further six months RI has been awarded. The facts giving rise to this appeal in short are that, on dated 15.3. 1992, at about 11.30, the prosecutrix Rubban Bhumia (PW-1) D/o Girwar Singh, aged about 15 years, lodged the First Information Report at Police out-post Salaiya, Police Station Rithi, District Katni, contending that she along with her younger sister residing with the parents at village Chargawan. Her father being Railway employee is working at Sagar, while she along with her mother is cultivating their agricultural field of the village. Before one year, she alone went to the field in connection of harvesting the crop where the appellant came and asked her to perform the intercourse with her. She refused, on which, by giving the criminal threat to burry her in the field, after throwing her on the floor, committed bad act on her. Due to fear of the life from the appellant, she did not narrate such incident to anyone. Subsequent to this in next for 5-6 days, whenever she went to the field, on seeing her alone there, the appellant repeated such act on such occasions. Besides this, whenever she visited the Forest for bringing the firewood, there also on various occasions under criminal threat, appellant committed such act with her. But due to fear of the appellant such incident was also not mentioned to anyone. On some occasion, appellant told her that if anything is happened with her then, he will make arrangement for her treatment or, in any case, he will keep her as his wife. The appellant was used to say her that if his aforesaid act is stated by her to anyone then, he will kill her. On a day the mother of the posecutrix after seeing her pregnant asked the name of person from whom she became pregnant ? On which, she apprised her mother with the entire act of the appellant. Thereafter, she accompanied with her father came to Police out-post and lodged the aforesaid report. After registering the offence of Section 376 of IPC against the appellant, she was sent to hospital where after medical examination her M.L.C. report was prepared and to ascertain her age, the Ossification test was also carried out, in which her age was found between 15-17 years. On completion of the investigation, the appellant was charge-sheeted for the abovementioned offence.

After committing the case to the Sessions Court on framing the charge of Section of 376 of I.P.C., against the appellant, he abjured the guilt on which, the trial was held. On appreciation, the appellant was held guilty of such offence and was punished with the above mentioned punishment, on which, this appeal has been preferred.

Learned appearing counsel of the appellant after taking me through the record of the trial Court by referring the deposition of the prosecutrix Rubban Bhumia (PW-1) and her father Girwar Singh (P.W-2) argued that on proper appreciation of the same, it was a out right case of consent between the appellant and the prosecutrix. In continuation he said that, as per depositions of the prosecutrix and her father, long before committing the alleged act by the appellant on the prosecurtirx, she got married with some other person with whom she was not residing and in such premises, from the day first on which firstly she was subjected to intercourse by the appellant upto lodging the First Information Report, it was well known to the prosecutrix that she being married with some other person, could not get re-marry with the appellant unless the decree of divorce is passed between her and her husband with whom she is married. Keeping in view such thing if the entire case is examined, then for the sake of argument for one or two occasion, it could be deemed that under the alleged threat or any other type of the undue pressure, the alleged act could have committed by the appellant with the prosecutrix, but in the regular course for month''s together or more than one year without implied consent of the prosecutrix the same could not be committed on her by the appellant. So, apparently, it is a case of consent. Even after holding the case of consent, the Court has to ascertain the age of the prosecutrix, if the same is found more than 16 years, then the impugned conviction of the appellant, in view of, aforesaid consent of prosecutrix, could not be sustained and if her age is found to be below 16 years, then even on holding that the alleged intercourse was committed by the appellant with her consent, the appellant could not be acquitted from the alleged charge. By referring the deposition of Dr. Shobha Sahu (PW-11), who carried out the Ossification Test of the prosecutrix and gave her report (Ex.P-19) on the basis of X-ray plates marked as (Ex.P. 19-A and Ex. P. 19-B), he argued that according to this witness on the date of examination, the prosecutrix was of the age between 15 to 17 years. Besides this, Dr. Rupa Lalwani (PW-6), who medically examined the prosecutrix and prepared her MLC report (Ex.P. 15), in cross-examination, categorically stated that probable age of the prosecutrix was between 15 to 16 years. So, in such premises, there was no occasion before the trial Court to hold the age of the prosecutrix less then 16 years. With these submissions, he said that the impugned conviction of the appellant being unsustainable by setting aside the same, he be acquitted from the aforesaid charge by allowing this appeal.

On the other hand, responding the aforesaid arguments Shri Rakesh Kesherwani, learned Panel Lawyer by justifying the impugned conviction and sentence of the appellant said that such approach of the trial Court being based on proper appreciation of the evidence, do not require any interference at this stage either for holding the age of the prosecutrix below 16 years or to hold that it was a case of consent. In continuation he said that, looking to the testimony of the prosecutrix even on holding her age more than 16 years, the impugned case could not be treated to be a case of consent because under the assurance of the marriage, the alleged act were committed by the appellant with her, so, in such premises, the impugned appeal being devoid of any merit, deserves to be dismissed and prayed for the same.

Having heard the counsel, keeping in view their arguments, I have carefully gone through the record of the trial Court along with the findings of the impunged judgment.

The prosecutrix Rubban Bhumia (PW-1) on recording her deposition in para 4 of her cross- examination categorically stated that before happening the alleged incident, she got married but was not residing with her husband. She further stated that her husband has not committed any intercourse with her. She categorically admitted in her deposition that the alleged intercourse were happened between the appellant and her on various occasions. True it is that simultaneously she stated that such act were committed by the appellant by giving threat to kill her, but in para 6 of the cross- examination, she stated that due to aforesaid act of the appellant, she got pregnancy and gave a birth to a girl, who died lateron. She also stated that when appellant refused her to keep with him as his wife, then only, the matter was reported to the police otherwise, she did not want to report the matter. This conduct of the prosecutrix reflects that from the day first upto the date of lodging the First Information Report, on every alleged occasion the alleged intercourse was carried out by the appellant with the prosecutrix with her consent. But on disclosing the fact of pregnancy before her mother and thereafter, on refusing by the appellant before the Community Panchayat to get marry with the prosecutrix, the matter was reported to the police and the appellant was implicated in the matter. Besides this deposition of the prosecutrix, her father Girwar (PW-2) on recording his deposition categorically stated that after coming to know that her daughter Rubban Bhumla, has become pregnant from the appellant then, he requested to his Community Panchayat to resolve such dispute, on which a Panchayat of the Community was also scheduled and carried out, in which, appellant refused to get marry with the prosecutrix, on which, he accompanied with the prosecutrix went to the Police Station and lodged the report.

After going through the depositions of aforesaid both the witnesses, I have not found single line or the word showing that before holding the aforesaid Community Panchayat or during the course of such Panchayat, the prosecutrix had got divorced from her husband with whom she was married. Thus, in the lack of such divorce between the prosecutrix and her husband even on giving the consent by the appellant before the Community Panchayat to get marry with the prosecutrix, such marriage between the appellant and the prosecutrix was not possible because during subsisting the earlier marriage of prosecutrix, she could not get remarry with the appellant. In such premises, on taking into consideration the entire scenario of the case, it appears that from the day first she developed the physical relations with the appellant voluntarily having the knowledge that she being married with some other person, could not get marry with the appellant, continued such relations with the appellant for a long period by which she also got pregnancy. Thereafter, only on coming to know such relations of her with the appellant by her parents, then at the first time the allegation of criminal threat and intimidation were alleged against the appellant by the prosecutrix and her parents. It is apparent fact on record that before lodging the report, at any point of time, either at the field or in the Forest where there the alleged intercourse/rape were committed by the appellant on the prosecutrix, no shouting was made by the prosecutrix. This circumstances also shows that such act were carried out between the appellant and the prosecutrix with their consent.

Now, I proceed to examine the record to ascertain the correct age of the prosecutrix on the date of the alleged incident as well as on the date of lodging the impugned First Information Report. True it is on recording the deposition of the prosecutrix Rubban Bhumia (PW-1) on dated 21.12.1993, she recorded her age 15 years, but her father Girwar (PW-2), on recording his deposition has not stated the exact or the approximate age of the prosecutrix. So, in such premises, it is apparent fact on record that the parents of the prosecutrix has not proved the date of birth and age of the prosecutrix. When the father of the prosecutrix has not stated any thing regarding her age then mere on deposition of the prosecutrix, her age could not be determined to be 15 years at the time of alleged incident or, in any case, on the date of registration of the offence. So, at this stage Court has to consider the available medical evidence to ascertain the age of the prosecutrix.

Dr. Rupa Lalwani (PW-6) who after examining the prosecutrix, prepared her MLC Report (Ex.P-15), on recording her deposition in paragraph 3 of her cross-examination, categorically stated that she shown the probable age of the prosecutrix between 15 to 16 years and to find out her correct age, she advised for X-ray. It is apparent that on such advise, the X-ray and Ossification test was carried out by Dr. Shobha Sahu (PW-11), who after carrying out the X-ray (Ex.P. 19-A) and (Ex.P. 19-B), of the prosecutrix gave her report (Ex.P. 19). The same have been proved by her in her deposition. According to which, the age of the prosecutrix was found to be between 15 to 17 years. It is settled proposition of law that where there are two views or two probable circumstances are available on the record and out of them, if the Court has to adopt one view or circumstance, then the Court is bound to adopt the view which is favourable to the accused. In such premises, if the upper side age of the prosecutrix as stated by Dr. Shobha Sahu (PW-11) is taken into consideration, then her age comes to 17 years. The same is hereby held.

After holding the age of the prosecutrix 17 years i.e. more than 16 years, in view of the aforesaid elaborate discussions, in which the alleged act of the appellant with the prosecutrix was found to be with her consent, the approach of the trial Court holding conviction against the appellant u/s 376 of I.P.C. being perverse to the available record, is not sustainable hence, the same is hereby set aside.

In view of the aforesaid, by allowing the appeal, the impugned judgment holding conviction against the appellant u/s 376 of I.P.C., is hereby set aside. Pursuant to it, the awarded punishment is also set aside and the appellant is acquitted from such charge. The amount of fine if deposited by the appellant then after proper verification, the same be refunded to him. The ball bond of the appellant is discharged. Appeal is allowed as indicated above.