Sukhram vs State Of Madhya Pradesh

Rajeev Kumar Dubey, J

This criminal appeal has been filed under Section 374 of the Cr.P.C. against the judgment dated 22.12.2009 passed by Sessions Judge, Sagar in

Sessions Trial No.402/2009, whereby the learned Sessions Judge found appellant guilty for the offences punishable under Sections 376 (2)(f), 366, 363

& of IPC and sentenced him to life imprisonment with fine of Rs.5000/-, ten years R.I. with fine of Rs.2000/- and seven years R.I. with fine of

Rs.2000/- with default stipulation.

In brief the prosecution case is that on 11.03.2009 at 04:00 PM, when prosecutrix (name and identity of the prosecutrix imposed by law contained in

section 228A of IPC is not disclosed) who was minor (below 12 years of age) was standing near her house situated in the village Dhana, applicant

came to her and after giving inducement of payment took her to his house. At that time there was nobody in the house. Appellant after bolting the

door of the room of his house undressed her and himself got undressed and committed rape with her due to which blood oozed out from her vagina.

He wiped that blood from her panty. As prosecutrix shouted and wept, he left her and gave her a ten rupee note and asked her not to tell anything to

anybody about the incident. Thereafter, prosecutrix (PW/1) went to her house and narrated the incident to her mother Premrani @ Tulsa Bai (PW/2).

On that Premrani @ Tulsa Bai Bai (PW/2) went to appellant’s house along with prosecutrix to reproach him. At that time, Pancham Chadar

(PW/4), Manoj Sen (PW/5) and Roopesh Mishra also came there. Prosecutrix narrated the incident to them too and then prosecutrix’s

parents’ took her to Police Station Naryawali, District Sagar where she lodged the report of the incident (Ex.P/1) which was written by

Purushottam Kosti, Head Constable (PW/11) who registered Crime No.51/2009 for the offence punishable under Section 376 of IPC and investigated

the matter. During investigation, he seized ten rupee note from the possession of prosecutrix which was given to her by the appellant and prepared

seizure memo (Ex.P/2), sent prosecutrix for medical examination to District Hospital, Sagar along with application (Ex.P/12) where Dr. C.S. Stephen

(PW/7) examined the prosecutrix and gave MLC report (Ex.P/7). She also prepared slide of vaginal swab of prosecutrix and seized her panty which

was soaked with blood and sent these articles to police station Naryawali through Constable Govind in sealed packet. At the police station that packet

was seized by the Purushottam Kosti who prepared seizure memo (Ex.P/14). Further investigation was conducted by Bharat Singh Thakur, Sub-

Inspector (PW/11) and during investigation he went to the spot and prepared spot map (Ex.P/3) and also arrested appellant and prepared arrest memo

(Ex.P/6) and on the information of appellant seized one blood soaked panty of the prosecutrix and prepared memorandum (Ex.P/4) and seizure memo

(Ex.P/5). He also sent appellant to District Hospital Sagar for medical examination along with application (Ex.P/16) where Dr. A.K. Kastwar

examined the appellant and gave report (Ex.P/10). He also seized his brief and sent it to P.S.Naryawali in sealed packet which was seized by Bharat

Singh Thakur (PW/11) who prepared seizure memo (Ex.P/15). He also recorded the statements of prosecutrix (PW/1), Premrani @ Tulsa Bai

(PW/2), Preetam (PW/3), Pancham (PW/4), Manoj (PW/5) and Roopesh Mishra. He also sent all the seized articles for chemical examination to FSL,

Sagar along with the draft Ex.P/17. Dr. Jignesh Diwakar (PW/9) conducted ossification test of prosecutrix regarding estimating her age and gave

report (Ex.P/11) to the effect that prosecutrix was below 12 years of age. After investigation police filed charge sheet against the appellant before

Judicial Magistrate First Class Sagar, who committed the case to the Court of Sessions. On that S.T.No.402/2009 was registered which was tried by

learned Sessions Judge Sagar and framed the charge against the appellant for the offences punishable under Sections 363, 366 (A), 376 (2)(f) of IPC.

The appellant/accused abjured his guilt and took the defence that he is innocent and has falsely been implicated in the case. In this regard he also

produced Jeewan Dhanak (DW/1) in his defence. However, after trial learned Sessions Judge found the appellant guilty for the offences punishable

under Sections 363, 366 & 376(2)(H) of IPC and sentenced him as aforesaid. Being aggrieved from that judgment, appellant filed this Criminal

Appeal.

Learned counsel for the appellant submitted that prosecution did not produce any reliable evidence regarding proving the age of the prosecutrix at

the time of incident. Her mother Premrani @ Tulsa Bai (PW/2) did not depose anything regarding her age. From the statement of Premrani @ Tulsa

Bai (PW/2) mother of the prosecutrix it appears that at the time of incident prosecutrix was studying in class fifth. But prosecution did not produce

school entry register or any other document for proving her age. Learned trial court only on the basis of ossification test report held that the

prosecutrix was below 12 years of age at the time of incident. While on the basis of ossification test, only approximate age can be stated, which has a

difference of upto 2 years. Even in the ossification test report, it is mentioned that the age of the prosecutrix was between 9 to 12 years. It is

submitted that giving the benefit of 2 years, the age of the prosecutrix comes to 14 years. Learned trial court without appreciating these facts wrongly

found that at the time of incident the prosecutrix was below 12 years of age. So conviction of the appellant under Section 376 (2)(f) is not proper and

bad in law. It is further submitted that regarding rape also there are many contradictions and omissions in the statements of prosecutrix and her

parents. They all are of the same family and interested witnesses. According to prosecution story, appellant committed rape with the prosecutrix in his

house at 04:00 PM. But appellant’s house is situated in a populated locality. It is surprising that in the noon around 4 o'clock nobody saw the

appellant and the prosecutrix going to the place of incident. Learned Trial Court without appreciating these facts wrongly found the appellant guilty for

the aforesaid offence. Hence, counsel prayed that the impugned judgment be set aside and the appellant be acquitted of the said offences.

On the other hand, learned counsel for the respondent/State has vehemently opposed the submissions of the learned counsel for the appellant and

fully supported the judgment of the Trial Court and submitted that in the ossification test report estimated age of the prosecutrix is mentioned to be

below 12 years. So, learned trial Court did not commit any mistake in finding that the prosecutrix was below 12 years of age at the time of incident

and regarding incident the statement of prosecutrix is corroborated by the statement of her mother Premrani @ Tulsa Bai (PW/2) father Preetamlal

(PW/3) and other witnesses and also corroborated by the statement of Dr.S.C. Stephen (PW/7) who examined the prosecutrix soon after the incident.

So learned trial court did not commit any mistake in finding the appellant guilty for the aforesaid offences and prayed for rejection of the appeal.

For disposal of this appeal the points for determination are as follows. :-

(i) Whether prosecutrix was below 12 years of age on the date of incident.

(ii) Whether on 14.03.2009 at about 4 PM appellant abducted prosecutrix and took her to his house and where he committed rape with her.

As regard to the age of the prosecutrix at the time of incident, Dr. Jignesh Diwakar (PW/9) who gave ossification test report (Ex.P/11) deposed

that on 14.03.2009 he was posted as Medical Officer in District Hospital, Sagar and took x-ray of the prosecutrix’s wrist, right elbow, right hip and

right Knee for determination of her age. In the x-ray he found that

(i) The epiphysis of head of radius bone had begun to show, which appeared at the age of 6 years,

(ii) The epiphysis of lower and of ulna bone had begun to show, which appears at the age of 8 years.

(iii) The epiphysis of olecranon process had begun to show, which appears at the age of 9 years.

(iv) pisiform bone was not seen which appears at 12 years of age,

(vi) epiphysis of iliac crest was not seen which appears at 14 years of age.

On that basis he ascertained the age of the prosecutrix above 9 years and below 12 years. Learned counsel for the appellant submitted that the age

estimated on the basis of ossification test is not the exact age, there is a possibility of margin of error of two years, in that estimated age and the view

in favor of the appellant/accused should be taken into consideration. So it should be held that on the date of incident, the prosecutrix was above 12

years of age. But the submission made by the learned counsel of the appellant cannot be accepted. There is no hard and fast rule, that the said margin

of two years should always be taken on the higher side. Whether the margin of error of two years, is to be taken on lower side or on higher side,

would depend on the facts and circumstances of each case. Apex court in the case of Ram Suresh Singh Vs. Prabhat Singh reported in (2009) 6 SCC

681 held “We are not oblivious of the fact that it is difficult to lay down a law as to whether in a case of this nature, the lower or the upper age or

the average age should be taken into consideration. Each case depends on its own facts.

In this case appellant did not challenge the statement of Dr. Jignesh Diwakar (PW/9) regarding the estimated age of the prosecutrix. Although

prosecution did not produce school admission register for proving her age.

But prosecutrix (PW/1) herself and her father Pritam Lal (PW/3) deposed that the age of the prosecutrix was 11 years at the time of incident.

Appellant also did not challenge their statements on that point in his cross-examination. Learned Trial Court also estimated prosecutrix’s age as 11

years as mentioned in the deposition sheet. Even Lady Doctor Dr.C.S. Stephen (PW-7) who examined the prosecutrix soon after the incident also

deposed that in the examination of prosecutrix she found that her secondary sex characters were not developed. Her menstruation had also not

started. She also mentioned her age as 11 years in her report. So in the considered opinion of this Court, learned trial court did not commit any mistake

in finding that at the time of incident prosecutrix was below 12 years of age.

Regarding incident, prosecutrix in her statement clearly deposed that on the date of incident at 04:00 PM when she was standing near her house

applicant came there and took her to his house and after bolting the door of the room he committed rape with her due to which blood was oozing out

from her private part. Applicant wiped out that blood by his brief and thereafter he gave her a ten rupee note and told her to go to her house.

Thereafter, she came to her house and narrated the incident to her mother. Her parents took her to police station Naryawali for lodging the report

where she lodged the report (Ex.P/1). In this regard, her statement is also corroborated by the FIR (Ex.P/1) which was also proved by Purushottam

(PW/10) who wrote that FIR. Her statement is also corroborated by the statement of her mother Premrani @ Tulsa Bai (PW/2) who deposed that

after the incident as prosecutrix came to her house her clothes were stained with blood and she hold her that appellant had committed rape with her.

On that she informed her husband and by the statement of Preetam (PW/3) father of the prosecutrix who also deposed that on the information he

reached his house where he saw that prosecutrix’s clothes were stained with blood where she narrated the incident and told that appellant had

committed rape with her and also supported by the statements of Manoj (PW/5) who also deposed that on the date of incident prosecutrix narrated the

incident to him that applicant had committed rape with her and also deposed that he had seen the prosecutrix coming out from the house weeping after

the incident and by the statement of Pancham (PW/4) who deposed that soon after the incident mother of the prosecutrix Premrani @ Tulsa Bai

(PW/2) came to appellants’s shop along with the prosecutrix and told him that appellant had committed rape with her daughter.

Regarding rape prosecutrix’s statement is also corroborated from the statement of Dr. C.S. Stephen(PW-7) who examined the prosecutrix

soon after the incident and gave report (Ex.P/7). She deposed that on 12.03.2009 she was posted as Medical Officer at CHC Khurai, District Hospital

Sagar and on the said day she examined the prosecutrix and found following injuries on her body. Her general condition was not good. She was in

semi conscious state and in the internal examination she found that her secondary sex characters were not developed. Her menstruation had also not

started. Blood was continuously oozing from her vigina and her hymen was torn up and there was repeated bleeding on touching. The internal part of

vagina was also torn up more than second degree. Between the anus and torn part, a little bit space remained. Rectum was also torn and it was a

bleeding from it. She further deposed that in her opinion there was a high probability of rape. In this regard her statement was also corroborated from

the report (Ex.P/7). She also denied from the suggestion given by the appellant in her cross examination that injury found by her in the genitals of the

prosecutrix could be caused, due to fall on a sharp thing.

Although appellant took the defence that he has falsely been implicated in the case because of quarrel with prosecutrix’s father Preetam on

the date of incident with regard to which he also produced Jeevan (DW/1) in his defence, But jeevan (DW/1) only deposed that on the date of incident

he heard that a quarrel took place in between Sukhram and Preetem, but he is only a hearsay witness. So the statement of Jeewan (DW/1) is not

admissible in evidence. There is no other evidence on record to show that the prosecutrix wrongly implicated the appellant in the crime. If appellant

did not commit rape with the prosecutrix why she would falsely implicate him. On the point that at the date of incident appellant abducted prosecutrix

from near her house, where she was standing and took her to his house where he committed rape with her. The statement of prosecutrix (PW/1) is

also corroborated by the statement of her mother Premrani @ Tulsa Bai (PW/2) father Preetam (PW/3) and the medical evidence also. Regarding

incident prosecutrix’s statement is also corroborated by the statement of Manoj (PW/5) and Pancham (PW/4) who are the independent witnesses.

There is no infirmity in the statements of above mentioned witnesses. There is no evidence on record which shows that these witness had any

animosity with the appellant or any other reason to falsely implicate appellant in the crime. Appellant cross examined all these witnesses at length but

nothing came out in their cross examinations which could show that these witnesses gave false statements against appellant. So there is no reason to

disbelieve their statements regarding the incident.

From the prosecution evidence as discussed above, it is clearly proved that on 14.03.2009 at about 4 PM appellant abducted prosecutrix who was

below 12 years of age and took her to his house and where he committed rape with her. So in the considered opinion of this Court learned trial court

did not commit any mistake in finding appellant guilty for the offences punishable under sections 376(2)(f), 366 & 363 of IPC.

Learned Trial Court awarded the appellant with the sentence of life imprisonment with fine of Rs.5000/-, ten years R.I. with fine of Rs.2000/-and

seven years R.I. with fine of Rs.2000/- with default stipulation respectively looking to the gravity of offence that appellant committed rape with the

prosecutrix who was below 12 years of age and the injuries sustained by the prosecutrix in the incident in her private parts as mentioned above. The

sentence awarded by the trial court is also appropriate and there is no need to interfere with the sentence. Hence, appeal filed by the

appellant/accused stands dismissed. The appellant, who is in the custody, shall serve the remaining part of the sentence, in accordance with law. All

the jail sentences shall run concurrently. The period already undergone shall be set off from the period of substantive jail sentence.

Accordingly, the appeal stands dismissed.