The State of Madhya Pradesh vs Shankar Kol

N.K. Gupta, JJ.—Heard on admission.

By the present application, the State has sought for grant of leave to appeal against the judgment dated 13.10.2011 passed by the Additional Sessions Judge, Sidhi in ST No. 166/2010 whereby the respondent was acquitted from the charge of offence punishable under Sections 376(1) of IPC.

The prosecution case, in short, is that the prosecutrix (PW-3) aged 14 to 15 years of age was in habit to visit the house of the respondent at Village Khirkhori to watch T.V. One day the respondent committed rape upon her, and therefore she got a pregnancy. The prosecutrix told the story to her mother and aunt, however the respondent went to Rajasthan in those days. On 3.2.2007 the prosecutrix had lodged an FIR at Police Station Kotwali District Sidhi. On her medical examination Dr. Sunita Tiwari (PW-1) has found that she had pregnancy of 24 to 26 weeks and thereafter she was directed for radiological examination. In her radiological examination, her age was found to be 14 to 15 years. After due investigation the charge sheet was filed.

After considering the prosecution evidence and submissions made by the learned counsel for the appellant-State, it appears that the prosecutrix kept silence till her pregnancy of 24 to 26 weeks was developed, and therefore her FIR was six months delayed. She did not say that immediately after the incident she intimated about the incident to her mother or aunt. But when her abdomen was found enlarged and she was asked, then she told about the incident to her mother. Under such circumstances, the consent of the prosecutrix is apparent. But consent has no meaning if the prosecutrix was below 16 years of age at the time of incident. Hence assessment of age was an important ingredient in the present case.

The learned counsel for the State has invited attention of this Court to the statement given by Dr. Sunita Tiwari (PW-1) that first menses of the prosecutrix was started one year prior to her examination and her secondary sex characteristics were not fully developed. Under such circumstances, where generally the menses starts at the age of 12 to 13 years, the learned counsel for the State has submitted that the prosecutrix was below 15 years of age at the time of incident. In this connection the ossification test report is also proved by Dr. Sunita Tiwari in which it was mentioned that she was between 14 to 15 years of age. However, in such computation of the age, two years may be added on both the sides, and therefore other facts are to be examined so that it can be considered as to whether two years may be added or deleted in computation of age.

In this connection, the evidence given by Ramrati (PW-4) aunt of the prosecutrix is important. In para 6 of her statement, she has admitted that the prosecutrix was residing as a wife with someone else at Village Banjari and thereafter she started living with another person at village Banjari and at present she was residing at Village Sonavarsha with her husband. The testimony of this witness is duly corroborated by Dr. Sunita Tiwari that she found the prosecutrix to be habitual for intercourse. If the prosecutrix was a minor girl and had intercourse only for once, then such indication could not be observed by Dr. Sunita Tiwari that she was habitual to do intercourse, and therefore according to the statement of Ramrati the prosecutrix enjoyed as a wife of two different persons prior to alleged incident, and therefore it cannot be said that she was a minor girl. Lehriya (PW-5) father of the prosecutrix has accepted that he had 11 children and out of them the prosecutrix was 5th one. The elder sister of the prosecutrix was Guluwa and Guluwa was 24 years of age at the time of deposition given by Lehriya. Each child of Lehriya was born after one year of the previous child, and therefore according to the statement of Lehriya, the prosecutrix was 23 old at the time of his deposition. Lehriya examined on 18.4.2011 whereas the incident took place in August 2006, and therefore according to the calculation of age told by Lehriya the prosecutrix was above 17 years of age at the time of incident. Under such circumstances, it was necessary for the learned Additional Sessions Judge to add two years in the ossification computation of age of the prosecutrix, and therefore if it was found that the prosecutrix was above 16 years of age, then nothing wrong has been done by the learned Additional Sessions Judge.

The prosecutrix was above 16 years of age at the time of incident and she was a consenting party, therefore the respondent could not be convicted for the offence u/s 376 of IPC. The learned Additional Sessions Judge has rightly acquitted the respondent for the aforesaid charge.

On the basis of the aforesaid discussion, there is no reason so that any interference can be done in the impugned judgment passed by the trial Court by granting leave to appeal. Consequently, the present application filed by the applicant-State is hereby dismissed at motion stage.

A copy of this order be sent to the trial Court along with its record for information.