Uttam Singh vs The State of Madhya Pradesh

Tarun Kumar Kaushal, J.—This appeal has been preferred against the judgment dated 25/3/1996 passed by Special Judge, Jabalpur in Special Case no. 30/1995 convicted the appellant u/s 376 IPC and sentenced to 7 years R.I and Rs.1000/-fine and convicted u/s 366 IPC and sentenced to 3 years R.I and Rs.1000/- fine.

Facts of the case, in short, are that on 21/02/1995 prosecutrix (PW-1) aged about 15 years, was taken by the appellant promising her to marry. They stayed in a hotel at Pipariya in the night. Thereafter they lived together for about a month at various places. During aforesaid period prosecutrix was subjected to rape and intercourse.

On 29/03/1995 at about 5.00 P.M prosecutrix leaving appellant came back to house of in-law of her brother and then to her parent''s house and lodged FIR Ex.P-1 at police station Chargawan. A case at crime no. 40/1995 u/s 363, 366, 376 IPC and u/s 3(1)(11), The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short SC/ST Act) was registered. Prosecutrix was sent for her medical examination. For ascertaining her age she was subjected to X-ray examination. On 01/04/1995 the appellant was arrested and sent for his medical examination. Completing investigation, citing 24 witnesses, police Chargawan committed the charge sheet against the appellant for aforesaid offence.

Trial Court framed charges u/s 363, 366, 376 IPC and u/s 3(1)(11) SC/ST Act against the appellant. Appellant abjured guilt. Defence of the appellant was that of false implication stating that it was a case of consent.

To substantiate the case of prosecution, statements of prosecutrix (PW-1), Halke Bai, mother of prosecutrix (PW-2), Subhadra Bai, sister-in-law (PW-3), Rajaram, father of prosecutrix (PW-4), Bind Kumar (PW-5), Kandhilal (PW-6), Dr. S.D. Menon (PW-7), Sushil Kumar (PW-8), Dr. Pradeep Agrawal (PW-9), Dr. C.S. Sharma, Radiologist (PW-10), and Vishram Singh (PW-11) were recorded. Appreciating aforesaid evidence, Trial court acquitted the appellant of the charge u/s 3(1)(11), SC/ST Act. However, convicted and sentenced him as above.

This appeal has been preferred on the grounds that appreciation of evidence is not proper. Appellant convicted on the basis of insufficient and doubtful evidence. There is sufficient material on record to show that prosecutrix was not minor girl rather she had attained the age of discretion. On the other hand, learned Panel Lawyer supported the finding of conviction and sentence both.

Prosecutrix (PW-1) stated that while she was going for labour work from her house, met the appellant. Appellant used to show his liking and sincere interest in her. She followed appellant and after spending whole day at Jabalpur proceeded to Pipariya in train. Stayed in hotel at Pipariya in the night. Spent a period of about more than a month with him at various places. While they stayed in hotel at Pipariya, they pretended to be husband and wife. During the aforesaid period on various occasions appellant committed intercourse on her.

On careful examination of statement of prosecutrix, it has been revealed that during aforesaid period in market, on station, in different villages, in the house and in talkies though prosecutrix had various opportunities to show her unwillingness and her resistance, but she failed to show. In such situation, there remains no doubt to hold that it is a case of consent.

In so far as evidence regarding age of the prosecutrix is concerned, trial court recorded statement of prosecutrix on 05/07/1995 and mentioned her estimated aged on deposition sheet to be 15 years. Similarly Dr. C.S. Sharma,Radiologist (PW-10) took her X-ray on 23/03/1995 and submitted report Ex.P-7 and deposed his statement in court on 29/11/1995 and stated her age to be 15 years.

In FIR Ex.P-1 in her police statement Ex.D-1, in MLC report Ex.P-3, in Japti Panchnama Ex.P-9, prosecution mentioned her age to be 16 years. On the basis of evidence of school record i.e. copy of register Ex.P-2 that has been proved by Bind Kumar (PW-5) date of birth was shown as 01/03/1979, thereby the age of prosecutrix was about 16 years.

Learned counsel for the appellant submitted that age of prosecutrix as per school record though said to be 16 years on the basis of her date of birth 01/03/1979, recorded in register, but this evidence is not conclusive. Cross examination of Rajaram (PW-4) father of prosecutrix, Dr. C.S. Sharma,Radiologist (PW-10) had also been emphasized on the point of age of prosecutrix.

It is pertinent to note that though in school record date of birth of prosecutrix was mentioned as 01/03/1979, but Rajaram, father of prosecutrix (PW-4) did not say in the court that her date of birth is 01/03/1979. Halke Bai, mother of prosecutrix (PW-2) in fact did not know the correct age and date of birth of prosecutrix. In such situation, it cannot be presumed that the school record is showing the correct age of the prosecutrix in terms of date of birth. Law is settled on the point that school record is not the ultimate proof of age. Date of birth has to be proved by such basic evidence having knowledge of date of birth with authenticity.

On perusal of cross examination of Rajaram (PW-4) and Dr. C.S. Sharma, Radiologist (PW-10), it is on record that prosecutrix might be of age 18 years. It is not out of place to mention that the evidence of Ex.P-5 register of hotel at Pipariya the prosecutrix mentioned her age to be 19 years.

As discussed above, evidence regarding age of the prosecutrix is ranging from 15 years to 19 years on the record. In view of the totality and circumstances of this case, where prosecutrix left her house on her own, stayed with the appellant for more than a month as wife and came back after knowing that appellant had no land in his name rather it is in the name of family members and had no resources, benefit of doubt on the point of age crept in the evidence of prosecution, should be given to the appellant.

In my considered opinion, trial court failed to appreciate evidence available on record regarding age of the prosecutrix. Prosecution failed to prove that prosecutrix did not attain the age of discretion beyond doubt rather evidence regarding age is available ranging from 15 years to 19 years on the record.

As discussed above, offence u/s 376, 366 IPC is not sustainable. Prosecution failed to prove the offence beyond doubt. Conviction and sentence of appellant is set aside.

Appeal is allowed. Bail and bonds are discharged. Fine be refunded, if deposited by the appellant in the trial court.