Madhya Pradesh High Court
Gopi Dohre vs The State Of Madhya Pradesh on 31 July, 2019
Equivalent citations: AIRONLINE 2019 MP 875
1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
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SB:- Hon'ble Shri Justice G. S. Ahluwalia
CRA No. 245/2015
Appellant --------------------Gopi Dohre
Vs.
Respondent ------------------The State of MP
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Shri S. K. Khare, Counsel for the appellant.
Shri S. N. Seth, Public Prosecutor for the respondent/ State
JUDGMENT
(Delivered on 31/07/2019) Per G. S. Ahluwalia, J:-
This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 11-3-2015 passed by Additional Sessions Judge, Lahar, Distt. Bhind in Sessions Trial No.332/2014 by which the appellant has been convicted and sentenced for the following offences :-
1 Under Section 376(1) of 10 years R.I. and fine of Rs. 6000 in IPC default 2 years R.I. 2 Under Section 366-A of 3 years R.I. and fine of Rs. 2000 in IPC default 1 year R.I. 3 Under Section 363 of IPC 3 years R.I. and fine of Rs. 2000 in default 1 year R.I. (2) The necessary facts for disposal of the present appeal in short are that on 3-7-2014, at about 8 P.M., the prosecutrix went outside her house in order to answer the call of nature and while she was coming back, she was forcibly taken by the appellant, and when the prosecutrix did not return back, then on 4-7-2014, the father of the prosecutrix lodged a Gum Insaan Report, Ex.P.2. After the prosecutrix was recovered on 7-7-
2014, F.I.R. Ex. P.9 was lodged against the appellant. The prosecutrix 2 was sent for medical examination. The seized articles were sent to F.S.L. The Statements of the witnesses were recorded and after completing the investigation, the police filed the charge sheet against the appellant for offence under Section 363,366A,376 of I.P.C. and under Section 4 of Protection of Children from Sexual Offences Act, 2912 (in short ''POCSO Act '').
(3) The Trial Court by order dated 12-11-2014 framed charge under Sections 363,366-A,376(1) of I.P.C. and under Section 4 of POCSO Act. (4) The appellant abjured his guilt and pleaded not guilty. (5) The prosecution in order to prove its case examined Prosecutrix (P.W.1), Harvanshlal (P.W.2), Radhelal (P.W.3), Ravindra Kumar (P.W.4), Dr. D.C. Parashar (P.W.5), Dr.(Smt) Anshu Mishra (P.W.6), Afsana Khan (P.W.7), Jagat Singh (P.W.8), Dharmendra Prajapati (P.W.9), and Ram Pratap Singh (P.W.10). The appellant did not examine any witness in his defence.
(6) The Trial Court by impugned judgment and sentence dated 11-3- 2015 has convicted and sentenced the appellant for the above mentioned offences.
(7) Challenging the judgment and sentence awarded by the Trial Court, the Counsel for the appellant submitted that in fact the prosecutrix was the consenting party and She was major, and the Trial Court has wrongly held that the prosecutrix was minor on the date of incident. (8) Per contra, it is submitted by the Counsel for the State that the prosecutrix was minor on the date of incident and although, the prosecutrix was not a consenting party for the simple reason, that She on her own had ran away from the captivity of the appellant, but even for 3 the sake of argument, if the argument advanced by the Counsel for the appellant is considered, then since, the prosecutrix was minor on the date of incident, therefore, her consent is immaterial. (9) Heard the learned Counsel for the parties.
(10) Prosecutrix (P.W.1) has stated that her date of birth is 5.5.1998, whereas her father had given the mark sheet to the police in which her date of birth is mentioned as 1-6-1999. She produced the original mark sheet which is Ex. P.1. In the mark sheet produced by the prosecutrix, her date of birth has been mentioned as 5-5-1998. (11) It is further stated by the prosecutrix that at about 8 P.M., She had gone to answer the call of the nature. While She was coming back, she was caught hold by the appellant and for four days, he took her to different places, which are not known to her. On all the four days, the appellant had committed rape on her. On 7th, when the appellant had gone to answer the call of the nature, she ran away and came to Ghoda Square, where she met with a police personal, who brought her to the police station.
(12) The prosecutrix was recovered on 7-7-2014 by recovery memo Ex. P.2. Thus, the statement of the prosecutrix that She ran away from the place where she was kept and came to Ghoda Square, where she met with a police personal, who brought her to the police station, is fully corroborated by the police case. Before considering the submission of the Counsel for the appellant that in fact the prosecutrix was a consenting party or not, it is necessary to consider the evidence led by the prosecution to prove the age of the prosecutrix. (13) It is not out of place to mention here that even the appellant had 4 claimed himself to be aged about 17 years and had claimed that he is juvenile. Accordingly, an enquiry was conducted, and by order dated 6- 3-2015, the Trial Court came to the conclusion that the appellant is major and was more than 18 years of age on the date of incident. (14) For challenging the age of the prosecutrix, it is submitted by the Counsel for the appellant that in the mark sheet, Ex. P.1, the name of the mother of the prosecutrix has been mentioned as Murti, whereas according to the prosecutrix, the name of her mother is Meeradevi. It is further submitted that according to the said mark sheet, the prosecutrix was the student of Ashok Primary School, Lahar whereas She was the student of Shanker Primary School. It is further submitted that the prosecution should have conducted the ossification test of the prosecutrix, and therefore, the prosecution has failed to prove that the prosecutrix was less than 18 years of age.
(15) So far as the name of the mother of the prosecutrix is concerned, Harvanshlal (P.W.2) has stated that the name of his first wife and mother of the prosecutrix was Rammurti, who has expired. (16) However, The Trial Court has not believed the school record. (17) Therefore, the question for determination is that what evidence has been led by the prosecution to prove that the age of the prosecutrix was less than 18 years.
(18) It is submitted by the Counsel for the appellant, that the prosecution had filed a ossification test report along with the charge sheet, however, the same has not been proved by the prosecution, but it is a well established principle of law that the accused can take advantage of an un-exhibited document of prosecution, provided the same is in his 5 favor. Thus, by referring to the ossification test report, it is submitted by the Counsel for the appellant, that since, the Doctor had found that the age of the prosecutrix was more than 17 years and less than 18 years, therefore, after giving the advantage of margin of 2 years on higher side, it is clear that the prosecutrix was more than 18 years of age on the date of incident.
(19) Considered the submission made by the Counsel for the appellant. (20) The Supreme Court in the case of Mukarrab v. State of U.P. reported in (2017) 2 SCC 210 has held as under :
''26. Having regard to the circumstances of this case, a blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of the medical opinion by the radiological examination. At p. 31 of Modi's Textbook of Medical Jurisprudence and Toxicology, 20th Edn., it has been stated as follows:
"In ascertaining the age of young persons radiograms of any of the main joints of the upper or the lower extremity of both sides of the body should be taken, an opinion should be given according to the following Table, but it must be remembered that too much reliance should not be placed on this Table as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricities of development."
Courts have taken judicial notice of this fact and have always held that the evidence afforded by radiological examination is no doubt a useful guiding factor for determining the age of a person but the evidence is not of a conclusive and incontrovertible nature and it is subject to a margin of error. Medical evidence as to the age of a person though a very useful guiding factor is not conclusive and has to be considered along with other circumstances.
27. In a recent judgment, State of M.P. v. Anoop Singh, it was held that the ossification test is not the sole criteria for age determination. Following Babloo Pasi and Anoop Singh cases, we hold that ossification test cannot be regarded as conclusive when it comes to ascertaining the age of a person. 6 More so, the appellants herein have certainly crossed the age of thirty years which is an important factor to be taken into account as age cannot be determined with precision. In fact in the medical report of the appellants, it is stated that there was no indication for dental x-rays since both the accused were beyond 25 years of age.
28. At this juncture, we may usefully refer to an article "A study of wrist ossification for age estimation in paediatric group in Central Rajasthan", which reads as under:
"There are various criteria for age determination of an individual, of which eruption of teeth and ossification activities of bones are important. Nevertheless age can usually be assessed more accurately in younger age group by dentition and ossification along with epiphyseal fusion.
[Ref.: Gray H. Gray's Anatomy, 37th Edn., Churchill Livingstone Edinburgh London Melbourne and New York: 1996; 341-342]; A careful examination of teeth and ossification at wrist joint provide valuable data for age estimation in children.
[Ref.: Parikh C.K. Parikh's Textbook of Medical Jurisprudence and Toxicology, 5th Edn., Mumbai Medico-Legal Centre Colaba:
1990; 44-45];
* * * Variations in the appearance of centre of ossification at wrist joint shows influence of race, climate, diet and regional factors. Ossification centres for the distal ends of radius and ulna consistent with present study vide article "A study of wrist ossification for age estimation in paediatric group in Central Rajasthan" by Dr Ashutosh Srivastav, Senior Demonstrator and a team of other doctors, Journal of Indian Academy of Forensic Medicine (JIAFM), 2004; 26(4). ISSN 0971-0973]."
The Supreme Court in the case of Ram Suresh Singh Vs. Prabhat Singh reported in (2009) 6 SCC 681 has held as under :
''13. Even if we had to consider the medical report, it is now well known that an error of two years in determining the age is possible. In Jaya Mala v. Govt. of J&K this Court held: (SCC p. 541, para 9) 7 "9. ... However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side."
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15. 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.'' (21) Dr. (Smt) Anshu Mishra (P.W.6) had medically examined the prosecutrix, and She had assessed the age of the prosecutrix as 15 years.
It is clear that this witness had assessed the age of the prosecutrix as 15 years, and no question in the cross-examination was put with regard to the assessment of age by this witness. Thus, the assessment of the age of the prosecutrix by this witness has remained unchallenged. Therefore, if the ossification test report (un-exhibited document) is considered in the light of the surrounding circumstances, then it is clear that the benefit of margin of error of 2 years cannot be given to the appellant. Thus, it is held that the ossification test report, is not in favor of the appellant, and therefore, neither it can be read in evidence in favor of prosecution, as the same has remained un-exhibited in the Trial, nor the ossification test report can be read in favor of appellant.. As already held that the evidence of Dr. (Smt.) Anshu Mishra (P.W.6) with regard to the assessment of the age of the prosecutrix has remained unchallenged, therefore, it is held that the prosecutrix was minor aged about 16 years on the date of commission of offence.
(22) Under these circumstances, it would be a futile effort to find out that whether the prosecutrix was a consenting party or not, because the consent of the prosecutrix is immaterial as on the date of incident, the 8 prosecutrix was minor, below the age of 18 years,. (23) According to the prosecutrix, She escaped from the custody of the appellant, and came to Ghoda Square, where she met with the police personal, who took her to the police station, from where She was sent for medical examination. The vaginal slide, swab and the cloths of the prosecutrix were seized by Dr. (Smt) Anshu Mishra (P.W.6), and were handed over to Afsana Khan (P.W. 7) in sealed packed. Afsana Khan (P.W.7) handed over the said sealed packet to Head constable Ram Pratap Singh and the articles were seized by seizure memo Ex. P.13. Jagat Singh (P.W.8) has also supported the seizure of slide, swab and cloths of the prosecutrix. The seized articles were sent to F.S.L. and according to the F.S.L. Report, Ex. P.10, human sperms and semen stains were found on cloths, slide and swab of the prosecutrix. Thus, the version of the prosecutrix about commission of rape by the appellant finds corroboration by the F.S.L. report, Ex. P.10. (24) Accordingly, it is held that the prosecution has succeeded in establishing that the prosecutrix was minor on the date of incident, below the age of 18 years and She was abducted and was subjected to rape. Accordingly, the conviction of the appellant for offence under Section 376(1), 366-A, and 363 of I.P.C. is maintained. (25) So far as the question of sentence is concerned, the Trial Court has awarded rigorous imprisonment of 10 years for offence under Section 376(1) of I.P.C. In the present case, the appellant had abducted a minor girl and kept her with him for four days and moved from one place to another and ultimately, the prosecutrix succeeded in escaping from the captivity of the appellant. Thus, considering the totality of the 9 circumstances, it is held that the jail sentence of RI of 10 years awarded by the Trial Court can be reduced to RI of 7 years by enhancing the fine amount.
(26) Accordingly, the conviction recorded by the Trial Court is hereby maintained, and the appellant is sentenced to undergo the jail sentence of RI of 7 years and a fine of Rs.15,000/-. Out of the fine amount, Rs.10,000/- be paid to the victim.
(27) The judgment and sentence dated 11-3-2015 passed by Additional Sessions Judge, Lahar, Distt. Bhind in Sessions Trial No.332/2014 is hereby affirmed, subject to above-mentioned modification. (28) The appellant is in jail.
(29) The appeal succeeds and is hereby Allowed in Part.
(G.S. Ahluwalia) Judge *MKB* Digitally signed by MAHENDRA KUMAR BARIK Date: 2019.07.31 18:25:54 +05'30'