Madhya Pradesh High Court
Golulk @ Rakesh vs The State Of Madhya Pradesh on 10 September, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2024:MPHC-JBP:46181
1 CRA-1812-2014
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 10th OF SEPTEMBER, 2024
CRIMINAL APPEAL No. 1812 of 2014
KISHANLAL
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Zamir Mohammad Shah - Advocate for the Appellant.
Shri Aditya Narayan Gupta - Public Prosecutor for the
respondent/State.
WITH
CRIMINAL APPEAL No. 2201 of 2014
GOLULK @ RAKESH
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Praveen Dubey - Advocate for the Appellant.
Shri Aditya Narayan Gupta - Public Prosecutor for the
respondent/State.
ORDER
Per: Justice Vivek Agarwal These Criminal Appeals under Section 374(2) of the Code of Signature Not Verified Signed by: AMITABH RANJAN Signing time: 19-09-2024 14:31:15 NEUTRAL CITATION NO. 2024:MPHC-JBP:46181 2 CRA-1812-2014 Criminal Procedure are filed by the appellants Kishan Lal S/o Shri Prahlad Parihar and co-accused Golu @ Rakesh S/o Lakhan Musre being aggrieved by the judgment dated 19.06.2014 passed by learned Second Addl. Sessions Judge, Multai, District Betul (M.P.) in Sessions Trial No. 243 of 2013. Vide impugned judgment, learned trial Court has convicted both the appellants for commission of offences punishable under Sections 376-D of IPC and sentenced to undergo RI for 20 years and fine of Rs.16,000/- with default stipulations of 08 months Simple Imprisonment. They are also convicted under Section 506 Part-II of IPC and sentenced to undergo RI for 02 years and fine of Rs.2000/- with default stipulations of 01 month Simple Imprisonment. In addition, they have been convicted under Sections 3/4 of POCSO Act, 2012 and sentenced to undergo RI for 08 years and fine of Rs.2000/- with default stipulations of one month simple imprisonment.
2. Shri Z.M. Shah, learned counsel for the appellant Kishan Lal submits that, in the FIR (Ex.P-1) his name is not mentioned. It is further submitted that the FIR was lodged on 24.07.2013 and thereafter the statements of prosecutrix under Section 161 Cr.P.C. were recorded on 26.07.2013, where she had taken the name of only co-accused Golu @Rakesh and not that of the present appellant Kishanlal. It is also submitted that for the first time, the name of appellant Kishanlal was taken when prosecutrix appeared in the Court of learned Judicial Magistrate (First Class) on 17.08.2013 to record her statement under Signature Not Verified Signed by: AMITABH RANJAN Signing time: 19-09-2024 14:31:15 NEUTRAL CITATION NO. 2024:MPHC-JBP:46181 3 CRA-1812-2014 Section 164 Cr.P.C.
3. It is submitted that, the prosecutrix has been examined in the Court of law as PW-1. In para-14 of her cross-examination, she has admitted that at the instance of the police and Sarpanch, she had taken the name of the accused Kishan Lal. She has also admitted in para-16 of the cross-examination that Kishan is married. He has a wife and a daughter. She has admitted that there are other fields near the field of Kishanlal and the field of Kishanlal is close to the way which connects Multai to Aamla Jaulkheda. This path is motorized and several persons and motorcycles can be seen moving on this path throughout the way.
4. Thus, it is pointed out that, accusation made on the appellant Kishanlal is at the instance of the police personnel and the Sarpanch. Sarpanch is not examined. Therefore, it is evident that, implication of Kishanlal is an afterthought. Its a false implication.
5. Shri Pushpendra Dubey, learned counsel for the co-appellant Golu @ Rakesh in his turn submits that firstly, prosecution has not seized or produced any documents in regard to date of birth of the prosecutrix. Reading the evidence of the prosecutrix (PW-1), it is pointed out that she has admitted in her cross-examination that she has studied up to 08th Class. She further admitted that she failed in 4 th, 5th and 6th class by one year in each of the above classes. She attended school after taking admission in the 8th Class, but thereafter, left her school. Thus, it is submitted that, since the prosecutrix failed in 03 Signature Not Verified Signed by: AMITABH RANJAN Signing time: 19-09-2024 14:31:15 NEUTRAL CITATION NO. 2024:MPHC-JBP:46181 4 CRA-1812-2014 classes successively namely, 04 th, 05th and 06th class consecutively and had taken admission in the 8th class, therefore, her age will not be 14 years as is narrated by the prosecution. It is also submitted that, there is an admission of not only PW-1 but her father (PW-4) that she had studied in 04th, 05th and 08th Class, therefore, it was incumbent on the prosecution to have seized the educational documents to show the date of birth of the prosecutrix in the form of "Dakhilkharij" Register, where prosecutrix had taken admission for the first time.
6. It is further submitted that, conviction under Section 376 D of IPC is not made out because Section 376 D of IPC deals with Gang-rape. It is submitted that when name of the co-convict Kishanlal is not mentioned either in the FIR (Ex.P-1) or in the statements recorded under Section 161 Cr.P.C. given by the prosecutrix and then when the prosecutrix herself admitted that she took name of the co-convict Kishanlal at the instance of the Police and the Sarpanch, charge under Section 376 D of IPC could not have been made out against the appellant as charge of gang-rape cannot be sustained against a single accused in the matter of rape.
7. It is submitted that, it is a case of consent. Prosecutrix in para- 6 of the cross-examination has admitted that there was no embargo on visiting the house of Golu. Her parents never objected to her visits to the house of Golu. She admitted that she liked the nature of Golu and she had an inclination to make friendship with him, because of his good Signature Not Verified Signed by: AMITABH RANJAN Signing time: 19-09-2024 14:31:15 NEUTRAL CITATION NO. 2024:MPHC-JBP:46181 5 CRA-1812-2014 nature. In para-07 of the cross-examination, she admitted that, when Golu asked her to unclothe herself, then she did it on her own. Thus, it is submitted that, it is a case of consent and after the act, she had clothed herself and had gone to her house where she took bath and washed her underwear etc. Thus, it is submitted that, it is a case of consent as immediately she neither raised any alarm nor lodged any report.
8. Shri Aditya Narayan Gupta, learned Public Prosecutor in his turn submits that there is evidence of Dr. Yadav (PW-10). He had conducted the Ossification Test. His report is Ex.P-14. In the Ossification Test Report, it is mentioned that age of the prosecutrix was found to be 14 years. It is mentioned that lower portion of Radius and Alna had not started fusing. First Metacarpal had almost used but 2nd, 3rd, 4th and 5th Metacarpal had not fused. Digital end of Femur had not started fusing. Upper end of tibia and fibula had not started fusing. Lower end of tibia and fibula had not started fusing. Metatarsal bone had almost fused and on the basis of such findings he had given his report Ex.P-14 after seeing the X-ray plate Ex.P-15, Ex.P-16, Ex.P-17, Ex.P-18 & Ex. P-19.
9. Thus, it is submitted that when age of the prosecutrix is not in doubt then mere failure of the prosecution to seize and produce the first school entry register or any other school documents to show the age of the proseuctrix will not be fatal to the case of the prosecution.
10. It is submitted by Shri Aditya Narayan Gupta, learned Public Signature Not Verified Signed by: AMITABH RANJAN Signing time: 19-09-2024 14:31:15 NEUTRAL CITATION NO. 2024:MPHC-JBP:46181 6 CRA-1812-2014 Prosecutor that, since the prosecutrix was minor her age was less then 16 years, therefore, there cannot be any consent of the prosecutrix.
11. After hearing, learned counsel for the parties and going through the records, it is evident that as far as appellant Kishanlal is concerned, prosecutrix had not taken his name either in the FIR or in her statement recorded under Section 161 Cr.P.C.
13. It is also true that the second part of the incident which she has stated in her statement recorded under Section 164 Cr.P.C. she has attributed joint responsibility on the appellants Kishanlal and Golu but this fact of commission of violation of privacy jointly by Golu and Kishanlal is not narrated anywhere else. No reason is given for not mentioning the name of Kishanlal at the first instance when FIR was lodged or when police had recorded her statements under Section 161 Cr.P.C especially when the prosecutrix knew Kishanlal beforehand. Prosecution has also not explained that when FIR was lodged on 24.07.2013, statements of the prosecutrix under Section 161 Cr.P.C. on 26.07.2013 then what was the hesitation in taking the prosecutrix for examination before the Judicial Magistrate (First Class) for recording of her statement under Section 164 Cr.P.C.
14. We noticed that, her statements were recorded under Section 164 Cr.P.C. on 17.08.2013, there is considerable delay in recording of her statement under Section 164 Cr.P.C. Prosecutrix has admitted that she took the name of appellant Kishan Lal at the instance of the police Signature Not Verified Signed by: AMITABH RANJAN Signing time: 19-09-2024 14:31:15 NEUTRAL CITATION NO. 2024:MPHC-JBP:46181 7 CRA-1812-2014 personnel and Sarpanch. Sarpanch is not examined. Name of the concerned police official is not disclosed by the prosecutrix so that statement of the prosecutrix could have been cross-verified. Thus, in the absence of there being a prompt FIR, there being no mention of name of Kishanlal in the FIR (Ex.P-1) dated 24.07.2023 absence of his name in the statement of prosecutrix recorded under Section 161 Cr.P.C. and then admission of the prosecutrix that she took the name of Kishanlal at the instance of the Sarpanch and the police personnel, conviction of Kishanlal undern Section 376 D, 506 Part-II IPC and Section 3/4 of the POCSO Act cannot be sustained. This findings support from the judgment of the Supreme Court in the case of Md. Rustom Ali Vs. State of Assam 1981 (Supp) 56 , where it is held that when the complainant does not implicate the accused in the First Information Report, his subsequent deposition before the Court implicating the accused shall not be believed without independent corroboration. In the present case neither the Sarpanch nor the police personnel is examined to corroborate as to what basis prosecutrix was made to take name of Kishanlal in her 164 Cr.P.C. statements.
15. There are no ingredients of gang-rape. There is no element of criminal intimidation on the part of Kishanlal. We are in agreement with the arguments advanced by Shri Pushpendra Dubey, learned counsel for the appellant Golu that single person cannot be held liable to commit gang-rape, therefore, when all these aspects are cumulatively Signature Not Verified Signed by: AMITABH RANJAN Signing time: 19-09-2024 14:31:15 NEUTRAL CITATION NO. 2024:MPHC-JBP:46181 8 CRA-1812-2014 taken into consideration, then conviction of Kishanlal cannot be sustained in the eyes of law. Therefore, his conviction and sentence are hereby set-aside.
16. As far as Golu @ Rakesh is concerned, some facts remains unrebutted. First fact is as to the age of the prosecutrix. It is evident on record that prosecution did not bother to produce her school entry register to show her date of birth but her Ossification Test Report is available on record as proved by Dr. O.P. Yadav (PW-10). He has been cross-examined on this aspect and he has clearly stated that as per the medical science there can be a difference of six months plus minus in the age of a person as determined through Ossification Test.
17. Section 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 provides for procedure to be followed in determination of age. Rule 12 (3)(b) of the Rules, 2007 provides that the benefit which can be given to a child or juvenile by considering his/her age on lower side within the margin of one year. Thus, it is evident that even if the error of one year in determination of age through Ossification Test is taken into consideration, yet appellant will not get any benefit, because age of the prosecutrix will still be less than 16 years of age.
18. Thus, one thing is conclusively proved that age of the prosecutrix was less than 17 years on the date of the incident. Thus, since prosecutrix had not completed 18 years of age, she will be deemed to be a child within the meaning of definition of child under the POCSO Act, Signature Not Verified Signed by: AMITABH RANJAN Signing time: 19-09-2024 14:31:15 NEUTRAL CITATION NO. 2024:MPHC-JBP:46181 9 CRA-1812-2014 2012. Age of consent under Section 375 of IPC is also 18 years, therefore, prosecutrix will be treated to be a child. Thus, there is no question of consent of a child below the age of 18 years.
19. Before, amendment in Section 4 of POCSO Act, 2012 which was carried out by the Act of 25 of 2019 w.e.f. 16.08.2019 punishment for penetrative sexual assault defined under Section 3 of POCSO Act was punishment with imprisonment for either description for a term which shall not be less than 07 years but which may extend to imprisonment for life and shall also be liable to fine.
20. As discussed above, the provisions of Section 376 D IPC will not be applicable, because the requirement of gang-rape is that a women is required to be raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape, but in the present case, there is singular person i.e. Golu @ Rakesh, therefore, offence under Section 376 D will not be made out. Thus, we record acquittal of the appellant Golu @ Rakesh from the charges under Section 376 D of IPC.
21. However, offence under Section 376 of IPC is made out and Section 376(1) IPC provides for minimum sentence of 10 years which may extend up to imprisonment for life and shall also be liable to fine.
22. Section 42 of the POCSO Act provides that where an act or omission constitutes an offence punishable under this Act and also under Signature Not Verified Signed by: AMITABH RANJAN Signing time: 19-09-2024 14:31:15 NEUTRAL CITATION NO. 2024:MPHC-JBP:46181 10 CRA-1812-2014 sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E, section 509 of the Indian Penal Code then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.
23. Since, the punishment inflicted by the trial Court under Section 376 D of IPC. On account of conviction under Section 376 D of IPC is set-aside by this Court for the reasons aforesaid, now the sentence under Section 376 being for minimum 07 years (and it was amended to minimum 10 years vide Act 22 of 2018 w.e.f 21.04.2018 and similarly provision for separate punishment for a woman being raped under 16 years of age was introduced w.e.f. 21.04.2018 will have no application to the facts and circumstances of the case and in the same way Section 4 of POCSO Act was amended w.e.f. 16.08.2019. Thus, the amended provisions will have no application to the facts and circumstances of the case, therefore, appellant Golu @ Rakesh is convicted under Section 376(1) of IPC with 10 years of imprisonment and fine of Rs. 2000/- with default stipulation of RI for 02 months). Since this Court has punished the appellant Golu @ Rakesh under Section 376(1) of IPC, thus, in view of the provisions contained in Section 71 of the Indian Penal Code there is no need for any separate sentence under Section 3/4 of POCSO Act. Other sentences under Section 506 Part-II and Section 3/4 of POCSO Signature Not Verified Signed by: AMITABH RANJAN Signing time: 19-09-2024 14:31:15 NEUTRAL CITATION NO. 2024:MPHC-JBP:46181 11 CRA-1812-2014 Act are maintained. However, it is directed that all these sentences shall run concurrently.
24. Accordingly, both these appeals are disposed of.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
AR
Signature Not Verified
Signed by: AMITABH
RANJAN
Signing time: 19-09-2024
14:31:15