Madhya Pradesh High Court
Guddu Baiga @ Shivdayal vs The State Of Madhya Pradesh on 28 April, 2016
1 Cri.Appeal No.2170 of 2014
HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH: HON'BLE SHRI JUSTICE SUBHASH KAKADE
Criminal Appeal No.2170 of 2014
Guddu Baiga @ Shivdayal
son of Asharam Gaiga,
aged about 19 years,
resident of Dhanpura,P.S. Burhar,
District Shahdol (M.P.).
Versus
The State of Madhya Pradesh through
Police Station, Burhar, District Shahdol (M.P.)
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None present for the appellant.
Shri Akhilesh Singh, Panel Lawyer for the respondent/State;
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(J U D G M E N T) (Delivered on 28th of April, 2016) Appellant Guddu Baiga @ Shivdayal has assailed the judgment of conviction and order of sentence dated 30.07.2014 passed by learned Ist additional Sessions Judge, Shahdol in S.T.No.332/2013 convicting him for commission of offence under Section 6 of Protection of Children From Sexual Offence Act, 2012 and sentencing him to undergo rigorous imprisonment for ten years with fine of Rs.10,000/-, with default stipulation.
02. The prosecution case in short is that on 08.02.2013 at about 8 PM when the prosecutrix (PW/) below 16 years of age was standing outside her house, at that time the present appellant came there and caught her hands and forcefully took her to his Badi and committed sexual intercourse with her. When she tried to raise alarm, the appellant pressed here mouth and also threatened her with dire consequences. Thereafter, again on 10.4.2013, the appellant committed sexual 2 Cri.Appeal No.2170 of 2014 intercourse with her on the pretext of marriage. On 10.12.2013, the prosecutrix told the incident to her uncle Kheddu Baiga (PW/4), her aunty Ramesiya Baiga (PW3) and they tried to conciliate the matter. When the appellant refused to marry with her, then on 11.12.2013, the prosecutrix lodged an FIR at Police Station Burhar, District Shahdol for the offences under Section 376(2)(i)(5) & 506-II of IPC and Section 4 of Protection of Children From Sexual Offence Act, 2012 vide Crime No.852/2013. The appellant was arrested and after completing the investigation, the police filed charge-sheet before the Sessions Court, who committed the matter to the trial Court for trial.
03. In order to bring home the charges against appellant, as he denied the same, the prosecution examined witnesses Prosecutrix (PW/1), Smt. Laxmi Patel (PW/2), Smt. Ramesiya Baiga (PW/3), Kheddu Baiga (PW/4), R.B. Bagri (PW/5), L.B. Tiwari (PW/6) and Dr. Richa Gupta (PW/7) and got exhibited P/1 to Ex.P.21. The defence did not choose to examine any witness.
04. The learned trial Court vide impugned judgment convicted the appellant and sentenced to undergo imprisonment as mentioned hereinabove.
05. Though, none appeared on behalf of the appellant, but as per appeal memo, it is clear that even the prosecutrix (PW/1) did not support the case of the prosecution. It is also stated that in her statement, the prosecutrix (PW/1) admitted her age about 20 years, therefore, she was a consenting party. Delay in lodging FIR after ten months is also raised as one of the ground. Finally, it is mentioned that appeal be allowed and the appellant be acquitted from the offence punishable under 6 of Protection of Children From Sexual Offence Act, 2012.
06. Per contra, Akhilesh Singh, learned Panel Lawyer for the State has submitted that after due appreciation of prosecution evidence in paras 23, 25, 38, 3 Cri.Appeal No.2170 of 2014 33 and other relevant paras, the learned trial Court rightly found the offence proved against the appellant, which requires no interference.
07. Having heard learned Panel Lawyer for the respondent/State and on perusal of the record, this appeal deserves to be allowed.
08. This fact need not to be repeated that at the time of filing of FIR Ex.P/1, which was lodged after delay of ten months of the incident the prosecutrix (PW/1) was pregnant. Dr. Richa Gupta (PW/7) medically examined her and opined that pregnant prosecutrix is having pregnancy of 24-26 weeks.
09. On the admissions of the prosecutrix (PW/1), her uncle Kheddu Baiga (PW/4) his wife Smt. Ramesiya Baiga (PW/3), it is proved fact that the prosecutrix was pregnant due to relationship with appellant Gudda Baiga @ Shiv Prasad. The prosecutrix (PW/1) during her cross-examination admitted this vital fact that the appellant did not commit any rape with her and relation between them was with her consent.
10. Now, the question arises whether the prosecutrix (PW/1) was major at the time of incident? If it is found that she was major at the time of incident i.e. 08.2.2013, then it will be a case of consent.
11. In view of Clause 6 of Section 375 of IPC, sexual intercourse with a girl not related as wife below 16 years is an offence of rape. When the girl is below 16 years her consent is immaterial. In a case of rape, when a girl is found to be 16 years or above and the evidence reveals that the girl was a consenting party, the accused cannot be roped in the charge of rape. In a case when the prosecution failed to prove that the girl is below 16 years on the date of alleged occurrence and on the other hand, the evidence and circumstances were eloquent to show that she was above 16 years of age, it cannot establish that she was ever subjected to any sexual intercourse by the accused against her will. These circumstances indicated 4 Cri.Appeal No.2170 of 2014 that if there was any coitus which was with her consent, hence, accused cannot be convicted for the offence punishable under Section 376 of IPC. Please see Lalta Prasad vs. State of M.P., AIR 1979 SC 1276.
12. Learned trial Court after appreciating in detail the provisions of Section 12(3) of Juvenile Justice(Prevention and Care of Children) Rule, 2007 also relied on various judgments of Apex Court, in paras 9 to 13 and on scrutiny of statement of Head Mistress Smt. Laxmi Patel (PW/2), finally found in para 17 that the age of the prosecutrix (PW/1) was below 18 years.
13. But, learned trial Court failed to see that the prosecution witnesses Smt. Ramesiya Baiga (PW/3) and Kheddu Baiga (PW/4) brought up the prosecutrix as mother of the prosecutrix died during her childhood and as her father Khailan Baiga is also mentally retarded. These two witnesses specifically stated that age of the prosecutrix to be 20 years. This fact need not to be repeated that the prosecutrix (PW/1) herself admitted this fact that her age is 20 years. When the prosecutrix (PW/1) herself alongwith her close relatives have stated that her age is 20 years, if anything against these statements not proved by the prosecution than the statements of trio shall be acted upon.
14. Smt. Laxmi Patel (PW/2) admitted that she is not able to say that whether date of birth of the prosecutrix (PW/1) mentioned in the transfer certificate Ex.P/9 is correct or not. In this doubtful situation, statement of the medical expert Dr. Richa Gupta (PW/7) is decisive, which are based on ossification test report of the prosecutrix (PW/1).
15. Dr. Richa Gupta (PW/7) admitted during her cross-examination that when she physically examined the prosecutrix (PW/1) and written report Ex.P/21- A, on the basis of her physical development, the aged of the prosecutrix (PW/1) may be above 18 years. She again admitted this fact against the case of the 5 Cri.Appeal No.2170 of 2014 prosecution that as per the perusal of the X-ray Reports Ex.P/22 to 23 received from Kushabau District Hospital, Shahdol, the maximum age of the prosecutrix (PW/1) may be 19 years. When there is contradictory facts available on record between the school certificate and medical evidence, the statements of the prosecutrix (PW/1) and her relatives may be given upper hand. Hence, it is proved that the prosecutrix (PW/1) was major at the time of incident and was a consenting party. This fact overlooked by learned trial Court.
16. In the result, the appeal succeeds and is hereby allowed, the judgment of conviction and order of sentence dated 30.07.2014 is hereby set aside. The appellant is acquitted of the offence punishable under Sections 376(2)(I) and Section 376(2)(N) of IPC and Section 6 of the Protection of Children From Sexual Offence Act, 2012. Appellant Guddu Baiga @ Shivdayal is on bail, his bail bond stands discharged.
17. A copy of this judgment be sent to learned trial Court for information with a direction that result of this appeal will be duly communicated to the appellant and report of such compliance be transmitted to the Registry for placing the same in the record of this appeal.
(SUBHASH KAKADE) JUDGE SJ