Madhya Pradesh High Court
Pintu And Another vs State Of M.P. on 27 August, 2018
-( 1 )- Criminal Appeal No.116/00
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
(Justice Vivek Agarwal)
Criminal Appeal No.116/2000
.....Appellants : Pintu & Anr.
Versus
.....Respondent : State of M.P.
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Shri Arun Pateria and Shri Ravindra Dixit, learned counsel for the
appellants.
Shri B.P.S.Chauhan, learned Public Prosecutor for the
respondent/State.
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JUDGMENT
( 27 / 8/2018) This Criminal Appeal under Section 374 (2) of Cr.P.C. has been filed by appellants Pintu and Bhura being aggrieved by judgment and order dated 1.1.2000 passed by the Court of Additional Sessions Judge, Chachoda, Distt. Guna, in Sessions Trial No.5/1999 convicting both the appellants under Sections 363 and 366 of IPC with sentence of three years RI and fine of Rs.500/- and five years RI and fine of 1,000/- respectively and also convicting appellant Bhura under Section 376 of IPC with seven years RI and fine of Rs.1,500/- and in the event of non- payment of fine, they are directed to suffer three months RI under Section 363, six months RI under Section 366 of IPC and 9 months RI under Section 376 of IPC.
2. As per prosecution story, prosecutrix was minor. She was abducted by appellants Pintu and Bhura on 9.1.99 at about 6.30 pm when she had gone to answer call of nature from her house situated at Tekri Mohalla, Chachoda. She was taken to jungle where accused Bhura committed rape on her. When prosecutrix
-( 2 )- Criminal Appeal No.116/00 did not return to her home on 9.1.1999, then her mother Tarabai sent her son Sonu to Beenaganj to call his father Dashrath Singh and thereafter they tried to locate the prosecutrix but when she could not be located, then missing person report was recorded at police Station, Chachoda.
3. During investigation, police recovered prosecutrix from the house of Bhura and thereafter FIR was registered. Prosecutrix was subjected to medical examination and x-ray examination. Seized articles were sent for FSL report to Regional Forensic Science Laboratory, Gwalior. On completion of the investigation, charge-sheet was filed before the Court of Additional Chief Judicial Magistrate, Chachado, from where matter was committed to the Sessions Court. Appellants abjured their guilt and produced evidence in rebuttal. They denied the allegations made against them in the defence evidence as well as in the statements under Section 313 of Cr.P.C. They submitted that they have been falsely implicated.
4. As per mother of the prosecutrix Tarabai (PW-6) and her father Dashrath Singh (PW-9) on the date of incident age of the prosecutrix was 14-15 years, whereas her uncle Deewan Singh (PW-8) narrated her age to be 15-16 years on the date of incident and prosecutrix narrated her age to be 15 years while Vidya Devi Sharma (PW-1), In-charge Head Master of Government Girls Primary School, Chachoda, deposed that as per Ex.P/1 date of birth of the prosecutrix is 26th February, 1985. In cross- examination, she has maintained her stand that date of birth of the prosecutrix is 26th February, 1985 and that of another daughter of Dashrath Singh, namely Sushma, has been mentioned in the register as 1.12.1986. There is difference of about 22 months between date of birth of the prosecutrix and that of her younger sibling Ku. Sushma and signatures of guardian are common for both Sushma as well as the prosecutrix.
5. On the other hand, Dr. R.K.Jain, Radiologist (PW-4) has opined that there was complete fusion in medial epicondyle part
-( 3 )- Criminal Appeal No.116/00 of humerus bone of right elbow, so also between radius and ulna bone of right wrist, but there was lack of complete fusion between iliac crest bone of hip and epiphysis, but opined that age of the prosecutrix was above 19 years and less than 20 years.
6. Learned counsel for the appellants submits that as far as appellant No.1-Pintu is concerned, he is innocent and even the prosecutrix (PW-5) has admitted in her cross-examination para 37 that Pintu had not committed any offence except being an accomplice to Bhura and supplying food from time to time. It is submitted that in fact there was infatuation between the prosecutrix and Bhura, and therefore, appellant Bhura wanted to marry her and appellant Pintu was just a witness to the incident and was not involved in either kidnapping or abduction for which he has been punished for three years and five years RI. It is further submitted that even appellant Bhura is innocent because there was consent of the prosecutrix and as per radiological examination conducted by Dr. R.K.Jain (PW-4) her age was above 19 years and below 20 years, therefore, it is not a case of abduction coming within the purview of Section 366 of IPC.
7. For appellant Bhura, it is submitted that as per MLC (Ex.P/3) Medical Officer has categorically opined that two fingers were going in the vagina with slight difficulty. Hymen was ruptured but edge was red, slightly swollen and painful. There was slight bleeding. It is submitted that doctor has not given any definite opinion about rape, and therefore, even appellant Bhura cannot be convicted for rape, abduction or kidnapping. Placing heavily on the evidence of Dr. Sarojani Beg (PW-3), it is submitted that there was no injury on any external part of the body of the prosecutrix and her secondary sexual characters were developed. There was no injury even to the internal parts of the body, and therefore, it cannot be said that prosecutrix was subjected to rape. Learned counsel for the appellants has also drawn attention of this Court to Ex.D/7, a love letter, saying that such letter was sent by the prosecutrix expressing her helplessness in giving statement
-( 4 )- Criminal Appeal No.116/00 against appellant Bhura because there was lot of pressure of her parents and she has mentioned that she has been married to somebody named Radhesingh Halak Singh and she has promised that she will definitely help him in future. Learned counsel for the appellant further submits that as per Ex.D/5, Gumsudgi report, father of the prosecutrix had mentioned her age as 17 years. It is also submitted that as per prosecutrix she was raped in the jungle but there are no external injury marks on the body of the prosecutrix. Thereafter, appellant Bhura had brought her to his house and there also he committed rape on her. It is submitted that prosecutrix has admitted that there were other family members at the house of Bhura. Learned counsel for the appellants also submits that Dashrath Singh (PW-9) has admitted that prosecutrix was born in a hospital at Chachoda in para 11 of his cross-examination, therefore, in terms of the provisions contained in Section 114(g) of the Evidence Act when evidence from Government record was available that prosecutrix was born in a Government Hospital, then non-production of such record will shift the burden on the prosecution to prove that prosecutrix was minor
8. Learned Public Prosecutor for the State on the other hand has drawn attention of this Court to Ex.P/12, FSL report, wherein Article A/1 was Salvar of the prosecutrix, A/2 was her underwear, Article B was slide prepared from vaginal smear and Article C was sample of pubic hair. As per this report, on A/2 i.e. underwear of the prosecutrix and the vaginal slide, human sperms were found. It was mentioned that such sperms available on Article A/2 was insufficient for serum examination. Thus, placing reliance on such FSL report, it is submitted that allegation of rape is medically corroborated. It is not the case of the appellants that except Bhura, anybody else had performed intercourse with her.
9. It is also submitted by learned Pubic Prosecutor that as per evidence of Vidyadevi Sharma (PW-1) In-charge Head Master of the Government Girls Primary School, Chachoda, prosecutrix was
-( 5 )- Criminal Appeal No.116/00 admitted in class 2nd and as per her admission register, Ex.D/2, date of birth is mentioned as 26.2.1985. Same witness has certified that date of birth of younger sister of the prosecutrix is 1.12.1986 and there is gap of about 22 months between the two sisters. In view of such facts, as far as age is concerned since first entry register when prosecutrix had taken admission in the school is available and as per her admission register, Ex.D/2, date of birth of the prosecutrix is 26.2.1985 which is fully proved by the In-charge Head Master Vidyadevi Sharma (PW-1), in terms of the provisions contained in Juvenile Justice Rules, there is no need to refer to radiological examination. As per Modi's textbook of Medical Jurisprudence and Toxicology, 25th Edition, radiologist was obliged to mention as to which author, as given under chapter x-personal identity and table showing the age in years of the appearance & fusion of some of the epiphysis, has been adopted by him. Learned Public Prosecutor further submits that as far as Ex.D/7, love letter, is concerned, prosecutrix has not been confronted with this letter and there is no evidence that this letter has been written in the handwriting of the prosecutrix. Learned Public Prosecutor for the State further submits that once school admission register is exhibited, then any mistake in Gumsudgi report (Ex.D/5) is not material and similarly since admittedly prosecutrix is minor, her consent cannot be said to be valid consent, therefore, all the arguments made around the theory of consent is not just and correct.
10. After going through the material on record and the evidence available on record, it has come on record that Ex.D/2, school register, gives date of birth as 26.2.1985, therefore, in terms of the JJ rules since school entry register is available showing date of birth of the prosecutrix to be 26.2.1985, there appears no doubt or gap requiring any further enquiry as to the age of the prosecutrix in terms of the provisions contained in Rule 12 of the JJA Rules. Therefore, on the date of incident, prosecutrix was minor.
-( 6 )- Criminal Appeal No.116/00
11. Now as far as act of appellant Pintu is concerned, prosecutrix has categorically mentioned that Pintu and Bhura had abducted her when she had gone to answer call of nature. Prosecutrix (PW-5) in her chief firstly stated that accused persons had not done anything to her, then she stated that when she was going to answer the call of nature, then she found that appellants Bhura and Pintu were standing outside her house. They took her to the forest, then Bhura asked her to marry her. When she refused saying that she is afraid of her parents, then Bhura committed rape with her. Thereafter, she was taken to the house of Bhura and was kept there till police came and recovered her from the house of Bhura. She was thereafter taken to Chachoda. She admits that no documentation was carried out in front of her at the house of Bhura. This renders the Dastyabi Panchnama Ex.P/7 doubtful as it is said to have been prepared at Tekri Mohalla at the house of Bhura. She has admitted that she was examined by a lady doctor at Chachoda and thereafter she was taken to Guna for x-ray. In cross-examination, she has admitted that there are four sisters and three brothers and her all three brothers are younger to her. In cross-examination, she submitted that from 10.1.1999 to 12.1.1999 Bhura had kept her in jungle itself, but later on she improvised and stated that she was not kept in jungle for a period of four days and the day she was abducted, at that night she was in jungle and then next day she was taken to house of Bhura at Chachoda. She further admitted in para 7 that after recovering her, police had produced her in the Court of Magistrate in presence of woman Constable and at Chachoda Magistrate had asked her as to with whom she would like to go and she had given a statement that she would like to go with Bhura, then she stated that since she was threatened by Bura, therefore, out of fear she had given such statement. In cross-examination, she has admitted that she was raped on rough surface suffering several injury in the shoulder and back and Bhura had kicked her but such statements are not
-( 7 )- Criminal Appeal No.116/00 corroborated from the medical evidence. In para 12, she has admitted that she has no knowledge about her date of birth. She also submitted that due to such act of Bhura, she had suffered injury in her private parts though they are not corroborated from the statement of the doctor. She admitted that Pintu used to only supply food and used to go back (para 17). She further admitted that when she had reached Bhura's house, his parents, brother and sister were available in the house. He had not performed any intercourse when she was at the house of Bhura. She has also admitted that it was a winter season and when she had slept in the jungle, then it was very cold and she was not having extra clothing to cover her body. She had not seen Bhura using any quilt or other covering. Bhura had slept away from her. In para 35, she has admitted that she was kept in a house at jungle and in that house one lady and her husband were present. She had not taken any food in that house but Bhura had consumed food. She stayed in that house for the whole night, and thereafter, from the house at jungle she was taken away in a matador driven by one Pappu, uncle of Pintu. She admitted that by that matador Bhura and prosecutrix were dropped closed to fort from where they had walked upto the house of Bhura. She further deposed that when she was in the house of Bhura, she had not gone to answer the call of nature. Thus, she had never used any toilet facility to either discharge urine or stool. These statements of the prosecutrix and the contradictions make the story of abduction in regard to appellant Pintu doubtful, therefore, this Court is of the opinion that since ingredients of abduction and kidnapping in regard to appellant Pintu are not made out because there is no allegation on appellant Pintu of giving any allurement to the prosecutrix nor there is any allegation on him of using any force, therefore, the act of appellant Pintu of going upto jungle alongwith appellant Bhura and supplying food from time to time cannot be said to be an act of abduction and kidnapping. In fact, as per own showing of the prosecution she had gone to a house in jungle and had not
-( 8 )- Criminal Appeal No.116/00 consumed any food and thereafter she was taken to the house of Bhura. There was no occasion for appellant Pintu to supply food to her, therefore, even if the aspect of kidnapping is examined in the light of the law laid down by Hon'ble Supreme Court in the case of Thakorlal D. Vadgama v. The State of Gujarat as reported in AIR 1973 SC 2313, then also it cannot be said that appellant Pintu had made any attempt to take possession of the prosecutrix or had enticed her for going with Bhura. Thus, conviction of appellant Pintu under Sections 363 and 366 of IPC is not sustainable and thus, conviction of appellant Pintu under Sections 363 and 366 of IPC deserves to be and is set aside.
12. As far as appellant Bhura is concerned, there may not be any use of force, but when provisions of Section 361 and its ingredients are examined in the light of judgment of the Supreme Court in the case of Thakorlal D. Vadgama (supra) then there was enticement of the prosecutrix in the name of marriage and since prosecutrix was not above the age of 18 years, her consent cannot be said to be a valid consent though the ingredients of consent are also missing in the present case, therefore, case of appellant Bhura is on a different pedestal than that of appellant Pintu.
13. In the light of the FSL report and the statement of the prosecutrix that except Bhura no other person had performed intercourse with her and presence of sperms on vaginal swab as well as underwear of the prosecutrix, this Court is of the opinion that appellant Bhura is not entitled for any relief nonetheless that of acquittal as all the ingredients of abduction, kidnapping and rape as have been alleged are corroborated through evidence of prosecution witnesses as well as scientific evidence collected in the matter. Thus, conviction of appellant Bhura for the offence punishable under Sections 363, 366 and 376 of IPC is upheld and appeal filed on behalf of appellant Bhura deserves to be and is dismissed.
14. Consequently, appeal is party allowed. As far as conviction
-( 9 )- Criminal Appeal No.116/00 of appellant Pintu under Sections 363 and 366 of IPC is concerned, it is set aside and he is acquitted from such charges. As far as appellant Bhura is concerned, his conviction under Sections 363, 366 and 376 of IPC is upheld. He is on bail, his bail bonds are cancelled and he shall surrender before the trial Court for undergoing remaining jail sentence on or before 4.9.18, failing which trial Court is free to take appropriate steps to send him to jail for undergoing remaining jail sentence.
(Vivek Agarwal) Judge ms/-
Digitally signed by MADHU SOODAN PRASAD Date: 2018.08.27 18:10:58 +05'30'