Madhya Pradesh High Court
Hiramani Singh vs The State Of M.P. on 11 January, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
ON THE 11th OF JANUARY, 2024
CRIMINAL APPEAL No. 1209 of 2004
BETWEEN:-
HIRAMANI SINGH S/O SHRI VISHWANATH
SINGH PATEL, AGED ABOUT 21 YEARS R/O
VILLAGE MADHEPUR, POLICE STATION
CHORHTA, DISTRICT REWA (MP)
.....APPELLANT
(BY SHRI EJAZ SIDDIQUI - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION CHORHATA
DISTRICT REWA (MP)
.....RESPONDENT
(BY SHRI ALOK TAPIKAR - PANEL LAWYER)
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Reserved on : 12.12.2023
Pronounced on : 11.01.2024
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This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the Court passed the following:
JUDGMENT
This present criminal appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") has been preferred against the impugned judgment dated 20.07.2004 passed by the learned First Additional Sessions Judge, Rewa in Session Trial No.60/2004, whereby the appellant -
2Hiramani Singh has been convicted for offence under sections 363 and 366 of the Indian Penal Code (for short "IPC") and sentenced to rigorous imprisonment for one year and pay fine of Rs.500/- each count, in default of payment of fine undergo R..I. for three-three months respectively.
2. Background facts in a nutshell are as follows :
In the intervening night of 21/22 January, 2004, at about 10:30 PM the prosecutrix aged about 16 years was in her house and her family members were slept. At around 12:30 in the night, her father Roshanlal woke up and noticed that her daughter (prosecutrix) was not on the bed and he informed her mother and both were searching and noticed that all doors were locked inside and she might climb on the roof of house and jumped on the roof of adjacent house because roof of adjacent house is in dilapidated condition and they presumed that their daughter might have eloped with Hiramani Singh because in earlier he has given several letters to his daughter and suspected. Further the prosecutrix had gone to their relative's house at Jabalpur two weeks ago and stayed for 15 days. One Santosh Nigam of the same locality has also came and said that he wanted to meet to prosecutrix. He was sitting with Hiramani for two hours in front of their house.
On 22.01.2004 father of the prosecutrix filed a written report to Police Station Chorhata and the police registered case in Crime No.09/2004 under Sections 363, 366 and 376 r/w 34 of IPC and took up the investigation. On the same day at about 12:30 PM, the investigation agency secured the prosecutrix from the house of Indrajeet Singh under the panchnama (Ex.P-12) and on the next day i.e. on 23.01.2004, she was sent for medical examination and seized the vehicle which was used for taking her on his motor cycle and arrest the accused persons. After completion of the investigation filed charge-sheet for the offence under Sections 363, 366 and 376 of IPC in the Court of learned Chief Judicial Magistrate, Rewa.
3. On appearance of the appellant, copies of the documents are required 3 under Section 207 of Cr.P.C. for supply to him. As the case is triable by the Court of Sessions, the case was committed to the Court of Sessions under Section 209 of Cr.P.C., accordingly, the same was made over to the Court of learned First Additional Sessions Judge, Rewa for trial and disposal in accordance with law.
4. Basing on the material available on record, strangely the learned First Additional Sessions Judge, Rewa framed the charges under Sections 363, 366, 366- A and 376 r/w 34 of IPC and the same has been read over and explained to the appellant to which he pleaded not guilty and claimed to be tried.
5. To substantiate its case, the prosecution examined the witnesses as PW-1 to PW-14 and got marked Exhibit P-1 to P-21 on behalf of the prosecution. The defence of the appellant was false implication. The defence witness Indrajeet Singh as DW-1 and marked Ex.D-1 to D-70.
6. After closure of prosecution evidence, the accused was examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied, however, he adduced defence witness (DW-1) to support his plea.
7. Relying upon the evidence of prosecution witnesses PW-1 to PW-14, coupled with the medical evidence, the learned First Additional Sessions Judge convicted the accused and sentenced the appellant as referred above.
8. The learned counsel for the appellant stated that the impugned judgment of the trial Court is contrary to the law and facts on record. The learned Judge has not considered the defence evidence and wrongly believed with the prosecution witnesses. There are material omissions and contradictions in the statements of prosecution witnesses. Further submits that the learned Judge has wrongly considered that the prosecutrix was a minor and found to be below 18 years but it is a wrong finding. Further argued that there is no acceptable evidence about the age of the prosecutrix, which is material aspect, inasmuch as the evidence shows the 4 prosecutrix (PW-2) has willingly accompanied with the appellant and stayed. Further submits that this is not the case in which the offence under Section 363 and 366 of IPC is made out. Further submits that learned Sessions Judge has not properly appreciated the evidence on record and convicted and sentenced the appellant. The conviction is bad in law. Further submits that much prior to the incident, the prosecutrix and accused have good contacts and she wrote many letters to the appellants which are marked as Ex.D-1 to D-66 which clearly proves that she was much inspiring the appellant, she wants to eloped with him inviting him many time in the mid nights, further submits that during cross-examination, the prosecutrix (PW-2) admitted that she has no enmity with the appellant prior to the incident. Further she admitted that Exhibit D-1 to D-66 letters with her own hand writing, that itself are sufficient that the evidence of PW-2- prosecutrix under the threat of her father, she deposed false. Further submits that it is now settled law that once ocular evidence is found to be false and not reliable and inspiring confidence, the appellant is entitled for benefit of doubt and liable to be acquitted.
9. Per contra, learned Panel Advocate who had represented on behalf of the State has supported the impugned judgment. It is submitted that the age of the prosecutrix (PW-2) has clearly come on record that she was below the age of 18 years on the date of incident. It is submitted that there is a clear evidence to show that the appellant had taken the prosecutrix from the lawful custody of her parent's house, it is further submitted that there is nothing in the cross-examination of the material witnesses PW-1 to PW-4, PW-7, PW-9, PW-11 and PW-12. Further submits that from the evidence produced by the prosecution, the guilt of the appellant is clearly proved, so the learned trial Court did not commit any mistake in finding the appellant guilty for the aforesaid offences. The trial Court on proper appreciation of evidence, convicted the appellant and same does not called for any interference and the same is well reasoned established in the guilt of the appellant beyond reasonable doubt, therefore, confirming the impugned judgment of conviction and order of sentence. The appeal filed by the appellant may be 5 dismissed.
10. Now the short point that arises for consideration in this appeal is :
"whether the trial Court was right in convicting the appellant for the offence punishable under Sections 363 and 366 of IPC ?".
11. There are four categories of evidence available on record. The first category, Doctor's evidence i.e. PW-1 (Dr. Rohini Pranjape), PW-7 (Dr.A.A. Siddiqui) and PW-9 (Dr. R.J. Sharma), who are examined the prosecutrix. The second category, family members i.e. PW-2/prosecutrix, PW-3 (Ramraj Gupta), PW-4 (Hiralal), PW-11 (Roshanlal Gupta) and PW-12 (Sunita). The third category, police personnel i.e. PW-5 (Ganesh Prasad Pandey), PW-8 (Narayan Prasad), PW- 10 (Vishnudatt Dubey) and PW-14 (S.P. Chaturvedi) and the fourth category of evidence available on record who are PW-6 (Vinayak Prasad/ Patwari) and PW-13 (Ram Kumar Singh/ Sarpanch) in their presence prepared spot map and secured the presence of prosecutrix and advised to PW-11 to make a complaint to the police.
12. In the evidence of Doctor (PW-1) who has examined the prosecutrix, she stated that on 23.01.2004 while she was in the Hospital, the prosecutrix was brought by her father alongwith Constable- Sursari Prasad from Police Station Chorhata, for medical examination and she stated that no injury was found on the body of the prosecutrix. In her cross-examination, she stated that the prosecutrix did not have any internal or external laceration and considering the external examination of the prosecutrix, it was not advised to have sexual intercourse with her and her hymen was intact and she did not give any opinion regarding the age of the prosecutrix.
13. Apart from her evidence, Doctor (PW-7) stated that on 24.01.2004 while he was on duty, prosecutrix was brought by her father alongwith Sursarilal - Constable for X-ray and he examined and stated that the age of the prosecutrix is above 16 years and below 18 years. In his cross-examination, he stated that it may be more or less than two years.
614. Besides the above evidence, prosecution examined the Doctor (PW-9) who is the Dental Surgeon of Government Hospital, Rewa, he stated that on 24.01.2004 while he was in hospital, the prosecutrix was brought by her father Roshanlal alongwith Constable Sursarilal for medical examination and he found that none of her molars were present nor any evidence visible which proves that she was less than 17 years.
15. In support of medical evidence, Sunita who is the mother of the prosecutrix, examined as PW-12, she stated that her daughter was aged about 16 years. Roshanlal who is the father of the prosecutrix examined as PW-11 and he stated that her daughter was aged about 16 years.
16. In light of the above evidence, if the margin of arrears of two years is calculated, the age of prosecutrix may be more than 18 years at the time of incident. The Head Master of the Government Primary School has issued a certificate (Ex.P-2) showing her date of birth as 20.10.1987 but the prosecution has not examined the author of Exhibit P-2.
17. A decision reported in Phiroz vs. state of Madhya Pradesh 1, in para 24 are as follows:-
24. While dealing with a similar issue in Birad Mal Singhvi v. Anand Purohit, this Court held as under; (SCC p. 619, para 15) "15.... To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record;
secondly, it must be an entry stating a fact in issue or relevant. fact; and thirdly it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law.
An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded."
1 2022 SCC Online MP 1631 7
18. In the light of the above citation, the date of birth mentioned at the time of admission, on what basis the date of birth was mentioned in the school record. When the author was not examined by the prosecution, is of no value.
19. In the case of State of Karnataka vs. Bantara Sudhakara2, para 12 as follows:
"Additionally, merely because of doctor's evidence showed that the victims belong to the age group of 14-16, to conclude that the two years of age has to be added to the upper age limit is without any foundation.
20. In the case of Jyoti Prakash Rai vs. State of Bihar3, the Apex Court also clarify that position and held after a certain age it is difficult to determine the exact age of the person concerned on the basis of ossification test or other tests because of that Apex Court in a number of judgments has held that the age determined by the doctors should be given the flexibility of two years on either side.
21. It transpires that there is no rule, much less an absolute one that two years have to be added to the age determined by the doctor. Whether the margin of error of two years is to be taken depends on the facts and circumstances of each case and the margin of error of two years is to be taken on the lower side or on the higher side, would also depends on the facts and circumstances of the case.
22. In these circumstances, in the considered opinion of this Court, the trial Court committed a mistake in finding that at the time of incident, the age of the prosecutrix was below 18 years. In this regard, findings of the trial Court appears to be incorrect that the prosecutrix was below the age of 18 years at the time of occurrence.
23. In the case of Parameswaran Rajappan vs. State of Kerala4, a similar question came up for consideration before a Division Bench, the law laid down 2 (2008)11 SCC 38 3 (2008) 15 SCC 223 4 ILR 1960 Kerala 481/MANU/SC/0049/1957 8 was:-
24. Much reliance cannot be placed on the opinion of the Radiologist, particularly when Medicolegal opinion is that owing to the variations in climatic, dietetic, hereditary and other factors affecting the people of different States of India it cannot reasonably be expected to formulate a uniform standard for the determination of the age by theextent of ossification and the union of epiphyses bones.
24. In the decisoin of Delhi High Court in Satish Kumar vs. State5 also said:
"Where is conflicting views as to the age recorded in the school leaving certificate and as ascertained from the medical record/evidence, the benefit of uncertainty must go to the accused."
25. Therefore, it is necessarily follows the two types of evidence adduced in the case cannot be taken to have established the age of PW-2 conclusively. The benefit arising from that reasonable doubt could go only to the accused and to anybody else.
26. Therefore, the finding of trial Court that the age of the prosecutrix was found to be below 18 years at the time of incident and the accused abducted her from lawful guardianship of her parents which is contrary to the law laid down, in view of the evidence discussed above where the conflicting use as to the age recorded in the school certificate and ascertained from the medical record, the benefit of uncertainty must go to the accused. So in the present case of nature, the prosecutrix is above the age of 18 years and she was not abducted by the accused from the lawful guardianship of her parents.
27. In the present case, the prosecutrix was examined as PW-2 and she stated that on 21.01.2004 at about 10:00PM, she was in sleep. At around 12:00 in the night, she went to washroom and at that time one - Hiramani Singh pressed her mouth and took her 1 km away from her house on the river bank and further stated that the accused put his hand on her body and he forced and committed 5 1988 Crl. L.J. 565 9 rape. In cross-examination, she stated that she and appellant did not meet to each other and Hiramani Singh did not write any letter to her and she had no prior enmity with the appellant before the incident. The letters written by the prosecutrix marked as Exhibit D-1 to D-66. She admitted that those letters were written in her own handwriting. The conduct and the behaviour of prosecutrix has to be assessed and the letters written by her to the accused in Ex.D-1 to D- 66, she expressed her love and affection towards the appellant, she want to elope with the appellant with her father's money. On perusal of all the letters (Ex.D-1 to D-66), it clearly indicates that she used to meet with the appellant during mid night and one of the letter, she stated that her father will go to Satna and requested the appellant to come at mid night to meet her.
28. In view of those letters, it clearly indicates that the incident happened was not the first time, the prosecutrix fallen in love with the appellant and used to meet him many times as indicated in letters; Ex.D-1 to D-66 and it also indicates that her intention to elope with him by taking her father's money.
29. On scrutinizing the evidence of prosecutrix (PW-2), coupled with the evidence of PW-1/doctor the medical opinion indicates that there was no external or internal injuries on her body and her hymen is intact and only one finger entered in the genitals and considering the external examination, she was not advised to have sexual intercourse with her which clearly indicates that evidence of PW-2 is false. It seems that due to pressure of her family members i.e. father-Roshanlal, she was deposing false which creates reasonable doubt to the testimony of the prosecutrix. The benefit of doubt to be given to the appellant. Considering the letters written by the prosecutrix which stated supra.
30. Therefore, if the appellant has any evil intention or bad motive, he would have forced her to do sexual intercourse or compelled her to marry any person or unless the prosecution proves that the abduction is for the purpose mentioned in Section 366 of IPC, the Court cannot hold the accused guilty and 10 punish him under Section 366 of IPC. Further the evidence of prosecutrix (PW-
2) does not indicate that the appellant had kidnapped the prosecutrix with intent to marry her against her will or in order that she may be forced to illicit intercourse. These two vital ingredients for upholding the conviction under Section 366 of IPC are not proved because the prosecutrix alongwith her parents slept in the house and she went on the roof of the house and jumped at the adjacent house which is in dilapidated/broken condition. By that time, the appellant waited for the prosecutrix, she went alongwith him. Therefore, the story narrated by the prosecution that she was abducted by the appellant and took her some place and forced her to marry or to do illicit intercourse, that those are not done by him because they have friendship much prior to incident from 2000 and the incident happened in the year 2004. Therefore, in the pressure of her father, she might have deposed false.
31. On perusal of evidence on record and letters written by the prosecutrix, it appears that the appellant herein was in friendship with the prosecutrix which was known to their families also. For the charge under Section 366 of IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366 of IPC, the Court cannot hold the accused guilty and punish him under Section 366 of IPC.
32. The Hon'ble Apex Court in the case of Kuldeep K Mahato Vs State of Bihar6 wherein it was found the age of the prosecutrix at the time of incident was between 17-18 years, since she was consenting party held 6 1998 (6) SCC 420 11 "9. As far as conviction under Section 366 of IPC is concerned, we find that the evidence of prosecutrix in this behalf is not conclusive. Her evidence does not indicate that the appellant had kidnapped the prosecutrix with the intention to marry against her will or in order that she may be forced to illicit intercourse. These two vital ingredients for upholding conviction under Section 366 of IPC are not proved and, therefore, the conviction of the appellant under Section 366 cannot be sustained."
33. Following the above citation, the evidence of prosecutrix coupled with the evidence of Doctor (PW-1) who examined her, opined that the hymen of the prosecutrix is intact, no internal or external injuries were found on the body of the prosecutrix and further considering the external examination of prosecutrix, it was not advised to have sexual intercourse with her.
34. I do not find any valuable piece of evidence, considering the evidence of prosecutrix (PW-2), her evidence is not cogent and trustworthy and the learned trial Judge has committed the error in convicting the appellant on the ground of considering the age of prosecurtrix which is below 18 years. The entries in the school register are not of much value unless there is evidence to show that what material and at whose instance, it is based, the prosecution has failed to adduce this evidence in the present case. As such the finding of trial Court, the prosecutrix was below 18 years of age, is not based on the sound and proper appreciation of evidence and law. There are so many material contradiction and omissions and all the witnesses have narrated the different story and it is not trustworthy to state that the prosecutrix was kidnapped by the appellant. The evidence of DW-1 who was examined on behalf of the appellant, he categorically stated that the prosecutrix's father - Roshanlal brought the police threatening her to sign on the papers, at that time she was saying that she want to marry with the appellant and he took her to the police station.
35. On perusal of above evidence, coupled with the evidence (Ex.D-1 to D-66), it clearly indicates that the prosecutrix wants to elope with the appellant by taking father's money and she also wants to marry him but due to fear of her 12 father, she could not do so. In spite of when they were slept in one roof in the mid night she went to the roof and jumped into the neighbors house which is in dilapidated/broken condition, from there she went to the appellant. The intention of the prosecutrix (PW-2) is corroborated in the letters (Ex.D-1 to D-66) that prosecutrix herself wants to go with the appellant, therefore, the appellant never kidnap or abduct the prosecutrix with intent that she may be compelled or forced or to marry any other person against her or seduced to illicit intercourse. If the appellant has any bad motive, he would have forced her to illicit intercourse, the PW-1(doctor) has categorically stated that the hymen of the prosecutrix is intact.
36. These above facts would go to show that the prosecutrix left the house and go with the appellant, inspite of, he never forced her to marry with him or forced her to do sexual intercourse and while they were in friendly nature staying in the house of Indrajeet Singh (DW-1), the father of the prosecutrix caught them and take them to the police station and the prosecutrix giving her evidence in compelling circumstances with the force of her father and other family members.
37. In these circumstances, going through the evidence of doctors; PW-1, PW-7 and PW-9 who are the Radiologist and Dental Surgeon and their reports, it is gathered that the age of the prosecutrix was above 18 years. This Court is of the considered opinion that the prosecution has failed to prove that the prosecutrix was abducted or kidnapped by the appellant.
38. Under these circumstances, this Court is of the considered opinion that the prosecution has failed to prove that the prosecutrix was abducted or kidnapped by the appellant. The trial Court has not properly appreciated the evidence available on record and wrongly convicted and sentenced the appellant for the aforementioned offences. The trial Court has committed grave error and illegality in convicting the appellant for the offence punishable under Sections 363 and 366 of IPC and sentenced to undergo for rigorous imprisonment of one years and pay of fine of Rs.500/- on each count with default stipulation.
1339. Consequently, the present criminal appeal is allowed and the impugned judgment and order dated 20.07.2004 passed by the learned First Additional Sessions Judge, Rewa in Session Trial No.60/2004 is hereby set- aside. The appellant - Hiramani Singh is acquitted from the charges punishable under Sections 363 and 366 of IPC and set him at liberty forthwith.
40. The bail bonds submitted by appellant are discharged.
41. The present criminal appeal stands disposed off, accordingly.
42. Let the record of trial Court alongwith a copy of this judgment be sent to the trial Court concerned for information and necessary compliance.
DUPPALA VENKATA RAMANA, J
vibha
Digitally signed by
VIBHA PACHORI
Date: 2024.01.12
16:01:04 +05'30'
14
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
ON THE 11th OF JANUARY, 2024
CRIMINAL APPEAL No. 1209 of 2004
BETWEEN:-
HIRAMANI SINGH S/O SHRI VISHWANATH
SINGH PATEL, AGED ABOUT 21 YEARS R/O
VILLAGE MADHEPUR, POLICE STATION
CHORHTA, DISTRICT REWA (MP)
.....APPELLANT
(BY SHRI EJAZ SIDDIQUI - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION CHORHATA
DISTRICT REWA (MP)
.....RESPONDENT
(BY SHRI ALOK TAPIKAR - PANEL LAWYER)
DATE OF JUDGMENT PRONOUNCED : 11.01.2024
SUBMITTED FOR APPROVAL :
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? Yes/No
2. Whether the copies of judgment may be marked to Law Reporters/Journals ? Yes/No
3. Whether His Lordship wish to see the fair copy of the Judgment ? Yes/No DUPPALA VENKATA RAMANA, J.
15 IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
ON THE 11th OF JANUARY, 2024
CRIMINAL APPEAL No. 1209 of 2004
BETWEEN:-
HIRAMANI SINGH S/O SHRI VISHWANATH
SINGH PATEL, AGED ABOUT 21 YEARS R/O
VILLAGE MADHEPUR, POLICE STATION
CHORHTA, DISTRICT REWA (MP)
.....APPELLANT
AND
THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION CHORHATA
DISTRICT REWA (MP)
.....RESPONDENT
Counsel for the Appellant : Shri Ejaz Siddiqui
Counsel for the Respondent : Shri Alok Tapikar
> Gist :
< Head Note:
? Cases Referred
2022 SCC Online MP 1631
(2008)11 SCC 38
(2008) 15 SCC 223
ILR 1960 Kerala 481/MANU/SC/0049/1957
1988 Crl. L.J. 565
1998 (6) SCC 420