Madhya Pradesh High Court
The State Of M.P. vs Kallu & Ors. on 13 December, 2018
-1- Cr.A. No.1198/2000
HIGH COURT OF MADHYA PRADESH, JABALPUR
Criminal Appeal No. 1198 of 2000
Parties Name The State of Madhya Pradesh
-Versus-
1. Kallu, aged about 21 years, son
of Gajade, occupation Cultivation
2. Jawahar, aged about 58 years,
son of Bhagwandas, Occupation-
Cultivation
3. Dayaram, aged about 38 years,
son of Dau Patel, Occupation-
Cultivation
All residents of Village Bamureha,
P.S. Amangaj, District Panna
(M.P.)
4. Mahesh, aged about 37 years,
son of Ramkishan, Occupation-
Cultivation, Resident of Village
Imliya, P.S. Gunaur, District Panna
Bench Constituted Hon'ble Shri Justice
J.K.Maheshwari & Hon'ble Shri
Justice B.K. Shrivastava
Judgment delivered by Hon'ble Shri Justice B.K.
Shrivastava.
Whether approved for Yes/No
reporting
Name of counsels for parties For appellant/State : Smt.
M.P.S.Chuckal, Panel Lawyer.
For respondents : Shri Mukund
Kumar Chourasia as Amicus Curiae
Law laid down
Significant paragraphs
numbers
JUDGMENT
(13.12.2018) Per: B.K.SHRIVASTAVA, J.
This appeal has been filed on 28.12.1999 arising out of the judgment of acquittal dated 24.9.1999 passed by the Sessions Judge, Panna in Sessions Trial No.69/1998. By the aforesaid judgment, the learned lower Court acquitted the accused Mahesh for the offence under section 376(2)(g) read with section 107 of IPC, accused Dayaram for the offence under section 363 read with section 107 of IPC, in alternative section 366 read with section 107 of IPC, accused Kallu for section 363 of IPC, in alternative sections 366 and 376(2)(g) and accused Jawahar for the offence under section 376(2)(g) of IPC.
2. It is submitted by the counsel for appellant/State that the learned lower Court acquitted the accused persons without perusing the evidence brought before the trial court. It was proved that the prosecutrix was minor, therefore, her consent is not valid and the order of acquittal of accused cannot be passed. As per ossification test, the age of the prosecutrix was reported between 13 to 15 years. The Court failed to see that the prosecution has proved its story beyond reasonable doubts. However, the judgment of acquittal is bad in accordance to law. Therefore, the instant appeal may be allowed and the accused persons may be reasonably punished.
3. On the other hand, the learned Amicus Curiae opposed the arguments. It is submitted by him that the learned lower Court passed the judgment after proper appreciation of the evidence and rightly came to the conclusion that the prosecutrix was about 18 years of age. The statement of the prosecutrix was also not found reliable, however, the conviction cannot be based only on the sole testimony of the prosecutrix. It is argued that the allegation of commission of rape is also not supported by the medical evidence. Therefore, the lower Court rightly acquitted the accused persons. Hence, the appeal is liable to be dismissed.
4. We have heard learned Panel Lawyer and Amicus Curiae and also perused the record. It appears from the record that Crime No.76/1998 was registered on 11.5.1998 under sections 363, 366, 376(2-d), 368 and 506-B of IPC at Police Station Amanganj, District Panna. Initially a missing person report No.4/98 was lodged on 9.5.1998. During the investigation, the missing prosecutrix was produced before the Police by -3- Cr.A. No.1198/2000 Rammulal Patel and Prithvilal Patel. Thereafter Police recorded her statement and registered the offence against the accused. The prosecutrix was sent for medical examination. The police recorded statements of various other persons and thereafter filed challan before the competent Judicial Magistrate, who committed the case to the Court of Sessions. On framing the charges, the accused persons denied the same before the Sessions Court and demanded the trial. The prosecution has examined 9 witnesses and one witness in defence was also examined.
6. Vide judgment dated 24.9.1999, the Sessions Judge acquitted the accused persons. As per lower court, the prosecution has not succeeded in proving the age of the prosecutrix below 18 years. The sole testimony of the prosecutrix was not reliable, therefore, denied to convict the accused persons based upon the same. It is stated in Para 6 of the judgment that no cogent evidence has been produced against the accused Mahesh and Dayaram, however, the involvement of the said two accused persons is not proved beyond reasonable doubt. The aforesaid finding is also find support from the medical evidence. The prosecutrix as well as other witnesses did not depose anything against the said two accused. Therefore, the acquittal of accused Mahesh and Dayaram appears to be justified.
7. In Para 13 of the impugned judgment, the lower Court referred the statement of Dr.Sharad Dwivedi (P.W.6), who stated that upon ossification of the prosecutrix, she was found between 13 to 15 years and that witnesses also admitted that margin of 3 years is permissible. In the aforesaid situation, the Court concluded that the age of prosecutrix was not below than 18 years.
8. In the case of Jaya Mala Vs. Home Secretary (1982) 2 SCC 538, it has been observed by the Supreme Court in Para 9 that one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. If we calculated the age with the margin of two years, then it will come 17 years at the time of commission of offence on the date of incident. The age of the prosecutrix for consent was prescribed as 16 years. Therefore, it appears from the evidence that the prosecutrix was above than 16 years, though below from 18 years.
9. Now we have to see as to whether the sole statement of prosecutrix was sufficient to convict the respondents?
10. On perusal of the statement of the prosecutrix, she gave different versions before the Court. The prosecutrix in Paras 11 to 15 of her Court statement has denied the various important events, which she had admitted in her police statement, Ex.D.1. As per her statement recorded by the police on 12.5.1998, Ex.D.1, she was well known to the accused Kallu Patel, who was her brother-in-law and in a distant relation. The field and tubewell of the accused is situated near the residence of prosecutrix. The parents of prosecutrix married her at Khajuraho and at the time of incident, they were planning to send her to the matrimonial home. She narrated the situation to the accused Mahesh and thereafter they proposed the scheme of leaving their house. The prosecutrix was having Rs.4000/- given by her mother, however left her house as per plannig with the said amount and reached with accused Kallu to a Khalihan owned by a person belong to the Chamar Caste. It is also admitted that she committed sexual intercourse with the accused several times. It is also stated by the prosecutrix in her statement that she and Kallu & Jawahar, all 3 persons stayed in the night in that Khalihan near a well. In the night, accused Kallu and Jawahar both had committed sexual intercourse with the prosecutrix. Thereafter in the morning, they reached in house of relative of Jawahar, situated in Village Imaliya. But in the Court statement, she denied all the aforesaid facts including the relationship with accused Kallu and commitment of the sexual intercourse by Kallu. In her police statement, she stated that they spent a night in a Khalihan where accused Jawahar also committed rape with her. But in her Court statement, she denied the aforesaid fact and said -5- Cr.A. No.1198/2000 that they were stayed in the house of relative of accused Jawahar and he committed rape in a room where she was sleeping with accused Kallu and Jawahar.
11. Therefore, it appears that the prosecutrix gave entirely a different version before the Court. Even the place of committal of rape has been changed. Therefore, the sole statement of prosecutrix is not found reliable and upon this statement the conviction cannot be based.
12. In reference to section 363 of IPC, it will be proper to refer the following Para of the book of Ratanlal and Dhirajlal "Law of Crimes" 23rd Edition, at Page 1346:-
"A minor may not be competent to give her consent to her taking but a minor is certainly competent to leave the protection of her guardian of his or her own accord. Therefore, it is immaterial whether the girl alleged to be kidnapped was a minor or not in so far as her leaving the house of her own accord is concerned. If a minor girl leaves her home without any persuasion or inducement held out by the accused so that she has got fairly away from home and then goes to him, his not restoring her to her home is no infringement of the law. To sustain a conviction, the prosecution has to prove that the accused had some active part in the minor leaving her guardian's house. The offence under S.363 is not a continuing one and it really consists in the initial act of taking her from the keeping of her lawful guardian."
13. In the light of the aforesaid observation, if we see the statement of prosecutrix, then it appears that she herself after taking Rs.4000/- left her house following her planning with the accused. Therefore, accused cannot be held liable for the abduction of prosecutrix.
14. It is an admitted fact that the medical evidence also not supported the story of prosecution. Dr.Renu Dubey (P.W.1), who examined the prosecutrix and gave the report, Ex.P.1, stated in her statement that no injury was found upon the person of prosecutrix. She was habitual to sexual intercourse. The doctor did not find any symptom of recent rape. In this regard, it will be useful to refer Para 9 of the judgment of Supreme Court rendered in the case of Lalliram and Another Vs. State of M.P. (Criminal Appeal No.791/2006, judgment dated 15.9.2008), which is as under:-
"9. It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. As was observed by this Court in Pratap Misra and Ors. Vs. State of Orissa (1977 (3) SCC 41) where allegation is of rape by many persons and several times but no injury is noticed that certainly is an important factor if the prosecutrix's version is credible, then no corroboration is necessary. But if the prosecutrix's version is not credible then there would be need for corroboration. (See Aman Kumar & Ors. Vs. State of Haryana (2004 (4) SCC 379)."
15. In this case, the charge under section 376(2)(g) was also framed against accused Mahesh. In this regard, in the case of Priya Patel Vs. State of M.P. and another, JT 2006 (6) SC 303, it has been observed by the Supreme Court in Para 8:-
"8. By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape. 'Common intention' is dealt with in Section 34 IPC and provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. 'Common intention' denotes action in concert and necessarily postulates a pre- arranged plan, a prior meeting of minds and an element of participation in action. The acts may be different and vary in character, but must be actuated by the same common intention, which is different from same intention or similar intention. The sine qua non for bringing in application of Section 34 IPC that the act must be done in furtherance of the common intention to do a criminal act. The expression 'in -7- Cr.A. No.1198/2000 furtherance of their common intention' as appearing in the Explanation to Section 376(2) relates to intention to commit rape."
16. In the present case, the prosecutrix alleged that the accused Jawahar had also committed rape with her. In her police statement she said that they stayed near a well situated in the Khalihan of one person where accused Jawahar committed rape. But this version has not been supported by her in Court statement. In the Court statement, she said that accused Jawahar committed rape in a room of his relative where she stayed with accused Kallu and Jawahar.
17. Therefore, it appears from the record that prosecutrix was a consenting party, who left her parental home voluntarily without any compulsion by any accused. Her age was above than 16 years. Therefore, the lower Court rightly came to the conclusion that the prosecution is unable to prove the charges levelled against the accused persons.
18. In view of the foregoing discussions, the findings of the trial court do not warrant interference, therefore, the appeal is having no substance, hence dismissed.
(J.K.MAHESHWARI) (B.K.SHRIVASTAVA)
JUDGE JUDGE
TG/-
Digitally signed by
TRUPTI GUNJAL
Date: 2018.12.20
02:26:49 -08'00'
-9- Cr.A. No.1198/2000