Madhya Pradesh High Court
Bharti Jatav vs The State Of Madhya Pradesh on 14 August, 2019
Equivalent citations: AIRONLINE 2019 MP 909
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1 CRA No.1004/2014
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
Criminal Appeal No. 1004/2014
.........Appellant: Bharti Jatav
Versus
.......Respondent : State of M.P.
-------------------------------------------------------------------------------------
Shri S.K. Khare, Counsel for the appellant.
Shri Vijay Sundaram, Panel Lawyer for the respondent/State.
-------------------------------------------------------------------------------------
Date of hearing : 27/07/2019
Date of Judgment : /08/2019
Whether approved for reporting:
Law Laid down :
Significant paragraph numbers:
JUDGMENT
(14/08/2019) This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 31.7.2014 passed by Additional Sessions Judge, Karera, District Shivpuri in Special Sessions Trial No.26/2014 by which the appellant has been convicted for the following offences:
2 CRA No.1004/2014
1 Under Section 363 R.I. for 3 Years and fine of Rs.500/- with IPC default imprisonment 2 Under Section 366 R.I. for 5 Years and fine of Rs.500/- with IPC default imprisonment 3 Under Section 376(1) R.I. for 10 Years and fine of Rs.1000/-
IPC with default imprisonment 4 4 of POCSO Act R.I. for 10 Years and fine of Rs.2000/- with default imprisonment
2. The necessary facts for the disposal of the present appeal in short are that the complainant lodged a FIR on the allegation that she had gone to market for purchasing medicines for her husband and the prosecutrix was at home. While she was coming back, she found that the prosecutrix was going along with the appellant towards the market and when she enquired, the appellant informed that they are going towards Kacchi Street for getting the goods packed and thereafter he would go to Shivpuri, then she instructed not to take her daughter to Shivpuri. When the prosecutrix did not return back, then she went to the house of the appellant and enquired from his mother who expressed her ignorance.
When the whereabouts of the prosecutrix could not be ascertained, then she lodged a FIR Ex.P/2 and accordingly Crime No.63/2014 for offence under Sections 363, 366 of IPC was registered. After the prosecutrix was recovered, on the information given by her that she was subjected to rape by the appellant, an offence under Section 376 of IPC was also added. Thereafter, on the information given by the father of the prosecutrix, the spot map was prepared. The prosecutrix was sent for 3 CRA No.1004/2014 medical examination, her ossification test was conducted. The statements of the prosecutrix and her parents were recorded under Section 161 of Cr.P.C. The appellant was arrested and he was also got medically examined. The sealed underwear, vaginal slides which were received from the hospital were sent to FSL. After concluding the investigation, the police filed the charge sheet for offence under Sections 363, 366, 376(1) of IPC and under Section 4 of Protection of Children from Sexual Offences Act, 2012 (in short "POCSO Act, 2012").
3. The Trial Court by order dated 19.3.2014 framed the charges under Sections 363, 366, 376(1) of IPC and under Section 4 of POCSO Act, 2012.
4. The appellant abjured his guilt and pleaded not guilty.
5. The prosecution in order to prove its case examined Prosecutrix (PW-1), Santoshi Jatav (PW-2), Balchandra (PW-3), Dr. Mamta Chauhan (PW-4), Prabhawati Lodhi (PW-5), Kamal Singh (PW-6), Dr. Rahul Gupta (PW-7), Lakhan Singh (PW-8), Charan Singh (PW-9), Dr. M.L. Agrawal (PW-10), Devdas Mohar (PW-11), G.D. Vimal (PW-12) and Anjana Khare (PW-13).
6. The appellant examined himself as DW-1 in his defence.
7. The Trial Court by impugned judgment and sentence dated 31.7.2014 came to conclusion that the date of birth of the prosecutrix is 20.6.1998 and since the incident took place on 31.1.2014, therefore, the prosecutrix was minor below the age of 16 years.
8. Challenging the judgment and sentence passed by the Court 4 CRA No.1004/2014 below, it is submitted by the counsel for the appellant that in fact the prosecutrix is major. She on her own had gone along with the appellant. The prosecutrix had gone with him after taking due permission from her parents and the prosecutrix had disclosed her age as 19 years. A marriage card was also given by the father of the prosecutrix which is Ex.D/4 and its envelope is Ex.D/5. Thus it is submitted that as the prosecutrix was major and, therefore, the appellant is liable to be acquitted.
9. Per contra, it is submitted by the counsel for the State that as per the school record, the prosecutrix was minor on the date of incident. Even as per the ossification test report her age was radiologically assessed as above 16 years but below 18 years and in view of the margin of error of two years, it is clear that the prosecutrix was minor on the date of the incident and thus the question of her consent does not arise.
10. Heard the learned counsel for the parties.
11. Dr. Mamta Chauhan (PW-4) has medically examined the prosecutrix and had found that the human was ruptured, two fingers easily administered and no external injury on any part of the body was found and secondary sexual characters were well developed. Petikot was sealed and handed over to the police. Vaginal discharge reddish coloured was taken and slide was prepared and the prosecutrix was referred to Radiological reference for age determination. The MLC report is Ex.P/4.
12. Dr. Mamta Chauhan (PW-4) was cross-examined. She has admitted that the secondary sexual characters get fully developed at the age of 19 years but this witness on her own stated that they are 5 CRA No.1004/2014 developed prior to that also.
13. Dr. M.L. Agrawal (PW-10) has stated that he has taken the x-ray of right elbow, wrist and Illiac crest of the prosecutrix and had found that there was no fusion on the lower wrist. According to this witness, the age of the prosecutrix was above 16 years but below 18 years. The Radiologial report is Ex.P/8.
14. Devdas Mohar (PW-11) had produced the original school admission register and as per the said register, the date of birth of the prosecutrix is 20.6.1998 which is mentioned at Srl. No.180 dated 7.7.2012, the original register is Ex.P/9 and its photocopy is Ex.P/9C. In cross-examination, this witness had admitted that it is not mentioned in the register that on what basis the date of birth was mentioned. However, clarified that the date of birth was mentioned on the basis of the transfer certificate.
15. Challenging the date of birth mentioned in the school register, it is submitted by the counsel for the appellant that since the prosecution has failed to prove the basis on which the date of birth of prosecutrix was mentioned, therefore, the school record of the prosecutrix cannot be relied upon.
16. Considered the submissions made by the counsel for the appellant.
17. The Supreme Court in the case of Jarnail Singh Vs State of Haryana reported in (2013) 7 SCC 263 has held as under :
22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of 6 CRA No.1004/2014 Children) Rules, 2007 (hereinafter referred to as "the 2007 Rules"). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under:
"12. Procedure to be followed in determination of age.--(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be, the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining--
(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i),
(ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on 7 CRA No.1004/2014 lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this Rule.
(6) The provisions contained in this Rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it 8 CRA No.1004/2014 would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion.
24. Following the scheme of Rule 12 of the 2007 Rules, it is apparent that the age of the prosecutrix VW, PW 6 could not be determined on the basis of the matriculation (or equivalent) certificate as she had herself deposed, that she had studied up to Class 3 only, and thereafter, had left her school and had started to do household work. The prosecution in the facts and circumstances of this case, had endeavoured to establish the age of the prosecutrix VW, PW 6 on the next available basis in the sequence of options expressed in Rule 12(3) of the 2007 Rules. The prosecution produced Satpal (PW 4) to prove the age of the prosecutrix VW, PW 9 CRA No.1004/2014
6. Satpal (PW 4) was the Head Master of Government High School, Jathlana, where the prosecutrix VW, PW 6 had studied up to Class 3.
Satpal (PW 4) had proved the certificate Ext. PG, as having been made on the basis of the school records indicating that the prosecutrix VW, PW 6 was born on 15-5-1977. In the scheme contemplated under Rule 12(3) of the 2007 Rules, it is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause. We are therefore of the view that the High Court was fully justified in relying on the aforesaid basis for establishing the age of the prosecutrix VW, PW 6.
The Supreme Court in the case of State of Chhattisgarh Vs. Lekhram reported in (2006) 5 SCC 736 has held as under :
12. A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty. PW 5, who was an Assistant Teacher in the said school in the year 1977, categorically stated that the mother of the prosecutrix disclosed her date of birth. The father of the prosecutrix also deposed to the said effect.
13. The prosecutrix took admission in the year 1977. She was, therefore, about 6-7 years old at that time. She was admitted in Class I. Even by the village standard, she took admission in the school a bit late. She was married in the year 1985 when she was evidently a minor. She stayed in her in-laws' place for some time and after the "gauna" ceremony, she came back. The materials on record as regards the age of the prosecutrix were, therefore, required to be considered in the aforementioned backdrop. It may be true that an entry in the school register is not conclusive but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence as the same was recorded on the basis of the statement of the mother of the prosecutrix.
14. Only because PW 3 the father of the 10 CRA No.1004/2014 prosecutrix could not state about the date of birth of his other children, the same, by itself, would not mean that he had been deposing falsely. We have noticed hereinbefore, that he, in answer to the queries made by the counsel for the parties, categorically stated about the year in which his other children were born. His statement in this behalf appears to be consistent and if the said statements were corroborative of the entries made in the register in the school, there was no reason as to why the High Court should have disbelieved the same. We, therefore, are of the opinion that the High Court committed a serious error in passing the impugned judgment. It cannot, therefore, be sustained. It is set aside accordingly.
The Supreme Court in the case of Murugan Vs. State of T.N. reported in (2011) 6 SCC 111 has held as under :
24. The documents made ante litem motam can be relied upon safely, when such documents are admissible under Section 35 of the Evidence Act, 1872. (Vide Umesh Chandra v. State of Rajasthan and State of Bihar v. Radha Krishna Singh.)
25. This Court in Madan Mohan Singh v. Rajni Kant considered a large number of judgments including Brij Mohan Singh v. Priya Brat Narain Sinha, Birad Mal Singhvi v. Anand Purohit, Updesh Kumar v. Prithvi Singh, State of Punjab v. Mohinder Singh, Vishnu v. State of Maharashtra and Satpal Singh v. State of Haryana and came to the conclusion that while considering such an issue and documents admissible under Section 35 of the Evidence Act, the court has a right to examine the probative value of the contents of the document. The authenticity of entries may also depend on whose information such entry stood recorded and what was his source of information, meaning thereby, that such document may also require corroboration in some cases.
26. In the instant case, in the birth certificate issued by the Municipality, the birth was shown to be as on 30-3-1984; registration was made on 5-4-
1984; registration number has also been shown; and names of the parents and their address have correctly 11 CRA No.1004/2014 been mentioned. Thus, there is no reason to doubt the veracity of the said certificate. More so, the school certificate has been issued by the Headmaster on the basis of the entry made in the school register which corroborates the contents of the certificate of birth issued by the Municipality. Both these entries in the school register as well as in the Municipality came much before the criminal prosecution started and those entries stand fully supported and corroborated by the evidence of Parimala (PW 15), the mother of the prosecutrix. She had been cross- examined at length but nothing could be elicited to doubt her testimony. The defence put a suggestion to her that she was talking about the age of her younger daughter and not of Shankari (PW 4), which she flatly denied. Her deposition remained unshaken and is fully reliable.
The Supreme Court in the case of Mukarrab v. State of U.P. reported in (2017) 2 SCC 210 has held as under :
26. Having regard to the circumstances of this case, a blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of the medical opinion by the radiological examination.
At p. 31 of Modi's Textbook of Medical Jurisprudence and Toxicology, 20th Edn., it has been stated as follows:
"In ascertaining the age of young persons radiograms of any of the main joints of the upper or the lower extremity of both sides of the body should be taken, an opinion should be given according to the following Table, but it must be remembered that too much reliance should not be placed on this Table as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricities of development."
Courts have taken judicial notice of this fact and have always held that the evidence afforded by radiological examination is no doubt a useful guiding factor for determining the age of a person but the evidence is not of a conclusive and incontrovertible nature and it is subject to a margin of error. Medical evidence as to the age of a person 12 CRA No.1004/2014 though a very useful guiding factor is not conclusive and has to be considered along with other circumstances.
27. In a recent judgment, State of M.P. v. Anoop Singh, it was held that the ossification test is not the sole criteria for age determination. Following Babloo Pasi and Anoop Singh cases, we hold that ossification test cannot be regarded as conclusive when it comes to ascertaining the age of a person. More so, the appellants herein have certainly crossed the age of thirty years which is an important factor to be taken into account as age cannot be determined with precision. In fact in the medical report of the appellants, it is stated that there was no indication for dental x-rays since both the accused were beyond 25 years of age.
28. At this juncture, we may usefully refer to an article "A study of wrist ossification for age estimation in paediatric group in Central Rajasthan", which reads as under:
"There are various criteria for age determination of an individual, of which eruption of teeth and ossification activities of bones are important. Nevertheless age can usually be assessed more accurately in younger age group by dentition and ossification along with epiphyseal fusion.
[Ref.: Gray H. Gray's Anatomy, 37th Edn., Churchill Livingstone Edinburgh London Melbourne and New York: 1996; 341-342]; A careful examination of teeth and ossification at wrist joint provide valuable data for age estimation in children.
[Ref.: Parikh C.K. Parikh's Textbook of Medical Jurisprudence and Toxicology, 5th Edn., Mumbai Medico-Legal Centre Colaba:
1990; 44-45];
* * * Variations in the appearance of centre of ossification at wrist joint shows influence of race, climate, diet and regional factors. Ossification centres for the distal ends of radius and ulna consistent with present study vide article "A study of wrist ossification for age estimation in paediatric group in Central Rajasthan" by Dr Ashutosh 13 CRA No.1004/2014 Srivastav, Senior Demonstrator and a team of other doctors, Journal of Indian Academy of Forensic Medicine (JIAFM), 2004; 26(4). ISSN 0971-0973]."
18. Section 35 of the Evidence Act reads as under:-
"35. Relevancy of entry in public [record or an electronic record] made in performance of duty.
--An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact."
19. Thus it is clear that an entry made in the public record is relevant and thus the date of birth entered in the school admission register Ex.P/9 is relevant and can be relied upon. Even at the time of admission of the child, nobody must have anticipated that such an incident would take place with the child and, therefore, there was no reason for the father to disclose an incorrect date of birth of the child/prosecutrix. Further the date of birth mentioned in the school register is corroborated by the radiological report Ex.P/8, according to which the age of the prosecutrix was above 16 years and below 18 years.
20. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 reads as under:-
"94. Presumption and determination of age.-
(1)Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as 14 CRA No.1004/2014 may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining --
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
21. From the plain reading of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 it is clear that where certificates as mentioned in Section 94 (2) (i) & (ii) are available, then it is not required to consider the ossification test report of the juvenile. In the present case, the school admission register of the prosecutrix is available which is Ex.P/9. Thus this Court is of the considered opinion that the 15 CRA No.1004/2014 date of birth of the prosecutrix is 20.6.1998 whereas she was kidnapped on 31.1.2014. Thus it is clear that the prosecutrix was less than 16 years of age on the date of incident.
22. The prosecutrix (PW-1) has stated that on 31.1.2014 the appellant came to her house and was preparing the list of ingredients used for preparing sweets. He also informed that on 31.1.2014 she would be required to go to Shivpuri. On 31.1.2014 at about 7:30 in the morning, he came to her house and stayed there till 8:00 in the morning and was preparing the list of ingredients. At about 11:00 AM her mother went to Government Hospital, Karera for purchasing medicines for her father and the prosecutrix was all alone in the house. At about 1:00 PM the appellant came to her house and said that she may accompany him to market Karera where ingredients are to be purchased as per the list. Initially, she refused to accompany him but after great persuasion, she went along with him after leaving her younger brother in company of elder brother. On the way, her mother met, who had enquired and the appellant had informed that the ingredients are being packed, therefore, they are going there and from thereafter he would go to Shivpuri and on this, her mother had instructed that he should not take the prosecutrix to Shivpuri. The shop was closed, therefore, the appellant instructed that she should accompany him to Shivpuri as certain forms are to be filled. Thereafter, she went to Shivpuri. When the prosecutrix requested the appellant to leave her back, then he said that they may wait for sometime. Later on the appellant said that now since there is no bus for 16 CRA No.1004/2014 Karera, therefore, they have to stay back in Shivpuri and took her to a lodge where they had their meals. At about 10:00 PM when she was sleeping, the appellant took out his clothes and also took out her clothes. The prosecutrix tried to run away but her hands and legs were tied by her Dupatta and after gagging her mouth, the appellant committed rape on her. He had also given a threat that in case if she informs about the incident, then she would be killed. From Karera he took her to Khaniyadhana where his Bua is residing. The house of his Bua was locked, therefore, they came to Pichhore where they stayed in the house of Uma Jatav, the relative of the appellant. The appellant had also committed rape on her on the said date. Thereafter, on 2.2.2014 the appellant took her to Kalipahadi Ajadpura where he took her to the house of his sister. The sister of the appellant had given Saree to wear and her make up was done and when she objected, then his sister as well as her husband took out a knife and country made pistol. Karera police reached Kalipahadi Azadpura and they were apprehended. They were brought to the police station where the recovery memo Ex.P/1 was prepared. Her statement was recorded. She was sent for medical examination. Petikot was sealed by the doctor. She was handed to the custody of her parents and the custody memo was prepared. In the cross- examination, she has admitted that she was got admitted by her father in the school. She expressed her ignorance as to whether her birth certificate was prepared or not. She also expressed her ignorance as to whether her parents had informed the Aanganbadi Centre about her birth 17 CRA No.1004/2014 or not. She further stated that she was admitted in the school at the age of 5 years. She further denied that she is above 18 years of age. Thereafter the prosecutrix was cross-examined on the issue of consent.
23. Santoshi Jatav (PW-2) is the mother of the prosecutrix and Balchandra (PW-3) is the father of the of the prosecutrix. Santoshi Jatav (PW-2) has stated that at about 7:00 in the morning the appellant came in the house and was preparing the list of ingredients and thereafter he went back. At about 11:00 AM she went to Government Hospital Karera for taking medicines for her husband. While she was coming back at about 1:30 PM, she met with the prosecutrix as well as the appellant. When she enquired from them, then the appellant informed that they are going to Kacchi Street for purchasing ingredients, then she had instructed his daughter to come back at the earliest. When the prosecutrix did not return back, then she enquired about her in the neighborhood. She also went to the house of the appellant where his mother expressed her ignorance and on the next day, the FIR Ex.P/2 was lodged. Thereafter, the police came to the house and prepared the spot map Ex.P/3 and the progress report as well as the photographs of the prosecutrix was handed to the police. On the third day, the prosecutrix was recovered by the police from Kali Pahadi. This witness was called in the police station and the prosecutrix was sent for medical examination. The prosecutrix had informed that on the pretext of making agent, the appellant had taken her to Shivpuri, Khaniadhana, Pichhore and Kali Pahadi and the prosecutrix had also informed that the appellant had 18 CRA No.1004/2014 committed rape against her wishes. The evidence of Balchandra (PW-3) is also on the similar line. These witnesses were cross-examined on the question of age but nothing could not elicited from their evidence which may indicate that the prosecutrix was major on the date of incident.
24. Kamal Singh (PW-6) has also stated that on 31.1.2014 he had seen the prosecutrix going along with the appellant but since he thought the prosecutrix was going in connection with some other work, therefore, he did not enquire. In cross-examination, he denied that he is a relative of the prosecutrix and is giving a false statement.
25. Dr. Rahul Gupta (PW-7) had medically examined the appellant and had found competent and his MLC is Ex.P/6.
26. Lakhan Singh (PW-8) had brought the underwear of the appellant as well as the specimen of seal from the hospital which was seized vide seizure memo Ex.P/7. He has further stated that on the same day the lady Constable Prabhawati had brought the Petikot, Vaginal Slide of the prosecutrix as well as the specimen of the seal from the hospital which were seized vide seizure memo Ex.P/5.
27. Charan Singh (PW-9) has stated that on 2.2.2014 he had recovered the prosecutrix from village Azadpura Kalipahadi vide recovery memo Ex.P/1.
28. G.D. Vimal (PW-12) had partially investigated the matter.
29. Anjana Khare (PW-13) had recorded the statement of the prosecutrix and had sent her for medical examination.
30. The appellant appeared himself as a defence witness. It is not out 19 CRA No.1004/2014 of place to mention here that whenever an accused decides to appear as a defence witness, then he voluntarily gives up his rights which are available to him as an accused.
31. This Court in the case of Rakesh Garg vs. State of M.P. by judgment dated 10.5.2019 passed in Criminal Appeal No.6426/2017 (Gwalior Bench) has held as under:-
"30. ....Once, an accused has appeared as a witness, then he is required to explain each and every circumstance. When an accused examines himself as a defence witness, then he has to be treated like any other prosecution or defence witness and any admission made by the accused as a defence witness would certainly amount to an admission of incriminating material and his evidence may go against him. It can be safely said that by filing an application under Section 315 of Cr.P.C. to appear as a defence witness, the accused, impliedly waives his rights as an accused and he is liable to suffer the consequences of his action if the statements in his evidence are found to be self-criminative. Once, an accused decides to appear as defence witness, then he enjoys the status of like any other witness and in view of Section 132 of Evidence, he cannot claim any immunity to answer a question. Even leading questions tending to implicate him can also be put in the cross examination....."
32. The appellant (DW-1) has stated that he had never taken the prosecutrix with him on the pretext of getting work. In fact the prosecutrix had gone with him on her own. Her parents were in the house when they had left the house. The prosecutrix had taken the permission from her parents. The prosecutrix had disclosed that her age is 19 years. This witness has further stated that Munnibai is his mother and the father of the prosecutrix had given the marriage card to his 20 CRA No.1004/2014 mother which is Ex.D/4 and the envelope is Ex.D/5. In cross- examination, this witness could not say that who had given the marriage card Ex.D/4 to his mother and on his own stated that he is in jail and the said marriage card was given by the mother in the jail. He further admitted that the printer of the card has not been cited as a witness. He further denied that the marriage card Ex.D/4 and Ex.D/5 were got printed by her mother herself. If the evidence of the appellant (DW-1) is considered, then it is clear that on one hand he has relied upon the marriage card Ex.D/4 and the envelope of the marriage card Ex.D/5, according to which the marriage of the prosecutrix was fixed with the appellant on 18.5.2014. However, no such suggestion has been given to either Santoshi Jatav (PW-2) or Balchandra (PW-3). When the appellant was already in jail, then there was no question of solemnization of marriage. Further the printer of this card has also not been examined. It is the case of the appellant that this card was given by his mother in the jail. The appellant has not examined his mother to prove as to who had given the said card to her. Even the appellant in his examination-in-chief has not stated that his marriage was ever fixed with the prosecutrix. Thus it is clear that the appellant has failed to prove that his marriage was ever fixed with the prosecutrix. The appellant (DW-1) has stated that the prosecutrix had gone with him on her own after taking permission from her parents. Santoshi Jatav (PW-2) in her cross-examination had admitted that the prosecutrix had informed that the appellant is getting her appointed as an agent and this witness had granted permission for 21 CRA No.1004/2014 the same. She further admitted that she permitted the prosecutrix to go along with the appellant to Kacchi Street and she further admitted that when this fact was disclosed to her husband, then she was scolded. Balchandra (PW-3) has also admitted in his cross-examination that the prosecutrix had gone along with the appellant after taking permission.
33. It is submitted by the counsel for the appellant that since the prosecutrix had gone along with the appellant after taking due permission from her mother, therefore, no offence under Sections 363, 366 of IPC is made out.
34. Considered the submissions made by the counsel for the appellant.
35. Santoshi Jatav (PW-2) had given the consent for taking the prosecutrix upto Kacchi Street. She has not stated that she had permitted the appellant to take the prosecutrix with him to Shivpuri or to any other place. Thus it is clear that the appellant had taken away the prosecutrix without obtaining due permission of her parents.
36. Since this Court has already come to a conclusion that the prosecutrix was minor below the age of 16 years, therefore, her consent is immaterial. Accordingly, this Court is of the considered opinion that there is no good reason to burden this judgment by adjudicating that whether the prosecutrix was a consenting party or not. Under these circumstances, the conviction of the appellant for offence under Sections 363, 366, 376(1) of IPC and under Section 4 of POCSO Act, 2012 is hereby affirmed. It is not out of place to mention here that although the prosecutrix was below 16 years of age but still the Trial Court did not 22 CRA No.1004/2014 frame the charge under Section 376(2)(i) of IPC. Accordingly, the conviction of the appellant under Section 376(1) of IPC is maintained.
37. So far as the question of sentence is concerned, the offence had taken place on 31.1.2014 and on the said date the minimum sentence for offence under Section 376(1) of IPC was seven years and similarly the minimum sentence for offence under Section 4 of POCSO Act on the relevant date was seven years. Although the Trial Court has awarded separate sentence for offence under Section 376(1) of IPC and under Section 4 of POCSO Act but in view of Section 71 of IPC, this Court is of the considered opinion that it was not necessary to award separate sentence for offence under Section 376(1) of IPC. As a separate sentence was awarded for offence under Section 376(1) of IPC, therefore, it is directed that the rigorous imprisonment of 10 years for offence under Section 376(1) of IPC and RI of 10 years for offence under Section 4 of POCSO Act as awarded by the Trial Court is reduced to rigorous imprisonment of 7 Years by enhancing the fine to Rs.10,000/- for each of the offence. The sentence awarded under Section 363 and 366 of IPC is hereby maintained. All the sentences are directed to run concurrently.
38. With aforesaid modification the judgment and sentence awarded by the Trial Court is hereby affirmed.
39. The appellant is in jail. It appears that earlier by order dated 30.4.2015 the appellant was granted bail, however he did not appear before the Registry of this Court, therefore, warrant of arrest was issued. It appears that the appellant was taken in custody in connection with 23 CRA No.1004/2014 another Crime No.50/2017 and thus he was in jail from 30.1.2017 and, accordingly, this Court by order dated 15.2.2017 observed that since the appellant is in jail from 30.1.2017, therefore the appeal was adjourned. The order sheets of this Court indicate that initially by order dated 24.10.2016 a bailable warrant of arrest was issued and by order dated 12.1.2017 a non-bailable warrant of arrest was issued but there is no specific order of cancelling the bail which was granted to the appellant. At present it is not known that whether the appellant is still in jail or not. Accordingly, it is directed that if the appellant is still in jail, then he shall undergo the remaining jail sentence and if the appellant was already released in another case i.e., Crime No.50/2017 registered by Police Station Karera, District Shivpuri, then the bail bonds executed by the appellant are hereby cancelled. He is directed to immediately surrender before the Trial Court for undergoing the remaining jail sentence.
40. With aforesaid observations, the appeal partially succeeds and is partially allowed on the question of sentence only.
(G.S. AHLUWALIA)
Judge
(alok) 14/08/2019
ALOK KUMAR
2019.08.14 17:39:41
+05'30'