Madhya Pradesh High Court
Ramesh @ Dabbu vs The State Of M.P. Judgement Given By: ... on 6 May, 2014
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
SINGLE BENCH : HON'BLE MR. JUSTICE N.K.GUPTA, J.
A.F.R.
Judge
Criminal Appeal No.1130/1996
Ramesh @ Dabbu
VERSUS
State of Madhya Pradesh
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Shri A.K.Mishra, Advocate for the appellant.
Shri Prakash Gupta, Panel Lawyer for the State/respondent.
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J U D G M E N T
(Delivered on the 6th day of May, 2014) The appellant has preferred the present appeal being aggrieved with the judgment dated 28.6.1996 passed by the learned First Additional Sessions Judge, Bhopal in S.T.No.445/1994, whereby the appellant was convicted for offence punishable under Section 376 of IPC and sentenced with 7 years rigorous imprisonment.
2. The prosecution's case, in short, is that, on 16.3.1994, Sadhna Bai (P.W.1) had lodged an FIR, Ex.P/4 in Rojnamacha at Police Station Jahagirabad, District Bhopal that her married daughter, the prosecutrix went to the school to drop her younger brother but, she did not come
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Criminal Appeal No.1130 of 1996 back. Thereafter, a search was initiated and the prosecutrix was recovered on 21.3.1994. She was produced before the Investigation Officer at Police Station Jahagirabad. The prosecutrix had informed that on 16.3.1994, when she was coming back after dropping his brother Kishan at Anand Vidya Mandir School, the appellant met her on the way and forced her into an auto-rickshaw and took her to a village of Vidisha District and kept her in the house of his relative. Also, he committed rape upon the prosecutrix. The prosecutrix was referred for her medico legal examination. Dr.Pratibha Dubey examined her at Katju Hospital, Bhopal and gave her report, in which no definite opinion could be given. The police had also collected mark-sheet of the prosecutrix to assess her date of birth. The appellant was also arrested and sent for his medico legal examination. After due investigation, the charge-sheet was filed before the Additional Chief Judicial Magistrate, Bhopal, who committed the case to the Sessions Court and ultimately, it was transferred to the learned First Additional Sessions Judge, Bhopal.
3. The appellant abjured his guilt. He took a plea that he was innocent and he was falsely implicated in the matter. No defence witness was examined. However, documents Ex.D/1 to Ex.D/5 were produced in defence.
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Criminal Appeal No.1130 of 1996
4. The learned Additional Sessions Judge, Raisen after considering the prosecution's evidence, acquitted the appellant from the charges of offence under Sections 363 and 366 of IPC but, convicted and sentenced the appellant as mentioned above.
5. I have heard the learned counsel for the parties.
6. In the present case, there are only two questions which are to be decided. Firstly, that what was the age of the prosecutrix at the time of the incident and secondly, whether a rape was committed upon her. In the present case, Sadhna Bai (P.W.1) and Bihari (P.W.2) have stated that the prosecutrix was 17 years old at the time of their depositions and the incident took place 2 years prior to their depositions.
Bihari has given the transfer certificate of the prosecutrix from school, Ex.P/1 to the police. Similarly, a photo copy of the mark-sheet is also given to the police, which is marked as Ex.P/9. In both the documents, the date of birth of the prosecutrix is mentioned to be 3.5.1978. In those documents, name of the father of the prosecutrix was mentioned to be Biharilal, whereas the prosecutrix (P.W.4) has accepted in her cross-examination that Biharilal was not his biological father. Her biological father Chetan had expired and thereafter, her mother was living with Biharilal and therefore, Biharilal was the person, who maintained her
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Criminal Appeal No.1130 of 1996 mother and the prosecutrix. Under such circumstances, there was no basis shown by Biharilal or Sadhna Bai by which the date of birth of the prosecutrix was intimated to the school at the time of her admission. The mark-sheet, Ex.P/9 indicates that in the examination of primary school, the date of birth of the prosecutrix was shown to be 3.5.1978 and the transfer certificate, Ex.P/1 indicates that the prosecutrix was taken from the Government Girls Middle School, Jahagirabad and she was admitted in the school on 7.7.1992 but, it is no where established that the prosecutrix was admitted in the school for the first time in Government Girls Middle School, Jahagirabad or her date of birth was informed to the school with the help of any cognate document.
7. Unfortunately, no much questions could be asked from Sadhana Bai and Biharilal about the age of the prosecutrix, whereas Sadhna Bai has accepted that the prosecutrix was a married girl and her marriage took place prior to the incident. In this context, the prosecutrix was not examined on the question of her age. Neither in examination-in-chief, nor in cross-examination, she told about her age. Her age was mentioned to be 17 years on the basis of age assessed by the trial Court at the time of her deposition. It would be apparent that the appellant was
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Criminal Appeal No.1130 of 1996 acquitted from the charges of offence under Sections 363 of IPC and therefore, the assessment of age of the prosecutrix has to be done only for the purpose of offence punishable under Sections 376 of IPC.
8. In the present case, the document from the educational record of the prosecutrix has no basis, whereas no ossification test of the prosecutrix was performed. In medical examination report, concerned doctor found that the prosecutrix had 32 teeth in her mouth. That report of medical examination of the prosecutrix was not proved because the concerned doctor was not examined but, a prosecution document, though it is not proved can be used in the evidence, if it is in favour of the accused. In this connection, the judgment passed by Division Bench of this Court in case of "Vrijlal Ghosi and another Vs. State of Madhya Pradesh", [I.L.R. (2012) M.P., 1351] may be referred, in which it is laid as under:-
"It is a settled principle of law that document, which is not proved by the prosecution cannot be read against the accused, but since it is a prosecution document, then it can be read in favour of the accused."
Hence, the MLC report of the prosecutrix though not proved but, it can be used in favour of the accused. The prosecution relied upon that report and it was filed alongwith the charge-sheet. A report is given on the back
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Criminal Appeal No.1130 of 1996 page of document Ex.P/7 and therefore, for referring the document, it is marked as Ex.P/7-A.
9. The doctor, who examined the prosecutrix after the incident had mentioned that 32 teeth were found in the mouth of the prosecutrix. In that respect if Modi's Medical Jurisprudence and Toxicology, Twenty-third Edition, LexixNexis-Butterworths at page 279 to 282 is perused then, it is mentioned that third molar or wisdom teeth erupt between the age of 17 to 25 years. The prosecutrix had all the third molars present in her mouth and therefore, she must be above 18 years of age at the time of the incident.
10. The prosecutrix has stated that the appellant committed rape upon her for two times on each day for at least 7-8 days. Her testimony cannot be disbelieved on this count that the appellant has committed intercourse upon the prosecutrix in such a manner. There is no enmity shown between the prosecutrix and the appellant. Hence, by statement of the prosecutrix, it can be said that the appellant committed so many intercourses when the prosecutrix was residing with him in his relative's house.
11. So far as the consent of the prosecutrix is concerned, her conduct may be assessed in this connection.
The prosecutrix initially had stated before the police that she was taken by the appellant forcefully in an auto-rickshaw
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Criminal Appeal No.1130 of 1996 but, before the trial Court, she had stated in para 1 to 6 that she could not see the culprit, who took her in the auto- rickshaw. When she became conscious, she found herself in a room, in which the appellant was present. Hence, the learned Additional Sessions Judge acquitted the appellant from the charges of offence under Sections 363, 366 of IPC. Various letters Ex.D/1 to Ex.D/5 were shown to the prosecutrix and she has admitted in para 5 of her statement that those letters were written by her but, she added that due to force of the appellant, she wrote such letters in the room, where she was kept and she appended various dates on those letters but, such an explanation was not given by the prosecutrix to the police. If such letters would have been written by her due to force of the appellant then, that fact must have been informed by her to the police. Also, if the documents Ex.D/1 to Ex.D/5 are examined then, looking to their description and format, papers and ink of writing, it appears that those letters were not prepared within 7 days but, those were written on different time and different dates and also with different dot pens. If text of those letters is perused then, certainly it would be apparent that the prosecutrix was in love with the appellant and thereafter, she was married with someone else forcefully.
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Criminal Appeal No.1130 of 1996
12. The prosecutrix had alleged that the appellant committed rape for two times on each and every day and he kept her for 7-8 days. She did not tell about the name of the village, where she was kept. She did not give any reason as to why she did not try to leave the house. She was recovered by the police when she was produced by her mother at Police Station Jahagirabad and therefore, it was for her to explain as to how she escaped from the room and came to her house. On the contrary, the prosecutrix has stated in para 3 of her statement that the accused was caught by the police, after 6-7 days of the incident and father and mother of the appellant took her to another village and threatened her.
Thereafter, mother of the appellant took her to the Police Station but, in recovery memo, Ex.P/6, it is no where mentioned that she was brought to the police station by the mother of the appellant. Under such circumstances, if the entire conduct of the prosecutrix is considered then, it would be apparent that the prosecutrix has suppressed the story of her coming back from the concerned room of the relative of the appellant to her mother's house and when she could leave the house on her own then, certainly she could make hue and cry, so that the citizens residing nearby that house could intervene and save her and also she could leave that house within a day or two. Hence, the prosecutrix appears
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Criminal Appeal No.1130 of 1996 to be a consenting party for sexual intercourse. Though she was already married to someone else. Also considering the entire conduct of the prosecutrix and specially by perusing her love letters, Ex.D/1 to Ex.D/5, it would be apparent that the prosecutrix was a consenting party in the case.
13. Since the prosecutrix was above 18 years of age and she was a consenting party, no offence punishable under Section 376 of IPC was constituted against the appellant. The learned Additional Sessions Judge has committed an error of law and fact in convicting the appellant for the said offence. Under such circumstances, the conviction as well as the sentence cannot be upheld.
The appeal filed by the appellant appears to be acceptable and consequently, it is hereby accepted. The conviction and sentence directed against the appellant for offence punishable under Section 376 of IPC are hereby set aside. The appellant is acquitted from all the charges appended against him.
14. At present, the appellant is on bail, his presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged.
15. A copy of the judgment be sent to the trial Court alongwith its record for information.
(N.K.GUPTA)
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Criminal Appeal No.1130 of 1996 JUDGE 6/5/2014 Pushpendra