Madhya Pradesh High Court
Manpyare And Ors. vs State Of Madhya Pradesh on 3 January, 2002
Equivalent citations: 2002CRILJ3046, 2002(1)MPHT253
Author: Uma Nath Singh
Bench: Uma Nath Singh
JUDGMENT Uma Nath Singh, J.
1. This is an appeal from the judgment and findings dated 21-11-89 passed by Second Additional Sessions Judge, Chhatarpur in the Sessions Trial No. 48/87 whereby the appellants were convicted for offences punishable under Sections 363, 366 and 376 of the Indian Penal Code and sentenced to undergo three years rigorous imprisonment and a fine of Rs. 500/- on each count and in default, to further undergo six months R.I. on each count. However, accused Shiv Prasad was not found guilty on any count, therefore, acquitted of said charges.
2. Briefly narrated the facts of the prosecution case are that prosecutrix Geeta Bai (P.W. 4) is daughter of Sunderlal (P.W. 7). Being a minor she was in lawful guardianship of her parents on the date of offence. Accused Manpyare was living in a house opposite the house of Sunderlal (P.W. 7), at Barigarh. Accused Ramprasad brother-in-law of accused Manpyare was also staying there for his study. Another student accused Shiv Prasad was also living in the same locality in the house of Bhawanideen. On 24-4-86, the date of incident, prosecutrix Geetabai went to the Chaturbhuj Baba well for fetching water. From that well accused Ramprasad and Shivprasad also used to take water. In the course of frequent visits to the well accused Ramprasad developed friendship with Geeta and started exchanging letters. Accused Ramprasad used to send letters through accused Manpyare or Shivprasad. He used to invite Geeta to his house by such letters and perform sexual intercourse with her. On 24-4-86, accused Ramprasad sent a letter to Geeta through the younger son of Manpyare assuring to fix her marriage with accused Shivprasad.
On that date itself Shivprasad also wrote a letter to Geeta, promising her to marry and that enticed her to visit the house of accused Ramprasad at 3 O'clock in the night where she also disclosed the fact that her mother had chastened her for any such indulgence. For that reason, accused Ramprasad advised her to go and hide behind a hillock and he promised to look after her. Prosecutrix Geeta did accordingly and on 25-4-86 at about 8.00 O'clock in the morning accused Ramprasad visited her and asked her to stay there itself. Again at about 5 O'clock in the evening accused Ramprasad went to give her water. Thereafter accused Manpyare went there and performed sexual intercourse with her. Accused Ramprasad came in the night and also performed sexual intercourse with her. In the morning accused Ramprasad went away but Manpyare stayed there. In the day time accused Ramprasad brought food for her and went away. Genda Bai (P.W. 5) mother of the prosecutrix informed her husband Sunderlal (P.W. 7), a school teacher, through her brother-in-law Shivlal after Geeta did not return home. On 27-4-86, at 15.45 Sunderlal (P.W. 7) father of the prosecutrix lodged a report at Police Station, Jujharnager which was registered for offences under Sections 363 and 366, IPC as per Crime No. 21/86 by Police ASI Shri R.N. Mishra (P.W. 13). Shri Mishra (P.W. 13) also recorded the statements of witnesses Sunderlal and Ramadeen and seized as per Ex. P-12, the letter written by accused Shiv Prasad to Geeta. The police came to the place where she was hiding but could not trace her out. Thereafter, accused Manpyare took Geeta along to Pipri where Geeta stayed in his aunt's house. On 1-5-86, accused Ramprasad also joined and they took her to Chhatarpur Court via Srinagar where they obtained her affidavit and made her sign some papers. In her affidavit she stated her age to be 18 years. Thereafter, she was taken to Mahoba and from there to Karbi. Thus, accused persons roamed around with her and performed sexual intercourse. Manpyare also took Geeta to Naibasti and purchased a new set of cloths for her, where, he came to know that police was coming in search of Geeta, therefore, he left her alone in the forest and fled away. Police Station Incharge A.S. Bhadouria (P.W. 11) on 3-5-86 recovered Geeta from the forest near Naibasti of village Jareta after 11 days and took her in custody as per Ex. P-4. As per Ex. P-4 (A), Geeta was sent to Chhatarpur Hospital for the medical examination and her medical report is Ex. P-5. To determine the age of prosecutrix Geeta, her limbs were X-rayed and X-plates were prepared as Ex. P-2 and Ex. P-3. Dr. K.L. Bandil (P.W. 1) took X-ray and gave the report Ex. P-1. Statement of prosecutrix Geeta Bai was recorded and the clothes which she was wearing at the time of her elopement were also seized as per Ex. P-6. On 5-5-86 as per Ex. P-10 Police Station Incharge, AS. Bhadouria (P.W. 11) arrested accused Manpyare, Ramprasad and Shivprasad. On 30-6-86 accused Shivram was taken in custody. Accused persons were medically examined by Dr. Rajendra Prasad Gupta (P.W. 12) who submitted his report as Ex. P-11 (A), Ex. P-12 (A) and Ex. P-13 (A). The affidavit sworn by prosecutrix Geeta Bai was seized from Ramprasad. The articles of the case were sent to FSL Sagar and a report in that respect is Ex. P-15. After due investigation a challan was laid and charges were drawn up for offences under Sections 363, 366 and 376, IPC, against all the accused which they denied. However, accused Manpyare and Ramprasad admitted that they had got an affidavit sworn by Geeta at Chhatarpur. Accused Manpyare pleaded innocence and false implication due to enmity, being a relative of accused Ramprasad. Accused Ramprasad submitted that the complainant wanted him to enter into a nuptial bond with prosecutrix which he declined, and therefore, he was falsely implicated. Accused Shiv Prasad admitted the factum of being taken in custody and subjected to medical examination. He also pleaded innocence and false implication. Accused Manpyare and Ramprasad also adduced defence evidence of witnesses Shivpal Singh and Sonelal Prajapati, in their favour.
3. The learned Trial Judge on a close scrutiny of the evidence on record found that the prosecution was not able to prove the charges against accused Shiv Prasad and, therefore, recorded his acquittal. However, accused Manpyare, Ramprasad and Shivram were held guilty and awarded sentences as stated above.
4. Heard the rival contentions of the parties and perused the records. Shri Surendra Singh, learned senior counsel vehemently argued for the appellants and made two pronged attacks to demolish the prosecution case: First, placing reliance on the dictum of Brij Mohan v. Priya Brat (AIR 1965 SC 282), he submitted that Sunderlal (P.W. 7), father of the prosecutrix. Keeping in mind her job prospects got an entry of wrong date of birth in the school scholars register, and; secondly; the prosecutrix was a consenting party. Countering the arguments of Shri Singh, Shri Raj Kumar Verma, Panel Lawyer for the State placed strong reliance on the evidence of prosecutrix as also the medical evidence.
5. As regards the first contention about the age of the prosecutrix, Sunderlal (P.W. 7) emphatically denied all suggestions in para 11 of the cross-examination in respect of wrong information about the age of prosecutrix and reiterated that on the date of incident, the age of Geeta (P.W. 4) was only 14 years. The original marks-sheet (Ex. P-4-A) and its photocopy (Ex. P-4-B) find a mention of her date of birth as 24-6-72. This marks-sheet was issued by the Govt. Middle School, Barigarh under the original penned signatures of the Head Master, the class teacher and the dealing clerk on a printed format. Below the signature of the Head Master, is affixed the school stamp. Though this document was not produced with the charge-sheet but taking into account the totality of circumstances, the learned Trial Judge admitted it in evidence to be exhibited on the record.
6. Genda Rani (P.W. 5), mother of the prosecutrix is an illiterate lady. In her examination-in-chief, she admitted her illiteracy to the extreme of not even knowing the counting. However, she stated the age of Geeta (P. W. 4) to be 14 years on the date of incident. In cross-examination she appeared to be utterly confused in calculating the time gap in between the birth of her seven children. Moreover the defence did not give any direct suggestion that she had given a wrong information about the age of prosecutrix.
7. Dr. K.L. Bandil (P.W. 1) who had taken X-ray of the relevant parts of the body of prosecutrix, to determine her age, clarified in his cross-examination that her average age was 15 years, subject to variation of 3 years on either side.
Thus, it could be 12 years on the lower and 18 years on the higher side. Dr. (Smt.) P. Mukherjee (P.W. 2) in reply to a pointed question emphatically stated in para 4 (bottom) of her cross-examination that in the case of prosecutrix, her age could not be more than 16 years. Moreover, she clarified that her estimate of the approximate age of prosecutrix was subject to confirmation by the X-ray reports.
8. Maheshwari Deen Saxena (P.W. 10), Head Master of Barigarh appeared before the Court with scholar register. Entry No. 538 of the said register showed the entry of prosecutrix as Geeta Devi D/o Sunder r/o Barigarh. The entry also contained a mention that she was admitted in Class VIth on 13-7-84. Further her date of birth was mentioned as 24-6-72. The witness has stood the rigours of cross-examination which failed to reveal any meaningful information that could disturb the layout of consistent prosecution evidence adduced on the point under consideration.
9. Thus, in view of testimony of the parents of the prosecutrix as also the documentary and medical evidence, I am of the opinion that the learned Trial Judge is correct in holding that the age of prosecutrix was below 16 years on the date of incident.
10. In the matter of Dilip v. State of Madhya Pradesh, [1987 Cr.LJ (M.P.) 212], this High Court relied on the birth certificate as also the evidence of the parents and the principal of the school in arriving at a conclusion that the age of the prosecutrix was below 16 years on the date of incident, although the medical evidence showed her age between 16 and 18 years and the victim was found to be habitual to sexual inter-course. Dealing with the submission advanced on behalf of the accused-appellant on the point of age, the Court held as under:--
"It can not be gainsaid that in a case under Section 376 of the IPC, the controversy as to the age of the prosecutrix being under or above sixteen years on the relevant date is always of importance and the evidence touching it has to be carefully examined. Now as to the evidence in this case. Balkrishna (P.W. 3) is the father of the prosecutrix and Shantabai (P.W. 2) is her mother. Both of them have stated that the prosecutrix was born on 7-9-1966. In her cross-examination Shantibai has stated that the prosecutrix was born in M.Y. Hospital, Indore. The birth certificate Ex. P-11 issued by the Municipal Corporation, Indore shows that a daughter was born to Balkrishna and Shantabai in M.Y. Hospital, Indore on 7-9-1966. It is a public document and has rightly been admitted.
Smt. Sakorikar (P.W. 5) is the Principal of Malava Kanya Vidhyalaya, Indore. According to the school register produced by her, the date of birth of Ku. Sandhya is 7-9-66. This date was recorded on the basis of mark-sheet of the Middle School vide Ex. P-2.
Dr. R.K. Khare (P.W. 7) had on 22-3-1982 taken skiagram (vide Ex. P-4) of the elbow and wrist joints of the prosecutrix. He has opined that on that date the age of the prosecutrix was between 16 to 18 years with a margin of 3 years on either sidedue to variety of reasons. Ex. P-5 is his report. Due to the margin stated by the witness it cannot be said that the medical evidence militates against the other consistent evidence regarding the age of the prosecutrix. The Supreme Court decision in Ram Murti's case (1970 Cr.LJ 1991) is clearly distinguishable. In that case despite medical advice for X-ray examination of the prosecutrix to find out her age, it was not got done. The appellant had been acquitted of the offence under Section 376 of the IPC and in the circumstances it was observed that for the offence under Section 366 of the IPC the question of age deserved to be examined more closely. On the material on record the Trial Court's conclusion that the prosecutrix was under sixteen years is upheld.
The testimony of the prosecutrix Ku. Sandhya (P.W. 1) that the appellant thrice had sexual intercourse with her at Kalyan is, in the circumstances of the case, entitled to credence though she had not complained of it to any one earlier. This omission is explicable as according to the finding of the learned Trial Judge she had willingly eloped with the appellant.
Section 375 of the IPC defines the offence of "rape" and Section 376 ibid embodies the penal provision for it. Section 375 has five clauses. According to clause fifth read with the exception, a man is said to commit "rape" who has sexual intercourse with a woman not being his wife, with or without her consent when she is under sixteen years of age. It may be noted that consent of such a woman is wholly immaterial and furnishes no defence.
Dr. J. Engineer (P.W. 4) who had examined the prosecutrix on 20-3-1982 has stated at the trial that there were no signs of rape on her and she was habituated to sexual intercourse but as the prosecutrix has been found to have been under 16 years, there is no escape from the conclusion that the appellant is guilty of the offence of rape."
11. As regards the second limb of argument, though it would be inexpedient to elucidate when the age of prosecutrix is found to be under 16 years, prosecutrix Geeta Bai (P.W. 4) has mentioned in her cross-examination that she was repeatedly subjected to forcible sexual inter-course and as she was under threat she could not resist that. She is specific in giving details of the accused and the manner in which she was subjected to forcible sexual intercourse. The witness was put to a lengthy cross-examination but no material contradiction came out which could shake the foundation of prosecution case. A.S. Bhadouria (P.W. 11) police station in charge in para 10 of the cross-examination reiterated the police case diary statement of the prosecutrix that accused Ram Prasad performed sexual inter-course 10 to 12 times with her. He further stated that the police statement of prosecutrix Geeta Bai also contained a fact that all the accused had performed sexual inter-course with her. Obtaining of an affidavit from prosecutrix Geeta Bai which was seized from accused Ram Prasad is not in dispute. Further, Dr. (Smt.) P. Mukherjee (P.W. 2) who medically examined the prosecutrix noticed a complete rupture of her hymen. Thus, from the evidence of prosecutrix Geeta Bai (P.W. 4) coupled with the statements of A.S. Bhadouria (P.W. 11) and Dr. (Smt.) P. Mukherjee (P.W. 2) and also the fact that the accused had obtained an affidavit of the prosecutrix at Chhatarpur, it is proved beyond reasonable doubt that the accused/appellants repeatedly performed forcible sexual inter-course with her which the defence may not gainsay in view of preponderant evidence on records, and therefore, I find no force in the second argument of Shri Singh that the prosecutrix was a consenting party.
12. Thus, on a reappraisal of the evidence on records before me, I find no merit in the instant criminal appeal, which fails and is hereby dismissed. Consequently, the accused appellants who are on bail are directed to surrender to their bail bonds.
13. Criminal Appeal dismissed.