Madhya Pradesh High Court
Jeev Rakhan vs State Of M.P. on 5 February, 2004
Equivalent citations: 2004CRILJ2359, 2004(2)MPHT158
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. Feeling aggrieved by the judgment of conviction and order of sentence passed by Ist Additional Sessions Judge, Ashok Nagar, Distt. Guna, in Sessions Trial No. 338/2000, by which appellant has been convicted under Section 376 of IPC and has been sentenced to suffer seven years' R.I. and fine of Rs. 5000/-, in default to undergo six months' further R.I., the appellant has preferred this appeal under Section 374 of Code of Criminal Procedure, 1973.
2. In brief, the case of prosecution is that appellant was residing in the house of father of the prosecutrix in the capacity of a tenant. In the month of Chaitra (April), 2000, the parents of the prosecutrix went to cut the crop and her brothers were not at home, in the noon at 12, the prosecutrix age 14 years was alone in the house and was going to take her bath on a handpump which is outside but nearby to her house, at that juncture, the appellant came and winked her as a result of which, she returned back to the house and went inside. Thereafter, it is said that appellant closed the door and by showing fear, she was forced to be undressed and later on, intercoursed with her. After completing the intercourse, it is said that appellant warned her not to narrate the incident to anybody including the parents otherwise, she may face the dire consequences. Later on, after some days, appellant again intercoursed with her for six or seven times as a result of which, the prosecutrix became pregnant. It is said that appellant took the prosecutrix in a clinic for her examination, where she was examined by acquitted co-accused Ram Bharosa and he injected some injections to her but the abortion did not take place. One day, when the prosecutrix was taking her bath, her mother Susheela Bai (P.W. 3) saw the posture of her abdomen which was grown, as a result of which, she inquired about it but the prosecutrix did not say anything. Thereafter, Susheela Bai narrated this fact to her husband Bai Mukund (P.W. 4) who under some false pretext, carried the prosecutrix to Dr. Paras Kumar Jain (P.W. 10) who after examination, confirmed the pregnancy of the prosecutrix. On being inquired by Doctor, the prosecutrix stated that appellant committed intercourse with her for 6-7 times. Thereafter, this fact was narrated by the prosecutrix to her mother and thereafter the FIR was lodged on 22-8-2000 at Police Station, Shadhora.
3. On lodging of the FIR, criminal law was set in motion. Investigating Officer sent the prosecutrix for medical examination, collected the evidence from the school in respect to her age, recorded the statement of the witnesses and after completing investigation, a charge-sheet was submitted in the Competent Court who on its turn, committed the case to the Court of Session and from where, it was received by the Trial Court for trial.
4. The learned Trial Judge, on perusal of charge-sheet, framed the charge punishable under Section 376 of the IPG against appellant and acquitted co-accused Rambharosa was charged under Section 201 of IPC. Needless to emphasis that all the accused persons abjured their guilt. The defence of the accused persons is that of false implication.
5. In order to prove the charges, the prosecution examined as many as 12 witnesses and placed documents (Ex. P-1 to P-17) on record. In defence, accused persons examined one Komal Prasad. The learned Trial Judge, after appreciating the evidence, came to hold that co-accused Rambharosa did not commit any offence and eventually, acquitted him. However, on the basis of evidence, learned Trial Judge, held that the appellant did commit offence punishable under Section 376 of IPC, as a result of which, he has been convicted by the impugned judgment and has been sentenced for seven years' R.I., hence, this appeal.
6. In this appeal, Shri S.S. Gautam, learned Counsel for the appellant contended that on going through the evidence led by the prosecution, it is not proved that the age of the prosecutrix was below 16 years. According to him, the age of the prosecutrix was above 16 years. His other contention is that on scanning the evidence, one could very well say that the prosecutrix was a consenting party and because her age was above 16 years, no offence has been made out.
7. Resisting the aforesaid submission of learned Counsel for the appellant, it has been contended by Shri Mukund Bhardwaj, learned Counsel appearing for the respondent-State that there is overwhelming evidence to the effect that the age of the prosecutrix was below 16 years and even if she was a consenting party, an offence punishable under Section 376 of IPC is made out. He has further contended that on going through the evidence, one can not say that the prosecutrix was a consenting party. According to learned Counsel there is no substance in the appeal and the same deserves to be dismissed.
8. After having heard learned Counsel for the parties, I am of the view that this appeal deserves to be allowed. ,
9. In a case falling under Section 376 of IPC, the moot question to be decided is what is the age of the prosecutrix. The prosecution in this respect has examined the parents of the prosecutrix, Susheela Bai (P.W. 3) is the mother of the prosecutrix and Balmukund (P.W. 7) is her father. Apart from the evidence of these two witnesses, there is evidence of prosecutrix in respect of her age. The prosecution also took pains to examine the prosecutrix radiologically. Ex. P-6 is the X-Ray report of the prosecutrix which has been proved by Dr. R.K. Jain (P.W. 7). Apart from the medical evidence, the prosecution also seized a certificate from the school where the prosecutrix studied. That certificate is Ex. P-3 in which, date of birth of the prosecutrix has been shown as 1-1-1987. By taking aid of these evidence, it has been vehemently argued by Shri Mukund Bhardwaj, learned Counsel appearing for the respondent-State that it is proved that the age of the prosecutrix in the month of Chaitra (April), 2000 was below 16 years.
10. So far as the report of Radiologist (Ex. P-6) is concerned it goes against the prosecution because on examining prosecutrix Radiologically on 24-8-2000, the doctor opined that her age was above 16 years and below 18 years. So far as the school certificate (Ex. P-3) is concerned, according to me it is not a primary piece of evidence. On bare perusal of Ex. P-3, which is certificate, it transpires that it has been certified by Dalbir Prasad (P.W.5) who is Head Master of the school that the date of birth of the prosecutrix is 1-1-1987. The date of birth must have been certified by some other document in which, the date of birth of the prosecutrix must have been mentioned. In this regard, evidence of Dalbir Prasad (P.W. 5), Head Master of school is relevant. According to him, on the basis of school record, he had issued the age certificate (Ex. P-3). What is that record, the prosecution did not care to produce the same. Thus, certificate (Ex. P-3) which has been prepared on the basis of some other document can not be said to be a primary piece of evidence.
11. According to Section 61 of the Indian Evidence Act, the contents of the document may be proved either by primary or by secondary evidence. Section 62 of the said Act states about primary evidence means the document itself produced for the inspection of the Court. Section 63 of the said Act, says about secondary evidence, thereafter, Section 64 of the Act states about proof of a document by primary evidence. According to these sections, a document must be proved by primary evidence except in the cases mentioned thereafter and therefore, under Section 65 the legislature has given instances where, secondary evidence can be adduced. Section 66 of the Evidence Act, speaks about Rules and notice to produce secondary evidence.
12. Dalbir Prasad (P.W. 5) who is the Head Master of the school and who had issued certificate (Ex. P-3), has categorically stated that on the basis of the school record, he has given the certificate. Thus, one can safely say that Ex. P-3 is not a primary evidence because, it has been prepared on the basis of some other document. It has been admitted by this witness that admission form of the prosecutrix was submitted in the school which bears the date of birth of the prosecutrix. According to me the admission form on the basis of which certificate (Ex. P-3) is prepared is primary evidence which has not been produced in the Court. As the primary evidence has not been produced in the Court, Ex. P-3 which is a certificate and is prepared on the basis of some other document, has no evidentiary value in the eyes of law and thus, the prosecution can not take any advantage of this document which according to me is inadmissible in evidence. There is nothing on record so as to indicate that the primary evidence was lost and if that be the position, secondary evidence is not permissible.
13. Now, I shall deal with the evidence of parents of the prosecutrix. Susheela Bai (P.W. 3) is the mother of the prosecutrix. According to her, she is not aware of her own age. She was unable to state the date, month or year when she was married. In the cross-examination, she could not specify the particular date, month or year when the prosecutrix was born and therefore, no assistance can be taken from her evidence, so as to ascertain the age of the prosecutrix. Balmukund (P.W. 10) who is the father of'the prosecutrix, has stated in his examination in chief that the prosecutrix was born in the month of Bhado (July-August) of the year 1986 but on being cross-examined on this point, he has specifically stated that in his police case diary statement (Ex. D-4) he did not narrate the age of the prosecutrix and if that be the position, according to me mentioning the age of the prosecutrix in the Court is the improvement in the evidence. So far as the evidence of prosecutrix is concerned, suffice it to say, it goes against the prosecution. In Para 23 of her testimony, she has specifically said that Balbir is her younger brother and Badri is elder to her. She further says that Badri is four years older to Balbir and she is three years older to Badri. Thus, so far as oral evidence in respect of the age of the prosecutrix is concerned, it is not definite. The evidence of all the witnesses is in contradiction to each other in respect to the age of the prosecutrix and therefore, in absence of any definite evidence, in respect to the age, it can not be said that on the date of incident, the age of the prosecutrix was below 16 years, specially when the Radiologist opined her age to be more than 16 years and below 18 years. Thus, a heavy doubt is created that what was the age of the prosecutrix on the date of the incident. It is well settled in law that suspicion, how so ever strong it may be, can not take the place of strict proof and the benefit would go in favour of the accused.
14. Now, the question comes whether, the prosecutrix was a consenting party or not. On going through the evidence of the prosecutrix it is gathered that she was going to take bath outside her house nearby hand pump where the appellant winked. On seeing the sign of wink, she entered again in the house, thereafter, she was followed by appellant and thereafter, he closed the door. It is said that, thereafter, appellant undressed her and committed rape upon her. Though it has been stated by her that appellant forcibly threw her on the ground and he also gave some slaps when she screamed but on being confronted by her police statement, this fact does not find place. On going through the evidence of the prosecutrix that on being winked by the appellant, she turned back to the house itself, goes to show that she was a consenting party. It has also come in her evidence that after this incident, near about for 6 or 7 occasions, the appellant cohabited with her but during four months, she did not narrate the incident to anybody. The prosecutrix was residing in her house with her parents and brothers and if there was no consent of her, she could have stated this fact to her parents and brothers but she kept silent which indicates that she was a consenting party.
14-A. No case law is required to refer when the prosecutrix having the age above 16 years and who is a consenting party, but, I think it proper to refer certain decisions of the Supreme Court in this regard. In the case of Surjan and Ors. v. State of M.P., AIR 2002 SC 476, the Apex Court has held that the prosecutrix not disclosing the fact of rape for two or three days to anybody, her evidence does not inspire confidence and it was held that she was a consenting party. In the present case, the prosecutrix; did not disclose the incident for nearabout 4 or 5 months. Thus, the case of Surjan (supra) is applicable in the present factual scenario.
15. In the case of Dileep and Anr. v. State of M.P., reported in (2001) 9 SCC 452, the sole testimony of the prosecutrix was not relied upon by the Apex Court and the appeal was allowed. In the present case also, so far as story of cohabitation without her consent is concerned, the same does not inspire any confidence. At this juncture, it shall be apposite to rely on a recent judgment of this Court in the case of Bapulal v. State of M.P., reported in 2002(3) M.P.H.T. 70 and Anr. decision of this Court in the case of Narendra v. State of M.P., reported in 1996 JLJ 256.
16. On the basis of foregoing discussion, according to me, conviction of appellant can not be sustained and the same is hereby set aside.
17. Resultantly, appeal is allowed and the conviction of the appellant is set aside. He be set at liberty forthwith if not required in any other case. The amount of fine if deposited be refunded to him.