Full Judgment
1 HIGH COURT OF MADHYA PRADESH : JABALPUR Criminal Appeal No.2186/1996 Ram Singh Vs. State of M.P. As Per : G.S.Solanki, J.Shri Sandeep Koshta, Advocate for the appellant. Shri Yogendra Das Yadav, PL for the respondent/State. ORDER
(23/07/2013) 1. This appeal has been preferred by the appellant u/s 374 (2) of Cr.P.C being aggrieved by the judgment dated 28/11/96 passed by Ist Additional Sessions Judge, Mandla in S.T. No.146/95 whereby being convicted u/s 376, 506- II of IPC, he has been sentenced to undergo RI for 7 years, RI for 1 year with the direction that both the sentences shall run concurrently.
2. The facts giving rise to this appeal, in short, are that on 17/07/95 prosecutrix (PW-1) was going in a bus to Dindori for taking her transfer certificate from the school however, at Shahpura appellant Ram Singh also boarded on bus. He abducted the prosecutrix and took her to Amhera where he committed rape on her thereafter, he took her in a hotel at Shahpura and again committed rape on her. On 22/07/95 her maternal uncle Chaitram 2 intercepted them and scolded her thereafter, she went to house of her grand aunt (nani) Ram Bai and narrated the whole story to her. On 26/07/95, a panchayat was called and thereafter, on 28/07/95 a written report was filed to the police station Shahpura. Police registered a criminal case u/s 366, 376, 506-II of IPC against the appellant. Appellant has been arrested. Prosecutrix and appellant have been medically examined by doctors. After usual investigation, appellant has been charge sheeted before the JMFC, Niwas District Mandla who in turn committed the case to the Court of Sessions. Additional Sessions Judge, Mandla framed the charges u/s 366, 376, 506-II of IPC however, on appreciation of evidence appellant has been acquitted to the charge u/s 366 of IPC and convicted u/s 376, 506-II of IPC and sentenced as mentioned hereinabove. Hence, this appeal.
3. Learned counsel for the appellant submits that trial Court committed the illegality in not appreciating the evidence in its proper perspective. It is further submitted that prosecutrix was more than 16 years of age, she went with the appellant on her own accord and if any intercourse was done, same was with the consent of prosecutrix. Under such circumstances, he prays for setting aside the conviction and sentence recorded by court below and further prays for acquittal of the appellant.
4. Learned counsel for the State has supported the judgment and finding recorded by the Courts below.
5. I have perused the impugned judgment alongwith 3 the evidence recorded by trial Court. Prosecutrix (PW-1) has stated that when she was going to Dindori, appellant met her thereafter, he snatched her transfer certificate and threatened therefore, she was kept mum and went with him. Initially at Amhera and thereafter at Shahpura she lived with the appellant since 17/07/95 to 22/07/95. On 22/07/95 when her maternal uncle Chaitram met her and scolded, she narrated the incident to him. This fact is corroborated by Chaitram in his statement as well as FIR. It is also on record that on 26/07/95 when Panchayat directed the prosecutrix, she lodged the report against the appellant.
6. Considering the aforesaid fact of the case, it appears that prosecutrix lived with the appellant on her own accord because she has not made any hue and cry when she was lived with him at village Amhera as well as at Shahpura. It also transpires from the FIR that when she was scolded by her maternal uncle Chaitram (PW-3) she narrated the story to him. In these circumstances, whole case rests on the fact of age of the prosecutrix that whether she was of consenting age or she was less than 16 years of the age?.
7. Harihar Prasad (PW-7) has produced the register of school admission record (Ex.P-16) alongwith the certificate issued by Principal (Ex.P-15) before the trial Court. He fairly admitted in his cross examination that he had not drafted the certificate issued by Principal Vimla Paraste. He further admitted that admission of prosecutrix has not been taken place before him. It 4 reveals on perusal of aforesaid record that prosecutrix born on 6/07/81.
8. It is well established principle of law that evidence of the parents is best evidence in regard to the age of their child. Durga Bai (PW-2), mother of prosecutrix has stated that before 12 years she has been deserted by her husband. She further stated that her marriage was solemnized 10 years before of her desertion. She admitted this fact in her cross examination. She again admitted that prosecutrix was born out of their wedlock after 2 -3 years of the marriage. She further admitted that she was not present at the time of admission of prosecutrix in the school and admission of prosecutrix was made by her parents (grand parents of prosecutrix).
9. On careful scanning of evidence of Durga Bai it reveals that prosecutrix was born after 2 -3 years of marriage of Durga Bai. In these circumstances, certainly she may be more than 17 years of age because marriage of Durga Bai was solemnized before 20 years of her statement i.e. 27/09/98 and incident said to have been took place in the year 1995, in this way, prosecutrix must have been born in the year 1978. Trial Court has not considered this aspect of the case and only relied on the documents (Ex.P-15, P-16) and came to the conclusion that prosecutrix was less than 16 years of age. It is also on record that aforesaid documents were not prepared by Harihar Prasad (P.W-7) as well as date of birth of the prosecutrix written in the document has not been recorded before him. Further Durga Bai, mother of 5 prosecutrix herself stated that she had not recorded the date of birth of prosecutrix and the same was recorded by her parents (grand parents of prosecutrix) merely on their estimation. Considering the overall facts and circumstances of the case, I am of the view that trial Court has committed the illegality in holding the age of prosecutrix less than 16 years and recording the conviction of appellant u/s 376, 506-II of IPC and same is liable to be set aside.
10. In the result, the appeal is allowed. The conviction recorded by trial Court is hereby set aside and appellant is acquitted to the charge u/s 376, 506-II of IPC. Appellant is on bail, his bail bonds and surety bonds are discharged.
11. Record of the courts below be sent back with the copy of this judgment for information and compliance. (G.S.Solanki) Judge navin