Bharat Singh vs The State Of M.P. on 17 August, 2017

HIGH COURT OF MADHYA PRADESH : BENCH INDORE
SINGLE BENCH : HON. SHRI JUSTICE VIVEK RUSIA, J.

Criminal Appeal no. 1277/1998

Bharatsingh S/o Mohanlal

Vs.

State of M.P.
_
Shri Valmik Sakargaye, learned counsel for the appellant.
Shri Umesh Gajankush, Dy.AG for the respondent / State.
JUDGMENT

( 17/08/2017 )
The appellant has filed present appeal being aggrieved by
the judgment dated 26/10/1998 passed by the Additional
Sessions Judge, Biora, Dist- Ratlam in Session Trial no.
56/1993, by which he has been convicted under sections
363 and 366 of IPC and sentenced to undergo R.I for five
years on each count.

2 As per the prosecution story, Ramprasad PW-1 has
lodged missing report at no.1/1993 in police station –
Suthaliya on 03/02/1993 ( Ex.-P/7 ) that her daughter
Anita PW-4 is missing since evening of 01/02/1993. Along
with the report, he submitted school leaving certificate
dated 02/02/1993 (Ex-P/2). On 04/02/1993 at nearby
12.00, Anita was recovered by PW-5 and PW-10 and kept
in police station at Ratlam vide Ex,.-P/4. She was handed
over to PW-1 and PW-3 on 06/02/1993 vide Ex,-P/3.
3 Thereafter the Police has registered FIR vide Ex.-P/1
against the appellant under sections 363 and 366 of IPC
on 04/02/1993 on the statement given by the prosecutrix
Anita under section 161 of Cr.P.C. She was sent for
medical examination and after her examination, Dr. Vibha
Swarnakar( PW-9) submitted its report Ex.-P/6. Appellant /
accused was arrested on 08/02/1993 vide arrest memo
Ex.-P/8. After completing the investigation, the police filed
challan under section 173 of Cr.P.C.and and thereafter
vide order dated 13/03/1993, trial was committed to the
session court. Vide order dated 29/04/1993, charges
under sections 363 and 366 of IPC were framed against
the appellant.

4 In support the case, the prosecution examined
Ramprasad PW-1, who has stated that on 01/02/1993
nearby 6 pm, when he returned to the house, his wife
informed that daughter Anita has not returned to home.
He disclosed the age of the prosecutrix as 15-16 years
and in support of age, he produced school leaving
certificate Ex.-P/1. After 2-3 days, the report was lodged
in police station. In cross-examination, he has stated that
after recovery, Anita has disclosed to the police that the
appellant has induced her for marriage and took her to
Ratlam.

5 Smt. Roopadevi, mother of the prosecutrix was
examined as PW-2 who stated that age of her daughter is
12-13 years ( roughly ). Mr. Chhaganlal, uncle of the
prosecutrix was examined as PW-3 who has also disclosed
the age of the prosecutrix as 15 years. Anita was
examined as PW-4 who has deposed that three years
back, when she want to well, the appellant has forcibly
taken her and threatened that he would kill her family
members, then he took her to Biora Railway Station, and
then Ratlam. At Ratlam, police has arrested them. In
cross-examination, she stated that she has never
disclosed to the police that the accused has threatened to
kill her family members by showing knife.
6 She further deposed that she studied upto Class-II and
at present, her age is 18-19 years. The prosecution has
examined Shri J.P. Saxena, Head Master of Middle School,
Gindirahat who has stated that the prosecutrix was
admitted in the school on 01/08/1983 and her date of
birth was recorded as 20/07/1977, on the basis of which,
school leaving certificate was issued, but he did not know,
who has signed the said certificate. Shri Rameshchandra
Arya CSP Ratlam was examined as PW-5 who has stated
that he found the prosecutrix and the appellant in Auto-
rickshaw. In cross-examination, he has stated that Anita
has never disclosed that Bharatsingh has threatened her
and brought to Ratlam on the point of knife.
7 The prosecution examined Dr. Vibha Swarnakar as PW-9
who has stated that she has not found any sign of rape on
Anita. That PW-10 Shri K.C. Pandey, Sub-Inspector, has
also stated that they found the appellant and Anita in
auto-rickshaw. Shri Ashok Kumar Agrawal, the
investigating officer has been examined as PW-11.
8 In defence, the appellant has not examined any
witness. In his statement under section 164 of CrP.C, he
has simply denied the charges without any explanation.
Learned Additional Sessions Judge, vide judgment dated
26/10/1998 has held that at the time of kidnapping , age
of the prosecutrix was 15 years and 6 months, hence she
was minor. The appellant has abducted her with the
intention to marry and intercourse, therefore, he has also
committed offence under sections 363 and 366 of IPC.
Learned Sessions Judge has sentenced him to undergo
five years RI each for each offence, hence the present
appeal before this Court.

9 The appellant has assailed the conviction and sentence
on the ground that he has falsely been implicated in the
case. At the time of incident, the prosecutrix was major.
No ossification test was done. X-ray report has not been
proved by the prosecution. Age of the prosecutrix has not
been properly proved by the prosecution by any cogent
evidence. There was delay in FIR. The prosecutrix was
consenting with the appellant and both went to Ratlam
for marriage, therefore, the appellant has wrongly been
convicted and hence entitled for acquittal.
10 Learned public persecutor argued in support of the
prosecution story and supported the judgment of the
additional Sessions Judge by submitting that when the
school leaving certificate discloses the date of birth, no
other material is required to prove the age of the
prosecutrix Anita PW-4 and as per date of birth record in
the school record, she was minor, therefore, the appellant
has rightly been convicted under sections 363 and 366 of
IPC. No interference is called for and prayed for dismissal
of the appeal.

11 That Ramprasad, father of Anita (PW-1) lodged missing
report on 03/02/1993 that her daughter left the house,
but did not return before lodging report he got prepared
school leaving certificate dated 02/02/1993 (Ex.-P/2) . In
the report, he has not disclosed the name of the
appellant. The FIR was registered against the appellant,
when both were arrested by PW-5 Rameshchandra Arya
CSP, Ratlam. Anita in her statement recorded on
04/02/1993 has stated that on 01/02/1993, she went to
the Well and there Bharatsingh gave her offer of marriage
and said that both shall live together, then he instigated
her and brought Biora Railway station and from there
both reached to Ratlam. At Ratlam, he threatened that if
she would not marry, then he will kill her. She has stated
that Bharatsingh has not committed any bad with her (
khota kam ). Before the Court, she has improved her
version by alleging that if she will not come with him, he
will kill her as well as her family members, but in cross-
examination, she admitted that she has disclosed this fact
first time in the court. In her statement under section 161
of C.P.C, she has not stated that the appellant was
carrying knife but in cross-examination stated that the
appellant brought her to Ratlam by putting knife on her
neck. There is recovery of the knife from the appellant.
12 That PW-5 and PW-10 who have recovered Anita in
auto-rickshaw at Ratlam have also stated that Anita did
not made any complaint against the appellant, therefore,
in view of the aforesaid statement, it is established that
the appellant has not kidnapped her from the lawful
guardianship of her parents. That appellant took her from
Well to Beora station and there after they wen to Ratlam
Railway station and during this journey at no point of time
she made any complaint to public or tired to get away
from the clutches of appellant .There for she was
consenting party with appellant
13 So far as age of the prosecutrix is concerned, whether
she was minor at the time of incident, her father
Ramprasad, PW-1 has stated that her age is 15-16 years.
As per the date of birth record in the school leaving
certificate, her age comes to 15 years and 6 months. Shri
J.P Saxena, Head Master was examined as PW-6, who
brought admission registered of the school. He has not
disclosed that at the time of recording of date of birth in
the school,whether parents of Anita has brought any
proof of her date of birth, therefore, it is not clear, on
what basis, her date of birth was recorded as 20/07/1977
in the school record. In cross-examination also, Head
Master has stated that the parents are used to record
date of birth on conjectural basis without any documents.
The school leaving certificate was got prepared on
02/03/1993 for the purpose of lodging missing report in
the police station. PW 1 and PW-2 are illiterate persons.
They recorded the date of birth in the school without any
birth certificate. When the date of birth recorded in the
school record is disbelieved, then there is no other
alternative available to the Court to decide the date of
birth of the prosecutrix except on basis of the ossification
test or other medical examination. X-ray of the
prosecutrix was done,but same was not proved. Even the
dentist was not examined to prove the age of the
prosecutrix.

14 It is settled principle of law in respect of the
ossification test that two years variance in age be added
in either side. According to the school leaving certificate,
the prosecutrix was aged 15 years and 6 months. Father
of the prosecutrix stated that she was aged 15-16 years,
therefore, two years can be added on positive side. When
it is doubtful, whether the prosecutrix was on boundary
line of 18 years and the prosecution could not prove
beyond reasonable doubt that the prosecutrix was below
18 years of age, benefit of doubt should be given to the
accused. Hence the appellant cannot be convicted under
section 363 of IPC. This Court in the case of Mahesh Vs.
State of M.P. reported in 2012 Cr.LR ( MP) 67 has
held that in absence of ossification test, it could not be
said that the prosecution has proved the age of the
prosecutrix below 18 years beyond reasonable doubt. It is
settled principle of medical jurisprudence that on deciding
the age of a person, two years variance of either side is
taken into consdieration.

The Division Bench of this Court in the case of Munnalal
Vs. State of M.P. reported in 1977 JLJ 731 has held
that whether the girl examined by a doctor, an X-ray
examination was advised, but the X-ray report was not
produced, the entry of age in the school register was not
made by the person who produced it, the accused cannot
be held guilty for the offence under section 363 of IPC.
In the case of Intzar @ Mota and another Vs. State of
M.P. reported in 1983 MPLJ 855, this Court has
discarded the certificate issued by the school on the
principle that it is not a primary evidence.
15 In view of the aforesaid discussions, the judgment
dated 26/10/1998 passed by the Additional Sessions
Judge, Biora, Dist- Ratlam in Session Trial no. 56/1993, for
convicting and sentencing the appellant for the offence
under sections 363 and 366 of IPC is hereby set aside.
The appellant is acquitted from the charges leveled
against him. The appellant is on bail. His presence is no
more required before this Court, therefore, his bail bonds
are discharged. Copy of this judgment alongwith the
records be sent to the trial Court concerned for necessary
compliance.

C c as per rules.

(VIVEK RUSIA)
JUDGE

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