Rabiya Bano vs Rashid Khan on 31 August, 2017

1 M.Cr.C.No. 7959/2017

aHIGH COURT OF MADHYA PRADESH:
MAIN SEAT AT JABALPUR

1 Case number M.Cr.C. NO.7959/2017
Rabiya Bano
2 Parties Name Vs.
Rashid Khan Anr.
3 Date of 31/08/17
Judgment
4 Bench Hon’ble Shri S.K. Seth and Smt. Anjuli
Constituted of Palo, J.J.
5 Judgment Hon’ble Smt. Anjuli Palo, J.
delivered by
6 Whether
approved for Yes
reporting
Name of the Shri Sanjay Patel, counsel for the
7 counsel for petitioner.
parties Shri Akshay Namdeo, Government
Advocate for the respondent No.2/State.
8 Law laid down The appellate court may only interfere
in an appeal against the acquittal where
there are substantial and compelling
reasons to do so.
9 Significant
paragraph 21 22
numbers

(S.K. SETH) (SMT. ANJULI PALO)
JUDGE JUDGE
2 M.Cr.C.No. 7959/2017

HIGH COURT OF MADHYA PRADESH AT JABALPUR

M.Cr.C No. 7959/2017

Rabiya Bano

Vs.

Rashid Khan Anr.

Present : Hon’ble Shri Justice S.K.Seth, Judge
Hon’ble Smt. Justice Anjuli Palo, Judge

——————————————————————————————
Shri Sanjay Patel, counsel for the petitioner.
None for the respondent No.1.
Shri Akshay Namdeo, Government Advocate for the
respondent No.2/State.
——————————————————————————————
Whether approved for reporting (Yes)
——————————————————————————————
Law laid down :-

——————————————————————————————
Significant Paragraphs :-
——————————————————————————————
ORDER

(31/08/2017)

Per : Smt. Anjuli Palo :-

1. This application under Section 378 (3) of Code of
Criminal Procedure has been filed by the prosecutrix for leave
to appeal being aggrieved by the judgment dated 10.4.2017
passed by the 7 th Additional Sessions Judge, Bhopal in Sessions
Trial No.196/15, whereby the learned trial Court has acquitted
the respondent No.1 for the offences punishable under Sections
363, 366, 376 (2) (I) of IPC and Section 3/4 Protection of
Children from Sexual Offences Act, 2012.

3 M.Cr.C.No. 7959/2017

2. As per the prosecution case, the prosecutrix who was aged
about 15 years was residing with her parents. On 11.2.2015 at about
10.00 pm when the prosecutrix was in front of her home, the accused
came there and closed her mouth and took her to the roof of her house
and committed rape with her. On 16.2.2015 when her father returned
back to home from Bombay, the prosecutrix narrated the incident to
her parents. Thereafter she lodged the FIR at the police station,
Shyamla Hills against the respondent No.1. An offence under
Sections 363, 366, 376 (2) (I) of IPC and Section 3/4 Protection of
Children from Sexual Offences Act, 2012 has been registered against
him. After completing the investigation, the police filed a charge
sheet before the concerned magistrate and the same was committed to
the trial Court.

3. The learned trial Court framed the charges against the
respondent No.1 under Section 363, 366, 376 (2) (I) of IPC in
alternate under Section 3/4 Protection of Children from Sexual
Offences Act, 2012. The respondent No.1 abjured his guilt and stated
that he was falsely implicated by the complainant family to create
pressure on him to marry with the prosecutrix . In this regard defence
witnesses also produced by the respondent No.1. Further the
respondent No.1 also took plea of alibi.

4. After appreciation of evidence on record, the learned trial Court
found that the prosecution has failed to establish that the prosecutrix
was minor at the time of incident and the respondent No.1 committed
rape on her. It was also found that the prosecutix was 26 years of age
and her conduct was unnatural. The incident was narrated by her to
the parents after 5 days of the incident. The FIR was delayed,
therefore, the respondent No.1 has been acquitted from the offences
punishable under Sections 363, 366, 376 (2) (I) of IPC in alternate
4 M.Cr.C.No. 7959/2017

under Section 3/4 Protection of Children from Sexual Offences Act,
2012.

5. The prosecutrix has submitted that the findings of the learned
trial Court are illegal and contrary to law. The learned trial Court
committed error in holding that the prosecution failed to prove the
allegation without proper appreciation of the medical material
available on record.

6. Heard and perused the record.

7. Learned GA has opposed the above grounds and submitted that
the findings of the trial Court is based on the evidence on record,
hence, no interference is called for in the findings of the learned trial
Court.

8. Two questions arise for our consideration :-

(1) Whether the trial Court was correct in concluding that it
cannot be assumed that the age of the prosecutrix was less than 18
years on the date of incident ?

(2) Whether the trial Court erred in discarding the testimony
of the prosecutrix which could be made sole basis for convicting the
accused ?

9. With regard to the age of the prosecutrix at the time of offence,
the prosecutrix (PW1) herself has not stated about her date of birth.
At the time of incident she was student of 7 th Class. Her father Abdul
Mazid (PW2) and her mother Rajio Bano (PW3) both of them have
also not deposed the date of birth of the prosecutrix. Abdul Mazid
(PW2) has explained that the prosecutrix is her elder daughter. In
paragraph 10 he explained that he had not gone to the School for
admission of the prosecutrix. The prosecutrix was admitted in school
by her mother. In paragraph 8 Rajio Bano (PW3) her mother
explained the date of birth was recorded by her on the basis of mark
5 M.Cr.C.No. 7959/2017

sheet. In the last part of paragraph 8, she again explained that she has
no document with regard to date of birth of her daughter.

10. Prashant (PW6), Principal of Public Higher Secondary School
in his cross-examination has admitted that he had no birth certificate
or other document with regard to ascertain the exact date of birth of
the prosecutrix. From his testimony, it seems that he was not able to
say that the date of birth registered in the school record is right or
wrong. The aforesaid evidence is not the conclusive evidence to
prove the date of birth of the prosecutrix as 10.6.2000. No
ossification test was conducted by the doctor which would establish
the characteristic, fusion of bones, proof of date of birth, etc. to
determine the age of the prosecutrix. Hence we find that the date of
birth of the prosecutrix was recorded by her mother in school record
is based only on presumption, hence it is not found reliable.

11. The Apex Court in the case of Jarnail Singh Vs. State of
Hariyana [ 2013 (7) SCC 263] has held that Rule 12 of the Juvenile
Justice (Care and Protection of Children) Rules, 2007 though strictly
applicable to a child in conflict with law, would also be applicable to
determine the age of a child who is a victim of a crime. Accordingly, Rule
12(3) is applicable for determining the age of the prosecutrix, which reads
as under:

“12.Procedure to be followed in determination of Age:-

3. In every case concerning a chile or juvenile in conflict with law,
the age determination inquiry shall be conducted by the Court or the
Board or, as the case may be, the committee by speaking evidence by
obtaining:-

(a)(i) the matriculation or equivalent certificates, if available; and in
the absence whereof;

(ii) the date of birth certificate from the school (other than a play
school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal
authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a)
above, the medical opinion will be sought from a duly constituted
6 M.Cr.C.No. 7959/2017

Medical Board, which will declare the age of the juvenile or child.
In case exact assessment of the age cannot be done, the Court or the
Board or, as the case may be, the Committee, for the reasons to be
recorded by them, may, if considered necessary, give benefit to the
child or juvenile by considering his/her age on lower side within the
margin of one year and, while passing orders in such case shall, after
taking into consideration such evidence as may be available, or the
medical opinion, as the case may be record a
finding in respect of his age and either or the evidence specified in
any of the clauses (a)(i), (ii), (iii) or in the absence,
whereof, clause (b) shall be the conclusive proof
of the age as regards such child or the juvenile in conflict with
law.”

12. At the same time, it has also been held in Birad Mal Singhvi
V. Anand Purohit, 1988 Supp. SCC 604 (Paragraph 15) that an
entry relating to date of birth made in a school register is not much
evidentiary value to prove the age of the person in the absence of the
material on which the age was recorded [See also State (Govt. of
NCT of Delhi) V. Charan Singh, 2017 SCC OnLine Del 8186
(paragraphs 16-21); and State (GNCT of Delhi) V. Mohd. Irfan,
2017 SCC OnLine Del 9111 (paragraphs 12-15)].

13. Accordingly, the documents on record could not be relied upon
and prove that the age of the prosecutrix was less than 18 years at the
time of incident. Thus, the ingredients of Section 361 of IPC are not
established by the prosecution.

14. In the case of State of M.P. Vs. Munna 2016 (1) SCC 696, the
Supreme Court has held as under :-

“The age of the prosecutrix not proved beyond
reasonable doubt to be less than 16 years of age
at the time of incident, therefore, the High Court
was right in holding that the prosecutrix was
more than 16 years of age and was competent to
give her consent.”

15. The prosecutrix (PW1) has stated that the incident was took
place at about 10.00 PM and at that time her mother, brother, real
aunty and uncle were present in the home. It cannot be possible for
7 M.Cr.C.No. 7959/2017

the respondent No.1, without the consent of prosecutrix, he abducted
her and took her on the roof of the house through the stairs. The story
told by the prosecutrix that due to fear of the respondent No.1 she
could not raise the alarm seems to be unnatural and doubtful because
the respondent No.1 was bare handed. After the said incident, the
prosecutrix kept mum for about 4-5 days. She could have told the
incident to her mother and brothers, who were present in home at that
time. She also stated that she is more closure to her mother than her
father. Then why she waited up to 4-5 days for her father, not
immediately narrated the incident to her mother.

16. Dr. Dipti Pawar (PW8) in the medical examination of
prosecutrix found her secondary sex character was well developed
and hymen was old and healed. Doctor not found any internal or
external injury over the body of the prosecutrix. No definite opinion
was given by her about intercouse with the prosecutrix.

17. The medical opinion also indicates that the prosecutrix was
found habitual to have intercouse. It seems that due to pressure of her
family members, she lodged the report against the respondent No.1.
Hence delayed FIR has also great importance, which creates
reasonable doubt to the testimony of the prosecutrix, hence the
benefit of doubt be given to the respondent No.1. The defence taken
by the respondent No.1/accused seems to be reasonable and plausible.
Prior to the incident both of them known to each other very well.

18. Samsher (DW1) deposed that prior to the incident, father of the
prosecutrix came to his home with the proposal of marriage for the
prosecutrix with the respondent No.1. Mohd Arshad (DW2) deposed
that at the time of incident, respondent No.1 was present with him at
Lalghati Chouraha up to 12.30 PM. Thereafter the respondent No.1
went to his home. The value of defence witness is equal to the
prosecution witnesses, which creates reasonable doubts about the
8 M.Cr.C.No. 7959/2017

story of prosecution. Therefore, due to above mentioned weaknesses
of testimony of the prosecutrix, the defence evidence cannot be
ignored superficially.

19. On the above ground, it could be interfered that the respondent
No.1/accused would not have forcibly had sexual intercourse with the
prosecutrix (PW1).

20. The circumstances lead us to the conclusion that she freely,
voluntarily and consciously consented for having sexual intercourse
with the respondent No.1. She did not resist the respondent No.1.

21. In the cases of Ghurvey Lal Vs. State of U.P. [ AIR 2009 SC
(Supp) 1318] Madarthi Narayan Vs. State of Kerala [ 2017
Cr.L.J. 732 (SC)] and Mahaveer Singh Vs. State MP [ 2017
Cr.L.J. 749 (SC)], the Apex Court has held that in appeal against
acquittal of two views are possible. View which goes in favour of the
acquittal has be adopted.

22. Even otherwise, it is settled law that the appellate court may
only interfere in an appeal against the acquittal where there are
substantial and compelling reasons to do so, as held in cases of Sheo
Swarup Vs. King Emperor [ AIR 1934 PC 227 (2)], M.G.
Agrawal Vs. State of Maharashtra [ AIR 1963 SC 200] and State
of Rajasthan Vs. Rajaram [ (2003) 8 SCC 180].

23. In the above circumstances, we are of the considered
opinion that no interference is warranted in the impugned
judgment. Hence leave is not granted in favour of the appellant
to file appeal against acquittal. Accordingly, the application is
dismissed.

24. Let the record be sent back to the trial Court alongwith a copy
of this order.

(S.K.SETH) (SMT. ANJULI PALO)
JUDGE JUDGE
skm

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