Dinesh vs State Of M.P. on 9 October, 2017

-( 1 )- CRA No. 526/2013

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
Criminal Appeal No 526/2013
Dinesh
Versus
State of Madhya Pradesh

————————————————————————————-
Shri M.M.Tripathi and Shri Brijesh Sharma, learned
counsel for the appellant.
Shri R.S.Yadav, learned Public Prosecutor for the State.
————————————————————————————-
JUDGMENT

(09.10.2017)

The present appeal I s directed by the
appellant under Section 374(2) of the Code of Criminal
Procedure (CrPC) feeling aggrieved by the judgment
dated 9.4.2013 passed by Additional Sessions Judge,
Mungaoli, District Ashoknagar in Sessions Trial No.
78/2011, whereby the appellant has been convicted for
the offences punishable under Section 376 of IPC and
sentenced to suffer ten years rigorous imprisonment
with fine of Rs.2000/-. In default of payment of fine, the
appellant has been directed to suffer rigorous
imprisonment for additional six months.

2. In short, the prosecution story is that on 11.4.2011
at about 10/10-30 pm the prosecutrix had gone to take
water at government motor situated near her house at
village Lidhora where the appellant also reached, who
caught her hand and took to yard belonging to the
prosecutrix herself. The accused made her lie down over
the pipes and committed rape with her and thereafter on
her crying he fled away from the spot. She narrated the
incident to her parents then on next day, i.e., 12.4.2013

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she along with her mother and uncle Amarsingh got the
FIR lodged at Police Station Piprai bearing Crime
No.98/2011. The accused was arrested on 3.5.2011 and
after completing the investigation, the charge sheet was
filed on 30.5.2011 before the Judicial Magistrate First
Class Chanderi, who committed the case to the Sessions
Court and ultimately it was transferred to Additional
Sessions Judge, Mungaoli for trial.

3. The appellant abjured his guilt. He took a plea that
he has been falsely implicated in the crime due to
previous enmity with the complainant party. He also
examined Lalaram as defence witness and submitted
documentary evidence, Ex.D/4 to Ex.D/8, in support of
his defence.

4. The trial Court after considering the evidence
adduced by the parties pronounced the impugned
judgment dated 9.4.2013 convicting and sentencing the
appellant as stated above.

5. Learned counsel for the appellant argued at length
and submitted that the appellant has been convicted
illegally by the trial Court. The trial Court has wrongly
found the prosecutrix below the age of 12 years at the
time of incident and thus committed error in
determining the age of the prosecutrix and in not
properly appreciating the evidence, which resulted into
incorrect finding, which is liable to be set aside.

6. Learned counsel for the State submits that after
due appreciation of the evidence the trial Court has
found the appellant guilty of the aforesaid offence.

7. I have carefully perused the record and have
considered the rival contentions of the parties.

8. The first question for determination is as to what
was the age of the prosecutrix on the date when she was

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alleged to have been raped.

9. Tofan Singh (PW2) has stated that the prosecutrix
is his daughter, who is aged about 12 years but Guddi
Bai (PW3), mother of the prosecutrix, deposed that her
daughter is aged about 15 years. Amar Singh (PW4),
Uncle of the prosecutrix, also stated that the age of the
prosecutrix is 17 to 18 years.

10. With regard to verification of age ossification test
was advised and Dr. S.S.Chhari (PW6) deposed that in
the ossification test the age of the prosecutrix was found
above 12 years but below 14 years. Except ossification
test report, no other document was filed by the
prosecution to prove the age of the prosecutrix.

11. In the case of Jarnail Singh v. State of Haryana
reported in (2013) 7 SCC 263, the Supreme Court has
held as under:-

“22. On the issue of determination of age
of a minor, one only needs to make a
reference to Rule 12 of the Juvenile Justice
(Care and Protection of Children) Rules,
2007 (hereinafter referred to as the 2007
Rules). The aforesaid 2007 Rules have
been framed under Section 68(1) of the
Juvenile Justice (Care andd Protection of
Childran) Act, 2000. Rule 12 referred to
hereinabove reads as under:

“12. Procedure to be followed in
determination of age: – (1) in every case
concerning a child or a juvenile in conflict
with law, the court or the Board or as the
case may be the Committee referred to in
rule 19 of these rules shall determine the
age of such juvenile or child or a juvenile in
conflict with law within a period of thirty
days from the date of making of the
application for that purpose.

(2) The court or the Board or as the
case may be the Committee shall decide
the juvenility or otherwise of the juvenile
or the child or as the case may be the
juvenile in conflict with law, prima facie on

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the basis of physical appearance or
documents, if available, and send him to
the observation home or in jail.

(3) In every case concerning a child
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 seeking
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 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 of 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.

(4) If the age of a juvenile or child or
the juvenile in conflict with law is found to
be below 18 years on the date of offence,
on the basis of any of the conclusive proof
specified in sub-rule (3), the court or the
Board or as the case may be the Committee
shall in writing pass an order stating the
age and declaring the status of juvenility or

-( 5 )- CRA No. 526/2013

otherwise, for the purpose of the Act and
these rules and a copy of the order shall be
given to such juvenile or the person
concerned.

(5) Save and except where, further
inquiry or otherwise is required, inter alia,
in terms of section 7A, section 64 of the Act
and these rules, no further inquiry shall be
conducted by the court or the Board after
examining and obtaining the certificate or
any other documentary proof referred to in
sub- rule (3) of this rule.

(6) The provisions contained in this
rule shall also apply to those disposed off
cases, where the status of juvenility has not
been determined in accordance with the
provisions contained in sub-rule (3) and the
Act, requiring dispensation of the sentence
under the Act for passing appropriate
order in the interest of the juvenile in
conflict with law.”

23. Even though Rule 12 is strictly
applicable only to determine the age of a
child in conflict with law, we are of the
view that the aforesaid statutory provision
should be the basis for determining age,
even for a child who is a victim of crime.
For, in our view, there is hardly any
difference in so far as the issue of minority
is concerned, between a child in conflict
with law, and a child who is a victim of
crime. Therefore, in our considered
opinion, it would be just and appropriate to
apply Rule 12 of the 2007 Rules, to
determine the age of the prosecutrix PW-6.

The manner of determining age
conclusively, has been expressed in sub-
rule (3) of Rule 12 extracted above. Under
the aforesaid provision, the age of a child
is ascertained, by adopting the first
available basis, out of a number of options
postulated in Rule 12(3). If, in the scheme
of options under Rule 12(3), an option is
expressed in a preceding clause, it has
overriding effect over an option expressed
in a subsequent clause. The highest rated
option available, would conclusively
determine the age of a minor. In the
scheme of Rule 12(3), matriculation (or

-( 6 )- CRA No. 526/2013

equivalent) certificate of the concerned
child, is the highest rated option. In case,
the said certificate is available, no other
evidence can be relied upon. Only in the
absence of the said certificate, Rule 12(3),
envisages consideration of the date of birth
entered, in the school first attended by the
child. In case such an entry of date of birth
is available, the date of birth depicted
therein is liable to be treated as final and
conclusive, and no other material is to be
relied upon. Only in the absence of such
entry, Rule 12(3) postulates reliance on a
birth certificate issued by a corporation or
a municipal authority or a panchayat. Yet
again, if such a certificate is available, then
no other material whatsoever is to be taken
into consideration, for determining the age
of the child concerned, as the said
certificate would conclusively determine
the age of the child. It is only in the
absence of any of the aforesaid, that Rule
12(3) postulates the determination of age
of the concerned child, on the basis of
medical opinion.”

12. As per Rule 12 of Juvenile Justice (Care and
Protection of Children) Rules, 2007, the following
documents are required for determination of age :-

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

(ii) 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
corporation or municipal authority
or a panchayat;

(b) and only in the absence of either

(i), (ii) and (iii) of clause a a above, the
medical opinion will be sought from a
duly constituted Medical Board, which
will declare the age of the juvenile or
child.

13. From perusal of Rule 12 of Juvenile Justice (Care
and Protection of Children) Rules, 2007, it is clear that

-( 7 )- CRA No. 526/2013

the medical opinion about the age of the prosecutrix can
be sought from the medical board when the school
certificate or birth certificate is not available. In the
present case birth certificate and school certificate of
the prosecutrix are not available and from the medical
opinion, the age of the prosecutrix was above 12 years at
the time of incident and it is also substantiated from the
testimony of Guddibai (PW3), mother of the prosecutrix,
who stated that her daughter/prosecutrix is aged about
15 years. Therefore, it is proved that the prosecutrix was
aged about 12 to 14 years on the date of incident.

14. Now the next question is that whether the
appellant is guilty of committing rape upon the
prosecutrix ?19. During the course of argument,
learned counsel for the appellant fairly submits that he
is not challenging the conviction of the appellant passed
by the trial Court but he contended that since the
prosecutrix is found to be aged about 12 to 14 years at
the time of incident and the appellant has already served
the jail sentence of six years and five months, therefore,
the sentence be reduced to the period already
undergone by the appellant.

15. During the course of argument, learned counsel for
the appellant fairly submits that he is not challenging
the conviction of the appellant passed by the trial Court
but he contended that since the prosecutrix is found to
be aged about 12 to 14 years at the time of incident and
the appellant has already served the jail sentence of six
years and five months, therefore, the sentence be
reduced to the period already undergone by the
appellant.

16. In view whereof, I have considered the evidence of
the prosecution. The prosecutrix (PW1) deposed that she

-( 8 )- CRA No. 526/2013

alone had gone to government motor to take the water.
There was dark on the spot due to electricity failure. At
that time, accused Dinesh came there, he caught her
hand and took her to the yard and made her to lie down
over the pipes and thereafter committed rape with her.
When she cried, the accused Dinesh chocked her mouth
with towel and after that he fled away. She narrated the
incident to her parents and next day she along with
parents and uncle came to police station to lodge the
report.

17. Tofan Singh (PW-2), father of the prosecutrix
supported the statement of his daughter and deposed
that his daughter had gone to take water from the
government motor. When she did not return back then
he reached at the place of government motor and
searched her but she was not found there. After two
hours the prosecutrix reached the house and informed
him that accused Dinesh caught hold of her hand and
committed rape with her.

18. From the evidence of prosecutrix (PW-1) and Tofan
Singh (PW-2), I find that there is no material
contradiction, omission exaggeration or improvement in
their statement. They remained firm and inconsistent in
their cross-examination. Their statements are
corroborated by the FIR Ex.D/1 and MLC Report
(Ex.P/6), prepared by Dr. Sudha Bhargava (PW-8).
Although the prosecutrix in her cross-examination has
admitted that Amar Singh and Bhajan Singh are her
Uncle and there is previous enmity between Amar Singh
with the family members of accused/appellant Dinesh.
Bhajan Singh and Amar Singh caused marpit with the
brother of Dinesh and a criminal case is pending
regarding that incident, in which Amar Singh etc.

-( 9 )- CRA No. 526/2013

wanted to compromise but the prosecutrix denied the
fact that to pressurise the accused/appellant for
compounding the aforestated case which is pending
against Bhajan Singh, she made a false complaint
against the appellant/accused. It is also pertinent to note
that Amar Singh (PW-4) was also examined on behalf of
the prosecution but he has not supported the
prosecution version and has turned hostile. Therefore, it
is not acceptable that due to the enmity between the
Uncle of the prosecutrix Amar Singh and Bhajan Singh
with the appellant/accused the prosecutrix has falsely
implicated the appellant in the present matter. There is
no substantial evidence on record to show that the
prosecutrix (PW-1) and her father Tofan Singh (PW-2)
are falsely implicating the appellant in the offence. Thus,
the trial Court did not commit any illegality or perversity
in relying upon the testimony of the aforesaid witnesses.

19. On cumulative consideration of the facts and
circumstances of the case, it is found proved that on
11.4.2011 the prosecutrix went to government motor to
take the water. The appellant Dinesh came there and
took her to the yard where he committed sexual
intercourse with the prosecutrix. Thus, the prosecution
has succeeded in proving the fact that the prosecutrix
was raped by the appellant.

20. So far as the question of sentence is concerned, I
have considered the contention of learned counsel for
the appellant. Although it is found that at the time of
incident the age of the prosecutrix was more than 12
years but the minimum sentence for the offence under
Section 376 of IPC is seven years, therefore, the prayer
made by learned counsel for the appellant is not
acceptable.

-( 10 )- CRA No. 526/2013

21. Consequent upon to above analysis, the conviction
of the appellant for the offence under Section 376 of IPC
is hereby maintained, however, looking to the facts and
circumstances of the case, the sentence of 10 years
rigorous imprisonment imposed by the trial Court is
reduced to 7 years rigorous imprisonment but fine
amount is enhanced from Rs.2000/- to Rs.10000/- (Ten
Thousand). In default of payment of fine, he shall suffer
one year additional rigorous imprisonment.

22. A copy of the judgment be also sent to the trial
Court along with its record for information and to
prepare the supersession warrant of appellant-Dinesh
and to get the sentence executed by him.

(S.K.Awasthi)
Judge.

(yogesh)

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