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Bharti Jatav vs The State Of Madhya Pradesh on 14 August, 2019

1 CRA No.1004/2014

HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON’BLE SHRI JUSTICE G.S. AHLUWALIA
Criminal Appeal No. 1004/2014
………Appellant: Bharti Jatav
Versus
…….Respondent : State of M.P.

————————————————————————————-

Shri S.K. Khare, Counsel for the appellant.

Shri Vijay Sundaram, Panel Lawyer for the respondent/State.

————————————————————————————-

Date of hearing : 27/07/2019

Date of Judgment : /08/2019

Whether approved for reporting:

Law Laid down :

Significant paragraph numbers:

JUDGMENT

(14/08/2019)

This Criminal Appeal under Section 374 of Cr.P.C. has been filed

against the judgment and sentence dated 31.7.2014 passed by Additional

Sessions Judge, Karera, District Shivpuri in Special Sessions Trial

No.26/2014 by which the appellant has been convicted for the following

offences:

2 CRA No.1004/2014

1 Under Section 363 R.I. for 3 Years and fine of Rs.500/- with
SectionIPC default imprisonment
2 Under Section 366 R.I. for 5 Years and fine of Rs.500/- with
SectionIPC default imprisonment
3 Under Section 376(1) R.I. for 10 Years and fine of Rs.1000/-
SectionIPC with default imprisonment
4 4 of POCSO Act R.I. for 10 Years and fine of Rs.2000/-
with default imprisonment

2. The necessary facts for the disposal of the present appeal in short

are that the complainant lodged a FIR on the allegation that she had gone

to market for purchasing medicines for her husband and the prosecutrix

was at home. While she was coming back, she found that the prosecutrix

was going along with the appellant towards the market and when she

enquired, the appellant informed that they are going towards Kacchi

Street for getting the goods packed and thereafter he would go to

Shivpuri, then she instructed not to take her daughter to Shivpuri. When

the prosecutrix did not return back, then she went to the house of the

appellant and enquired from his mother who expressed her ignorance.

When the whereabouts of the prosecutrix could not be ascertained, then

she lodged a FIR Ex.P/2 and accordingly Crime No.63/2014 for offence

under Sections 363, Section366 of IPC was registered. After the prosecutrix was

recovered, on the information given by her that she was subjected to

rape by the appellant, an offence under Section 376 of IPC was also

added. Thereafter, on the information given by the father of the

prosecutrix, the spot map was prepared. The prosecutrix was sent for
3 CRA No.1004/2014

medical examination, her ossification test was conducted. The

statements of the prosecutrix and her parents were recorded under

Section 161 of Cr.P.C. The appellant was arrested and he was also got

medically examined. The sealed underwear, vaginal slides which were

received from the hospital were sent to FSL. After concluding the

investigation, the police filed the charge sheet for offence under Sections

363, Section366, Section376(1) of IPC and under Section 4 of Protection of Children

from Sexual Offences Act, 2012 (in short “POCSO Act, 2012”).

3. The Trial Court by order dated 19.3.2014 framed the charges

under Sections 363, Section366, Section376(1) of IPC and under Section 4 of POCSO

Act, 2012.

4. The appellant abjured his guilt and pleaded not guilty.

5. The prosecution in order to prove its case examined Prosecutrix

(PW-1), Santoshi Jatav (PW-2), Balchandra (PW-3), Dr. Mamta Chauhan

(PW-4), Prabhawati Lodhi (PW-5), Kamal Singh (PW-6), Dr. Rahul

Gupta (PW-7), Lakhan Singh (PW-8), Charan Singh (PW-9), Dr. M.L.

Agrawal (PW-10), Devdas Mohar (PW-11), G.D. Vimal (PW-12) and

Anjana Khare (PW-13).

6. The appellant examined himself as DW-1 in his defence.

7. The Trial Court by impugned judgment and sentence dated

31.7.2014 came to conclusion that the date of birth of the prosecutrix is

20.6.1998 and since the incident took place on 31.1.2014, therefore, the

prosecutrix was minor below the age of 16 years.

8. Challenging the judgment and sentence passed by the Court
4 CRA No.1004/2014

below, it is submitted by the counsel for the appellant that in fact the

prosecutrix is major. She on her own had gone along with the appellant.

The prosecutrix had gone with him after taking due permission from her

parents and the prosecutrix had disclosed her age as 19 years. A marriage

card was also given by the father of the prosecutrix which is Ex.D/4 and

its envelope is Ex.D/5. Thus it is submitted that as the prosecutrix was

major and, therefore, the appellant is liable to be acquitted.

9. Per contra, it is submitted by the counsel for the State that as per

the school record, the prosecutrix was minor on the date of incident.

Even as per the ossification test report her age was radiologically

assessed as above 16 years but below 18 years and in view of the margin

of error of two years, it is clear that the prosecutrix was minor on the

date of the incident and thus the question of her consent does not arise.

10. Heard the learned counsel for the parties.

11. Dr. Mamta Chauhan (PW-4) has medically examined the

prosecutrix and had found that the human was ruptured, two fingers

easily administered and no external injury on any part of the body was

found and secondary sexual characters were well developed. Petikot was

sealed and handed over to the police. Vaginal discharge reddish coloured

was taken and slide was prepared and the prosecutrix was referred to

Radiological reference for age determination. The MLC report is Ex.P/4.

12. Dr. Mamta Chauhan (PW-4) was cross-examined. She has

admitted that the secondary sexual characters get fully developed at the

age of 19 years but this witness on her own stated that they are
5 CRA No.1004/2014

developed prior to that also.

13. Dr. M.L. Agrawal (PW-10) has stated that he has taken the x-ray

of right elbow, wrist and Illiac crest of the prosecutrix and had found

that there was no fusion on the lower wrist. According to this witness,

the age of the prosecutrix was above 16 years but below 18 years. The

Radiologial report is Ex.P/8.

14. Devdas Mohar (PW-11) had produced the original school

admission register and as per the said register, the date of birth of the

prosecutrix is 20.6.1998 which is mentioned at Srl. No.180 dated

7.7.2012, the original register is Ex.P/9 and its photocopy is Ex.P/9C. In

cross-examination, this witness had admitted that it is not mentioned in

the register that on what basis the date of birth was mentioned. However,

clarified that the date of birth was mentioned on the basis of the transfer

certificate.

15. Challenging the date of birth mentioned in the school register, it is

submitted by the counsel for the appellant that since the prosecution has

failed to prove the basis on which the date of birth of prosecutrix was

mentioned, therefore, the school record of the prosecutrix cannot be

relied upon.

16. Considered the submissions made by the counsel for the appellant.

17. The Supreme Court in the case of Jarnail Singh Vs State of

Haryana reported in (2013) 7 SCC 263 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
6 CRA No.1004/2014

Children) Rules, 2007 (hereinafter referred to as “the
2007 Rules”). The aforestated 2007 Rules have been
framed under Section 68(1) of the Juvenile Justice
(Care and SectionProtection of Children) 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 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
7 CRA No.1004/2014

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 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 7-A, 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 of 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 of a child who is a victim of crime. For, in our
view, there is hardly any difference insofar 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
8 CRA No.1004/2014

would be just and appropriate to apply Rule 12 of
the 2007 Rules, to determine the age of the
prosecutrix VW, 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 equivalent) certificate of the child
concerned 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 child concerned, on the
basis of medical opinion.

24. Following the scheme of Rule 12 of the
2007 Rules, it is apparent that the age of the
prosecutrix VW, PW 6 could not be determined on
the basis of the matriculation (or equivalent)
certificate as she had herself deposed, that she had
studied up to Class 3 only, and thereafter, had left
her school and had started to do household work.
The prosecution in the facts and circumstances of
this case, had endeavoured to establish the age of the
prosecutrix VW, PW 6 on the next available basis in
the sequence of options expressed in Rule 12(3) of
the 2007 Rules. The prosecution produced Satpal
(PW 4) to prove the age of the prosecutrix VW, PW
9 CRA No.1004/2014

6. Satpal (PW 4) was the Head Master of
Government High School, Jathlana, where the
prosecutrix VW, PW 6 had studied up to Class 3.
Satpal (PW 4) had proved the certificate Ext. PG, as
having been made on the basis of the school records
indicating that the prosecutrix VW, PW 6 was born
on 15-5-1977. In the scheme contemplated under
Rule 12(3) of the 2007 Rules, it is not permissible to
determine age in any other manner, and certainly not
on the basis of an option mentioned in a subsequent
clause. We are therefore of the view that the High
Court was fully justified in relying on the aforesaid
basis for establishing the age of the prosecutrix VW,
PW 6.

The Supreme Court in the case of State of Chhattisgarh Vs.

Lekhram reported in (2006) 5 SCC 736 has held as under :

12. A register maintained in a school is
admissible in evidence to prove date of birth of the
person concerned in terms of Section 35 of the
Evidence Act. Such dates of births are recorded in
the school register by the authorities in discharge of
their public duty. PW 5, who was an Assistant
Teacher in the said school in the year 1977,
categorically stated that the mother of the
prosecutrix disclosed her date of birth. The father of
the prosecutrix also deposed to the said effect.

13. The prosecutrix took admission in the year
1977. She was, therefore, about 6-7 years old at that
time. She was admitted in Class I. Even by the
village standard, she took admission in the school a
bit late. She was married in the year 1985 when she
was evidently a minor. She stayed in her in-laws’
place for some time and after the “gauna” ceremony,
she came back. The materials on record as regards
the age of the prosecutrix were, therefore, required to
be considered in the aforementioned backdrop. It
may be true that an entry in the school register is not
conclusive but it has evidentiary value. Such
evidentiary value of a school register is corroborated
by oral evidence as the same was recorded on the
basis of the statement of the mother of the
prosecutrix.

14. Only because PW 3 the father of the
10 CRA No.1004/2014

prosecutrix could not state about the date of birth of
his other children, the same, by itself, would not
mean that he had been deposing falsely. We have
noticed hereinbefore, that he, in answer to the queries
made by the counsel for the parties, categorically
stated about the year in which his other children were
born. His statement in this behalf appears to be
consistent and if the said statements were
corroborative of the entries made in the register in
the school, there was no reason as to why the High
Court should have disbelieved the same. We,
therefore, are of the opinion that the High Court
committed a serious error in passing the impugned
judgment. It cannot, therefore, be sustained. It is set
aside accordingly.

The Supreme Court in the case of Murugan Vs. State of T.N.

reported in (2011) 6 SCC 111 has held as under :

24. The documents made ante litem motam can be
relied upon safely, when such documents are
admissible under Section 35 of the Evidence Act,
1872. (Vide Umesh Chandra v. State of Rajasthan
and SectionState of Bihar v. Radha Krishna Singh.)

25. This Court in SectionMadan Mohan Singh v. Rajni
Kant considered a large number of judgments
including SectionBrij Mohan Singh v. Priya Brat Narain
Sinha, SectionBirad Mal Singhvi v. Anand Purohit, SectionUpdesh
Kumar v. Prithvi Singh, SectionState of Punjab v. Mohinder
Singh, SectionVishnu v. State of Maharashtra and SectionSatpal
Singh v. State of Haryana and came to the
conclusion that while considering such an issue and
documents admissible under Section 35 of the
Evidence Act, the court has a right to examine the
probative value of the contents of the document. The
authenticity of entries may also depend on whose
information such entry stood recorded and what was
his source of information, meaning thereby, that
such document may also require corroboration in
some cases.

26. In the instant case, in the birth certificate
issued by the Municipality, the birth was shown to
be as on 30-3-1984; registration was made on 5-4-
1984; registration number has also been shown; and
names of the parents and their address have correctly
11 CRA No.1004/2014

been mentioned. Thus, there is no reason to doubt
the veracity of the said certificate. More so, the
school certificate has been issued by the Headmaster
on the basis of the entry made in the school register
which corroborates the contents of the certificate of
birth issued by the Municipality. Both these entries
in the school register as well as in the Municipality
came much before the criminal prosecution started
and those entries stand fully supported and
corroborated by the evidence of Parimala (PW 15),
the mother of the prosecutrix. She had been cross-
examined at length but nothing could be elicited to
doubt her testimony. The defence put a suggestion to
her that she was talking about the age of her younger
daughter and not of Shankari (PW 4), which she
flatly denied. Her deposition remained unshaken and
is fully reliable.

The Supreme Court in the case of Mukarrab v. State of U.P.

reported in (2017) 2 SCC 210 has held as under :

26. Having regard to the circumstances of this
case, a blind and mechanical view regarding the age
of a person cannot be adopted solely on the basis of
the medical opinion by the radiological examination.
At p. 31 of Modi’s Textbook of Medical
Jurisprudence and Toxicology, 20th Edn., it has been
stated as follows:

“In ascertaining the age of young persons
radiograms of any of the main joints of the
upper or the lower extremity of both sides of
the body should be taken, an opinion should be
given according to the following Table, but it
must be remembered that too much reliance
should not be placed on this Table as it merely
indicates an average and is likely to vary in
individual cases even of the same province
owing to the eccentricities of development.”

Courts have taken judicial notice of this fact and
have always held that the evidence afforded by
radiological examination is no doubt a useful
guiding factor for determining the age of a person
but the evidence is not of a conclusive and
incontrovertible nature and it is subject to a margin
of error. Medical evidence as to the age of a person
12 CRA No.1004/2014

though a very useful guiding factor is not
conclusive and has to be considered along with
other circumstances.

27. In a recent judgment, SectionState of M.P. v. Anoop
Singh, it was held that the ossification test is not the
sole criteria for age determination. Following
Babloo Pasi and Anoop Singh cases, we hold that
ossification test cannot be regarded as conclusive
when it comes to ascertaining the age of a person.
More so, the appellants herein have certainly crossed
the age of thirty years which is an important factor to
be taken into account as age cannot be determined
with precision. In fact in the medical report of the
appellants, it is stated that there was no indication
for dental x-rays since both the accused were beyond
25 years of age.

28. At this juncture, we may usefully refer to an
article “A study of wrist ossification for age
estimation in paediatric group in Central Rajasthan”,
which reads as under:

“There are various criteria for age
determination of an individual, of which
eruption of teeth and ossification activities of
bones are important. Nevertheless age can
usually be assessed more accurately in younger
age group by dentition and ossification along
with epiphyseal fusion.

[Ref.: Gray H. Gray’s Anatomy, 37th Edn.,
Churchill Livingstone Edinburgh London
Melbourne and New York: 1996; 341-342];

A careful examination of teeth and
ossification at wrist joint provide valuable data
for age estimation in children.

[Ref.: Parikh C.K. Parikh’s Textbook of
Medical Jurisprudence and Toxicology, 5th
Edn., Mumbai Medico-Legal Centre Colaba:
1990; 44-45];

* * *
Variations in the appearance of centre of
ossification at wrist joint shows influence of race,
climate, diet and regional factors. Ossification
centres for the distal ends of radius and ulna
consistent with present study vide article “A study of
wrist ossification for age estimation in paediatric
group in Central Rajasthan” by Dr Ashutosh
13 CRA No.1004/2014

Srivastav, Senior Demonstrator and a team of other
doctors, Journal of Indian Academy of Forensic
Medicine (JIAFM), 2004; 26(4). ISSN 0971-0973].”

18. Section 35 of the Evidence Act reads as under:-

“35. Relevancy of entry in public [record or an
electronic record] made in performance of duty.

–An entry in any public or other official book,
register or [record or an electronic record], stating
a fact in issue or relevant fact, and made by a
public servant in the discharge of his official duty,
or by any other person in performance of a duty
specially enjoined by the law of the country in
which such book, register, or [record or an
electronic record] is kept, is itself a relevant fact.”

19. Thus it is clear that an entry made in the public record is relevant

and thus the date of birth entered in the school admission register Ex.P/9

is relevant and can be relied upon. Even at the time of admission of the

child, nobody must have anticipated that such an incident would take

place with the child and, therefore, there was no reason for the father to

disclose an incorrect date of birth of the child/prosecutrix. Further the

date of birth mentioned in the school register is corroborated by the

radiological report Ex.P/8, according to which the age of the prosecutrix

was above 16 years and below 18 years.

20. Section 94 of the Juvenile Justice (Care and SectionProtection of

Children) Act, 2015 reads as under:-

“94. Presumption and determination of age.-
(1)Where, it is obvious to the Committee or the
Board, based on the appearance of the person
brought before it under any of the provisions of
this Act (other than for the purpose of giving
evidence) that the said person is a child, the
Committee or the Board shall record such
observation stating the age of the child as nearly as
14 CRA No.1004/2014

may be and proceed with the inquiry under Sectionsection
14 or Sectionsection 36, as the case may be, without
waiting for further confirmation of the age.
(2) In case, the Committee or the Board has
reasonable grounds for doubt regarding whether
the person brought before it is a child or not, the
Committee or the Board, as the case may be, shall
undertake the process of age determination, by
seeking evidence by obtaining —

(i) the date of birth certificate from the
school, or the matriculation or equivalent
certificate from the concerned examination
Board, if available; and in the absence
thereof;

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

(iii) and only in the absence of (i) and (ii)
above, age shall be determined by an
ossification test or any other latest medical
age determination test conducted on the
orders of the Committee or the Board:
Provided such age determination test conducted
on the order of the Committee or the Board shall
be completed within fifteen days from the date of
such order.

(3) The age recorded by the Committee or the
Board to be the age of person so brought before it
shall, for the purpose of this Act, be deemed to be
the true age of that person.”

21. From the plain reading of Section 94 of the Juvenile Justice (Care

and SectionProtection of Children) Act, 2015 it is clear that where certificates as

mentioned in Section 94 (2) (i) (ii) are available, then it is not

required to consider the ossification test report of the juvenile. In the

present case, the school admission register of the prosecutrix is available

which is Ex.P/9. Thus this Court is of the considered opinion that the
15 CRA No.1004/2014

date of birth of the prosecutrix is 20.6.1998 whereas she was kidnapped

on 31.1.2014. Thus it is clear that the prosecutrix was less than 16 years

of age on the date of incident.

22. The prosecutrix (PW-1) has stated that on 31.1.2014 the appellant

came to her house and was preparing the list of ingredients used for

preparing sweets. He also informed that on 31.1.2014 she would be

required to go to Shivpuri. On 31.1.2014 at about 7:30 in the morning,

he came to her house and stayed there till 8:00 in the morning and was

preparing the list of ingredients. At about 11:00 AM her mother went to

Government Hospital, Karera for purchasing medicines for her father

and the prosecutrix was all alone in the house. At about 1:00 PM the

appellant came to her house and said that she may accompany him to

market Karera where ingredients are to be purchased as per the list.

Initially, she refused to accompany him but after great persuasion, she

went along with him after leaving her younger brother in company of

elder brother. On the way, her mother met, who had enquired and the

appellant had informed that the ingredients are being packed, therefore,

they are going there and from thereafter he would go to Shivpuri and on

this, her mother had instructed that he should not take the prosecutrix to

Shivpuri. The shop was closed, therefore, the appellant instructed that

she should accompany him to Shivpuri as certain forms are to be filled.

Thereafter, she went to Shivpuri. When the prosecutrix requested the

appellant to leave her back, then he said that they may wait for

sometime. Later on the appellant said that now since there is no bus for
16 CRA No.1004/2014

Karera, therefore, they have to stay back in Shivpuri and took her to a

lodge where they had their meals. At about 10:00 PM when she was

sleeping, the appellant took out his clothes and also took out her clothes.

The prosecutrix tried to run away but her hands and legs were tied by her

Dupatta and after gagging her mouth, the appellant committed rape on

her. He had also given a threat that in case if she informs about the

incident, then she would be killed. From Karera he took her to

Khaniyadhana where his Bua is residing. The house of his Bua was

locked, therefore, they came to Pichhore where they stayed in the house

of Uma Jatav, the relative of the appellant. The appellant had also

committed rape on her on the said date. Thereafter, on 2.2.2014 the

appellant took her to Kalipahadi Ajadpura where he took her to the

house of his sister. The sister of the appellant had given Saree to wear

and her make up was done and when she objected, then his sister as well

as her husband took out a knife and country made pistol. Karera police

reached Kalipahadi Azadpura and they were apprehended. They were

brought to the police station where the recovery memo Ex.P/1 was

prepared. Her statement was recorded. She was sent for medical

examination. Petikot was sealed by the doctor. She was handed to the

custody of her parents and the custody memo was prepared. In the cross-

examination, she has admitted that she was got admitted by her father in

the school. She expressed her ignorance as to whether her birth

certificate was prepared or not. She also expressed her ignorance as to

whether her parents had informed the Aanganbadi Centre about her birth
17 CRA No.1004/2014

or not. She further stated that she was admitted in the school at the age

of 5 years. She further denied that she is above 18 years of age.

Thereafter the prosecutrix was cross-examined on the issue of consent.

23. Santoshi Jatav (PW-2) is the mother of the prosecutrix and

Balchandra (PW-3) is the father of the of the prosecutrix. Santoshi Jatav

(PW-2) has stated that at about 7:00 in the morning the appellant came in

the house and was preparing the list of ingredients and thereafter he

went back. At about 11:00 AM she went to Government Hospital Karera

for taking medicines for her husband. While she was coming back at

about 1:30 PM, she met with the prosecutrix as well as the appellant.

When she enquired from them, then the appellant informed that they are

going to Kacchi Street for purchasing ingredients, then she had

instructed his daughter to come back at the earliest. When the

prosecutrix did not return back, then she enquired about her in the

neighborhood. She also went to the house of the appellant where his

mother expressed her ignorance and on the next day, the FIR Ex.P/2 was

lodged. Thereafter, the police came to the house and prepared the spot

map Ex.P/3 and the progress report as well as the photographs of the

prosecutrix was handed to the police. On the third day, the prosecutrix

was recovered by the police from Kali Pahadi. This witness was called in

the police station and the prosecutrix was sent for medical examination.

The prosecutrix had informed that on the pretext of making agent, the

appellant had taken her to Shivpuri, Khaniadhana, Pichhore and Kali

Pahadi and the prosecutrix had also informed that the appellant had
18 CRA No.1004/2014

committed rape against her wishes. The evidence of Balchandra (PW-3)

is also on the similar line. These witnesses were cross-examined on the

question of age but nothing could not elicited from their evidence which

may indicate that the prosecutrix was major on the date of incident.

24. Kamal Singh (PW-6) has also stated that on 31.1.2014 he had seen

the prosecutrix going along with the appellant but since he thought the

prosecutrix was going in connection with some other work, therefore, he

did not enquire. In cross-examination, he denied that he is a relative of

the prosecutrix and is giving a false statement.

25. Dr. Rahul Gupta (PW-7) had medically examined the appellant

and had found competent and his MLC is Ex.P/6.

26. Lakhan Singh (PW-8) had brought the underwear of the appellant

as well as the specimen of seal from the hospital which was seized vide

seizure memo Ex.P/7. He has further stated that on the same day the lady

Constable Prabhawati had brought the Petikot, Vaginal Slide of the

prosecutrix as well as the specimen of the seal from the hospital which

were seized vide seizure memo Ex.P/5.

27. Charan Singh (PW-9) has stated that on 2.2.2014 he had recovered

the prosecutrix from village Azadpura Kalipahadi vide recovery memo

Ex.P/1.

28. G.D. Vimal (PW-12) had partially investigated the matter.

29. Anjana Khare (PW-13) had recorded the statement of the

prosecutrix and had sent her for medical examination.

30. The appellant appeared himself as a defence witness. It is not out
19 CRA No.1004/2014

of place to mention here that whenever an accused decides to appear as a

defence witness, then he voluntarily gives up his rights which are

available to him as an accused.

31. This Court in the case of SectionRakesh Garg vs. State of M.P. by

judgment dated 10.5.2019 passed in Criminal Appeal No.6426/2017

(Gwalior Bench) has held as under:-

“30. ….Once, an accused has appeared as a
witness, then he is required to explain each and
every circumstance. When an accused examines
himself as a defence witness, then he has to be
treated like any other prosecution or defence
witness and any admission made by the accused as
a defence witness would certainly amount to an
admission of incriminating material and his
evidence may go against him. It can be safely said
that by filing an application under Section 315 of
Cr.P.C. to appear as a defence witness, the
accused, impliedly waives his rights as an accused
and he is liable to suffer the consequences of his
action if the statements in his evidence are found
to be self-criminative. Once, an accused decides to
appear as defence witness, then he enjoys the
status of like any other witness and in view of
Section 132 of Evidence, he cannot claim any
immunity to answer a question. Even leading
questions tending to implicate him can also be put
in the cross examination…..”

32. The appellant (DW-1) has stated that he had never taken the

prosecutrix with him on the pretext of getting work. In fact the

prosecutrix had gone with him on her own. Her parents were in the

house when they had left the house. The prosecutrix had taken the

permission from her parents. The prosecutrix had disclosed that her age

is 19 years. This witness has further stated that Munnibai is his mother

and the father of the prosecutrix had given the marriage card to his
20 CRA No.1004/2014

mother which is Ex.D/4 and the envelope is Ex.D/5. In cross-

examination, this witness could not say that who had given the marriage

card Ex.D/4 to his mother and on his own stated that he is in jail and the

said marriage card was given by the mother in the jail. He further

admitted that the printer of the card has not been cited as a witness. He

further denied that the marriage card Ex.D/4 and Ex.D/5 were got

printed by her mother herself. If the evidence of the appellant (DW-1) is

considered, then it is clear that on one hand he has relied upon the

marriage card Ex.D/4 and the envelope of the marriage card Ex.D/5,

according to which the marriage of the prosecutrix was fixed with the

appellant on 18.5.2014. However, no such suggestion has been given to

either Santoshi Jatav (PW-2) or Balchandra (PW-3). When the appellant

was already in jail, then there was no question of solemnization of

marriage. Further the printer of this card has also not been examined. It

is the case of the appellant that this card was given by his mother in the

jail. The appellant has not examined his mother to prove as to who had

given the said card to her. Even the appellant in his examination-in-chief

has not stated that his marriage was ever fixed with the prosecutrix. Thus

it is clear that the appellant has failed to prove that his marriage was ever

fixed with the prosecutrix. The appellant (DW-1) has stated that the

prosecutrix had gone with him on her own after taking permission from

her parents. Santoshi Jatav (PW-2) in her cross-examination had

admitted that the prosecutrix had informed that the appellant is getting

her appointed as an agent and this witness had granted permission for
21 CRA No.1004/2014

the same. She further admitted that she permitted the prosecutrix to go

along with the appellant to Kacchi Street and she further admitted that

when this fact was disclosed to her husband, then she was scolded.

Balchandra (PW-3) has also admitted in his cross-examination that the

prosecutrix had gone along with the appellant after taking permission.

33. It is submitted by the counsel for the appellant that since the

prosecutrix had gone along with the appellant after taking due

permission from her mother, therefore, no offence under Sections 363,

Section366 of IPC is made out.

34. Considered the submissions made by the counsel for the appellant.

35. Santoshi Jatav (PW-2) had given the consent for taking the

prosecutrix upto Kacchi Street. She has not stated that she had permitted

the appellant to take the prosecutrix with him to Shivpuri or to any other

place. Thus it is clear that the appellant had taken away the prosecutrix

without obtaining due permission of her parents.

36. Since this Court has already come to a conclusion that the

prosecutrix was minor below the age of 16 years, therefore, her consent

is immaterial. Accordingly, this Court is of the considered opinion that

there is no good reason to burden this judgment by adjudicating that

whether the prosecutrix was a consenting party or not. Under these

circumstances, the conviction of the appellant for offence under Sections

363, Section366, Section376(1) of IPC and under Section 4 of POCSO Act, 2012 is

hereby affirmed. It is not out of place to mention here that although the

prosecutrix was below 16 years of age but still the Trial Court did not
22 CRA No.1004/2014

frame the charge under Section 376(2)(i) of IPC. Accordingly, the

conviction of the appellant under Section 376(1) of IPC is maintained.

37. So far as the question of sentence is concerned, the offence had

taken place on 31.1.2014 and on the said date the minimum sentence for

offence under Section 376(1) of IPC was seven years and similarly the

minimum sentence for offence under Section 4 of POCSO Act on the

relevant date was seven years. Although the Trial Court has awarded

separate sentence for offence under Section 376(1) of IPC and under

Section 4 of POCSO Act but in view of Section 71 of IPC, this Court is

of the considered opinion that it was not necessary to award separate

sentence for offence under Section 376(1) of IPC. As a separate sentence

was awarded for offence under Section 376(1) of IPC, therefore, it is

directed that the rigorous imprisonment of 10 years for offence under

Section 376(1) of IPC and RI of 10 years for offence under Section 4 of

POCSO Act as awarded by the Trial Court is reduced to rigorous

imprisonment of 7 Years by enhancing the fine to Rs.10,000/- for each of

the offence. The sentence awarded under Section 363 and Section366 of IPC is

hereby maintained. All the sentences are directed to run concurrently.

38. With aforesaid modification the judgment and sentence awarded

by the Trial Court is hereby affirmed.

39. The appellant is in jail. It appears that earlier by order dated

30.4.2015 the appellant was granted bail, however he did not appear

before the Registry of this Court, therefore, warrant of arrest was issued.

It appears that the appellant was taken in custody in connection with
23 CRA No.1004/2014

another Crime No.50/2017 and thus he was in jail from 30.1.2017 and,

accordingly, this Court by order dated 15.2.2017 observed that since the

appellant is in jail from 30.1.2017, therefore the appeal was adjourned.

The order sheets of this Court indicate that initially by order dated

24.10.2016 a bailable warrant of arrest was issued and by order dated

12.1.2017 a non-bailable warrant of arrest was issued but there is no

specific order of cancelling the bail which was granted to the appellant.

At present it is not known that whether the appellant is still in jail or not.

Accordingly, it is directed that if the appellant is still in jail, then he shall

undergo the remaining jail sentence and if the appellant was already

released in another case i.e., Crime No.50/2017 registered by Police

Station Karera, District Shivpuri, then the bail bonds executed by the

appellant are hereby cancelled. He is directed to immediately surrender

before the Trial Court for undergoing the remaining jail sentence.

40. With aforesaid observations, the appeal partially succeeds and is

partially allowed on the question of sentence only.

(G.S. AHLUWALIA)
Judge
(alok) 14/08/2019

ALOK KUMAR
2019.08.14 17:39:41
+05’30’

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