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Cheddu @ Cheda vs The State Of Madhya Pradesh on 10 July, 2018

Cr.A. No.1980/2018 (Cheddu @ Cheda vs. State of MP) 1

HIGH COURT OF MADHYA PRADESH
Cr.A. No.1980/2018
(Cheddu @ Cheda vs. State of M.P.)
Indore: Dated:- 10/07/2018:-
Shri Pankaj Ajmera, learned counsel for the appellant.
Shri H. Sharma, learned Public Prosecutor for the
respondent/State.
Since the appeal is heard finally, learned counsel for the
appellant does not wish to press the I.A. No.1617/2018.
Accordingly, I.A. No.1617/2018 is dismissed as
withdrawn.
Heard finally.
JUDGMENT

1. The appellant has preferred this appeal against
judgment and order dated 09/02/2018 passed in Special
Sessions Trial No.94/2015 by 2nd Additional Sessions Judge,
Sendhwa, District-Barwani, whereby the learned trial Court
has convicted the appellant for offence punishable under
Sections 376, 506 Part II of IPC and Section ¾ of Protection
of Children from Sexual Offences Act, 2012 (hereinafter for
brevity “the POCSO Act”) and awarded 7 years RI, 1 year RI
and 7 years RI and fine of Rs.3000/-, Rs.200/- and Rs.3000/-
respectively; in default of payment of fine, further to
undergo 4 months, 2 months and 4 months RI respectively.

2. Background facts sans unnecessary details are that on
26.08.2015 at about 11 in the afternoon, the prosecutrix was
coming back home along with her cousin (Bima) from the
shop of Bihari tailor. On the way near field of Ganpat,
Cr.A. No.1980/2018 (Cheddu @ Cheda vs. State of MP) 2

suddenly the appellant came out from the maize crop
standing on the field. He caught hand of the prosecutrix and
dragged her inside the maize crop. She screamed. The
appellant pressed her mouth and threatened her to keep quite
else he will kill her. He pushed her on the ground and
forcibly raped her. Somehow she got rid of him. By that
time, Radheshyam, his wife and Kamala reached there.
Seeing them, the accused fled from the spot. She revealed
the incident before them and thereafter before her parents
and Patel Vahriya of the village and lodged a report (Ex.P/1)
at Police Station-Sendhwa.

3. The police registered Crime No.351/2015, got
prosecutrix examined by the doctor, prepared spot map,
produced the prosecutrix before the Judicial Magistrate and
got recorded her statement under Section 164 of Cr.P.C., to
ascertain the age of the prosecutrix, got her X-ray done, X-
ray report is Ex.P/11 and X-ray plate is Ex.P/10. Her
radiological age was estimated by the doctor between 16
to18 years. The police arrested the accused, got him
medically examined, seized pubic hair, semen slide,
underwear of the accused and vaginal slide swab, cervical
slide swab, pubic hair, underwear of the prosecutrix and
sent them for chemical analysis to the FSL and obtained
report Ex.P/18. After completing investigation, the police
filed charge-sheet.

4. Appellant was charged under Sections 376, 506 Part-II
of IPC and Section ¾ of “the POCSO Act”. He abjured his
Cr.A. No.1980/2018 (Cheddu @ Cheda vs. State of MP) 3

guilt, he was convicted and sentenced as stated in para-1
above.

5. The appellant has preferred the present appeal on the
grounds that the judgment and order of the learned trial
Court is contrary to law and the facts of the case. The
prosecution could not prove its case beyond reasonable
doubt. The statements of the witnesses are contradictory.
Learned trial Court has committed error in not considering
such contradictions and omissions appeared in the statements
of the witnesses. The trial Court has committed error in
appreciating the evidence in right perspective. Essential
ingredients constituting the offence charged with, are not
available on the record even then the learned trial Court has
convicted the appellant. The judgment passed by the learned
trial Court is bad in law and therefore, it is prayed that the
same be set aside and the appellant be acquitted.

6. It is further contended that the prosecution could not
establish age of the prosecutrix or the fact that she was under
18 years of the age at the time of the incident. Though the
prosecutrix (P.W.1) and her father have stated that at the time
of the incident, age of the prosecutrix was 15 years but they
have stated this age only on the basis of their estimation.
Allegation of rape is not confirmed by the prosecutrix in her
Court statement and in her cross-examination, she has
clearly denied such allegation, therefore, the trial Court has
committed error in convicting the accused for the offences
charged with.

Cr.A. No.1980/2018 (Cheddu @ Cheda vs. State of MP) 4

7. Learned counsel for the appellant has further submitted
that at the most the charge under Section 354 of IPC can be
held proved. He further submitted that the appellant has
already served 1010 days in prison and for the offence under
Section 354 Cr.P.C. he may be awarded sentence for the
period already undergone.

8. Learned Public Prosecutor has opposed the prayer.
Supporting the judgment of the learned trial Court, the
learned Public Prosecutor has submitted that the prosecutrix
in her statement has clearly depicted the incident before the
trial Court and her statement is well supported by the
evidence produced by the prosecution, therefore, no ground
for interference in the impugned judgment is made out and
according to the learned Public Prosecutor, the appeal
deserves to be dismissed.

9. I have considered rival contentions of the parties and
have gone through the record.

10. First I will consider the evidence regarding age of the
prosecutrix. No mark-sheet, scholar register or any document
regarding her age could be obtained or seized by the police
during investigation, therefore, investigating officer was left
with no option except to get her age ascertained through
ossification test. Dr. G.S. Mujalda (P.W.11) has conducted
this ossification test and after observing X-rays of wrist,
clavicle and pelvis of the prosecutrix, he opined that
radiological age of the prosecutrix was between 16-18 years.
In this age, as per the settled law, + – 2 years variation is
Cr.A. No.1980/2018 (Cheddu @ Cheda vs. State of MP) 5

permissible and the variant favourable to the accused has to
be acted upon. In this regard, we can refer to the judgment of
the apex Court in the matter of Alamelu and another vs.
State Represented by Inspector of Police :2011 Cr.L.R.
(SC) 200 where it is held that when there is no clear and
unambiguous evidence about the age of the prosecutrix, then
the benefit of margin can be given to the accused. Under the
circumstance, Counsel urged that the learned Judge of the
trial Court had erred in convicting the accused. The
prosecutrix was between 15 to 17 years of age at the time of
the incident and hence, the benefit of 2 years in
approximation in the assessment of the Radiologist must
accrue to the appellant.

11. In this case, in the absence of any definite evidence
regarding age of the prosecutrix and in view of the law laid
down by the Hon’ble Supreme Court on the subject, the age
of the prosecutrix cannot be held to be under 18 years. The
prosecutrix and her father have admitted that they do not
know the date of birth of the prosecutrix and according to
her father Kaliya (P.W.2), he has mentioned age of her
daughter as 15 years at the instruction of the police
personnel.

12. As the age of the prosecutrix could not be proved by
the prosecution under 18 years, therefore, charge under
Section ¾ of “the POCSO Act” does not survive.

13. So far as charge of rape is concerned, in her
examination-in-chief itself the prosecutrix (P.W.1) has stated
Cr.A. No.1980/2018 (Cheddu @ Cheda vs. State of MP) 6

that at the time of the incident the accused caught her hand,
dragged her inside the field of maize and did wrong with her
(esjs lkFk [kksVk dke fd;k). What does she mean by this “[kksVk
dke” is explained by her in her cross-examination. In para-6
she has stated that “[kksVk dke” means teasing or something
like that. She further stated that by “[kksVk dke” she does not
mean the relation between male and female. She has
admitted that at the time of incident the accused did not
make such relation as a male or man makes with female or
woman. She has admitted that she screamed as the accused
had caught her hand. Similar is the statement of her father
Kalia (P.W.2). Bima (P.W.3), who was accompanying the
prosecutrix at the time of the incident, have stated nothing
regarding rape. Radheshyam (P.W.4) has also denied that the
prosecutrix has revealed before him that at the time of the
incident, the accused raped her. Bihari (P.W.5), Raylibai
(P.W.6), Kamal (P.W.7) and Vahriya (P.W.8) have turned
hostile and have not supported the case of the prosecution. In
such situation of the evidence, the accused cannot be held
guilty for committing rape with the prosecutrix and I am
agreed with the submissions of the learned counsel for the
appellant that from the evidence produced by the prosecution
the only offence punishable under Section 354 of IPC can be
found proved.

14. After the report, the police produced the prosecutrix
before Dr. Jyoti Patel, who after examining her was of the
opinion that no definite opinion could be given regarding
Cr.A. No.1980/2018 (Cheddu @ Cheda vs. State of MP) 7

recent intercourse with the prosecutrix.

15. FSL report is produced by the prosecution. The report,
confirmed presence of human sperm on Ex.A, Ex.B, Ex.C,
Ex.D Ex.G by the FSL but no DNA profile to connect this
evidence with the accused is produced by the prosecution,
therefore, the evidence produced by the prosecution to
corroborate the allegation of rape is not sufficient to establish
the allegation of the prosecutrix.

16. Nothing is there in the statement of any of the
prosecution witnesses that due to life threat given by the
accused at the time of the incident, any fear was caused to
the prosecutrix or that threat caused at any adverse impact on
the prosecutrix. A bald statement of the prosecutrix that at
the time of the incident when she screamed, the accused told
her that he will kill her is not sufficient to constitute the
offence punishable under Section 506 Part-II of the IPC.

17. Thus, neither the prosecution could establish age of the
prosecutrix under 18 years nor it could establish that at the
time of the incident the prosecutrix was raped by the
accused. In absence of any proof of age of the prosecutrix,
charge under “the POCSO Act” does not survive and the
evidence with regard to the alleged threat falls short to
constitute the offence, therefore, it appears that the learned
trial Court has not appreciated the prosecution evidence in its
right perspective and has committed error in convicting the
accused for the offence under Sections 376, 506 Part-II of
IPC or Section ¾ of POCSO Act.

Cr.A. No.1980/2018 (Cheddu @ Cheda vs. State of MP) 8

18. In my considered opinion, the evidence produced by
the prosecution is only sufficient to establish the charge
under Section 354 of IPC, therefore, the appeal is partly
allowed. The appellant is acquitted from the charge under
Sections 376 506 Part-II of IPC and Section ¾ of “the
POCSO Act” and instead, he is convicted for the offence
under Section 354 of IPC.

19. The appellant was 24 years of age at the time of the
incident with no criminal history or record. He is the first
offender. He has served out the sentence of 1010 days in
prison. In my opinion, looking to the nature of the incident
and other facts and circumstances of the case, the ends of
justice would be sub-served if the appellant is awarded
sentence for the offence punishable under Section 354 of
IPC for the period already undergone, therefore, the
appellant is awarded sentence for the period already
undergone along with fine of Rs.3000/-, in default of
payment of fine further to undergo RI for 3 months and fine
amount if deposited be refunded to him.

20. He be set at liberty forthwith if not required in any
other case.

21. Order of the learned trial Court regarding
compensation to the prosecutrix and so also regarding
disposal of property is hereby confirmed.

(Virender Singh)
Judge
soumya

Soumy
Digitally signed by
Soumya Ranjan Dalai
DN: cIN, oHigh Court
of Madhya Pradesh,

a ouAdministration,
postalCode452001,
stMadhya Pradesh,

Ranjan
2.5.4.20f4d2118683e84
322bb5797cf28ee60671
538b737cf52962d84d7b
527897e53ac,

Dalai
cnSoumya Ranjan Dalai
Date: 2018.07.12
11:12:50 +05’30’

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