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Dilip vs The State Of Madhya Pradesh on 7 August, 2018

1 CRA-753-2016
The High Court Of Madhya Pradesh
2 CRA-753-2016
The High Court of Madhya Pradesh
Single Bench: Hon’ble J.P. Gupta. J.

Cr.A No.753/2016

Dilip two others
The State of Madhya Pradesh

Shri J.A Shah, learned counsel for the applicants.

Shri C.K Mishra, learned G.A for the respondent/State.

(Passed in open Court on 07/08/2018)

This criminal appeal under section 374(2) of the Code of Criminal Procedure has
been preferred against the impugned judgment dated 27/02/2016 passed by the
Additional Session Judge, East Nimar Khandwa in Special Session Trial No.
61/2014 whereby the appellant no.1 Dilip has been convicted for offence under
section 363, 366(ka), 376(2)(n) of IPC and section 5(Tha)/6 of POCSO Act and
sentenced to R.I for 2 years, R.I for 3 years, R.I for 10 years and R.I for 10 years
and along with fine with default stipulations and appellant no. 2 Shyamlal and
appellant no.3 Gajanan have been convicted for offence under section 363, 366(a)
of IPC and sentenced to R.I for 2 years and R.I for 3 years with fine with default

2. In brief the prosecution case is that on 10/07/2014 prosecutrix lodged report at
police station Khandwa that near about 6 months before on 15/10/2013, the
applicants took away her forcibly from her parental house situated at Kumhar
Mouhalla, Khalwa and thereafter she was confined in the house of applicant no.1
Dilip situated at village Avaliya where applicants made efforts to commit sexual
intercourse with her and later on applicant Dilip committed repeated sexual
intercourse with her and kept confine her till 31/03/2014 and on getting chance she
ran away from the house of applicant Dilip and came to her parental house and told
the incident to them. The police Khalwa, District Khandwa registered Crime No.
84/2014 and after completion of the investigation, the charge sheet was filed before
the JMFC, Harsood, who committed the case to Session Judge, Khandwa and
applicant no.1 Dilip was tried for charges under section 376(2)(n), 363, 366(ka),
506(2) of IPC and section 5(tha)/6 of POCSO Act and applicant no.2 Shyamlal tried
for offence under section 363, 366(ka), 376/511 of IPC and applicant no.3 Gajanan
tried for offence under section 363, 366(ka), 506(2) of IPC and applicants abjured
their guilt and claimed to be tried. After trial, the applicants were convicted and
sentenced as mentioned above.

3. This appeal has been filed against the impugned judgment of the trial court and
finding of the learned trial court has been assailed here on the ground that in this
case age of the prosecutrix has not been established beyond the reasonable doubt
3 CRA-753-2016
and apparently, it is a case of consent and prosecutrix herself went to the applicant
Dilip house and remain with him for 6 months as husband and wife. In the
circumstance the offence under section 363, 366(ka) and 376(2) (n) of IPC and
section 5 and 6 of POCSO Act is not made out. Hence the appeal be allowed and
applicants be acquitted of the offences.

4. Learned Government Advocate opposed the contention of learned counsel for the
applicant and stated that the finding of the trial court is based on legal and sound
evidence therefore, it requires no interference. Hence the appeal be dismissed.

5 . Having considered the contentions of learned counsel for the parties and on
perusal of record of court below, in this case the statement of prosecutrix (PW-1)
categorically establish that she remained with the applicant Dilip for 6 months
where applicant Dilip committed sexual intercourse with her so many times.
Statement of Dr. Deepmala (PW-10) also establish the fact that the prosecutrix was
habitual of sexual intercourse. The statement of the prosecutrix also establish the
fact that she has remained with the applicant for 6 months willfully without any
resistance. This circumstance shows that she was willing party and it is also
reasonable possibility that she herself went to the house of the applicant Dilip in
absence of their parents in her house.

6. In the aforesaid circumstance, in this case, the crucial question is whether on the
date of the incident prosecutrix was below 18 years. In this regard the prosecution
has adduced the evidence of statement of Smt. T. Ansari (PW-6) teacher of Girls
Secondary School Khalwa, who has stated that on the basis of T.C given by the
primary school in her school the prosecutrix date of birth was recorded as
12/08/1998 and in this regard certificate is Ex.P-8 and the record related to original
entry i s Ex.P-10. Shivlal (PW-2) father of the prosecutrix stated that age of her
daughter is 15 years and prosecutrix (PW-1) has also stated her age as 15 years. So
far the statement of prosecutrix (PW-1) is concerned, it can’t be treated as
primary evidence. Statement of her father, Shivlal (PW-2) is also not reliable as in
the cross examination he admitted that he has 5 children but he can’t disclose
date of birth of any child and at the time of admission of prosecutrix in the school,
he got recorded the age of the prosecutrix on the basis of guess. In such
circumstance, fact of age of the prosecutrix can’t be deemed to be proved
beyond the reasonable doubt by the prosecution. Dr. Deepmala (PW-10) has stated
that for the determination of age of the prosecutrix she adviced for X-ray of the
prosecutrix, but no heed has been paid to get X-ray report about age determination
of the prosecutrix.

7. The fact of age of the prosecutrix can’t be proved on the basis of surmises
and conjectures, the relevant, admissible and creditable evidence should be adduced.
In absence of such evidence on the basis of guess work it can’t be held that age
of the prosecutrix was below 18 years at the time of incident. In the present case,
the learned trial court has ignored aforesaid aspect of the case and wrongly
determined that the prosecution has established beyond the reasonable doubt that the
age of the prosecutrix was below 18 years at the time of incident.

8. In view of the aforesaid discussion, it is held that in this case, the prosecution has
failed to establish the age of the prosecutrix below 18 years at the time of incident.

4 CRA-753-2016

9. In such circumstance, no offence of rape is established against the applicant no.1
and no offence of kidnapping with intention to subjecting the prosecutrix under
illicit relationship are also not proved as the necessary ingredients are missing to
constitute the aforesaid offences. Therefore, the conviction and sentence of the
applicants under aforesaid offences is bad in law and not sustainable. Hence this
appeal is allowed and applicants conviction and sentence under aforesaid offences is
set aside and applicant no.2 and 3 are on bail their bail bond be discharge and
applicant no.1 is in jail, if he is not required in any other offence he be released
from the jail forthwith.

A copy of this order and record be sent to the trial court concerned for information
and necessary action.

Certified copy as per rule.


Digitally signed by TARUN
Date: 2018.08.07 04:17:25


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