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Judgments of Supreme Court of India and High Courts

Kalloo vs State Of M.P. on 27 July, 2018

1 Cr.A. No.61/2011

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH

CRIMINAL APPEAL NO.61/2011
Kalloo
Versus
State of M.P.

—————————————————————————————
Shri Vinay Kumar, learned counsel for the appellant from
Legal Aid.
Shri Pramod Pachori, learned Public Prosecutor for the
respondent-State.
—————————————————————————————

JUDGMENT

(Pronounced on 27th day of July, 2018)

The present criminal appeal under Section 374(2) of
Cr.P.C. is being preferred against the Judgment of conviction and
order of sentence dated 06/07/2010 passed in Sessions Trial
No.103/2009 by Special Judge, Shivpuri whereby appellant-
Kalloo has been convicted under Section 376(1) of IPC and
sentenced to undergo 7 years RI with fine of Rs.1,000/- and
further convicted under Section 363 of IPC and sentenced to
undergo 2 years RI with fine of Rs.500/- with default stipulation.

2. Case of the prosecution in short is that on 25-06-2009,
prosecutrix-Devaki aged about 13 years alongwith her mother
Ramwati (PW-1) went to answer the call of nature and returned
back and slept in his pator, and in the midnight at about 2-3 am
when she waked up for call of nature again, she did not find her
daughter in the said pator, she searched out but could not find
her. A missing person report was lodged by her vide No.4/2009
(Ex.D-1) at Police Station Satanwada. On the said report, several
witnesses were examined, and it was found that appellant-
accused Kalloo alongwith others Raju Nai, Mohan Singh and
Rajkumar kidnapped the minor daughter of the complainant-
Ramwati (PW-1) and abused the complainant and her husband
by using abusive language and caste related words. On the basis
of aforesaid, FIR was registered on dated 14/07/2009 vide Crime
2 Cr.A. No.61/2011

No.66/2009 under Section 363, 366, 34 of IPC and Section 3(1)
(10) of Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act.

3. During investigation, Naksha Panchnama was prepared
vide Ex.P-3 and on 07/09/2009, accused was taken into custody
and from his possession, prosecutrix-Devki was recovered.
Statement of the prosecutrix was recorded and prosecutrix and
appellant-accused were medically examined. Recovery memo of
clothes (seal packed) was prepared vide Ex.P-4. Statements of
the witnesses were recorded by the police. Charge-sheet was
filed before the Judicial Magistrate Shivpuri wherefrom the case
was committed to the Court of Special Judge (SC ST), Shivpuri.

4. Appellant abjured his guilt. He did not take any special
plea in defence, however, he has stated that he was innocent
and falsely implicated in the matter.

5. After considering the evidence adduced by the prosecution,
learned Special Judge, Shivpuri convicted and sentenced the
appellant as mentioned above.

6. The learned counsel for the appellant submitted that the
appellant was falsely implicated in the matter and the contents of
the marg report and FIR are also contradictory. Learned counsel
for the appellant submits that since the prosecutrix given
statement in favour of the appellant then it is apparent that only
on the basis of false pretext, he has been implicated in the case.

7. Heard learned counsel for the parties at length and
perused the evidence available on record.

8. In the present case, two grounds are worth considerable;
one is contradictions in the statements and another is age of the
prosecutrix. As far as statements of the complainant is
concerned, the complainant Ramwati (PW-1) (mother of the
prosecutrix) on the one hand, in marg intimation referred that at
about 2-3 am when she waked up she did not find her daughter in
the said pator where her daughter was sleeping, whereas on the
other hand, she mentioned in the FIR that she saw the appellant
and others while kidnapping her daughter and she cried to save
her. These two different statements in itself show the extent of
3 Cr.A. No.61/2011

false implication in the present case.

9. The prosecutrix was examined by Dr. Anjana Jain (PW-7)
and who opined that there is no external or internal injury over the
body of prosecutrix and no definite opinion in relation to recent
intercourse was given. According to the Doctor, hymen of
prosecutrix was found ruptured much earlier and she was habitual
for sexual intercourse. For the purpose of confirming the alleged
rape she also collected the vaginal swab of prosecutrix and
clothes on which semen particles and sperm were found by FSL
in its report EX-P/6. She did not give any opinion as regards age
of the prosecurix and referred the prosecutrix for radiological test
to calculate her age.

10. Total four witnesses namely Ramwati (PW-1), Prembai
(PW-2), Bhanwar Singh (PW-3) and Pappu Jatav (PW-4) were
examined but except the witness Ramwati (PW-1) who allegedly
happens to be the eye witness, all others did not support the story
of the prosecution. Witness Pappu Jatav (PW-4), who is the
father of the prosecutrix stated in his statement that at the time of
incident he was out of city and on the information given by his
wife Ramwati (PW-1) he deposed before the trial Court. Since
statements of the Ramwati (PW-1) (given in marg and the FIR) in
itself carry contradictions and the story told by her seems to be
concocted therefore, testimony of witness Pappu Jatav (PW-4)
cannot be taken into consideration for proving culpability of the
appellant in any manner.

11. Similarly, contents of Ex.D-1 (marg intimation) indicates
that complainant only informed about the missing of her daughter
and there is no mention about kidnapping and rape by the
appellant.

12. As far age of the prosecutrix is concerned, learned counsel
for the appellant also submitted that prosecutrix is major and with
her consent, he went with the prosecutrix. The prosecutrix (PW-

5) in her statement has clearly stated that she on her own volition
and consent went with the appellant therefore, no case remains
for kidnapping. She also accepted that her age was 18 years at
the time of incident and now she is 19 years old. She also
4 Cr.A. No.61/2011

narrated that since her parents were forcing her to marry with
some other person with whom she did not want to marry,
therefore, she on his own volition went with the appellant to
Indore where she solemnized marriage with him and after
marriage she had physical relation with the appellant many a
times with her consent. She further stated that she studied up to
Class-IV and her father has wrongly mentioned her age as 14
years whereas at the time of incident, she was 18 years old.
Prosecution could not place any documents as regards age of the
prosecutrix and merely on the basis of marks-sheet of Class IV,
the trial Court assumed the age of the prosecutrix as 13-14 years
at the time of incident.

13. Here in the present case, strict violation of Section 12 of
Juvenile Justice Act (Care and Protection of Children), 2007 is
apparent. Section 12 of the Act provide certain exigencies for
determination of age, which can be borrowed in the present
case:-

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
5 Cr.A. No.61/2011

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 Ihe 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 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 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.

14. The aforesaid section provides that when there is a dispute
regarding the age then aforesaid guidelines are to be followed.

15. Here in the present case, wherein complainant PW-1
Ramwati, who is mother of the prosecutrix referred the age of the
prosecutrix as 13 years, father Pappu Jatav (PW-4) referred the
age as 14 years and the prosecutrix (PW-5) stated her age as 18
years at the time of incident and since no cogent and reliable
6 Cr.A. No.61/2011

evidence as regards age of the prosecutrix was produced then
medical examination of the prosecutrix is the necessary
requirement for assessing her age. The same procedure was not
followed which also lacks confidence in prosecution story.

16. In view of the aforesaid discussions, the appeal preferred
by the appellant-Kalloo deserves credence and acceptance and
the same is hereby allowed. Judgment of conviction and order of
sentence dated 06/07/2010 passed in Sessions Trial
No.103/2009 by Special Judge, Shivpuri is hereby set aside.
Since the prosecution could not prove its case beyond reasonable
doubt and the trial Court erred in relying upon the weak evidence
to convict the appellant and therefore, appellant-Kalloo is directed
to be set free immediately if he is in confinement.

17. As per record, appellant has not been admitted to bail and
his jail sentence has not been suspended by this Court but since
the judgment of conviction was passed on 06/07/2010 and it is
almost 8 years , therefore, most probably appellant-Kalloo would
have been released by the Jail Authorities. Looking to such
confusion, the District Judge, Shivpuri is directed to look into the
fact that whether the appellant-Kalloo has served his jail sentence
or not and if he has served his jail sentence and not required in
any other matter, then he be set free from jail and if he is still in
jail in the present matter, then he be released forthwith. If some
how bail order of appellant escaped attention of this Court or is
not available on record and some sentence is still left to be
served then appropriate proceedings be ensured for serving
remaining part of jail sentence of appellant-Kalloo.

18. Copy of the judgment be sent to the trial Court without any
delay so that the judgment of this Court may be complied with
as early as possible.

19. Appeal allowed.

(Anand Pathak)
Judge
27-07-2018
vc
VARSHA CHATURVEDI
2018.07.28 11:40:13

-07’00’

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