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Meharban @ Dadiya vs The State Of Madhya Pradesh on 17 May, 2018

Cr.A. No.1153/2013 1
Meherban @ Dadiya S/o Kailash vs. State of M.P.

Single Bench: Hon’ble Shri Justice Virender Singh
Criminal Appeal No.1153/2013

Meherban @ Dadiya
State of Madhya Pradesh

Shri Abhishek Rathore, learned counsel for the appellant.
Shri Hemant Sharma, learned Government Advocate for the
Whether approved for reporting: Yes/No


(Delivered on 17/05/2018)

The appellant has assailed his conviction recorded vide
judgment dated 01/03/2013 by ASJ, Bagli, District-Dewas in
S.T. No.238/2011, whereby the learned Court held the
appellant guilty for the offence punishable under Section 363,
366 (A) and 376 of IPC and awarded 5 years and 10 years R.I.
and Rs.5,000/- and Rs.10,000/- fine and in default of payment
of fine 1 year and 2 years R.I. respectively. In view of the
provisions of Section 71 of IPC, no separate sentence is
awarded for the offence 363 of IPC.

2. Background facts sans unnecessary details are that on
13/05/2011, father of the prosecutrix informed the police that
his elder daughter is missing from the house since 12/05/2011.
The police registered missing person report in Rojnamcha and
Cr.A. No.1153/2013 2
Meherban @ Dadiya S/o Kailash vs. State of M.P.

launched search operation. She was recovered on 09/07/2011
from possession of the appellant and revealed before the police
that on the date of incident at about 12:00 in the night, when
she was sleeping with her siblings, the appellant came there,
pressed her mouth and on the point of knife asked her to
accompany him silently and took her to some unknown place
and thereafter to Badoda Phata. The police produced
prosecutrix before the Doctor and got her medically examined.
Dr. Pushpa Pavaiya found that her hymen was old raptured and
that she was habitual of intercourse. After usual investigation
like; preparing spot map, seizure memo of clothes of
prosecutrix, arrest of accused, memo of recovery, his medical
examination etc. the police submitted charge-sheet before the

3. The accused was charged under Section 363, 366 (A) and
376 of IPC. He abjured his guilt. After the trial, the learned trial
Court held him guilty and awarded sentence as stated in para 1

4. The appellant has preferred this appeal from Jail and this
Court has appointed counsel to represent him from Legal Aid.

5. Learned counsel appearing for the appellant has
submitted that the accused was only 18 years of age at the
time of commission of the offence. Both the accused and
prosecutrix were known to each other and in fact they were
having affair. The prosecutrix remained with the
accused/appellant at the house of appellant’s Aunt (Bua/sister
of father) for four months. In her examination-in-chief itself
Cr.A. No.1153/2013 3
Meherban @ Dadiya S/o Kailash vs. State of M.P.

(para 3) she has admitted that during her stay in that house,
she was regularly going with them for labour work. She has
further admitted that many houses were there near or
surrounding the house of Aunt of the appellant but she never
complained any body nor tried to seek help even when she was
having full opportunity. This shakes the case of the
prosecution, because in case she would have been kept
forcefully, she would have sought help which was easily
available. On medical examination, her hymen was found
raptured since long and she was found habitual to sexual
intercourse, no internal or external injury was found and no
definite opinion could be given regarding recent intercourse.
Age of the prosecutrix also could not be ascertained. The
prosecutrix herself or her parents have not stated any specific
date of birth of the prosecutrix. No document document is
produced by the prosecution to prove or establish her age or
that she was under the age of 16 years at the time of the
offence, therefore, the learned trial Court has committed error
in convicting the present appellant.

6. The learned Public Prosecutor has opposed the prayer
but he fairly admitted that neither the prosecutrix nor her
parents – Elubai – PW/1 and Shankarlal – PW/2 have stated
age of the prosecutrix at the time of the incident. Shankarlal –
PW/2 has stated in para 5 that as per school certificate, age of
his daughter is 10 years but no such certificate is proved by the
prosecution. In para 7, he has admitted that his elder son is
20-25 years old and his youngest daughter (prosecutrix) 6-7
years younger than his elder son. This brings the age of the
Cr.A. No.1153/2013 4
Meherban @ Dadiya S/o Kailash vs. State of M.P.

prosecutrix about 18-19 years old. Her brother – Umersingh –
PW/4 has admitted that age of her sister was 16 years. It
appears from the record that during investigation ossification
test was done to ascertain the age of the prosecutrix but
neither Doctor who conducted ossification test has been
examined before the learned trial Court nor report given by him
is proved by the prosecution. This failure of the prosecution is
a serious flaw in the prosecution version. However, this report
is available in record of the trial Court and as per this
ossification report, the biological age of the prosecutrix is
estimated between 14 to 17 years.

7. The Hon’ble Supreme Court in AIR 1982 SC 1297 Jaya
Mala Vs. Home Secretary, Government of J. and K. and
others and this Court in Thakat Singh and Anr v. State of
M. P. and Anr 2012 CRI. L. J. 2573 MP has stated that
margin of error in age ascertained by radiological examination
is two years on either side and Court can take judicial notice
that margin of error in age ascertained by such examination. In
Narendra Singh vs. State of M.P. 1996 JLJ 256 it is held
that in the age of the prosecutrix based on ossification
examination margin of 2 to 3 years on either side is permissible
and in criminal case margin will go in favour of the accused.

8. Dr. Pushpa Pawaiya – PW/6 has stated that at the time of
examination, she found that the breasts of the prosecutrix
were not developed and periods have not been started and as
per her observation, her age was 12 years but she advised X-
ray examination for determination of age. No such X-ray or
Cr.A. No.1153/2013 5
Meherban @ Dadiya S/o Kailash vs. State of M.P.

ossification test report is proved by the prosecution, during the
trial as stated in last preceding para, therefore, on the
statement of Dr. Pushpa Pawaiya age of the prosecutrix cannot
be ascertained. Thus, prosecution could not produced cogent
and convincing evidence to establish that at the time of
incident, the prosecutrix was under the age of 16 years.

9. The Hon’ble Supreme Court has held in Alamelu and
another v. State, Represented by Inspector of Police
AIR 2011 SC 715 that in a case where expert evidence does
not rule out possibility of girl being major, it can be held that
prosecution has failed to prove that girl was minor on relevant

10. It is held in AIR 1994 SC 966 State of Karnataka Vs.
Sureshbabu Puk Raj Porral that when the age of the
prosecutrix is in doubt, then the question of taking her away
from lawful guardianship does not arise.

11. The prosecutrix has admitted in her statement that the
accused kept her at the house of his Aunt (Bua) for next four
months in village-Gwali and there was several houses
surrounding the house of Aunt (Bua) of the accused. She (Aunt
of the accused) used to take both of them to do labour work.
Her house was adjacent to the road. Thus, the prosecutrix was
having full opportunity of ran away from the captivity or to
seek help from other villagers but she never did it, which
shows that she was consenting party and that she eloped with
the accused.

12. PW/5 – Rajendra, brother of the prosecutrix is a tutored
Cr.A. No.1153/2013 6
Meherban @ Dadiya S/o Kailash vs. State of M.P.

witness and he has stated that he does not know as to
whether the prosecutrix went with the accused voluntarily or
under pressure or threat of the accused. Other evidence also
falls short to indicate that the prosecutrix was taken away or
subjected to sexual interaction under some threat or pressure.

13. Thus, there are many infirmities, holes and lacunae in the
prosecution version. it is clear that the prosecution could not
establish that at the time of incident the prosecutrix was under
the age of 16 years and statement of prosecutrix and also
other evidence available on record shows that she was a
consenting party. Thus, both the pillars on which the case of
the prosecution rests, collapse. In that situation, the findings of
the learned trial Court are erroneous and are not sustainable in
the eyes of law. It has committed error in convicting the
appellant in absence of cogent and convincing evidence on
both the material points. The prosecution could not establish
its case beyond doubt. Therefore, the appellant is clearly
entitled to benefit of doubt and consequently the appeal filed
by the appellant deserves to be allowed and is hereby
allowed. The appellant is acquitted from the offence under
Section 363, 366 (A) and 376 of IPC. He be set at liberty
forthwith, if not required in any other case.

14. Order of the trial Court regarding disposal of the
property is hereby confirmed.

(Virender Singh)

Digitally signed by Jagdishan
Date: 2018.05.17 17:34:53 +05’30’

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