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Pintu And Another vs State Of M.P. on 27 August, 2018

-( 1 )- Criminal Appeal No.116/00

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR

SINGLE BENCH:
(Justice Vivek Agarwal)

Criminal Appeal No.116/2000

…..Appellants : Pintu Anr.

Versus

…..Respondent : State of M.P.

—————————————————————————————
Shri Arun Pateria and Shri Ravindra Dixit, learned counsel for the
appellants.
Shri B.P.S.Chauhan, learned Public Prosecutor for the
respondent/State.
—————————————————————————————

JUDGMENT

( 27 / 8/2018)

This Criminal Appeal under Section 374 (2) of Cr.P.C. has
been filed by appellants Pintu and Bhura being aggrieved by
judgment and order dated 1.1.2000 passed by the Court of
Additional Sessions Judge, Chachoda, Distt. Guna, in Sessions
Trial No.5/1999 convicting both the appellants under Sections 363
and 366 of IPC with sentence of three years RI and fine of
Rs.500/- and five years RI and fine of 1,000/- respectively and
also convicting appellant Bhura under Section 376 of IPC with
seven years RI and fine of Rs.1,500/- and in the event of non-
payment of fine, they are directed to suffer three months RI under
Section 363, six months RI under Section 366 of IPC and 9
months RI under Section 376 of IPC.

2. As per prosecution story, prosecutrix was minor. She was
abducted by appellants Pintu and Bhura on 9.1.99 at about 6.30
pm when she had gone to answer call of nature from her house
situated at Tekri Mohalla, Chachoda. She was taken to jungle
where accused Bhura committed rape on her. When prosecutrix

-( 2 )- Criminal Appeal No.116/00

did not return to her home on 9.1.1999, then her mother Tarabai
sent her son Sonu to Beenaganj to call his father Dashrath Singh
and thereafter they tried to locate the prosecutrix but when she
could not be located, then missing person report was recorded at
police Station, Chachoda.

3. During investigation, police recovered prosecutrix from the
house of Bhura and thereafter FIR was registered. Prosecutrix
was subjected to medical examination and x-ray examination.
Seized articles were sent for FSL report to Regional Forensic
Science Laboratory, Gwalior. On completion of the investigation,
charge-sheet was filed before the Court of Additional Chief
Judicial Magistrate, Chachado, from where matter was committed
to the Sessions Court. Appellants abjured their guilt and produced
evidence in rebuttal. They denied the allegations made against
them in the defence evidence as well as in the statements under
Section 313 of Cr.P.C. They submitted that they have been falsely
implicated.

4. As per mother of the prosecutrix Tarabai (PW-6) and her
father Dashrath Singh (PW-9) on the date of incident age of the
prosecutrix was 14-15 years, whereas her uncle Deewan Singh
(PW-8) narrated her age to be 15-16 years on the date of incident
and prosecutrix narrated her age to be 15 years while Vidya Devi
Sharma (PW-1), In-charge Head Master of Government Girls
Primary School, Chachoda, deposed that as per Ex.P/1 date of
birth of the prosecutrix is 26th February, 1985. In cross-
examination, she has maintained her stand that date of birth of
the prosecutrix is 26th February, 1985 and that of another
daughter of Dashrath Singh, namely Sushma, has been
mentioned in the register as 1.12.1986. There is difference of
about 22 months between date of birth of the prosecutrix and that
of her younger sibling Ku. Sushma and signatures of guardian are
common for both Sushma as well as the prosecutrix.

5. On the other hand, Dr. R.K.Jain, Radiologist (PW-4) has
opined that there was complete fusion in medial epicondyle part

-( 3 )- Criminal Appeal No.116/00

of humerus bone of right elbow, so also between radius and ulna
bone of right wrist, but there was lack of complete fusion between
iliac crest bone of hip and epiphysis, but opined that age of the
prosecutrix was above 19 years and less than 20 years.

6. Learned counsel for the appellants submits that as far as
appellant No.1-Pintu is concerned, he is innocent and even the
prosecutrix (PW-5) has admitted in her cross-examination para 37
that Pintu had not committed any offence except being an
accomplice to Bhura and supplying food from time to time. It is
submitted that in fact there was infatuation between the
prosecutrix and Bhura, and therefore, appellant Bhura wanted to
marry her and appellant Pintu was just a witness to the incident
and was not involved in either kidnapping or abduction for which
he has been punished for three years and five years RI. It is
further submitted that even appellant Bhura is innocent because
there was consent of the prosecutrix and as per radiological
examination conducted by Dr. R.K.Jain (PW-4) her age was
above 19 years and below 20 years, therefore, it is not a case of
abduction coming within the purview of Section 366 of IPC.

7. For appellant Bhura, it is submitted that as per MLC
(Ex.P/3) Medical Officer has categorically opined that two fingers
were going in the vagina with slight difficulty. Hymen was ruptured
but edge was red, slightly swollen and painful. There was slight
bleeding. It is submitted that doctor has not given any definite
opinion about rape, and therefore, even appellant Bhura cannot
be convicted for rape, abduction or kidnapping. Placing heavily on
the evidence of Dr. Sarojani Beg (PW-3), it is submitted that there
was no injury on any external part of the body of the prosecutrix
and her secondary sexual characters were developed. There was
no injury even to the internal parts of the body, and therefore, it
cannot be said that prosecutrix was subjected to rape. Learned
counsel for the appellants has also drawn attention of this Court
to Ex.D/7, a love letter, saying that such letter was sent by the
prosecutrix expressing her helplessness in giving statement

-( 4 )- Criminal Appeal No.116/00

against appellant Bhura because there was lot of pressure of her
parents and she has mentioned that she has been married to
somebody named Radhesingh Halak Singh and she has
promised that she will definitely help him in future. Learned
counsel for the appellant further submits that as per Ex.D/5,
Gumsudgi report, father of the prosecutrix had mentioned her age
as 17 years. It is also submitted that as per prosecutrix she was
raped in the jungle but there are no external injury marks on the
body of the prosecutrix. Thereafter, appellant Bhura had brought
her to his house and there also he committed rape on her. It is
submitted that prosecutrix has admitted that there were other
family members at the house of Bhura. Learned counsel for the
appellants also submits that Dashrath Singh (PW-9) has admitted
that prosecutrix was born in a hospital at Chachoda in para 11 of
his cross-examination, therefore, in terms of the provisions
contained in Section 114(g) of the Evidence Act when evidence
from Government record was available that prosecutrix was born
in a Government Hospital, then non-production of such record will
shift the burden on the prosecution to prove that prosecutrix was
minor

8. Learned Public Prosecutor for the State on the other hand
has drawn attention of this Court to Ex.P/12, FSL report, wherein
Article A/1 was Salvar of the prosecutrix, A/2 was her underwear,
Article B was slide prepared from vaginal smear and Article C was
sample of pubic hair. As per this report, on A/2 i.e. underwear of
the prosecutrix and the vaginal slide, human sperms were found.
It was mentioned that such sperms available on Article A/2 was
insufficient for serum examination. Thus, placing reliance on such
FSL report, it is submitted that allegation of rape is medically
corroborated. It is not the case of the appellants that except
Bhura, anybody else had performed intercourse with her.

9. It is also submitted by learned Pubic Prosecutor that as per
evidence of Vidyadevi Sharma (PW-1) In-charge Head Master of
the Government Girls Primary School, Chachoda, prosecutrix was

-( 5 )- Criminal Appeal No.116/00

admitted in class 2nd and as per her admission register, Ex.D/2,
date of birth is mentioned as 26.2.1985. Same witness has
certified that date of birth of younger sister of the prosecutrix is
1.12.1986 and there is gap of about 22 months between the two
sisters. In view of such facts, as far as age is concerned since
first entry register when prosecutrix had taken admission in the
school is available and as per her admission register, Ex.D/2,
date of birth of the prosecutrix is 26.2.1985 which is fully proved
by the In-charge Head Master Vidyadevi Sharma (PW-1), in terms
of the provisions contained in Juvenile Justice Rules, there is no
need to refer to radiological examination. As per Modi’s textbook
of Medical Jurisprudence and Toxicology, 25th Edition, radiologist
was obliged to mention as to which author, as given under
chapter x-personal identity and table showing the age in years of
the appearance fusion of some of the epiphysis, has been
adopted by him. Learned Public Prosecutor further submits that
as far as Ex.D/7, love letter, is concerned, prosecutrix has not
been confronted with this letter and there is no evidence that this
letter has been written in the handwriting of the prosecutrix.
Learned Public Prosecutor for the State further submits that once
school admission register is exhibited, then any mistake in
Gumsudgi report (Ex.D/5) is not material and similarly since
admittedly prosecutrix is minor, her consent cannot be said to be
valid consent, therefore, all the arguments made around the
theory of consent is not just and correct.

10. After going through the material on record and the evidence
available on record, it has come on record that Ex.D/2, school
register, gives date of birth as 26.2.1985, therefore, in terms of
the JJ rules since school entry register is available showing date
of birth of the prosecutrix to be 26.2.1985, there appears no doubt
or gap requiring any further enquiry as to the age of the
prosecutrix in terms of the provisions contained in Rule 12 of the
JJA Rules. Therefore, on the date of incident, prosecutrix was
minor.

-( 6 )- Criminal Appeal No.116/00

11. Now as far as act of appellant Pintu is concerned,
prosecutrix has categorically mentioned that Pintu and Bhura had
abducted her when she had gone to answer call of nature.
Prosecutrix (PW-5) in her chief firstly stated that accused persons
had not done anything to her, then she stated that when she was
going to answer the call of nature, then she found that appellants
Bhura and Pintu were standing outside her house. They took her
to the forest, then Bhura asked her to marry her. When she
refused saying that she is afraid of her parents, then Bhura
committed rape with her. Thereafter, she was taken to the house
of Bhura and was kept there till police came and recovered her
from the house of Bhura. She was thereafter taken to Chachoda.
She admits that no documentation was carried out in front of her
at the house of Bhura. This renders the Dastyabi Panchnama
Ex.P/7 doubtful as it is said to have been prepared at Tekri
Mohalla at the house of Bhura. She has admitted that she was
examined by a lady doctor at Chachoda and thereafter she was
taken to Guna for x-ray. In cross-examination, she has admitted
that there are four sisters and three brothers and her all three
brothers are younger to her. In cross-examination, she submitted
that from 10.1.1999 to 12.1.1999 Bhura had kept her in jungle
itself, but later on she improvised and stated that she was not
kept in jungle for a period of four days and the day she was
abducted, at that night she was in jungle and then next day she
was taken to house of Bhura at Chachoda. She further admitted
in para 7 that after recovering her, police had produced her in the
Court of Magistrate in presence of woman Constable and at
Chachoda Magistrate had asked her as to with whom she would
like to go and she had given a statement that she would like to go
with Bhura, then she stated that since she was threatened by
Bura, therefore, out of fear she had given such statement. In
cross-examination, she has admitted that she was raped on
rough surface suffering several injury in the shoulder and back
and Bhura had kicked her but such statements are not

-( 7 )- Criminal Appeal No.116/00

corroborated from the medical evidence. In para 12, she has
admitted that she has no knowledge about her date of birth. She
also submitted that due to such act of Bhura, she had suffered
injury in her private parts though they are not corroborated from
the statement of the doctor. She admitted that Pintu used to only
supply food and used to go back (para 17). She further admitted
that when she had reached Bhura’s house, his parents, brother
and sister were available in the house. He had not performed any
intercourse when she was at the house of Bhura. She has also
admitted that it was a winter season and when she had slept in
the jungle, then it was very cold and she was not having extra
clothing to cover her body. She had not seen Bhura using any
quilt or other covering. Bhura had slept away from her. In para 35,
she has admitted that she was kept in a house at jungle and in
that house one lady and her husband were present. She had not
taken any food in that house but Bhura had consumed food. She
stayed in that house for the whole night, and thereafter, from the
house at jungle she was taken away in a matador driven by one
Pappu, uncle of Pintu. She admitted that by that matador Bhura
and prosecutrix were dropped closed to fort from where they had
walked upto the house of Bhura. She further deposed that when
she was in the house of Bhura, she had not gone to answer the
call of nature. Thus, she had never used any toilet facility to either
discharge urine or stool. These statements of the prosecutrix and
the contradictions make the story of abduction in regard to
appellant Pintu doubtful, therefore, this Court is of the opinion that
since ingredients of abduction and kidnapping in regard to
appellant Pintu are not made out because there is no allegation
on appellant Pintu of giving any allurement to the prosecutrix nor
there is any allegation on him of using any force, therefore, the
act of appellant Pintu of going upto jungle alongwith appellant
Bhura and supplying food from time to time cannot be said to be
an act of abduction and kidnapping. In fact, as per own showing
of the prosecution she had gone to a house in jungle and had not

-( 8 )- Criminal Appeal No.116/00

consumed any food and thereafter she was taken to the house of
Bhura. There was no occasion for appellant Pintu to supply food
to her, therefore, even if the aspect of kidnapping is examined in
the light of the law laid down by Hon’ble Supreme Court in the
case of Thakorlal D. Vadgama v. The State of Gujarat as
reported in AIR 1973 SC 2313, then also it cannot be said that
appellant Pintu had made any attempt to take possession of the
prosecutrix or had enticed her for going with Bhura. Thus,
conviction of appellant Pintu under Sections 363 and 366 of IPC
is not sustainable and thus, conviction of appellant Pintu under
Sections 363 and 366 of IPC deserves to be and is set aside.

12. As far as appellant Bhura is concerned, there may not be
any use of force, but when provisions of Section 361 and its
ingredients are examined in the light of judgment of the Supreme
Court in the case of Thakorlal D. Vadgama (supra) then there
was enticement of the prosecutrix in the name of marriage and
since prosecutrix was not above the age of 18 years, her consent
cannot be said to be a valid consent though the ingredients of
consent are also missing in the present case, therefore, case of
appellant Bhura is on a different pedestal than that of appellant
Pintu.

13. In the light of the FSL report and the statement of the
prosecutrix that except Bhura no other person had performed
intercourse with her and presence of sperms on vaginal swab as
well as underwear of the prosecutrix, this Court is of the opinion
that appellant Bhura is not entitled for any relief nonetheless that
of acquittal as all the ingredients of abduction, kidnapping and
rape as have been alleged are corroborated through evidence of
prosecution witnesses as well as scientific evidence collected in
the matter. Thus, conviction of appellant Bhura for the offence
punishable under Sections 363, 366 and 376 of IPC is upheld and
appeal filed on behalf of appellant Bhura deserves to be and is
dismissed.

14. Consequently, appeal is party allowed. As far as conviction

-( 9 )- Criminal Appeal No.116/00

of appellant Pintu under Sections 363 and 366 of IPC is
concerned, it is set aside and he is acquitted from such charges.
As far as appellant Bhura is concerned, his conviction under
Sections 363, 366 and 376 of IPC is upheld. He is on bail, his bail
bonds are cancelled and he shall surrender before the trial Court
for undergoing remaining jail sentence on or before 4.9.18, failing
which trial Court is free to take appropriate steps to send him to
jail for undergoing remaining jail sentence.

(Vivek Agarwal)
Judge
ms/-

Digitally signed by
MADHU SOODAN PRASAD
Date: 2018.08.27 18:10:58
+05’30’

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