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Ram Babu Prajapati vs State Of M.P. on 24 August, 2018

-( 1 )- Criminal Appeal No.507/07

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR

SINGLE BENCH:
(Justice Vivek Agarwal)

Criminal Appeal No.507/2007

…..Appellant : Rambabu Prajapati

Versus

…..Respondent : State of M.P.

—————————————————————————————
Shri B.S.Gaur, learned counsel for the appellant.
Shri Pramod Pachauri, learned Public Prosecutor for the
respondent/State.
—————————————————————————————

JUDGMENT

(24/ 8/2018)

This Criminal Appeal under Section 374 (2) of Cr.P.C. has
been filed by the appellant/accused being aggrieved by judgment
and order dated 30.4.2007 passed by Forth Additional Sessions
Judge (Fast Track), Shivpuri in Sessions Trial No.16/2007
convicting the appellant under Section 376 of IPC with seven
years RI and also under Section 366 of IPC with seven years RI.

2. As per prosecution story, on 17.9.2006 complainant Raman
Kumar (PW-1) had lodged a report that his niece had gone to
answer call of nature at about 7 pm when she did not return and
then he was informed by Raju (PW-8) that one Rambabu has
taken away the prosecutrix towards Jagatpura, therefore, FIR
(Ex.P/1) was registered under the provisions of Sections 363, 366
of IPC. After investigation, charge-sheet was filed under Sections
363, 366 and 376 of IPC. The appellant abjured his guilt and took
a defence that prosecutrix is major/adult and he was engaged in
the work of manufacturing of bricks at the place of the
complainant. Appellant had manufactured about 50,000/- bricks
but such bricks were not given to the accused and used by the

-( 2 )- Criminal Appeal No.507/07

family members of the complainant, and therefore, to counter any
claim of the accused, false report has been lodged.

3. Learned counsel for the appellant submits that prosecutrix
(PW-5) has herself admitted in note below para 8 of her cross-
examination that she had signed on Ex.D/2. She also admitted
that her photo was clicked as is affixed on Ex.D/2. She also
admitted that before entering into the marriage alliance, she had
gone to Shivpuri Hospital where x-ray was taken. She had made
a complaint in regard to her abduction to the doctor, however, she
admitted that she did not raise any alarm at the time of such
abduction or untoward incident though there were several other
patients were available in the hospital. She also admitted that
police was available in the hospital and she had not made any
complaint to the police in regard to abduction or any other
untoward incident. In para 10 of her cross-examination, she has
admitted that to execute affidavit (Ex.D/2) she had visited Shivpuri
Court and had affixed her signature on Ex.D/2. She admitted that
there were police personnel in the Court premises but she had
not informed anything to the police personnel. She also admitted
that accused got a photograph clicked with her but improvised the
statement saying that such photo was clicked under compulsion
as she was under threat.

4. It is further submitted by learned counsel for the appellant
that in para 12 prosecutrix has admitted that when she had
reached Padora, then time was about 1.30 pm and police
personnel were available. At Padora Tri- junction except her
father nobody else was available. She also admitted that on
Ex.P/4 she had put her signatures at police Station. Ex.P/4 is the
recovery Panchnama allegedly prepared at Padora tri- junction
Kolaras on 16.11.2006 at 2 pm to show that she was recovered
from Padora Tri- Junction. It is submitted that when her
signatures were obtained in the police Station, then such recovery
Panchnama showing that she was recovered from the custody of
the appellant at Padora tri- junction does not inspire confidence.

-( 3 )- Criminal Appeal No.507/07

Attention of this Court is also drawn to Ex.P/8, arrest memo of
appellant Rambabu, showing timing of surrender as 15.00 hours
on 16.11.2006. It is submitted that when prosecutrix was
recovered from the possession of appellant Rambabu as per
Ex.P/4 at 2 pm, then showing timing of his surrender as 15.00
hours vide Ex.P/8 is false and incorrect inasmuch as as soon as
the prosecutrix was recovered from the custody of the appellant,
accused was taken into custody. It is submitted that all these
documents have been prepared as an afterthought.

5. Learned counsel for the appellant submits that Ex.P/10 is a
mark-sheet of Pre- Middle School Certificate Examination
conducted in the year 2005 but the mark-sheet does not contain
any date though there is a mention that examination was
conducted in the year 2004-05. It is also submitted that there is lot
of variation in the age deduced by the doctor through ossification
test and the age which is mentioned in the 5th class mark-sheet. It
is submitted that there is no FSL report to substantiate the
allegation of rape and since prosecutrix was major, she had gone
on her volition and later on falsely implicated the appellant. It is
also submitted that if variance of age of six months as is
prescribed in the medical jurisprudence is deducted, then also as
per the ossification test report (Ex.D/6) Radiologist and Medical
Officer, In-charge X-ray Section, Distt. Hospital, Shivpuri, had
since radiologically certified the age of the prosecutrix to be more
than 19 years, her age was more than 18 years, and therefore,
provisions of Sections 363 and 366 of IPC will not be attracted.
Attention of this Court has also been drawn to Ex.D/10 wherein
on 20.9.2006 Radiologist had certified her age to be more than 18
years. It is also submitted that in defence accused had examined
Dr. O.P.Sharma, author of Ex.D/6 who has testified x-ray plates
Ex.D/7 and Ex.D/8 besides his report and has denied the
suggestion in cross-examination that age of the prosecutrix was
17 years. He has also denied the suggestion that prosecutrix was
of 13 years of age. He also denied the suggestion that report

-( 4 )- Criminal Appeal No.507/07

Ex.D/6 was falsely prepared.

6. Similarly, author of Ex.D/10 Dr. M.L.Agrawal has
categorically deposed that when he had carried out x-ray on
20.9.2006 age of the prosecutrix was more than 18 years. In view
of such facts, he prays for allowing the appeal and setting aside
the judgment of conviction.

7. Learned Public Prosecutor on the other hand submits that
date of incident is 17.9.2006 and as per the provisions contained
in Juvenile Justice Act there are three parameters for determining
the age strictly in that order of chronology, namely if matriculation
mark-sheet is available, then that is to be seen and if such mark-
sheet is not available, then first school entry register is to be seen
to verify the date of birth (except play group admission register)
and if that too is not available, then age is to be determined
through radiological examination. It is submitted that since mark-
sheet of the prosecutrix for 5th class is available as Ex.P/10
showing her date of birth to be 1.6.1993, at the time of incident
prosecutrix was 13 years of age, and therefore, all the pleadings
put forth by learned counsel for the appellant are of no avail and
the appeal deserves to be dismissed and be dismissed.

8. After hearing learned counsel for the parties, going through
the record and the evidence available on record, few facts are
undisputed. Prosecutrix was taken away on 17.9.2006 and she
was allegedly recovered on 16.11.2006. Raman Kumar (PW-1)
has admitted that toilet where the prosecutrix had gone to answer
call of nature was about 25-30 steps away from the farm of
complainant Raman Kumar (PW-1). Report was lodged after two
days for which there is no satisfactory explanation supported by
document. Dr. Sandhya Mor (PW-3) who was posted as Medical
Officer at Community Health Center, Kolaras, had examined the
prosecutrix on 16.11.2006 and mentioned that there were no
external injury marks on the body of the prosecutrix. Her all
secondary sexual characters were well developed. She was used
to sexual intercourse. Her hymen was broken. She had referred

-( 5 )- Criminal Appeal No.507/07

the prosecutrix for x-ray examination and sonography so to
determine her age and find out whether she was pregnant or not.
She had not given any definite opinion about rape vide Ex.P/3,
MLC prepared by her. She had prepared vaginal smear slide and
handed over the same to Constable of police Station, Kolaras.
The doctor had also sealed her under garments and handed over
to the police Station, Kolaras. These materials were forwarded to
the Regional Forensic Science Laboratory, Gwalior, by the
concerned Superintendent of Police, Shivpuri, on 20.11.2006 vide
Ex.P./9. No FSL report was produced on record by the
Investigating Officer. Rajendra Prasad Sharma (PW-4) has
admitted that in Ex.P/1 there is no mention of dispatch number
showing its dispatch to the concerned Court. He also admitted
that while lodging FIR and giving police Statement, Ex.D/1,
witness Raman had not informed him that Raju and Deena had
informed him that prosecutrix was abducted by Rambabu. He
admitted that he could not meet with the parents of the
prosecutrix and therefore, he had not made any enquiry from the
parents of the prosecutrix.

9. Prosecutrix (PW-5) in her statement as has been
mentioned above has admitted that when she had gone to
answer call of nature, appellant Rambabu met her and asked her
to come alongwith him in the name of performing marriage with
her. Thereafter, he took her to his house where they stayed for a
day and on next day in the jeep he took her to Shivpuri. They
stayed at Shivpuri for about 5 days where he had made
intercourse with her, then he took the prosecutrix to Bhawargarh
(Rajasthan) in the jeep where there were 4-5 other persons in the
jeep. At Bhawargarh he had taken a house on rent and there also
he had committed rape on the prosecutrix and informed her that
he will keep her as his wife. On 16 th November, she was coming
from Bhawargarh to Shivpuri and at Padora junction she saw her
father and police officials to whom she alerted and they recovered
her from the custody of appellant Rambabu. She has admitted

-( 6 )- Criminal Appeal No.507/07

that she changed three schools till 7th. She has admitted that the
place from where she was abducted is closed to railway tracks
and there is “Aabadi” between the place of abduction and the
house of abductor. She had met several persons on the way. She
admitted that accused had not threatened her with any arm but
had threatened her orally only. On the next day, she boarded the
jeep alongwith the accused at Kolaras Mandi and there were 4-5
persons in the jeep. She also admitted that house at Shivpuri
where accused had kept her is surrounded by several other
houses. In view of such facts and also the fact that before
marriage Ex.D/2, joint affidavit containing photo of the prosecutrix,
was executed, in which she has mentioned her date of birth as
12.3.1988 and that of the accused as 1.7.1984 and her admission
that she had put her signatures on such affidavit in the Court
premises and prior to that she had undertaken medical
examination, report of which is Ex.D/10, so to facilitate her
marriage and also in absence of there being any matriculation
mark-sheet or first school admission register on record, as per the
contention of learned Public Prosecutor, this Court is of the
opinion that age of the prosecutrix is to be determined on the
basis of radiological examination which has placed age of the
prosecutrix to be above 19 years as per Ex.D/6 and over 18 years
as per Ex.D/10, therefore, she was major on the date of incident.
Prosecution has also not examined any independent witness from
the concerning school or Board to prove the date of birth of the
prosecutrix

10. The attending circumstances show that not only she was
major but there was consent of the prosecutrix to go with the
accused and the elements of kidnapping as defined in Section
361 of IPC and that of abduction as defined under Section 362 of
IPC are missing, therefore, offence under Section 366 of IPC
cannot be said to have been made out. It is admitted position that
prosecutrix had gone to the hospital for radiological examination
before swearing in affidavit Ex.D/2 so to show her age to be more

-( 7 )- Criminal Appeal No.507/07

than 18 years and despite presence of doctor, several patients
and police personnel in the hospital, she had not narrated her
story of kidnapping or abduction to any of the independent
persons even at a public place. Similarly, she had not narrated
any such incident in the jeep when she was taken by a public
conveyance from Shivpuri to Bhawargarh in Rajasthan. Raju
(PW-8) who had allegedly informed Raman Kumar (PW-1) about
the prosecutrix being taken by the accused, has categorically
deposed that on the date of incident itself he had informed father
and uncle of the prosecutrix that Rambabu had taken her by
holding her hands towards the side of Jagatpur. In cross-
examination, he has admitted that Rambabu was walking ahead
and the girl was following him. This statement also belies the
theory of abduction because girl was walking behind the accused
as per the only eye-witness of the incident and that being a public
place she was always free to have informed any of the member of
the public or Raju (PW-8) who was known to the girl about
abduction or kidnapping. Therefore, conviction of appellant under
Section 366 of IPC cannot be sustained.

11. Similarly, as per the evidence of Dr.Sandhya Mor (PW-3) all
the secondary sexual characters were well developed in the body
of the prosecutrix. She was admittedly used to sexual intercourse
and there were no signs of any injury on any part of her body to
show that she was subjected to rape so to constitute the offence
under Section 375 of IPC. Prosecution has failed to produce even
the FSL report for which vaginal swab and under garments of the
prosecutrix were sent to show presence of any sperms confirming
rape being committed by the accused on the body of the
prosecutrix. Since prosecutrix was major on the date of incident,
therefore, this Court is of the opinion that learned Sessions Court
has failed to appreciate the evidence correctly and has wrongly
recorded a finding of conviction without appreciating the evidence
on record. Prosecution has failed to meet out the evidence which
has come on record in the form of radiological examination so

-( 8 )- Criminal Appeal No.507/07

also expert medical opinion and then there are contradictions in
the testimony of so called prosecution witnesses.

12. In view of aforesaid discussion, this appeal is allowed.
Conviction of appellant under Sections 376 and 366 of IPC is set
aside and he is acquitted from such charges. The appellant is on
bail, his bail bonds shall stand discharged.

(Vivek Agarwal)
Judge
ms/-

Digitally signed by MADHU SOODAN
PRASAD
Date: 2018.08.24 18:46:54 +05’30’

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