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Salman vs The State Of Madhya Pradesh on 29 August, 2018

1 Cri.A.No.273/2016

HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR
(SINGLE BENCH : HON’BLE SHRI JUSTICE J.P. GUPTA)

Criminal Appeal No. 273 / 2016

Salman
Vs.
State of Madhya Pradesh

Shri M.P. Tripathi, Advocate for the appellant / accused.
Shri C. K. Mishra, Govt. Advocate for the respondent / State.
Shri Basant Raj Pandey, Advocate for the complainant.

JUDGMENT

(29-08-2018)

This criminal appeal under Section 374 (2) of the Cr.P.C. has
been filed assailing the impugned judgment dated 22.01.2016 passed by
3rd Additional Sessions Judge, Burhanpur, District Burhanpur in Special
Session Trial No. 24/15 whereby the appellant has been convicted under
Section 376 (2) (n) of the IPC and sentenced him to undergo RI for 10
years along with fine of Rs.3000/-, in default of payment of fine, further
additional RI for 6 months and also convicted under Section 5 (l) r/w
Sec.6 of the POCSO Act but not sentenced as per the provisions of Sec-
tion 42 of the POCSO Act.

2. The prosecution case, in short, is that the appellant / ac-
cused and the prosecutrix were residing in the same vicinity and on
8.5.2015 the prosecutrix lodged FIR at Police Station Shikarpura, District
Burhanpur, against the appellant to the effect that since last one year
the appellant was making sexual intercourse with her on the basis of
promise of marriage. Now, he has denied marrying with her. Hence, she
has been sexually exploited by the appellant. Report was registered at
Crime No. 119/15 in Police Station Shikarpura, District Burhanpur for the
offence under Section 376 of the IPC and the prosecutrix was medically
2 Cri.A.No.273/2016

examined. During the investigation, about her age school certificate
with regard to entry of date of birth of the prosecutrix was collected
from the concerned school and after completion of other formalities of
the investigation, finding the prosecutrix minor, charge sheet under
section 376 (2) (n) of the IPC and under Section 5 (l) r/w. Sec. 6 of the
POCSO Act was filed. The case was tried by 3 rd Additional Sessions
Judge, Burhanpur and the charges were framed against the appellant.

3. The appellant-accused abjured his guilt and pleaded com-
plete innocence and also claimed to be tried. The defence of the appel-
lant was that he is innocent and he has been falsely implicated in the
case.

4. Learned trial Court after completion of the trial found that
at the time of incident the age of the prosecutrix was below 18 years
and the appellant committed repeatedly rape with her. Therefore, the
appellant committed the aforesaid offences. Hence, trial court convict-
ed and sentenced the appellant as mentioned above.

5. In this appeal, the aforesaid finding of the trial court has
been assailed on the ground that the finding of the learned trial court is
illegal, erroneous and contrary to law and facts. The prosecution has
failed to prove the age of the prosecutrix below 18 years beyond rea-
sonable doubt. There is no cogent, relevant and reliable evidence to
prove the age of the prosecutrix and as per the facts emerged during
the statement and as per the prosecution case, it is a case of consensu –
al sexual intercourse. Therefore, the appellant is entitled to get the re-
lief of acquittal of the offences. Hence, the prayer is made to allow the
appeal and by setting aside the conviction and the sentence, the appel-
lant be acquitted.

3 Cri.A.No.273/2016

6. Learned GA appearing for the respondent / State has ar-
gued in support of the impugned judgment and prayed for dismissal of
the appeal.

7. Having considered the contentions of learned counsel for
the parties and on perusal of the record, in view of this court, the find-
ing of the learned trial court with regard to determination of the age of
the prosecutrix below 18 years is erroneous and based without any legal
evidence. The parents of the prosecutrix have not stated any specific
date of birth of the prosecutrix and on the basis of presumption they
have stated the age of the prosecutrix near about 17 years. However,
they have not disclosed this fact during the investigation. Prosecutrix
(PW-4) has stated that her age was 17 years but during the investigation
she disclosed to the police that her age was 19 years as stated by Saee-
da Shah (PW-8) Investigating officer. Dr. Vandana Chouksey (PW-2) has
stated that she estimated the age of the prosecutrix near about 19
years. Learned trial Court has placed reliance on the entries of the
school namely Government Hindi Primary School Ghosiwara, Ex.P/3 and
Ex.P/4, about which, Sheikh Babu (PW-1) Head Master of the school
concerned, has stated that the entry is related to one Rubeena Bi D/o.
Sheikh Babbu and mother of Amina Bi, in which, date of birth has been
recorded as 6.7.1997 at the time of giving admission in Class 1 st. He has
further stated that the entry was made on the information supplied by
grandfather of Rubina Bi. It was not based on any document and the
statement of the grandfather has not been recorded. Neither the pros-
ecutrix (PW-4) nor her mother Amina Bi (PW-3) nor her father Babbu
(PW-9) has stated that the prosecutrix was admitted in the aforesaid
school. Therefore, it cannot be said beyond reasonable doubt that the
documents Ex.P/3 and Ex.P/4 are related to the prosecutrix.

8. It is settled principle that in the criminal case the prosecu-
tion is bound to prove every fact which is an ingredient of the offence
4 Cri.A.No.273/2016

beyond reasonable doubt. In the present case, in view of this court,
there is no relevant, sufficient and reliable evidence to prove the age of
the prosecutrix below 18 years.

9. In this case, as per the story of the prosecution and the evi-
dence, sexual intercourse with the prosecutrix was done by the appel-
lant with her consent. But it is alleged that consent was given on the
pretext of promise of marriage. However, in the statement of the pros-
ecutrix (PW-4) it is not disclosed that first time she consented on the
promise of marriage made by the appellant. She has stated that number
of times the appellant made physical relation with her and later on, he
denied to marry with her, therefore, she lodged the report.

10. Hon’ble the Apex Court in the case of Deelip Singh alias
Dilip Kumar vs. State of Bihar (2005) 1 SCC 88 has held that only in the
case where it is proved that the appellant was not intended to marry
with the prosecutrix at the time when he made promise first time, the
accused can be convicted on the ground that consent was taken under
misrepresentation. It has been further held that consent given by a
woman believing the man’s promise to marry her would fall within the
expression “without her consent” only if it is established that from the
very inception the man never really intended to marry her and the
promise was a mere hoax.

11. In the present case also, there is no evidence with regard to
the fact that at very initial stage the appellant had no intention to marry
with the prosecutrix. The prosecutrix was a major girl and having knowl-
edge to know the consequences of giving consent before marriage,
therefore, it cannot be held that the appellant committed sexual inter-
course with the prosecutrix without her consent.

12. In view of the aforesaid circumstances, the prosecution has
failed to prove the ingredients of the offence and the finding of the
5 Cri.A.No.273/2016

learned trial court is not sustainable. Hence, the appeal is hereby al-
lowed. The conviction and the sentence directed by the trial Court
against the appellant for the aforesaid offences are hereby set aside. He
is acquitted from the aforesaid charges and he would be entitled to get
the fine amount back, if he has deposited the same before the trial
Court. He is in jail. He is directed to be set at liberty forthwith, if not re-
quired in any other case.

A copy of this order be sent to the learned Trial court and
the Jail authorities concerned for information and its compliance.

(J.P.GUPTA)
JUDGE

JP/-

Digitally signed by
JITENDRA KUMAR PAROUHA
Date: 2018.08.29 18:07:47
+05’30’

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