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Shankarlal vs The State Of Madhya Pradesh on 5 May, 2018

Cr.A. No.1082/2012 1
Shankarlal S/o Shyamlal vs. State of M.P.

HIGH COURT OF MADHYA PRADESH:BENCH AT INDORE
Single Bench: Hon’ble Shri Justice Virender Singh

Criminal Appeal No.1082/2012

Shankarlal S/o Shyamlal

Vs.
State of Madhya Pradesh

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

JUDGMENT

(Delivered on 05/05/2018)

The appellant has preferred this appeal against the
judgment and order dated 28/06/2012 passed in S.T.
No.109/2009 by I ASJ, Neemuch whereby the learned trial Court
has held the appellant guilty for the offence punishable under
Section 363, 366, 376 of IPC and sentenced him to undergo 3
years, 3 years and 10 years RI with fine of Rs.2,000/-, Rs.2,000/-
and Rs.3,000/- respectively, in default on payment of fine further
to go six months, six months and two years RI.

2. According to the prosecution case on 03/10/2009 between
10:30 to 18 hours, the prosecutrix went missing from her house.
Her father intimated the fact to the police and police registered
missing person report No.19/2009 at Police Station – Jawad and
started inquiry. On 08/10/2009, the prosecutrix was recovered,
Cr.A. No.1082/2012 2
Shankarlal S/o Shyamlal vs. State of M.P.

who revealed before the police that on 03/10/2009, when she
had gone to school, the appellant allured her on promise to marry
and asked her to sit on his motor-cycle and took her to Shani
Maharaj, Rajasthan. From Shani Maharaj, he took her to Kapasan
by Bus, thereafter took her to Ratlam by Train. They stayed at
Ratan Shri Lodge, Ratlam, where he raped her. Police registered
crime No.286/2009 under Section 363, 366, 376 of IPC and sent
the prosecutrix for medical examination, collected document
regarding her age, arrested the accused and seized the motor-
cycle and after completing usual investigation, filed the charge-
sheet.

3. The accused was charged, tried and convicted for the
offence as stated in para 1 above.

4. Grounds for appeal are that the judgment of the trial Court
is perverse and contrary to the facts and the law. The learned
trial Court committed error in holding the prosecutrix minor only
on the basis of school certificate mentioning her date of birth
20/10/1995, while this certificate was not proved. Neither the
Principal of the school, who issued this certificate has been
examined before the Court nor original scholar register was
produced by the prosecution. Father and mother of the
prosecutrix has not been examined before the learned trial Court,
though they are alive. Ossification test as directed by the High
Court has not been conducted by the prosecution and no such
report was produced before the learned trial Court. The
prosecutrix was a consented party, as she has admitted in para
28 to 31. Further allegation of rape is also not supported by the
medical evidence or the statement of Dr. Sonali Goyal – PW/9, as
Cr.A. No.1082/2012 3
Shankarlal S/o Shyamlal vs. State of M.P.

she has stated that no definite opinion can be given in this
regard, therefore, conviction of the appellant is not proper and he
is entitled for acquittal.

5. Per contra, learned Public Prosecutor has supported the
judgment of the trial Court.

6. In para 23 to 27 31, the prosecutrix has stated thus :-

**23- eSa u;kxkao ls tc xbZ rc jkr dks ‘kfu egkjkt esa gh
:dh FkhA diklu ls ‘kke dks Vsªu esa jryke ds fy, cSBs FksA
fVdhV vkjksih us fy;k FkkA fVdhV ykbZu esa [kM+s gksdj fy;k
Fkk ykbZu esa dkQh HkhM+ FkhA ;g dguk lgh gS fd vfHk;qDr
tc fVdhV ys jgk Fkk rc esa vfHk;qDr dk bartkj dj jgh
FkhA jsYos LVs’ku ij Hkh cgqr lkjs yksx FksA ge fjtZo’s ku ls
ugha x, FksA
24- ge yksx tuZy cksxh ls x, Fks ftlesa lHkh yksx cSBrs
gSA Vsªu esa gesa txg fey xbZ FkhA iqjh jkr dk lQj diklu
ls jryke rd dk FkkA ;g dguk lgh gS fd eS vkjke ls
cSBdj xbZ lksrs gq, ugh xbZA ge jryke lqcg vkB cts
igqps FksA geus jsYos LVs’ku ij gh uk’rk fd;k FkkA ge jsYos
LVs’ku ls ykWt esa x, FksA ykWt esa ‘kke dks x;s FksA ge
fnuHkj jsYos LVs’ku ij gh jgs FksA geus jsYos LVs’ku ij
ugkuk /kksuk ugh fd;k FkkA
25- ge yksx jsYos LVs’ku ij cl cSBs jgsA ;g dguk lgh
gS fd jsYos LVs’ku ij cgqr ls yksx Fks cgqr lh xkM+h;k vkbZ
vkSj xbZA ;g dguk lgh gS fd geus fnu esa [kkuk Hkh jsYos
LVs’ku ij gh [kk;k FkkA ykWt esa ge yksx vkVks esa cSBdj
x, FksA vfHk;qDr us izdk’k vkSj y{eh uke esjs lkeus gh
fy[kok;k FkkA eSus xyr uke fy[kokus ds laca/k esa vfHk;qDr
dks euk ugha fd;kA
26- ge yksx jkr Hkj ykWt esa gh jgs FksA eSa ykWt esa :dus
ds ckn ugkbZ /kksbZ ugha FkhA ;g dguk lgh gS fd ge ykWt
esa vanj ls rkyk yxkdj ugha :ds FksA
27- geus ykWt esa [kkuk ugha [kk;kA ge [kkuk [kkus ykWt
ds ckgj x, FksA ge [kkuk [kkdj vk/ks ?k.Vs esa okil vk x,
FksA geus gksVy esa [kkuk [kk;k FkkA
uksV % lk{kh us Lor% dgk fd eS vfHk;qDr ds lkFk jguk
pkgrh gWwA
31- ;g dguk lgh gS fd eSa vkjksih ds lkFk jkth[kq’kh xbZ
Fkh vkSj jkth[kq’kh okil vkbZA ;g dguk lgh gS fd
Cr.A. No.1082/2012 4
Shankarlal S/o Shyamlal vs. State of M.P.

vfHk;qDr us esjs lkFk dksbZ tcjnLrh ugha dhA ;g dguk
lgh gS fd vfHk;qDr us esjs lkFk cykRdkj ugha fd;kA lk{kh
us Lor% dgk fd eSa vfHk;qDr ds lkFk ;gk ls tkuk pkgrh
gWwA**

7. Otherwise also ample evidence is available in the cross-
examination of the prosecutrix, which is more than sufficient to
establish that she was a consenting party, as she has admitted
that she went with the appellant voluntarily on his motor-cycle
and during their journey from the village upto Ratlam, she had
plenty of opportunities to call for help but she did not avail
them. On the contrary, she has admitted that she was with the
accused on her own will, therefore, there was no doubt that
prosecutrix was consenting party.

8. Now, the only question remains as to what was the age
of the prosecutrix on the date of the incident. In this regard,
the prosecution has only produced certificate – Ex.P/21 issued
by Principal of Government Girl’s Middle School, Nayagaon,
District-Neemuch certifying her date of birth as 20/10/1995, on
the basis of scholar register of the school but neither the
Principal was examined before the trial Court nor original
scholar register was produced or proved by the prosecution.
This document is exhibited by the Investigating Officer –
Avinash Shrivastava – PW/11 who has only stated that he
obtained certificate from the Principal. Equally important fact is
that the father and mother or any elder member from the
family of the prosecutrix has not been examined by the
prosecution before the trial Court. No explanation was put-
forth by the prosecution for the lapse. Undoubtedly, this lapse
is fatal to the case of prosecution.

Cr.A. No.1082/2012 5

Shankarlal S/o Shyamlal vs. State of M.P.

9. Though the prosecutrix has stated that in the mark-sheet
of primary examination, 2009, her date of birth is mentioned
as 20/10/1995 but she has stated that her age is more than
that mentioned in the mark-sheet and that her parents have
mentioned her age in the mark-sheet on the lesser side. She
has admitted that her age may be 18 years. As stated above,
parents have not been examined by the prosecution, though
they are alive. Perhaps in such circumstances while granting
bail in M.Cr.C. No.465/2010 this Court has directed to conduct
ossification test of the prosecutrix but such ossification has
never been conducted. This fact is also noticed by the learned
trial Court in para 4 of the judgment. This further strengthened
the doubt regarding the age of the prosecutrix.

10. In Rajkumar and another vs. State of Chhattisgarh
2016 Cri.L.J. (NOC) 267 (CHH.), it is held that certificates
mentioning date of birth of prosecutrix cannot be held proved
in absence of examination of its author.

11. In Raju vs. State of M.P. this Court passed order dated
22/03/2018 in Cri. Appeal No.1644/2015, para 10 of the
judgment is relevant, which reads thus :

10. The Hon’ble Supreme Court while dealing with
the almost similar matter in the case of State of
M.P. Vs. Munna, (2016) I SCC 696, para 6 to 13
has held as under:-

“6. The High Court while setting aside the
Trial Court judgment rightly appraised the
evidence on record and held that the sexual
intercourse was consensual. In her
statement the prosecutrix (PW5) states that
she was sleeping between her mother and
Cr.A. No.1082/2012 6
Shankarlal S/o Shyamlal vs. State of M.P.

brother and the accused had reached her
after hopping over them and he dragged
her into another room on the point of a
knife. However, sneaking in with such ease
is highly doubtful. Evene if the accused
made it through to the prosecutrix, it seems
unnatural that the prosecutrix was not
alarmed by the knife upon being awaken
from her sleep. It is also to be noted that
the prosecution never recovered any knife.

Further examination of the statement of
PW5 that the accused and the prosecutrix
remained in the room for couple of hours
and it was only when her mother and elder
sister came searching for her that the
prosecutrix was found in the room with the
accused, hiding behind the bags. The above
narration leads to the inference that the
prosecutrix was a consenting party.

7. Section 375 (as it stood before the
Criminal Law Amendment Act, 2013) of the
Indian Penal Code, 1860 states –

“375. Rape – A man is said to commit ‘rape’
who, except in the case hereinafter
excepted, has sexual intercourse with a
woman under circumstances falling under
any of the six following descreiptions :-
Sixthly – With or without her consent, when
she is under sixteen years of age.”

In light of the aforementioned provision, the
second issue regarding the determination of
age of the prosecutrix is crucial to establish
whether the respondent is liable for rape or
not.

8. To prove its case, the prosecution
produced evidences including school
certificate, opinion of the doctor who
conducted medical examination of the
prosecutrix, bonee ossification test, but the
High Court held that none of them could
bring home the case of the prosecution. The
Cr.A. No.1082/2012 7
Shankarlal S/o Shyamlal vs. State of M.P.

prosecution produced school certificate of
the prosecutrix and examined the Principal
of Babu Manmohandas Hitkarini Girls Higher
Secondary School, Dixitpura (PW1), where
the prosecutrix studied in her 9th standard.
In his cross-examination, PW1 stated that
the age of the prosecutrix was noted at the
time of admission but he had no knowledge
about the fact as to what date of birth
would have been mentioned in her letter of
declaratikon. The examination-in-chief of
PW8 (Dr. Nisha Sahu) does not support the
prosecution story. In her opinion, the girl
could not have attained the age of 14 years,
but further in her examination-in-chief and
cross-examination, she stated that she could
not opine about the present intercourse.
Other findings of PW8 are mere opinions
and cannot be relied upon completely to
establish the guilt of the accused.

9. From the X-ray report of the
ossification test, the doctor opined that the
age of the prosecutrix could not be more
than 14 years. However, since the doctor
was never examined, the X-ray report is not
sufficient to prove the age of the
prosecutrix. The prosecutrix was examined
as PW5 but the prosecutrix failed to question
the prosecutrix on her age, therefore no fact
could be gathered from her regarding the
issue of age. PW6 malti devi mother of the
prosecutreix was examined where she stated
the age of prosecutrix to be 13 years.

However, in her cross-examination, she
stated that her marriage was performed
about 20 years ago and after two years of
her marriage the elder daugher (sunita) was
born, and 2-3 years thereafter the
prosecutrix was born. It means that the
prosecutrix was aged about 15-16 years at
the time of the incident. But this is not
Cr.A. No.1082/2012 8
Shankarlal S/o Shyamlal vs. State of M.P.

sufficient to come to any conclusion about
the exact age of the prosecutrix. It appears
that the Ossification test x-ray report is not
sufficient to prove the age of the girl.
Further, the mother of the prosecutrix also
was not able to give the exact age of the
prosecutrix. No question was also asked to
the prosecutrix by the prosecution about her
age. Taking into account all these facts, the
High court correctly came to the conclusion
that the prosecution has totally failed to
prove beyod reasonable doubt that the girl
was less then 16 years of age at the time of
the incident. Therefore, the high court
presumed that the girl was more than 16
years of age was competent to give her
consent.

10 this court in the case of Birad mal
singhvi V. Anand purohit, (1988) supp. SCC
604, has held:

17. …. the entries regarding dates of birth
contained in the scholar’s register and the
secondary school examination have no
progative value, as no person on whose
information the dates of birth of the
aforesaid candidates were mentioned in the
school record was examined. ”

11. Further it was held by this court in the
case of sunil v. State of haryana that : (SCC
p. 750, para 26)
“26. …. In a criminal case, the conviction of
the appellant cannot be based on an
approximate date which is not supported by
any record. It would be quite unsafe to base
convition on an approximate date.”

12. In view of the evidence on record and
the rationale in the aforementioned cases,
we are of a considered view that the
prosecution has totally failed to prove
beyond reasonable doubt that the girl was
less than 16 years of age at the time of the
Cr.A. No.1082/2012 9
Shankarlal S/o Shyamlal vs. State of M.P.

incident. Therefore, it can be held that the girl
was more than 16 years of age and she was
competent to give her consent as held by the
high court hence, in the present case, the
question of rape does not arise as consensual
intercourse has been proved.

13. Thus, in the light of the above discussion we
are of the view that the present appeal is devoid
of any merit, and we find no ground to interfere
with the judgment passed by the High Court.
The appeal is, accordingly, dismissed.”

12. It appears that substantial evidence has been withheld by the
prosecution for reasons to the best of their knowledge but certainly
it makes the case of prosecution suspicious and benefit of suspicion
or doubt will definitely go to the accused. The learned trial Court
has not considered all these evidence in right perspective,
therefore, conclusions of the learned trial Court are not sustainable
in the eyes of law.

13. The case of the prosecution is doubtful. The appellant is
entitled for benefit of doubt. Consequently, extending the same, I
acquit him from the charges under Section 363, 366 and 376 of IPC
by allowing the present appeal and setting-aside the judgment
and order dated 28/06/2012 passed in S.T. No.109/2009 by I ASJ,
Neemuch. Appellant be set at liberty forthwith, if not required in
any other case. Fine amount, if any deposited by the appellant, be
refunded him back. Motor-cycle, cash of Rs.960/- and Mobile Phone
be released to the appellant and his Supurdaginama stands
discharged.

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

(Virender Singh)
Judge
Aiyer*

Digitally signed by
Jagdishan Aiyer
Date: 2018.05.08 14:07:51
+05’30’

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