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HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR

Division Bench : Hon’ble Shri Rajeev Kumar Dubey, J. and
Hon’ble Smt. Anjuli Palo, J.

Criminal Appeal No.2454 of 2009
Sukhram
vs.
State of Madhya Pradesh
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Shri Amitabh Bharti, counsel for the appellant.

Shri Akshay Namdeo, learned Government Advocate for the

respondent/State.

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JUDGMENT

Reserved on : 04.08.2018
Delivered on : 24.08.2018

Per Rajeev Kumar Dubey, J.

This criminal appeal has been filed under Section 374 of the Cr.P.C.

against the judgment dated 22.12.2009 passed by Sessions Judge, Sagar in

Sessions Trial No.402/2009, whereby the learned Sessions Judge found

appellant guilty for the offences punishable under Sections 376 (2)(f), 366,

363 of IPC and sentenced him to life imprisonment with fine of

Rs.5000/-, ten years R.I. with fine of Rs.2000/- and seven years R.I. with

fine of Rs.2000/- with default stipulation.

2. In brief the prosecution case is that on 11.03.2009 at 04:00 PM, when

prosecutrix (name and identity of the prosecutrix imposed by law contained
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in section 228A of IPC is not disclosed) who was minor (below 12 years of

age) was standing near her house situated in the village Dhana, applicant

came to her and after giving inducement of payment took her to his house.

At that time there was nobody in the house. Appellant after bolting the door

of the room of his house undressed her and himself got undressed and

committed rape with her due to which blood oozed out from her vagina. He

wiped that blood from her panty. As prosecutrix shouted and wept, he left

her and gave her a ten rupee note and asked her not to tell anything to

anybody about the incident. Thereafter, prosecutrix (PW/1) went to her

house and narrated the incident to her mother Premrani @ Tulsa Bai (PW/2).

On that Premrani @ Tulsa Bai Bai (PW/2) went to appellant’s house along

with prosecutrix to reproach him. At that time, Pancham Chadar (PW/4),

Manoj Sen (PW/5) and Roopesh Mishra also came there. Prosecutrix

narrated the incident to them too and then prosecutrix’s parents’ took her to

Police Station Naryawali, District Sagar where she lodged the report of the

incident (Ex.P/1) which was written by Purushottam Kosti, Head Constable

(PW/11) who registered Crime No.51/2009 for the offence punishable

under Section 376 of IPC and investigated the matter. During investigation,

he seized ten rupee note from the possession of prosecutrix which was given

to her by the appellant and prepared seizure memo (Ex.P/2), sent prosecutrix

for medical examination to District Hospital, Sagar along with application

(Ex.P/12) where Dr. C.S. Stephen (PW/7) examined the prosecutrix and

gave MLC report (Ex.P/7). She also prepared slide of vaginal swab of

prosecutrix and seized her panty which was soaked with blood and sent

these articles to police station Naryawali through Constable Govind in

sealed packet. At the police station that packet was seized by the

Purushottam Kosti who prepared seizure memo (Ex.P/14). Further

investigation was conducted by Bharat Singh Thakur, Sub-Inspector

(PW/11) and during investigation he went to the spot and prepared spot map
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(Ex.P/3) and also arrested appellant and prepared arrest memo (Ex.P/6) and

on the information of appellant seized one blood soaked panty of the

prosecutrix and prepared memorandum (Ex.P/4) and seizure memo (Ex.P/5).

He also sent appellant to District Hospital Sagar for medical examination

along with application (Ex.P/16) where Dr. A.K. Kastwar examined the

appellant and gave report (Ex.P/10). He also seized his brief and sent it to

P.S.Naryawali in sealed packet which was seized by Bharat Singh Thakur

(PW/11) who prepared seizure memo (Ex.P/15). He also recorded the

statements of prosecutrix (PW/1), Premrani @ Tulsa Bai (PW/2), Preetam

(PW/3), Pancham (PW/4), Manoj (PW/5) and Roopesh Mishra. He also sent

all the seized articles for chemical examination to FSL, Sagar along with the

draft Ex.P/17. Dr. Jignesh Diwakar (PW/9) conducted ossification test of

prosecutrix regarding estimating her age and gave report (Ex.P/11) to the

effect that prosecutrix was below 12 years of age. After investigation police

filed charge sheet against the appellant before Judicial Magistrate First Class

Sagar, who committed the case to the Court of Sessions. On that

S.T.No.402/2009 was registered which was tried by learned Sessions Judge

Sagar and framed the charge against the appellant for the offences

punishable under Sections 363, 366 (A), 376 (2)(f) of IPC. The

appellant/accused abjured his guilt and took the defence that he is innocent

and has falsely been implicated in the case. In this regard he also produced

Jeewan Dhanak (DW/1) in his defence. However, after trial learned Sessions

Judge found the appellant guilty for the offences punishable under Sections

363, 366 376(2)(H) of IPC and sentenced him as aforesaid. Being

aggrieved from that judgment, appellant filed this Criminal Appeal.

3. Learned counsel for the appellant submitted that prosecution did not

produce any reliable evidence regarding proving the age of the prosecutrix at

the time of incident. Her mother Premrani @ Tulsa Bai (PW/2) did not
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depose anything regarding her age. From the statement of Premrani @ Tulsa

Bai (PW/2) mother of the prosecutrix it appears that at the time of incident

prosecutrix was studying in class fifth. But prosecution did not produce

school entry register or any other document for proving her age. Learned

trial court only on the basis of ossification test report held that the

prosecutrix was below 12 years of age at the time of incident. While on the

basis of ossification test, only approximate age can be stated, which has a

difference of upto 2 years. Even in the ossification test report, it is

mentioned that the age of the prosecutrix was between 9 to 12 years. It is

submitted that giving the benefit of 2 years, the age of the prosecutrix comes

to 14 years. Learned trial court without appreciating these facts wrongly

found that at the time of incident the prosecutrix was below 12 years of age.

So conviction of the appellant under Section 376 (2)(f) is not proper and bad

in law. It is further submitted that regarding rape also there are many

contradictions and omissions in the statements of prosecutrix and her

parents. They all are of the same family and interested witnesses. According

to prosecution story, appellant committed rape with the prosecutrix in his

house at 04:00 PM. But appellant’s house is situated in a populated locality.

It is surprising that in the noon around 4 o’clock nobody saw the appellant

and the prosecutrix going to the place of incident. Learned Trial Court

without appreciating these facts wrongly found the appellant guilty for the

aforesaid offence. Hence, counsel prayed that the impugned judgment be set

aside and the appellant be acquitted of the said offences.

4. On the other hand, learned counsel for the respondent/State has

vehemently opposed the submissions of the learned counsel for the appellant

and fully supported the judgment of the Trial Court and submitted that in the

ossification test report estimated age of the prosecutrix is mentioned to be

below 12 years. So, learned trial Court did not commit any mistake in
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finding that the prosecutrix was below 12 years of age at the time of incident

and regarding incident the statement of prosecutrix is corroborated by the

statement of her mother Premrani @ Tulsa Bai (PW/2) father Preetamlal

(PW/3) and other witnesses and also corroborated by the statement of

Dr.S.C. Stephen (PW/7) who examined the prosecutrix soon after the

incident. So learned trial court did not commit any mistake in finding the

appellant guilty for the aforesaid offences and prayed for rejection of the

appeal.

5. For disposal of this appeal the points for determination are as

follows. :-

(i) Whether prosecutrix was below 12 years of age on the date of

incident.

(ii) Whether on 14.03.2009 at about 4 PM appellant abducted prosecutrix

and took her to his house and where he committed rape with her.

6. As regard to the age of the prosecutrix at the time of incident, Dr.

Jignesh Diwakar (PW/9) who gave ossification test report (Ex.P/11) deposed

that on 14.03.2009 he was posted as Medical Officer in District Hospital,

Sagar and took x-ray of the prosecutrix’s wrist, right elbow, right hip and

right Knee for determination of her age. In the x-ray he found that

(i) The epiphysis of head of radius bone had begun to show, which appeared

at the age of 6 years,

(ii) The epiphysis of lower and of ulna bone had begun to show, which

appears at the age of 8 years.

(iii) The epiphysis of olecranon process had begun to show, which appears

at the age of 9 years.

(iv) pisiform bone was not seen which appears at 12 years of age,

(vi) epiphysis of iliac crest was not seen which appears at 14 years of age.
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7. On that basis he ascertained the age of the prosecutrix above 9 years

and below 12 years. Learned counsel for the appellant submitted that the

age estimated on the basis of ossification test is not the exact age, there is a

possibility of margin of error of two years, in that estimated age and the

view in favor of the appellant/accused should be taken into consideration. So

it should be held that on the date of incident, the prosecutrix was above 12

years of age. But the submission made by the learned counsel of the

appellant cannot be accepted. There is no hard and fast rule, that the said

margin of two years should always be taken on the higher side. Whether the

margin of error of two years, is to be taken on lower side or on higher side,

would depend on the facts and circumstances of each case. Apex court in the

case of Ram Suresh Singh Vs. Prabhat Singh reported in (2009) 6 SCC

681 held “We are not oblivious of the fact that it is difficult to lay down a

law as to whether in a case of this nature, the lower or the upper age or the

average age should be taken into consideration. Each case depends on its

own facts.”

8. In this case appellant did not challenge the statement of Dr. Jignesh

Diwakar (PW/9) regarding the estimated age of the prosecutrix. Although

prosecution did not produce school admission register for proving her age.

But prosecutrix (PW/1) herself and her father Pritam Lal (PW/3) deposed

that the age of the prosecutrix was 11 years at the time of incident. Appellant

also did not challenge their statements on that point in his cross-

examination. Learned Trial Court also estimated prosecutrix’s age as 11

years as mentioned in the deposition sheet. Even Lady Doctor Dr.C.S.

Stephen (PW-7) who examined the prosecutrix soon after the incident also

deposed that in the examination of prosecutrix she found that her secondary

sex characters were not developed. Her menstruation had also not started.

She also mentioned her age as 11 years in her report. So in the considered
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opinion of this Court, learned trial court did not commit any mistake in

finding that at the time of incident prosecutrix was below 12 years of age.

9. Regarding incident, prosecutrix in her statement clearly deposed that on

the date of incident at 04:00 PM when she was standing near her house

applicant came there and took her to his house and after bolting the door of

the room he committed rape with her due to which blood was oozing out

from her private part. Applicant wiped out that blood by his brief and

thereafter he gave her a ten rupee note and told her to go to her house.

Thereafter, she came to her house and narrated the incident to her mother.

Her parents took her to police station Naryawali for lodging the report where

she lodged the report (Ex.P/1). In this regard, her statement is also

corroborated by the FIR (Ex.P/1) which was also proved by Purushottam

(PW/10) who wrote that FIR. Her statement is also corroborated by the

statement of her mother Premrani @ Tulsa Bai (PW/2) who deposed that

after the incident as prosecutrix came to her house her clothes were stained

with blood and she hold her that appellant had committed rape with her. On

that she informed her husband and by the statement of Preetam (PW/3)

father of the prosecutrix who also deposed that on the information he

reached his house where he saw that prosecutrix’s clothes were stained with

blood where she narrated the incident and told that appellant had

committed rape with her and also supported by the statements of Manoj

(PW/5) who also deposed that on the date of incident prosecutrix narrated

the incident to him that applicant had committed rape with her and also

deposed that he had seen the prosecutrix coming out from the house weeping

after the incident and by the statement of Pancham (PW/4) who deposed that

soon after the incident mother of the prosecutrix Premrani @ Tulsa Bai

(PW/2) came to appellants’s shop along with the prosecutrix and told him

that appellant had committed rape with her daughter.

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10. Regarding rape prosecutrix’s statement is also corroborated from the

statement of Dr. C.S. Stephen(PW-7) who examined the prosecutrix soon

after the incident and gave report (Ex.P/7). She deposed that on 12.03.2009

she was posted as Medical Officer at CHC Khurai, District Hospital Sagar

and on the said day she examined the prosecutrix and found following

injuries on her body. Her general condition was not good. She was in semi

conscious state and in the internal examination she found that her secondary

sex characters were not developed. Her menstruation had also not started.

Blood was continuously oozing from her vigina and her hymen was torn up

and there was repeated bleeding on touching. The internal part of vagina

was also torn up more than second degree. Between the anus and torn part, a

little bit space remained. Rectum was also torn and it was a bleeding from it.

She further deposed that in her opinion there was a high probability of rape.

In this regard her statement was also corroborated from the report (Ex.P/7).

She also denied from the suggestion given by the appellant in her cross

examination that injury found by her in the genitals of the prosecutrix could

be caused, due to fall on a sharp thing.

11. Although appellant took the defence that he has falsely been

implicated in the case because of quarrel with prosecutrix’s father Preetam

on the date of incident with regard to which he also produced Jeevan (DW/1)

in his defence, But jeevan (DW/1) only deposed that on the date of incident

he heard that a quarrel took place in between Sukhram and Preetem, but he

is only a hearsay witness. So the statement of Jeewan (DW/1) is not

admissible in evidence. There is no other evidence on record to show that

the prosecutrix wrongly implicated the appellant in the crime. If appellant

did not commit rape with the prosecutrix why she would falsely implicate

him. On the point that at the date of incident appellant abducted prosecutrix

from near her house, where she was standing and took her to his house
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where he committed rape with her. The statement of prosecutrix (PW/1) is

also corroborated by the statement of her mother Premrani @ Tulsa Bai

(PW/2) father Preetam (PW/3) and the medical evidence also. Regarding

incident prosecutrix’s statement is also corroborated by the statement of

Manoj (PW/5) and Pancham (PW/4) who are the independent witnesses.

12. There is no infirmity in the statements of above mentioned witnesses.

There is no evidence on record which shows that these witness had any

animosity with the appellant or any other reason to falsely implicate

appellant in the crime. Appellant cross examined all these witnesses at

length but nothing came out in their cross examinations which could show

that these witnesses gave false statements against appellant. So there is no

reason to disbelieve their statements regarding the incident.

13. From the prosecution evidence as discussed above, it is clearly proved

that on 14.03.2009 at about 4 PM appellant abducted prosecutrix who was

below 12 years of age and took her to his house and where he committed

rape with her. So in the considered opinion of this Court learned trial court

did not commit any mistake in finding appellant guilty for the offences

punishable under sections 376(2)(f), 366 363 of IPC.

14. Learned Trial Court awarded the appellant with the sentence of life

imprisonment with fine of Rs.5000/-, ten years R.I. with fine of Rs.2000/-

and seven years R.I. with fine of Rs.2000/- with default stipulation

respectively looking to the gravity of offence that appellant committed rape

with the prosecutrix who was below 12 years of age and the injuries

sustained by the prosecutrix in the incident in her private parts as mentioned

above. The sentence awarded by the trial court is also appropriate and there

is no need to interfere with the sentence. Hence, appeal filed by the

appellant/accused stands dismissed. The appellant, who is in the custody,

shall serve the remaining part of the sentence, in accordance with law. All
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the jail sentences shall run concurrently. The period already undergone shall

be set off from the period of substantive jail sentence.

15. Accordingly, the appeal stands dismissed.

(Rajeev Kumar Dubey) (Smt. Anjuli Palo)
Judge Judge
(ra)

Digitally signed by RANJEET
AHIRWAL
Date: 2018.08.24 18:15:59 +05’30’