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
State of Madhya Pradesh
Shri Amitabh Bharti, counsel for the appellant.
Shri Akshay Namdeo, learned Government Advocate for the
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
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
(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
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
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
5. For disposal of this appeal the points for determination are as
(i) Whether prosecutrix was below 12 years of age on the date of
(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.
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
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
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.
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
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
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)
Digitally signed by RANJEET
Date: 2018.08.24 18:15:59 +05’30’