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

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REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No(s). 2229 OF 2011

STATE OF MADHYA PRADESH Appellant(s)

VERSUS
PREETAM Respondent(s)

J U D G M E N T

R. BANUMATHI, J.:

(1) This appeal arises out of judgment and order dated 6th

January, 2010 passed by the High Court of Madhya Pradesh at

Jabalpur in Criminal Appeal NO.228 of 1995 in which the High

Court reversed the verdict of the conviction under Section 376

I.P.C. and also the sentence of imprisonment of seven years and

acquitted the respondent-accused.

(2) Despite service of notice, the respondent has not chosen

to appear and contest this appeal. Accordingly Ms. Nidhi,

Advocate, has been appointed by the Supreme Court Legal

Services Committee as amicus to contest the appeal on behalf of

the respondent.

(3) We have heard Ms. Swarupama Chaturvedi, learned counsel

appearing for the appellant-State and Ms. Nidhi, learned

amicus, and also perused the impugned judgment and the
Signature Not Verified

evidence/materials on record.

Digitally signed by
MAHABIR SINGH
Date: 2018.09.04
16:54:37 IST
Reason:

(4) The facts of the case in a nutshell are as follows. On 6 th

March, 1993 at about 9.00 p.m. the prosecutrix (PW-1) along
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with her two sisters i.e. Hirkanbai (PW-3) and Anitabai had

gone outside the village to a field to attend nature’s call and

while returning back the respondent-accused is alleged to have

forcibly taken the prosecutrix to the field and committed rape

on her.

(5) Since the Moti Ram (PW-2) who is father of Hirkanbai (PW-

3) and also uncle (chacha) of the prosecutrix was not in the

village, on his return a complaint was lodged on 8 th March,

1993. The prosecutrix was medically examined on 9th March, 1993

by Dr. U.S. Vasnik (PW-6), who has noted that the hymen of

prosecutrix was torn; swelling was present on the edges of torn

hymen. Dr. U.S. Vasnik (PW-6) has opined that though vagina of

the prosecutrix was admitted two fingers easily, the

prosecutrix felt pain and the doctor (PW-6) has opined that the

prosecutrix was subjected to sexual intercourse within 2-3 days

of examination.

(6) Based upon the evidence of prosecutrix (PW-1) and

Mangrulal (PW-4) who went to the place of occurrence after

having been told by Anita and saw the accused running from

there and also on the evidence of Dr. U.S. Vasnik (PW-6), the

trial court convicted the respondent-accused under Section 376

I.P.C. and sentenced him to undergo imprisonment for a period

of seven years.

(7) On appeal, the High Court has reversed the verdict of

conviction on the grounds:- (i) There was no external injury on
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the person of prosecutrix (PW-1) which is indicative of her

consent for the sexual intercourse and, therefore, the story of

forcible rape does not find support from the medical evidence;

(ii) There was delay in registration of the FIR.

(8) As pointed out earlier as per PW-6-Dr. Vasnik’s evidence

the hymen of the prosecutrix (PW-1) was torn and swelling was

present in the vagina having redness. Doctor has noticed that

even though vagina admitted of two fingers, the prosecutrix

felt pain which is suggestive that the prosecutrix was

subjected to sexual intercourse only in the occurrence.

(9) It is fairly well-settled that in the absence of external

injury on the person of the prosecutrix, it cannot be concluded

that the incident had taken place with the consent of the

prosecutrix. It depends upon the facts and circumstances of

each case. In B.C. Deva alias Dyava v. State of Karnataka,

(2007) 12 SCC 122, this Court has held that absence of injury

on the person of the victim of rape does not lead to an

inference that the accused did not commit forcible sexual

intercourse. It was further held that even in the absence of

external injury, the oral testimony of the prosecutrix that she

was subjected to rape, cannot be ignored.

(10) In the present case evidence of prosecutrix (PW-1) is

supported by the medical evidence and also by the evidence of

Mangrulal (PW-4) who saw the accused running away from the

scene of occurrence. Insofar as the consent of the prosecutrix
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(PW-1) pointed out by the High Court is concerned, we find it

difficult to agree with the view taken by the High Court. In

her chief examination, Dr. U.S. Vasnik (PW-6) has stated that

the age of the victim could be between 13 and 17 years. Of

course in her cross-examination, Dr. Vasnik has agreed to the

suggestion that the age of the victim could be 17 years.

(11) In our considered view, the answer elucidated in the

cross-examination of Dr. Vasnik (PW-6) cannot be taken as a

final opinion on the age of the prosecutrix (PW-1). It is to

be relevant to note that before the trial court the prosecution

has examined Bhaulal (PW-8), Head master/Head teacher of

Primary School Chor Pind Ke Par, District Balaghat. In his

evidence, Bhaulal (PW-8) has stated that the date of birth of

the prosecutrix (PW-1) was 16th May, 1981 which means that on

the date of the occurrence i.e. 6th March, 1993, the prosecutrix

(PW-1) was only aged about 12 years. The trial court has

neither acted upon the evidence of Bhaulal (PW-8) nor on the

school certificate on the ground that the person who has

admitted the prosecutrix in the school was not examined.

(12) In our considered view, the approach of the trial court

was not correct. In each and every case the prosecution cannot

be expected to examine the person who has admitted a student in

the school. The school registers are the authentic documents

being maintained in the official course, entitled to credence

of much weight unless proved otherwise. In our view,

considering the evidence of head master, Bhaulal (PW-8), and
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the school certificate produced by him i.e. Ex.P/13-A, age of

the victim has to be taken as 12 years at the time of

occurrence.

(13) Of course, Dr. U.S. Vasnik (PW-6) in her chief examination

has stated that the age of the prosecutrix would be between 13

and 17 years. At the most, adopting the doctor’s evidence, age

of the prosecutrix at the relevant point of time can only be

around 15 years. As per Section 375 I.P.C. a man is said to

commit rape, Sixthly – “With or without her consent, when she

is under sixteen years of age”. The prosecutrix being aged 12

years at the time of the occurrence, her consent or otherwise

was of no relevance to bring the offence within the meaning of

Section 375 I.P.C. In our considered view the High Court

ignored the material evidence adduced by the prosecution and

erred in reversing the conviction of the respondent-accused.

(14) So far as the other ground of acquittal – delay in

registration of the F.I.R. is concerned, it has come on the

record that the uncle of the prosecutrix, Moti Ram (PW-2), was

not in the village and returned back to the village only on 8 th

March, 1993 and on his return his daughter-Hirkanbai (PW-3),

has narrated the whole incident to him as to what happened to

the prosecutrix (PW-1) and a complaint was lodged on the same

day i.e. 8th March, 1993. After medical examination of the

prosecutrix (PW-1) on 9th March, 1993, F.I.R. was registered on

10th March, 1993 and the delay in registration of the F.I.R. has
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been properly explained, which has not been considered by the

High Court.

(15) The impugned judgment of the High Court reversing the

conviction of the respondent to acquittal, cannot be sustained

and the same is liable to be set aside and the judgment of the

trial court convicting the respondent under Section 376 I.P.C.

is to be restored. The trial court has sentenced the

respondent-accused to undergo imprisonment for a period of

seven years.

(16) Prior to the Amendment Act 13 of 2013 (w.e.f. 3 rd

February, 2013) under Section 376(1) I.P.C. the sentence of

imprisonment for a term shall not be less than 7 years

extending for life. However, as per the proviso to 376(1)

I.P.C. (prior to amendment) discretion is vested with the Court

to impose imprisonment for a term of less than seven years for

adequate and special reasons to be recorded in the judgment.

In this case, the occurrence was of the year 1993 i.e. about 25

years ago. Having regard to the passage of time and other

facts and circumstances of the case, the sentence of

imprisonment of seven years imposed on the respondent-accused

is reduced to a period of four years.

(17) Accordingly the appeal preferred by the State is allowed

and the conviction of the respondent-accused under Section 376

I.P.C. as passed by the trial court is restored. However, the

period of sentence of seven years, as noted above, is reduced

to four years.

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(18) In case the respondent has not already undergone the

sentence of imprisonment of four years, he is to surrender to

custody within a period of fours weeks from today to serve the

remaining sentence failing which he shall be taken to custody.

(19) A copy of this order be sent to the concerned trial court

for necessary action.

……………………..J.

(R. BANUMATHI)

……………………..J.

(VINEET SARAN)
NEW DELHI,
AUGUST 29, 2018.

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