Pinki vs The State Of Madhya Pradesh
2021 Latest Caselaw 2747 MP

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                                                                 CRA-764-2016

              HIGH COURT OF MADHYA PRADESH
                     BENCH GWALIOR

                        SB : Justice G.S. Ahluwalia

                      Criminal Appeal No. 764/2016

                                    Pinki
                                     Vs.
                          State of Madhya Pradesh


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Shri A.K. Jain, Counsel for the appellant.
Shri Alok Sharma, Counsel for the State.
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Date of hearing                              : 17.06.2021
Date of judgment                             : 28.06.2021
Whether approved for reporting               : Yes

                             JUDGMENT

(Passed on 28.06.2021)

This criminal appeal under Section 374 of CrPC has been filed

against the judgment and sentence dated 04.08.2016 passed by

Additional Sessions Judge, Karera, District Shivpuri in S.S.T.

No.16/2015, by which the appellant has been convicted under

Section 4 of Protection of Children from Sexual Offences Act, 2012

and has been sentenced to undergo rigorous imprisonment of 10

years and a fine of Rs.5,000/- with default imprisonment of three

months.

2. At the outset, counsel for the appellant submitted that since the

appellant is in jail from 24.02.2015 and he has completed more than

seven years including remission, therefore, he may be sentenced to

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the period already undergone by him.

3. The submission made by the counsel for the appellant cannot

be considered unless and until the case is considered on merits.

However, the counsel for the appellant did not argue on merits and

stick to his submission that the appellant may be punished with the

period already undergone by him. In the light of judgment passed by

the Supreme Court in the case of Nagpal Traders Vs. Davinder

Singh reported in (2017) 11 SCC 431, the question of sentence

cannot be decided unless and until the appeal is decided on merits.

Accordingly, this Court is left with no other option but to consider

the merits of the case on its own after going through the record.

4. According to the prosecution case, on 23.02.2015 at about 6:00

PM the prosecutrix (PW-1) had gone with her cattles along with her

younger sister (PW-2) to Kumhargadha well for providing water to

her cattles. At that time the appellant came there and gave Rs.40/- to

the younger sister of the prosecutrix and instructed that she should

equally share with the prosecutrix. The appellant also suggested the

younger sister of the prosecutrix that she should stand there and

thereafter he caught hold the prosecutrix from behind and gagged her

mouth. He dragged her to a nearby place where the appellant

committed rape on the prosecutrix and also extended a threat that she

should not narrate the incident in her house, otherwise she would be

killed. Thereafter, the prosecutrix came back and informed the

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incident to her parents. Since it was already late in the night,

therefore, the FIR was lodged on the next day. The police prepared

the spot map. The prosecutrix was sent for medical examination. The

vaginal slide and undergarments of the prosecutrix as well as the

undergarments, pubic hairs and slide of the appellant were sent for

FSL report. The school record of the prosecutrix was seized. The

appellant was arrested and he was got medically examined and after

completing investigation, police filed the charge sheet for offence

under Sections 376(1), 506 (Part-II) of IPC and under Section 3/4 of

the POCSO Act, 2012.

5. The Trial Court by order dated 17.03.2015 framed the charges

under Sections 376(1), 506 (Part-II) of IPC and also under Section 4

of the POCSO Act, 2012.

6. The appellant abjured his guilt and pleaded not guilty.

7. The prosecution in order to prove its case, examined

prosecutrix (PW-1), her younger sister (PW-2), the father of the

prosecutrix (PW-3), Dr. Sunil Jain (PW-4), the mother of the

prosecutrix (PW-5), Dr. Anjana Jain (PW-6), Ramesh Chandra

Sharma (PW-7), Kaluram Parihar (PW-8), Smt. Anjana Khare (PW-9)

and Ravindra Singh Sikarwar (PW-10).

8. The appellant examined Santosh Jatav (DW-1) and Dr. M.L.

Agrawal (DW-2) in his defence.

9. The Trial Court after considering the ocular as well

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documentary evidence held that the age of the prosecutrix was 14

years and the prosecution has succeeded in establishing that the

prosecutrix was raped by the appellant and, accordingly, held the

appellant is guilty for offence under Section 376(1) of IPC and under

Section 4 of the POCSO Act but acquitted the appellant for offence

under Section 506 (Part-II) of IPC. Since the appellant was found

guilty for offence under Section 376(1) of IPC and under Section 4 of

the POCSO Act, therefore, in the light of Section 42 of POCSO Act,

no separate sentence was awarded for offence under Section 376(1)

of IPC and the appellant was sentenced for a rigorous imprisonment

of 10 years and a fine of Rs.5000/- with default imprisonment of

three months for offence under Section 4 of the POCSO Act, 2012.

10. The prosecutrix (PW-1) had claimed that she is the student of

Class 8th and she is aged about 14 years and her date of birth is

22.4.2001. It was further claimed that she resides with her parents.

About one and half months prior to the date of her examination, she

along with her younger sister had gone to a well and was giving

fodder and the appellant came there and gave Rs.40/- to her younger

sister and suggested that both the sisters should share Rs.20/- each

and instructed her younger sister to stand there. Thereafter, he caught

hold of her and took her to a nearby place where he committed rape

on her. He also extended a threat that in case if the incident is

narrated to anybody then he would kill her. Thereafter, the

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prosecutrix came back to her house and informed the incident to her

parents and since it was night and they were afraid, therefore, they

went to the police station on the next day and lodged the FIR Ex.P-1.

Thereafter, she was sent for medical examination. In cross-

examination it was accepted that the land of the prosecutrix as well as

the appellant is joint and the well is also joint. She denied that the

father of the prosecutrix had not returned the money of the father of

the appellant. She further stated that the incident took place at a place

which is about half km. away from her house. She further claimed

that although she was resisting but he did not run away. She further

denied that the false report was lodged on account of property

dispute.

11. The younger sister of the prosecutrix (PW-2) has supported the

evidence of the prosecutrix and accepted that the appellant had given

an amount of Rs.40/- to her and had instructed that both the sisters

should share with each other. However, this witness is not the witness

of rape.

12. The father of the prosecutrix (PW-3) and mother of the

prosecutrix (PW-5) have stated that the prosecutrix and her younger

sister had gone to well. After coming back from the well she

informed that she was raped by the appellant. In cross-examination,

the father of the prosecutrix denied that, false FIR was lodged due to

property dispute. He further denied that the age of the prosecutrix is

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more than 18 years.

13. Dr. Sunil Jain (PW-4) had medically examined the appellant

and found that the appellant is potent.

14. Dr. Anjana Jain (PW-6) had medically examined the

prosecutrix and prepared the MLC Ex. P-4. In medical examination,

it was found that hymen of the prosecutrix was torn with congestion

and slight tenderness was also found. A specific opinion was given by

this witness that penetration has taken place within a period of 48

hours. Vaginal slide of the prosecutrix was prepared and her panty

was seized. Undergarments of the appellant, pubic hairs and slide

were also seized and they were sent for FSL examination and as per

FSL report Ex. P-13 which was exhibited as per the provisions of

Section 293(i)(iv)(a) of CrPC. It was found that the panty of

prosecutrix, slide of prosecutrix, underwear of appellant and slide of

the appellant were containing semen and sperms.

15. Thus, it is clear that the ocular evidence of the prosecutrix was

corroborated by the medical evidence.

16. The Police has seized the school record of the prosecutrix in

support of her date of birth. According to the school record, her date

of birth was 22.02.2001, whereas the incident took place on

23.02.2015. Ramesh Chandra Sharma, P.W. 7, proved School

Admission Register, Ex. P-5C and also proved the certificate as Ex.

P.6.

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17. Thus, according to the school record, the prosecutrix was aged

about 14 years.

18. The appellant had examined Dr. M.L. Agrawal (DW-2) who

had conducted ossification test of the prosecutrix. The ossification

test report is Ex. D-1, according to which, the age of prosecutrix was

between 16 to 18 years.

19. Now the next question for consideration is as to whether the

ossification test report can be relied upon or not ?

20. Section 7A of the Juvenile Justice (Care and Protection of

Children) Act, 2000 [although this offence was committed in the

month of February, 2015, but the Juvenile Justice (Care and

Protection of Children) Act, 2015 came into force thereafter] reads as

under :

"7A- Procedure to be followed when claim of juvenility is raised before any court.-(1)Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary(but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub- section (1), it shall forward the juvenile to the Board

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for passing appropriate order, and the sentence, if any, passed by a court shall be deemed to have no effect."

21. Rule 12 of Juvenile Justice Rules, 2007 reads as under :

"12. Procedure to be followed in determination of Age.-(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of 30 days from the date of making of the application for that purpose.

(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat; and

(b) only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be

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available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."

22. It is clear from Rule 12(3) of the Juvenile Justice Rules, 2007

that the age of a juvenile shall be determined by seeking evidence by

obtaining (i) matriculation or equivalent certificates, if available, and

in absence whereof, (ii) date of birth certificate from the school and

in absence whereof (iii) the birth certificate given by Corporation or

Municipal Authority or a Panchayat and in absence of the documents

mentioned in Rule 12(3)(a), the medical opinion will be sought.

23. The Supreme Court in case of Jarnail Singh Vs. State of

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Haryana, reported in (2013) 7 SCC 263 has held that the age of a

juvenile victim can be assessed in the light of the provisions of

Juvenile Justice (Care and Protection of Children) Act.

It has been held as under :

23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub- rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion.

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24. Thus, it is clear that when the school record of the prosecutrix

is available, then it is not necessary to look into the ossification test

report of the prosecutrix. Furthermore, the ossification test is merely

a medical opinion which is subject to margin of error of two years on

either side. According to the ossification test report Ex. D-1, the

radio-logical age of the prosecutrix was in between 16 to 18 years

with margin of error of two years. According to school record of

prosecutrix, the age of prosecutrix was 14 years. Accordingly, if the

margin of two years is considered on a lower side, then it is clear that

even as per the ossification test report, radio-logical age of the

prosecutrix can be taken as 14 years.

25. Considering the totality of the facts and circumstances of the

case and after relying upon the school record of the prosecutrix, it is

held that on the date of incident, the prosecutrix was 14 years and

was minor.

26. The trial Court in paragraph 26 has held that since the

prosecutrix was aged about 14 years, i.e., less than 16 years,

therefore, her consent is immaterial. It appears that the Trial Court

lost sight of the fact that Section 375 of IPC was amended in the year

2013 and age under Section 375 sixthly of IPC was enhanced to 18

years.

27. Be that whatever it may.

28. One thing is clear that the prosecutrix was aged about 14 years

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and although the DNA was not conducted to find out as to whether

human sperms found in the vaginal slide of the prosecutrix were that

of the appellant or not, but considering the ocular evidence of the

parties, coupled with the medical evidence, it can be said that the

presence of human semen and sperms in the vaginal slide, further

corroborates the evidence of prosecutrix.

29. As per FSL report Ex. P-13 and the definite opinion given by

Dr. Anjana Jain (PW-4) in her MLC Ex. P-4, it is held that the

prosecution has succeeded in establishing beyond reasonable doubt

that he had raped a minor girl aged about 14 years.

30. Accordingly, the conviction of the appellant for offence under

Section 376(1) of IPC and under Section 4 of POCSO Act is hereby

affirmed.

31. The next question for consideration is as to whether the period

of custody undergone by the appellant can be said to be sufficient or

not ?

32. By Amendment Act 13 of 2013, the minimum sentence for

offence under Section 376(1) of IPC was enhanced to 10 years.

However, anomaly continued for punishment under Section 4 of

POCSO Act. Anomaly was realized at a later stage. By Amendment

Act No. 25/2019, the minimum sentence for offence under Section 4

of POCSO Act was also enhanced to 10 years.

33. It is submitted by the counsel for the appellant that the

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appellant has undergone the jail sentence of 7 years with remission.

34. Now the only question for consideration is as to whether the

appellant has undergone the minimum jail sentence or not ?

35. The Trial Court by impugned judgment dated 04.08.2016 has

found that the appellant is guilty of committing offence under Section

376(1) of IPC and under Section 4 of POCSO Act and considering

Section 42 of POCSO Act, held that since the appellant has been

found guilty of offence under POCSO Act, therefore, sentenced the

appellant for offence under Section 4 of POCSO Act. It is true that on

the date of conviction, the minimum sentence for offence under

Section 4 of the POCSO Act was 7 years but it is equally true that the

minimum sentence for offence under Section 376(1) of IPC was 10

years. The aforesaid anomaly was rectified by the Legislature by

amending POCSO Act in the year 2019. Under these circumstances,

when the minimum sentence for offence under Section 376(1) of IPC

was 10 years, this Court is of the considered opinion that the sentence

cannot be reduced to the period of sentence already undergone by the

appellant.

36. Accordingly, the solitary contention made by the counsel for

the appellant for reduction of sentence to the period already

undergone is hereby rejected.

37. As a consequence thereof, the judgment and sentence dated

04.08.2016 passed by the Special Judge (POCSO Act), Karera

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District Shivpuri in S.S.T. No.16/2015 is hereby affirmed.

Consequently, the appeal fails and is hereby dismissed.

38. The appellant is in jail. He shall undergo the entire jail

sentence awarded by the Trial Court.

39. Copy of this judgment may be supplied to the appellant free of

cost.

(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2021.06.28 10:56:59 +05'30'