Gopi Bai Varsha vs The State Of M.P.
2022 Latest Caselaw 59 MP

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    HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
BEFORE SINGLE BENCH : HON'BLE MR. JUSTICE ANIL VERMA, J.


                          CRA No. 1378 of 1999

         (GOPI BAI W/O BALARAM HARIJAN AND ANOTHER

                                         Vs

                          THE STATE OF M.P.)
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         Shri Mohd. Rafik Sheikh, learned counsel for the appellants
         Smt. Bharti Lakkad GA for the respondent/State.
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                                  JUDGEMENT

( Delivered on 03/01/2022)

Present Criminal Appeal under section 374 of Code of Criminal Procedure,1973 ( in short "Cr.P.C" ) has been preferred against the judgment dated 16/10/1999 passed by the 3 rd Additional Sessions Judge, Khargone (West Nimad) in Sessions trial no. 205/1997, whereby, the appellants have been convicted for the offence under sections 363 and 366 of Indian Penal Code, 1860 ( for shot" IPC") and sentenced to undergo five years RI with fine of Rs. 100/- on each count with usual default stipulation under each section.

2. Prosecution case in short is that on 01/12/1996, complainant Kalabai lodged FIR at police station- Mengaon stating that his minor daughter / prosecutrix was missing from home. She searched her everywhere, but in vain. On the basis of which, the police registered missing person report no. 11/1996. During investigation, the police recovered the prosecutrix from the possession of Kishanlal. She disclosed that the accused person abducted and took her to Jodhapur and kept in the house of Kishanlal. Accordingly, offence under sections 363 and 366 of IPC was registered against the accused persons. The prosecutrix was sent for medical examination. After completion of investigation, the police filed charge-sheet against all the appellants before Chief Judicial Magistrate, Khargone, who

committed the case to the Court of Session, which was later on transferred to 3rd Additional Sessions Judge, Khargone for trial. The trial Court, on the basis of the allegation made in the charge-sheet, framed the the charges under sections 363 and 366 of IPC.

3. All the appellants abjured their guilt and pleaded innocence in the trial Court. In order to bring home guilt, the prosecution examined as many as seven witnesses and placed EX P/1 to Ex-P/9 on record. Defence of the appellant/s was of false implication, but the accused person/ appellant did not examine any witness as defence witness. The trial Court, after considering the submissions advanced by learned counsel for the parties and scrutinizing the entire evidence available on record, convicted and sentenced the appellants as referred herein above.

4. Learned counsel for the appellant/s has submitted that the impugned judgment of the lower Court is contrary to law and facts on record. Learned trial Judge has not considered defence version and wrongly believed with the prosecution witnesses. There are material omissions and contradictions in the statements of the witnesses. Learned Court below has wrongly considered the prosecutrix as minor, even she was declared hostile and not considered the medical evidence about her age, therefore, it is prayed that present appeal be allowed and the appellants be acquitted from all the charges.

5. Per-contra, learned PL for the respondent/State has supported the impugned judgment of conviction by submitting that learned trial Court, on proper appreciation of evidence has recorded the evidence and the same does not call for any interference.

6. Heard learned counsel for the parties and perused the record of the trial Court due care.

7. The first question for determination is as to what was the age of the prosecutrix at the time of the incident, when she was alleged to have been kidnapped.

8. Kalabai (PW-3) , who is mother of the prosecutrix has deposited in her statement that the age of the prosecutrix may be 18 years and the incident was about 2 years old. Prosecutrix (PW-2) stated in her statement that her age was 16 years, when she was married at Deoli, thereafter, Jagdish took her with him. The statement of the prosecutrix was recorded before the trial Court on 05/02/1999 and she deposed her age to be 22 years and categorically stated that the alleged incident had occurred about 2-3 years back.

9. Both these witnesses were not in a position to mention exact date of birth of the prosecutrix. Age of any child is to assesses either by birth certificate, or entry in kotawari pustika, if the same is available. If such type of entries are not available, then educational record may be considered. Evidence of parents may also be considered for assessment of age and if such evidence is not reliable, then medical evidence has to be considered for consideration of age of child.

10. In the case of Jarnail Singh v. State of Haryana reported in (2013) 7 SCC 263, the Supreme Court has held as under:-

"22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforesaid 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care andd Protection of Childran) Act, 2000. Rule 12 referred to hereinabove 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 thirty 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;

(b) and 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 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 sub-rule (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.

" 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 for a child who is a victim of crime. For, in our view, there is hardly any difference in so far 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 PW-6. The manner of determining age conclusively, has been expressed in subrule (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 concerned child, 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 concerned child, on the basis of medical opinion.

As per Rule 12 of Juvenile Justice (Care and Protection of Children) Rules,2007, the following documents are required for determination of age :-

(a) (i) Matriculation or equivalent certificates, if available; and in the absence whereof; (ii) 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 corporation or municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) and (iii) of clause a a above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child.

11. In the present case, birth certificate, Kotwari Pustika and school certificate of the prosecutrix are not available. Prosecution has examined Dr. Ashok Somani (PW-5) regarding ossification test for ascertaining the age of the prosecutrix. Dr. Ashok Somani has deposed in his statement that age of the prosecutrix may be between 13 years to 18 years at that time. Report was given on the basis of the fusion of various joints. The trial Court tried to compute the age of the prosecutrix on the basis of the ossification test report of the prosecutrix given by Dr. Ashok Somani. If that report Ex.-P/8 and x- ray report Ex.-P/9 are perused, then it would be cleared that these reports are given on the basis of fusion of joints. Dr. Ashok Somani has categorically deposed in his cross-examination that there may be

margin of arrears of two years in age ascertained by radiological examination, which is to be assigned by either side. Thus, it is apparent that keeping in the aforesaid principle that the Radiologist has stated that the age of the prosecutrix may be between 13 years to 18 years. If margin of arrears of two years is calculated, then the age of the prosecutrix may be more than 18 years at the time of the incident. Thus, in this aspect, the approach and findings of the trial Court holding the age of the prosecutrix below 16 years being contrary to the record, deserves to be and hereby set aside. Thus, age of the prosecutrix is held to be more than 16 years at the time, the alleged incident occurred.

12. After ascertaining the age of the prosecutrix to be more than 16 years, now, it is proceeded to appreciate the evidence and examine the sustainability of the impugned conviction and sentence of the appellants. According to the missing person report no. 11/1996 lodged by Kalabai (PW-3), mother of the prosecutrix, initially it was recorded by head constable Rajaram (PW-1).

13. Now, examining the matter in light of the deposition of the prosecutrix (PW-2) herself, mere perusal of the examination-in- chief, it is apparent that she was taken away by Jagdish with her consent. The prosecutrix turned hostile and not supported the prosecution case. She categorically stated in her statement that she was not called by the appellants. Satish did not took her to Indore where appellants Gopibai and Varsha met them. The accused persons did not take her to Jodhapur to sell her. The prosecutrix categorically stated that the appellants did not commit any offence with her. All the things had been done by Jagdish, therefore, it is established that the prosecutrix did not state anything against the appellants/accused persons for the alleged offence.

14. Mother of the prosecutrix, Kalabai (PW-3) stated in her statement that Gopibai took her minor daughter / prosecutrix with her consent, but she did not come back till evening, then she searched out her everywhere, but in vain. Thereafter, she lodged missing person report at police chowki. After one month, Jagdish informed her

that her daughter is in Rajasthan. When she went there with police, the police recovered the prosecutrix and the prosecutrix narrated before her that she was taken by accused Gopibai. Jagdish (PW-4) has not supported the prosecution version and turned hostile. He denied that the prosecutrix was abducted and kidnapped by appellants Gopibai, Varsha and co-accused Satish.

15 Kishanlal (PW-7) has deposed in his statement that in the year 1996, Gopibai came to meet to him with a girl, whose name was Suman. He told Gopibai to search any suitable girl for marriage of his son, then Gopibai came with prosecutrix and let her in his home. When mother of the prosecutrix came there with police, then the police took that girl with them.

16. After perusal of the statement of this prosecution witness, it appears that there are so many material contradictions and omissions in their statements. All the witnesses have narrated different story and it is noteworthy to state that the prosecutrix herself turned hostile and not supported the prosecution version and testimony of other witnesses also. In the above circumstances, the approach and findings of the trial Court holding that the appellants had abducted the prosecutrix without her wishes, with intention to sell out her, are not sustainable and deserves to be set aside.

17. The prosecutrix (PW-2) herself has categorically stated in her cross-examination that earlier, she was married at Deoli, but when she went with Jagdish, therefore, her husband left her, then her mother handed over her to Shankar Patidar. She resided with him for one month. After two years, she lived with Mahendra Balai at Sendhwa for four months. Thereafter, she was taken to Shyamlal at Ujjain, where she lived with him for five months. Thereafter, she lived with Gahesh at Indore for four months. The prosecutrix specifically narrated that she was sent by her mother to all these places and her mother took money from the concerned person every time. Kalabai (PW-3) also admits in her cross-examination that initially, she sent the prosecutrix at Deoli, where she lived about 15 days, thereafter, she sent the prosecutrix at Sendhwa and for this, she received Rs. 3000/-.

Thereafter, she sent the prosecutrix to Ganesh at Indore for a period of one month and for this also, she received Rs. 3000/-. On perusal of the statements of the prosecutrix and her mother Kalabai, it appears that the prosecutrix and her mother both were involved in immoral trafficking and prostitution, therefore, their statements become doubtful.

18. Learned counsel for the appellants contended that due to previous enmity, the appellants were implicated in this false case. Mother of the prosecutrix Kalabai (PW-3) admits in her cross- examination that there was dispute between them and due to which court litigation was going on. The prosecutrix also admits that there was old enmity between her mother and accused Gopibai and due to which, accused Gopibai was falsely implicated in this case.

19 Statements of the aforementioned witnesses prove that all the appellants have been falsely implicated in the present case by the mother of the prosecutrix due to their old enmity . Cumulative effect of these evidence goes to show that the prosecution has failed to prove the offence punishable under sections 363 and 366 of IPC against the appellants.

20. Under these circumstances, this Court is of the considered opinion that the prosecution has failed to prove that the prosecutrix was abducted or kidnapped by the appellants/accused persons. The trial court has not properly appreciated the evidence available on record and wrongly convicted and sentenced the appellants for the aforementioned offences. The trial Court has committed grave error and illegality in convicting the appellants for the offence punishable under sections 363 and 366 of IPC and sentencing them to undergo five years rigorous imprisonment with fine of Rs. 100/- on each count with default stipulation.

21 Consequently, present criminal appeal is allowed and the impugned judgment dated 16/10/1999 passed by the 3 rd Additional Sessions Judge, Khargone (West Nimad) in Sessions trial no. 205/1997 is hereby set aside. All the appellants namely Gopibai and Varsha are acquitted from the charges punishable under sections

363 and 366 of IPC. The appellants are on bail and their bail bonds and personal bonds are hereby discharged.

22. Present Criminal Appeal stands disposed of accordingly.

23. Let the record of the trial Court along with a copy of this judgment be sent to the trial Court concerned for information and necessary compliance.

CC as per rules.

( ANIL VERMA) JUDGE

amol

Digitally signed by AMOL N MAHANAG Date: 2022.01.03 17:53:39 +05'30'