Jagdish vs The State Of M.P.
2022 Latest Caselaw 12642 MP

                1

       IN THE HIGH COURT OF MADHYA PRADESH
                     AT INDORE
                             BEFORE
       HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH

                 ON THE 21st OF SEPTEMBER, 2022

              CRIMINAL APPEAL No. 480 of 1999

   BETWEEN:-
1. JAGDISH (MADHYA PRADESH)
   MADANLAL S/O BAGDIRAM PATIDAR, AGED ABOUT 23
2.
   YEARS, VILLAGE RANIPURA, (MADHYA PRADESH)
                                                   .....APPELLANT
   (BY SHRI JAVED KHAN, ADVOCATE)

   AND
   THE STATE OF M.P. (MADHYA PRADESH)
                                               .....RESPONDENTS
   (BY SHRI R.S.BAIS, GOVT.ADVOCATE)
      This appeal coming on for orders this day, the court passed the
following:

                             ORDER

This criminal appeal under Section 374 of Cr.P.C. has been preferred against the judgment dated 3.3.1999 passed by the Court of 2nd Additional Sessions Judge, Dhar in S.T.No.260/1998, whereby applicants have been convicted and sentenced for the offences punishable under Section 366 of IPC for five years' RI with fine of

Rs.2,000/- and under section 376(2)(G) of IPC for ten years' RI with fine of Rs.3,000/- each.

2. The prosecution case, in brief, is as follows :-

(i) On 2.2.1997 at about 7.30 hours complainant alongwith her sister-in-law Sugnabai, son Janaklal and minor daughter prosecutrix aged about 16 years was returning home from her agricultural field then appellants alongwith other co-accused persons came there on a Jeep bearing No.MP-09-S-1124, caught hold the prosecutrix and forcefully got her seated in the Jeep and when complainant objected, appellants alongwith other co-accused persons pelted stones on and caused injuries to her. Appellants alongwith co- accused persons took the prosecutrix with them for getting her married to appellant Jagdish. Complainant on the same day at about 20.00 hours went to police Station, Kanwan, District Dhar and made complaint against the appellants and co-accused persons on the basis of which Sub-Inspector K.S.Bundela lodged FIR Ex.P/1 against them for the offences punishable under Section 363, 366 and 336 r/w 34 of IPC.

(ii) Sub-Inspector Bishan Singh went to the place of occurrence, prepared spot map Ex.P/7, recovered the prosecutrix, get recorded her statement and sent her to Community Health Centre, Badnawar for medical examination, where Dr.Manorama Nigam medically examined her and found no external or internal injury except an abrasion on left side of her stomach as per MLC report

Ex.P/19. She collected and prepared her vaginal swab slide; sealed the same alongwith her cloths and handed over all the articles to Police official, who brought her to the hospital. During investigation appellants were arrested. Vehicle Jeep bearing No.MP-09-S-1124 used in the crime was seized as per seizure memo Ex.P/4 and after completion of investigation charge sheet was filed before the Court of Judicial Magistrate First Class, Badnawar, District Dhar, who committed the case to the Court of Sessions Judge, Dhar.

3. Learned Trial Court considering the material prima-facie available on record, framed the charges under Sections 363, 366, 376(2)(G) and 323/34 of IPC against the appellants and co-accused persons, who abjured their guilt and prayed for trial. In their statements recorded under Section 313 of Cr.P.C., they pleaded their false implication in the matter. In support of their defense, they did not examine any witness.

4. Learned Trial Court after appreciating the oral as well as documentary evidence available on record acquitted appellants and co- accused persons from the offences punishable under Section 363 and 323/34 of IPC and co-accused persons from the offence punishable under Section 366 and 376(2)(G) of IPC also, but convicted the appellants for the offence punishable under Sections 366, 376(2)(G) of IPC and sentenced them as mentioned in para-1 of this judgment. Being aggrieved with the said judgment of conviction and order of sentence, appellants have preferred this appeal for setting aside the

impugned judgment and discharging him from the charges framed against them.

5. Learned counsel for the appellants submits that prosecutrix was major at the time of incident and ossification test report attached with the charge sheet itself shows that at the time of incident she was more than 18 years, which has intentionally not been exhibited by the prosecution. Prosecutrix's brother (PW-4) admitted in his cross- examination that he saw the appellant Jagdish with her sister i.e. prosecutrix meeting and speaking each other at the well. Prosecutrix herself admitted that letters Ex.D/2 to D/4 were written by her to the appellant, which proves that she was having affair with appellant Jagdish. She went with appellant Jagdish on her own will and her family members were not inclined to marry her with the appellant Jagdish, this false case has been made against the appellants. Learned trial Court has committed error in holding the appellants guilty for the offences punishable under section 366 and 376(2)(N) of IPC. Impugned judgment is unsustainable, therefore, the same be set aside and appellants be discharged from the charges alleged against them.

6. Learned counsel for the respondent/State submits that prosecutrix was minor at the time of incident. Complainant as well as prosecutrix and other prosecution witnesses have supported the prosecution case. Prosecutrix was minor on the date of incident and appellants alongwith other co-accused persons forcefully took the

prosecutrix with them. Appeal is devoid of merit, hence the same be dismissed.

7. Prosecution in its support has examined in all 11 witnesses including prosecutrix (PW-1), her mother-complainant (PW-2), Aunt (PW-3) and her brother (PW-4) as eye-witnesses. Other material witnesses are Sub-Inspector K.S.Bundela (PW-7), who lodged the FIR, Sub-Inspector Bishan Singh (PW-8), who investigated the case and Dr.Manorama Nigam (PW-11), who medically examined the prosecutrix.

8. Prosecutrix (PW-1) as well as her mother (PW-2), Aunt (PW-3) and brother (PW-4), although in their examination-in-chief deposed that on the date of incident at about 17.00 - 17.30 hours when they were returning to home from their agricultural field, appellant Jagdish alongwith appellant Madan and co-accused persons came there in a Jeep, which was driven by appellant Madan. They caught hold of the prosecutrix and when complainant objected, they pelted stones on her and thereafter forcefully got her seated in the Jeep and had taken her with them. Prosecutrix (PW-1) further deposed that appellants threatened her and took her to village Raipuriya and several other places, where appellant Jagdish forcefully committed sexual intercourse with her.

9. From the statement of prosecutrix's mother-complainant (PW-2) and private doctor Narendra Goswami (PW-6), it appears that during

the incident she sustained minor injuries caused by hard and blunt object, but her statement about the fact that aforesaid injuries were caused by appellants when she resisted them to take the prosecutrix is not supported by the other prosecution witnesses. Her son (PW-4) in para 3 of his cross-examination specifically stated that her aunt went to the appellants' Jeep when his sister i.e. prosecutrix was seated there. He deposed that when his aunt told the prosecutrix to step down from the Jeep and to come at home, prosecutrix did not step down from the Jeep. In this regard prosecutrix's (PW-1) statements are also inconsistent. She in para 17 of her cross-examination admitting the fact that letters Ex.D/2 to D/4 were written by her to appellant Jagdish and also deposed that appellants did not commit any act with her.

10. From the statements of prosecutrix (PW-1), her brother (PW-4) and letters Ex.D/2 to D/4, written by the prosecutrix to the appellant Jagdish, it appears that she was having affair with the appellant Jagdish and went with him on her own will.

11. So far as the issue whether she was minor at the time of incident and was not competent to give her consent is concerned, prosecution has not produced any document in this regard. Learned trial Court during trial recorded her apparent age as about 19 years. Perusal of the record reveals that prosecutrix's ossification test was conducted by the prosecution during investigation, but the ossification test report, which is attached with the charge sheet has not been exhibited during trial. The said ossification test report being document of the prosecution

and can be taken into consideration against the prosecution, wherein her age is mentioned as more than 18 years, therefore, from the evidence produced on record this fact cannot be said to be proved beyond reasonable doubt that prosecutrix was minor at the time of incident and was not competent to give her consent.

12. In view of the aforesaid discussion, the impugned judgment of conviction and order of sentence is not sustainable. Hence, conviction of the appellants cannot be upheld and the appeal filed by the appellants deserves to be allowed. Accordingly, this appeal stands allowed.

(i) The impugned judgment of conviction and order of sentence dated 3.3.1999 passed by the Court of 2 nd Addl.Sessions Judge, Dhar (M.P.) in S.T.No.260/98, for the offences punishable under Sections 366, 376(2)(G) of IPC and sentenced them as stated in para-1 of this judgment is hereby set aside.

(ii) Appellants be set at liberty forthwith, if they are not required in any other case. Their bail bonds, if any, shall stand discharged.

(iii) Fine amount, if any, deposited by the appellants be refunded to them.

The Registry is directed to send back the Trial Court record forthwith alongwith copy of this judgment.

Let a copy of this order be also sent to the concerned jail authorities for its speedy compliance and necessary action.

Certified copy as per rules.

    Patil                                        (SATYENDRA KUMAR SINGH)
Digitally signed by                                        JUDGE
SHAILESH PATIL
Date: 2022.09.22
11:16:35 +05'30'