Mahendra Singh vs The State Of Madhya Pradesh
2023 Latest Caselaw 5537 MP

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       IN THE HIGH COURT OF MADHYA PRADESH
                    AT GWALIOR
                                      BEFORE
           HON'BLE SHRI JUSTICE ATUL SREEDHARAN
                    CRIMINAL CASE NO. 7453 of 2022

       BETWEEN:-

       MAHENDRA SINGH S/O GOVARDHAN
       SINGH RAJPUT, AGED 25 YEARS, R/O
       VILLAGE SARWAR, POLICE STATION
       SIRONJ, DISTRICT VIDISHA (MADHYA
       PRADESH)

                                                                   .....APPELLANT

       (BY SHRI AMIT LAHOTI - ADVOCATE)

       AND

       THE STATE OF MADHYA                       PRADESH
       THROUGH STATION HOUSE                     OFFICER,
       POLICE STATION LATERI,                    DISTRICT
       VIDISHA (MADHYA PRADESH)

                                                                 .....RESPONDENT

        (BY SHRI NAVAL KISHORE GUPTA - PUBLIC
        PROSECUTOR)

Reserved on                           :       14.02.2023
Pronounced on                         :           04.2023
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        This appeal having been heard and reserved for orders, coming

on for pronouncement this day, the Court pronounced the following :

                                      ORDER

The present appeal has been filed by the appellant who is

aggrieved by the judgment and sentence dated 28.07.2022 passed by the learned Second Additional Sessions Judge and Special judge (POCSO Act) Ganjbasoda, District Vidisha in Special Session Case No.23/2020, whereby he was sentenced to suffer rigorous imprisonment for 10 years for the offence under Sections 376 (2) (j) and 376 (2) (n) of the Indian Penal Code. He was also sentenced to suffer rigorous imprisonment of 5 years for an offence under Section 366 IPC.

2. As per the story of the prosecution, the appellant is stated to have kidnapped the prosecutrix on 25/3/2018. The father of the prosecutrix lodged a report against unknown persons on 26.03.2018 for offences under Sections 363 and 366- A of the IPC. Thereafter, the prosecutrix was recovered and the appellant was arrested. The statements of the prosecutrix under Section 161 Cr.P.C. and 164 Cr.P.C. were recorded and the prosecutrix has stated therein that the appellant regularly committed sexual intercourse with her for a period of 1 year. The charge-sheet was filed. The appellant was tried and convicted as hereinabove.

3. Learned counsel for the appellant submits that the appellant has falsely been implicated in this case. He further states that the evidence on record will only go to reveal that the prosecutrix was a major and she voluntarily eloped with the appellant herein and that she had married him at the Sehore Court and thereafter upon her recovery by the police and the subsequent arrest of the appellant, she has turned against him and testified, implicating the

appellant, as by then the prosecutrix had got married elsewhere.

4. Learned counsel for the State, on the other hand, submits that the finding of the trial court is based upon evidence on record and that the prosecution witnesses have supported the case of the prosecution and even if the consent of the prosecutrix is seen, the fact that she was a minor on the date on which the appellant took away from her home and committed rape with her, the question of consent is inconsequential.

5. The FIR registered by the father of the prosecutrix as Crime Number 62/2018 registered on 26/3/2018 at Police Station Lateri, District Vidisha. The FIR has been registered against unknown accused. The FIR is Exhibit P/2. The MLC of the prosecutrix is Exhibit P/11 which has been proved by PW/6, the doctor who performed the MLC of the prosecutrix. The opinion given in the MLC is inconclusive of rape. The doctor had advised ultra sonography of the abdomen to confirm pregnancy which was alleged by the prosecutrix. However, it is relevant to mention here that the USG was never done, and neither was any proof secured regarding the alleged pregnancy of the prosecutrix. Exhibit P/14 is the arrest memo of the appellant which shows his age as 23 years. Exhibit P/15 is the FSL report which reflects the presence of human sperm on Exhibits P-16 and P-17 sent to the FSL Laboratory which are the vaginal slide and pajama of the prosecutrix.

6. Heard the learned counsels for the parties and perused the record

of the trial court. PW/1 is the father of the prosecutrix. He says that his daughter was taken away by the appellant under the cover of darkness. In paragraph 4, he states that after the prosecutrix was recovered, he was informed by his wife that the prosecutrix told her that she left with the appellant as the appellant had told her that he would marry her. He further states that he was informed by his wife that the prosecutrix and the appellant stayed together for 10 days at Karode in a room where the appellant is stated to have established sexual relations with the prosecutrix. Thereafter, the appellant is stated to have taken the prosecutrix to Chanderi where she stayed for 10 days where also he established physical relations with the prosecutrix. In cross-examination the witness says that he has 8 children in all, 4 sons and 4 daughters. He states that all the 4 daughters are married including the prosecutrix. In paragraph 9, he says that he had given his age to the police out of estimation and that he is giving his age as 50 before the trial court also on the basis of estimation. In paragraph 11, he says that it is correct to suggest that he does not know the date of birth of any of his 8 children. In paragraph 12, the witness states that it is correct to suggest that at the time of admission in the school, he had placed all his children before the master and it was the master who entered the date of birth as the master deemed fit. Thus, it is clear that the father of the prosecutrix (PW1) did not know the date of birth of any of his children, including the prosecutrix. In paragraph 13, the witness states that it is correct to suggest that the age of the prosecutrix in her Aadhaar Card is given as 1.1.2000. He further

states that the said age was entered upon information given by him. He further states in paragraph 13 that it is correct to suggest that in the report card of the prosecutrix, there is manipulation and there is difference in the date of birth given in figures and in words. Exhibit P-3 has been examined by this court and the court finds that in figures her date of birth is given as 1.01.2000 and in words, the date of birth is given as 15th August 2001. Exhibit D-1 is the information given by the father of the prosecutrix at the time of getting her Aadhaar Card made which reflects her date as 1.1.2000.

7. PW/5 is the mother of the prosecutrix. In paragraph 3, she says that after the prosecutrix was recovered, she was informed by the prosecutrix herself that the appellant told her that he would marry her and thereafter took her to Bhopal where the appellant kept her in a room for nearly a month. She also says that the appellant raped the prosecutrix.

8. PW/4 is the prosecutrix. In paragraph 3 of her testimony, she states that the appellant told her that he would marry her and asked her to elope with him. She says that she refused but however the appellant threatened her family with dire consequences and took her to Sehore. In paragraph 4, he says that in Sehore, the appellant kept her in a rented room for 3 days and executed the documentation for marriage in Sehore Court. After 3 days, the appellant is alleged to have taken the prosecutrix to Bhopal where he kept her for almost 2 months. She further states that she conceived a pregnancy of 2 months. She further states that the

police thereafter recovered her. In cross- examination, she states that it is correct to suggest that she had gone to the Sehore Court where she had a court marriage with the appellant. She further states that it is correct to suggest that when she was in the Sehore court premises, she did not tell the advocates and policemen present there that she was under the forcible custody of the appellant. Paragraph 11 of her cross-examination reflects that the statement she gave her chief examination that she was raped at her own residence before eloping with the appellant, was told by her to the police in her 161 statement and if the same is missing from the police statement, she is unable to state why. Thus, the said statement in court appears to be an omission/improvisation by the prosecutrix in her testimony.

9. In paragraph 14, she states that it is incorrect to say that she had told the police in her 161 statement (D4) that she told the appellant to take her away or else she would die. In paragraph 21, however she says that it is correct to suggest that she had stated to the police in Exhibit D/4 (statement under section 161 Cr. P.C.) that she had told the appellant to take her away or she will die and she has stated to the contrary in her testimony before the court deliberately out of a sense of shame an ignominy. In paragraph 16, consent of the prosecutrix in eloping with the appellant becomes apparent. In paragraph 18, she says that she was 2 months' pregnant at the time of her recovery by the police and that she had subsequently aborted the fetus. In paragraph 20, she says that it is correct to suggest that during the court marriage, she had stated before the

notary that her age is 19 years. She also admits the execution of documents by her where she has disclosed herself to be a major. In paragraph 23, she says that she has seen the mark sheet on record and says that it is correct to suggest that the said mark sheet shows manipulation with regard to the year and month. She further admits that the said manipulation has been done in order to show her age as less than 18 years.

10. The evidence on record goes to reveal that the prosecutrix has been to various places alongwith the appellant and has established physical relationship with him voluntarily. As regards her pregnancy the learned trial court itself has disbelieved the said fact in paragraph 46 of the judgment on the ground that no proof was gathered by the prosecution with regard to the existence of the pregnancy. In this regard, the learned trial court has referred to the MLC where the doctor has suggested a pregnancy test and a USG of the abdomen in order to ascertain the pregnancy. This was never done by the police. As regards the prosecutrix having aborted the fetus, the learned trial court has arrived at the opinion that the same is not believable as no medical document pertaining to the abortion was ever placed on record before it. Thus, the only issue that remains to be seen is with regard to the age of the prosecutrix.

11. PW/3 was the Primary School Teacher at the relevant point of time in the Middle School in Village Malania, Tehsil Lateri, where the prosecutrix had gone to attend school and she was at Serial Number 604 in the scholar register and her date of birth is shown

as 15.8.2001 in cross-examination, the teacher says that it is correct to suggest that if the parent/guardian is unable to give any proof with regard to the date of birth of the boy or girl who sought to be admitted then the date of birth of such child is entered by the school authorities on estimation. Thus when one examines the statement of the father of the prosecutrix and the statement of the Primary School Teacher, who had proved Exhibit P/5 (scholar register), it is apparent that the precise date of birth of the prosecutrix is indeterminable. This coupled with the admission of the prosecutrix that she had given her age as 19 years to the notary who prepared the documentation relating to the court marriage of the prosecutrix with the appellant, the same goes to show that the prosecutrix, if not a major, was on the cusp of majority. The uncertainty relating to the age of the prosecutrix raises a benefit of doubt in favour of the appellant/accused. Thus, as the prosecution has been unable to prove the age of the prosecutrix beyond reasonable doubt, the benefit of the same is given to the appellant herein.

12. Therefore, in view of the above findings, this Court arrives at the conclusion that the relationship between the appellant and the prosecutrix was voluntarily and consensual and as the prosecution has been unable to prove that the prosecutrix was a minor on the date on which the physical relationship was established between the appellant and the prosecutrix, the appellant is entitled to an acquittal. Therefore, the appeal succeeds and the impugned order of conviction is set aside and the appellant is acquitted. He shall

be forthwith released if not wanted in any other case. The appeal is finally disposed of.

                                                              (ATUL SREEDHARAN)
AK/-                                                               JUDGE
       ANAND KUMAR
       2023.04.05
       17:50:16 +05'30'