Kalicharan vs State Of M.P.
2023 Latest Caselaw 7292 MP

                                  1
 IN     THE      HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                          BEFORE
       HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                        ON THE 4 th OF MAY, 2023
                  CRIMINAL APPEAL No. 625 of 2005

BETWEEN:-
KALICHARAN S/O RAMADHAWAL BALMIKI, AGED
ABOUT 34 YEARS, OCCUPATION: SWEEPER RESIDENT
OF LAKSHMANPURA PS PADAV, DISTRICT GWALIOR
(MADHYA PRADESH)

                                                               .....APPELLANT
(SHRI ANKIT SAXENA- LEARNED COUNSEL FOR THE APPELLANT)

AND
STATE OF M.P. THROUGH POLICE STATION PADAV,
DISTRICT GWALIOR (MADHYA PRADESH)

                                                             .....RESPONDENT
(SHRI PRMOD PACHAURI- LEARNED COUNSEL FOR THE RESPONDENT-
STATE )

      Th is appeal coming on for hearing this day, t h e court passed the
following:
                                 JUDGMENT

This criminal appeal u/S 374 of CrPC is directed against judgment of conviction and order of sentence dated 02-09-2005 passed by Additional Sessions Judge (NDPS), Gwalior (MP) in Sessions Trial No.61 of 2005, whereby appellant Kalicharan has been convicted under Section 363 of IPC and sentenced to undergo one year RI with fine of Rs.500/-, sentenced to undergo seven years RI with fine of Rs.500/- for offenceunder Section 366-A of IPC and sentenced to undergo seven years RI with fine of Rs.500/- for offeceunder Section 376(1) of IPC with default stipulations respectively. All sentences have

been directed to run concurrently.

(2) Brief fact of prosecution case are that on 21-11-2004 at around 01:40, complainant Pappu alias Devilal Rajak lodged a report at Police Station Padav, Gwalior to the effect that he was living as tenant in the house of appellant Kalicharan since one and a half year. On 15-11-2004, his wife Asha and daughter Poonam had gone outside for work. His son Rajmumar and daughter prosexutrix (hereinafter referred to as'' X'') were in house. In between 07:30-08:30, his daughter prosecutrix (X) without informing anybody left house. He got an information from neighbourers that appellant on a false pretext of marriage had persuaded his daughter (X) aged about 15 years to go

with him. On the same day, although he searched his daughter- prosecutrix (X) but he could not find her. On the basis of such information, FIR Crime No.580 of 2004 was registered for offence under Sections 363, 366-A of IPC vide Ex.P2. Matter was investigated and during investigation, prosecutrix (X) was recovered on 13-12-2004 and a panchnama was recorded and her statement was recorded by police vide Ex.D2 in which it is stated by her that for the last one year, she is having relationship with the appellant for which her parents were not aware of this fact. It is stated by the prosecutrix (X) in her statement that on 15-11-2004 in the morning the appellant told her that he is going to house of his brother at Ambah and called her Padav crossing. Without informing to her family members prosecutrix came there and at that time her mother had gone outside for work whereas her father Devilal and brother Rajkumar were also taking rest in house and on the request of appellant, she reached there and went with himon his freedom motorcycle to house of brother of appellant at Ambah and she was not seen the number of said motorcycle. On 15-11-2004 in the evening at about 06::00 they reached there and after taking food they slept.

Appellant had already informed about her to his brother. From 15-11-2004 to 12-12-2004 she stayed with appellant at there and today appellant brought her from Ambha and left her at High Court from where the advocates dropped her at Police Station. It is further stated that on 15-11-2004 she slept with the appellant who had made sexual intercourse with her in his brother's house at Ambah. Thereafter, she was sent for her medical examination and as per MLC no external or internal injury was found on the body of prosecutrix. Appellant was arrested. Statement of prosecutrix was also recorded u/S 164 of CrPC before Magistrate concerned. After completion of investigation and other formalities, Investigating Officer submitted charge sheet under Sections 363, 366-A, 376(1) of IPC against the appellant. The Additional Sessions Judge framed charges against the appellant for aforesaid offences. Appellant accused pleaded not guilty to the charges. He in support of his defence examined himself as DW1. and his defence from his statement recorded under Section 313 of CrP is of total denial. Prosecution has examined in all eight witnesses to substantiate charges levelled against appellant. The Sessions Court by its impugned judgment convicted the appellant and sentenced him for offences as mentioned in paragraph 1 of this judgment.

(3) It is contended by learned counsel for appellant that learned Trial Court has not properly evaluated evidence and has committed an illegality in

convicting and sentencing the appellant. As per evidence of Dr. Vinod Kumar Khatod (PW4), the age of prosecutrix (X) is between 15 and 18 years. On the basis of medical jurisprudence, the age of prosecutrix (X) may be 2 years of error as per the radiological examination. This important principle also makes a legal error in determining the age of prosecutrix (X) and a statutory error has

been made in assuming the age of prosecutrix (X) which is less than 16 years, thus, the judgment in question is liable to be set aside. It is further contended that as per evidence of Dr. Rajni Jain (PW1) who in her examination-in-chief clearly stated that there was no any injury mark on the body of prosecutrix (X) or there were any injury mark on the vaginal part of prosecutrix (X) and this witness also opined that two fingers could easily enter vagina of prosecutrix (X) simultaneously, so it cannot be said clearly that she was subjected to any sexual intercourse. From statement of prosecutrix (X), it clear that the allegation against appellant is not of rape, but of voluntarily establishing a relationship between them. As per her statement, it is evident that she is in habitual to sexual intercourse and she had voluntarily left the house of her parents, where the appellant told the prosecutrix (X) to go with him on his Freedom motorcycle to his aunt's house in Ambah and after staying in Ambah for two days, he took her to his sister's house at Dholpur where he kept her for 14-15 days, from where he later on brought her to Tighra where stayed for two days at a relative's place of the appellant, but prosecutrix (X) in para 4 of her examination-in-chief deposed that when appellant accused took her to Ambah on the first day and did a bad thing she shouted, but the accused did not agree and his wife also cooperated by holding her hands, thus, establishing a relationship of appellant with prosecutrix (X) elsewhere and said statement cannot be said to be reliable under any circumstances. It is even more surprising that police did not even inform that appellant's wife had cooperated with her husband in having sex with prosecutrix (X) by holding her hands. Therefore, it cannot be imagined that a man should actively participate in sexual relation with another woman but still the learned trial court has committed an error in passing the judgment of conviction believing evidence of prosecutrix (X) which is absolutely untenable.

Therefore, the story as put forth by the prosecution is worth unreliable for the simple reason that no prudent man would digest this fact that the wife of the appellant- accused would facilitate him to commit vile act of rape. It is further contended by learned counsel fo the appellant that Assistant Sub-Inspector Raja Ram Shakya (PW7) in para 7 of his deposition has clearly deposed that it is correct to say that prosecutrix (X) has stated that the appellant asked her to come to Padav for intersection to go to Ambah on the basis of which, she reached Padav without informing her parents. According to this witness, prosecutrix (X) did not tell anything for taking her by appellant to Ambah on false pretext and it is also clearly stated by this witness in para 3 of statement that prosecutix (X) did not even say that the wife of appellant asked her to go with the appellant to the temple and the wife of appellant would bring her child later on and did not tell about locking the room at Ambah. From the statement of this witness, it makes clear that the statement made by prosecutrix (X) in the Court is not at all reliable, yet the learned trial Court has committed an illegality in not relying on statement of defence of the appellant. Therefore, evidence of prosecutrix (X) is not reliable and trustworthy as same does not inspire confidence. It is further contended that allegations made by prosecutrix (X) do not corroborate medical evidence. Provisions of Section 366-A of IPC are not at all attracted. Prosecution has utterly failed to establish the appellant guilty beyond all reasonable doubt as it is not safe to rely on uncorroborated testimony of prosecutrix (X). Hence, it is prayed that impugned judgment of conviction and order of sentence passed by trial Court deserves to be set aside and appellant deserves to be acquitted.

(4) On the other hand, counsel for the State supported impugned

judgment and submitted that it is sufficient corroboration to the evidence of prosecutrix and evidence of prosecutrix is reliable, trustworthy and inspiring confidence and only on the basis of sole witness the prosecution of appellant is sufficient. Therefore, there is no infirmity or illegality committed by trial Court in passing impugned judgment. Looking to nature of offence committed with a minor girl, the learnedtrial Court has rightly convicted the appellant and prayed for dismissal of this appeal.

(5) Heard learned counsel for the parties and perused impugned judgment as well as record of trial Court.

(6) In the instant case, trial Court has recorded conviction of appellant on the basis of sole witness, i.e. prosecutrix (PW5) and I have to thus carefully examine as to whether conviction of appellant so recorded by trial Court does not suffer from any basic infirmity or improbability which renders it unworthy of evidence or not ?

(7) Prosecutrix (PW5) in her examination in chief deposed that

appellant is her neighbour who was living in the house adjourning to the rented house where she along with her parents were residing. After Diwali Festival, the wife of appellant came and told her to come to the temple. Thereafter, she accompanied the wife of appellant to the temple at about 07:30 in the morning. Upon saying the wife of the appellant to go with the appellant and the wife of appellant will come along with her child later on, she sat on the motorcycle of appellant who took her to Ambah. In the middle, when she asked the appellant as to where they are going, on that the appellant told her after sometime they will return. He took her to her aunt's house where he locked her in the room. When she told as to why she was locked in the room, the accused told that he will keep her in Ambha because he wants to harass her mother. The accused kept

her at Ambha for two days and thereafter his wife came who also threatened her and after two days, the appellant took her to his sister's house at Dholpur and at there, they stayed for 14-15 days. The appellant came to know that some persons may come to there, therefore, he took her to Tighra where stayed at one of his relative's house for two days and after two days, he took her to some village at Barahet Chaurah where stayed for four- five days and at that time she was with the appellant. Thereafter with the help of two advocates she was dropped at Mandir of outside of the Court premises from where she was brought to Padav Police Station. This witness in para 4 of her statement deposed that on the first day of taking her to Ambah by appellant, despite of her resistance wife of appellant used to caught hold of her hands so that he did bad act with her at aforesaid place. This witness further in para 5 of her statement deposed that her age is 15 years at the time of incident.

(8) During cross-examination, prosecutrix in para 6 deposed that she was resided in the house of accused for one year and in neighbouring house for one year and she did not know about the name of landlord of house in which she was lived in niehgbouring house of accused. This witness in para 7 of her cross-examination deposed that she did not know in which year she was admitted in school, she did not know whether her father had taken any birth certificate and she did not know when her sisters and brothers were born. In para 9 of her cross-examination she denied that in her statement Ex.D2 recorded by police she had stated that for the last one year she was having relationship with the appellant in which her parents were not aware of this fact. This witness also denied that in the morning of alleged date of incident, the appellant told her to come to Padav Chaurah to go to Ambha, the house of his

brother and she without informing her parents reached there. She deposed that after second day of Diwali, the wife of accused asked her to go to temple and she agreed to go with the appellant and on the instigation of wife of appellant, she sat on the motorcycle of the appellant and if this fact was not mentioned in her police statement Ex.D2 she cannot say anything. Likewise, in her cross- examination she furtherdeposed that she had voluntarily left her parents' house, where appellant told her to go with him on his Freedom motorcycle to his aunt's house at Ambah and after staying at Ambah for two days, he took her to his sister's house at Dholpur where he kept her for 14-15 days and as and when everybody came to know about her, therefore, the appellant- accused brought her to Tighra where stayed for two days at a relative's place of appellant and after two days, the accused took her to some village at Barahet Chaurah where stayed for four- days and at that time, she was with the appellant but this fact as to why was not mentioned in Ex.D2 she cannot say anything. The prosecutrix further in her cross-examination stated that along with appellant his wife was also accompanied all four days where-ever he took her, but as to why this fact was not mentioned by police in her statement Ex.D2 she cannot say anything. This witness further in her cross-examination deposed that she is having no knowledge about the date and place of incident.

(9) So far as offence under Section 366-A of IPC is concerned, for proving said offence, it is required that prosecutrix was induced to go from any place or to do any act with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person.Therefore, Section 366-A of IPC is also not attracted in the facts of the present case. Similarly, so far as offence under Section 363 of IPC is concerned, as per statement of prosecutrix she had voluntarily left her parents'

house where the appellant told her to go with him on his Freedom motorcycle. Therefore, no case is made out against the appellant for commission of aforesaid offence.

(10) Looking to the entire evidence of prosecutrix (X) and her police statement recorded vide Ex.D2, there are lot of contradictions and improvements in her Court statements. Besides this, her statement is not corroborated by medical evidence. Dr. Rajni Jain (PW1) who medically examined her on 13-12-2004 deposed that no external or internal injury was found on the person of the prosecutrix. Dr. Jain in her evidence further deposed that no definite opinion can be given by her as to whether any forcibly sexual intercourse was done with prosecutrix or not ? In such type of offences, except other prosecution witnesses (i.e. parents), the Court has to see as to whether the sole testimony of witness like present one, i.e. prosecutrix (PW5) is reliable or not ? It is true that at the time of incident, she was near about 15 years of age and although she is a minor but only on this count, her sole testimony cannot be relied when her whole evidence is full of contradictions and improvements.

(11) In view of above, the criminal appeal filed by appellant deserves to be and is hereby allowed. The conviction of appellant so recorded by the learned trial Court suffers from basic infirmity which renders it unworthy of evidence, Accordingly, the judgment dated 02-09-2005 passed by Additional Sessions Judge (NDPS) Gwalior in Sessions Trial No.61 of 2005 is set aside. Appellant is acquitted of all charges levelled against him. He is on bail, therefore, his bail bonds and surety bonds stand discharged. Fine amount, if any paid shall be refunded to the appellant.

A copy of this judgment along with record be sent to the trial Court

concerned forthwith.

(DEEPAK KUMAR AGARWAL) JUDGE MKB

MAHENDRA BARIK 2023.05.08 11:41:28 +05'30'