Madhya Pradesh High Court
The State Of Madhya Pradesh vs Gulab Singh on 14 October, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2024:MPHC-JBP:51289
1 CRA-1498-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 14th OF OCTOBER, 2024
CRIMINAL APPEAL No. 1498 of 2023
THE STATE OF MADHYA PRADESH
Versus
GULAB SINGH AND OTHERS
Appearance:
Shri G.S. Thakur - Advocate for appellant/State.
ORDER
Per: Justice Devnarayan Mishra
This Criminal Appeal is filed being aggrieved with the judgment and
order of acquittal dated 28.11.2022 passed by the Special Judge (POCSO
Act, 2012) Raisen, District Raisen in Special Case No.31 of 2021 by which
the respondent No.1 Gulab Singh has been acquitted from the charges under
Sections 363, 366 & 376(2)(n) of the IPC, Section 5/6 of the POCSO Act,
2012 and Section 3(2)(v) of the SC/ST (POA) Act, 1989 and respondent
No.2 Asha @ Babli and respondent No.3 Pradeep @ Golu have been
acquitted from the charges under Sections 363, 366 & 372/34 of the IPC and
Section 3(2)(v) of the SC/ST (POA) Act, 1989.
2. The prosecution has filed IA No.1997 of 2023, an application for
grant of leave to appeal under Section 378 (III) of Cr.P.C.
3. In a nutshell, the prosecution case before the trial Court was that on
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04.10.2019, the parents of the victim/prosecutrix went to work in the
morning and when they returned back in the evening they found
victim/prosecutrix aged about 15 years missing and when they inquired to
their children about the victim/prosecutrix, they told that they did not know
where she has gone. Father of the victim/prosecutrix searched the prosecutrix
in relatives but could not find her. The victim/prosecutrix went somewhere
without informing them and when she did not return, on that basis, the
missing person report (Ex.P-1) was lodged and on 19.12.2019 FIR (Ex.P-2)
was registered in Police Station - Obedullaganj, District Raisen as Crime
No.432/2019 under Section 363 of the IPC.
4. During the investigation victim/prosecutrix was recovered from the
possession of respondent No.1 Gulab Singh. She was medically examined
and in her statement, the victim/prosecutrix disclosed that the respondent
No.2 Asha @ Babli and respondent No.3 Pradeep @ Golu sold her to
respondent No.1 Gulab Singh s/o Bihari Lal Kewat in Rs.50,000/- and
received Rs.30,000/- and Gulab Singh forcibly took her to Salkarpur on the
motorcycle and forcibly married her and established physical relations. To
prove her age, the School admission documents were submitted by the Police
Authorities. The body fluid and cloths of the victim/prosecutrix and
respondents were sent for FSL examination, where body fluid of respondent
No.1 Gulab Singh was found in the vaginal slid of the victim/prosecutrix.
Trial Court after the trial, acquitted the respondents.
5. Heard Shri G.S. Thakur, Government Advocate for the
appellant/State, who has submitted that as per the report (Ex.P-1 and Ex.P-
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2), the age of the victim/prosecutrix has been recorded 15 years in the
School Education Documents (Ex.P-17, 17 C, 18 and 18 C). The admission
form (Ex.P-20) which was submitted by the father of the victim/prosecutrix,
her date of birth was proved to be 12.08.2004 and the incident was of
04.10.2019. Thus the victim/prosecutrix was 15 years old and her age was
also proved by School teacher Naval Singh (PW-6). From the FSL report
(Ex.C-1), in the cloths of the victim/prosecutrix, the DNA profile of
respondent No.1 Gulab Singh was found. Thus, it is a clear case of
conviction but the trial Court has wrongly acquitted the respondents, hence,
leave be granted and respondents be convicted for the aforesaid offences.
6. We have heard the learned Government Advocate and perused the
record.
7. On the point of age, the victim/prosecutrix (PW-2) in her statement,
has stated that her age on 22.03.2021 is 17 years. The case was two years old.
The accused/respondent No.2 Asha @ Babli came to her home at 4:00 PM
and asked her to accompany her towards the Puliya of the Village. When she
reached on the Puliya along with the accused/respondent No.2 Asha @
Babli, respondent No.3 Pradeep @ Golu and respondent No.1 Gulab Singh
were standing there. Respondent No.2 Asha @ Babli asked her to marry with
respondent No.1 Gulab Singh and assured her that he will keep her properly,
on that respondent No.1 Gulab Singh brought victim/prosecutrix to Salkapur
on his motorcycle and after Devi Darshan, he put mangalsutra and vermilion
on her and from there he carried the victim/prosecutrix to Nayagaon. After 2
to 3 days, respondent No.1 Gulab Singh disclosed to prosecutrix that
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respondent No.2 Asha @ Babli and respondent No.3 Pradeep @ Golu have
sold her to him at Rs.30,000/- and respondent No.1 Gulab Singh has
committed rape upon her.
8. In the cross-examination, victim/prosecutrix has admitted that on
06.02.2018, in Special Case No.121/2017 that was being prosecuted against
one Manish, she appeared in the Court and recorded her statement and on
06.02.2018 that is the date of statement, she has stated her age 18 years. In
para-29 of the cross-examination, she has admitted that she does not know
whether she was born in the hospital or in her home and she admitted the
suggestion that it is right to say that her parents have not noted down her date
of birth in any document and her date of birth in the School record was
mentioned on the basis of estimation or any other ground. She has admitted
that she is the eldest daughter of her parents.
9. Father of the victim/prosecutrix (PW-1) has stated that the
victim/prosecutrix is his daughter who is 19 years old. In the cross-
examination, he has admitted that at the time of School admission, he had
mentioned the date of birth of the victim/prosecutrix on the basis of
estimation and he was not having any document regarding her date of birth.
10. Mother of the victim/prosecutrix (PW-3) has stated in para-9 of
her statement that the victim/prosecutrix was born one and half years after
their marriage. She delivered her daughter (victim/prosecutrix) in her
matrimonial house. She further stated that they had not noted down the date
of birth of victim/prosecutrix but in Aaganwadi her date of birth would have
been mentioned. In para-10, she has stated that her marriage was solemnized
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20-22 years prior to date of statement and further stated that 25 years have
been passed of her marriage and after one and half years of her marriage, the
victim/prosecutrix was born. In para-13, she has admitted that the age of the
victim/prosecutrix is 22-23 years. She has further admitted that Phaldan of
the prosecutrix (Ceremony that is performed before the marriage) has been
performed and the age of the victim/prosecutrix is 22-23 years, so they are
marrying her. When this fact was further clarified by the Special Prosecutor,
mother of victim/prosecutrix (PW-3) has stated that the age of
victim/prosecutrix is 22 years.
11. Thus, the parents of the victim/prosecutrix have clearly stated that
the victim/prosecutrix was above 18 years of age. Furthermore, the
victim/prosecutrix herself has admitted that a case was pending against
Manish regarding her and in that case she appeared as a prosecution witness
on 06.02.2018 and in that she has stated that her age is 18 years i.e. Ex.P-26.
Thus, from the oral evidence particularly of the parents, the age of the
victim/prosecutrix at the time of incident was more than 18 years. From the
statements of parents of victim/prosecutrix and the victim/prosecutrix
herself, it is also clear that no birth certificate or document was prepared just
after the birth of the victim/prosecutrix.
12. The School Teacher Naval Singh (PW-6) has stated that he is
posted in the School since 1998, in which the victim/prosecutrix had taken
admission. As per the Scholar Register, the date of birth of
victim/prosecutrix has been recorded at Serial Nos.154 and 128.
Victim/prosecutrix has taken the admission in the Class-1 and after that her
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family went some other place and after that victim/prosecutrix was again
admitted in Class-3 and this Scholar Registers (Ex.P-17 & Ex.P-18) proves
in which her date of birth has been mentioned as 12.08.2004.
13. In the cross-examination, this witness has admitted that when
victim/prosecutrix was admitted in the School, her parents had not come to
School and has stated that her admission application form was received
through Nagariya Siksha Kendra and on that basis, date of birth was recorded
in Scholar Register. He further stated that her father had come to School but
he had not submitted the list of Shishu Siksha Kendra on that basis the date
of birth of victim/prosecutrix was recorded. Other discrepancies are also
present in the Scholar Register as there is difference between Chandra and
Singh in the name of father of victim/prosecutrix at Serial Nos.128 and 154.
It is also admitted that in the Scholar Register at Serial No.128, an over
writing has been made. The date of leaving of school has been modified
25.09.2011 after cutting 25.09.2012 in the original register (Ex.P-18) and in
Ex.P-18-C, the date is 25.09.2012 and in Column No.9 of Ex.P-21, the date
of admission is mentioned as 02.07.2012 and admitted that in Transfer
Certificate was issued on 25.09.2012 and victim/prosecutrix was again
admitted in the School on 02.07.2012 and admitted that due to mistake, these
dates were mentioned. Thus, the documents Ex.P-17, 18 and 19 on what
basis the date of birth was mentioned, has not been explained. In Ex.P-20 the
admission form, on one occasion, this witness has stated that he received
from Shishu Siksha Kendra and further stated that father of
victim/prosecutrix came and applied. Thus looking to the oral evidence of
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the parents of the victim/prosecutrix, the age which is not mentioned on the
basis of any documents, it cannot be inferred that the real date of birth of the
victim/prosecutrix was 12.08.2004. Thus, the trial Court has rightly acquitted
the respondents as the victim/prosecutrix was major.
14. On the point of rape and abduction, as per the prosecution, the
incident had happened on 04.10.2019 and report was lodged on 19.12.2019.
Father of the victim/prosecutrix (PW-1) has stated that victim/prosecutrix
went somewhere without informing her parents/family. In the cross-
examination of the prosecutrix, she has stated that she had informed her
parents that she is residing with respondent No.1 Gulab Singh. She was
brought by motorcycle but she had not made noise for help or sought the help
of any person nearby and she had not disclosed that she is going with
respondent No.1 Gulab Singh in his home. When she went in the temple, the
villagers were sitting there and they saw her going with respondent No.1
Gulab Singh but she had not disclosed them. She has also admitted in para-35
that when she went with respondent No.2 Asha @ Babli, respondent No.2
said to talk to her parents on mobile but she had not disclosed them anything
against the respondents/accused persons.
15. Mother of the victim/prosecutrix (PW-3) in para-6 of her cross-
examination has stated that the respondent No.2 Asha @ Babli and
respondent No.3 Pradeep @ Golu have sold her daughter to respondent No.1
Gulab Singh. This was not disclosed by her when her daughter went missing
and respondent No.2 Asha @ Babli and respondent No.3 Pradeep @ Golu
were in the village. She has not seen her daughter going along with
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respondent No.2 Asha @ Babli, respondent No.3 Pradeep @ Golu and
respondent No.1 Gulab Singh.
16. In this case, it is clear that as per the prosecution, the incident had
happened on 04.10.2019 and till 19.12.2019 no FIR was lodged by parents of
victim/prosecutrix or victim/prosecutrix on her own behalf, which can be
safely inferred that she was a consenting party and with her own consent she
accompanied with respondent No.1 Gulab Singh, hence, trial Court has
rightly appreciated the evidence and acquitted the respondents. No case of
appeal is made out. Hence, IA No.1997 of 2023 is rejected.
17. Appeal sans merit, hence, dismissed.
18. With the copy of this order, record of trial Court be returned back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
DPS
