State Of M.P vs Anoop Singh

2. The facts of the present matter are that on 03.01.2003, at about 10:30 A.M. the prosecutrix was going to school along with her sister. On realizing that she had left behind her practical note book, she returned back and after taking the said note book she once again headed towards the school. When she reached near Tar Badi (wire fencing) near Hawai Patti, there was an Ambassador car standing there and as alleged, the accused respondent came out of the car, pulled the prosecutrix inside the car and forced her to smell something, as a result of which the prosecutrix became unconscious. As alleged by the prosecution, the prosecutrix was taken to some unknown place thereafter.

3. On regaining consciousness, the prosecutrix felt pain in her private parts. On the same day, she was admitted in the District Hospital, Satna in an unconscious condition and information about the incident was given to Laxmikant Sharma (P.W.8), the uncle of the prosecutrix. On 10.01.2003, the prosecutrix was discharged from the Hospital and sent back to her home where she narrated the incident and thereafter an F.I.R was lodged. During the course of investigation, the prosecutrix was sent for medical examination and her clothes were seized and slides were prepared. After receipt of the medical report, F.I.R was registered and site map of the spot was prepared. The Investigating Officer seized various articles which included the prosecutrix’s birth certificate and certificate of the Middle School Examination, 2001. Along with that the relevant page (page No. 20) of the register of the U.S.A Hotel was also seized. After due investigation a charge-sheet was filed against the respondent for offences under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (“I.P.C.”) and the statements of the prosecution witnesses were recorded.

4. On 27.03.2003, the Judicial Magistrate, First Class Satna registered the Criminal Case No.116/2003 and passed the committal order. Accordingly, the case was transferred and was received by the Upper District Sessions Judge-III, Satna for trial.

6. Aggrieved by the aforesaid judgment and order passed by the IIIrd Additional Sessions Judge, Satna, the respondent preferred an appeal under Section 374(2) of Cr.P.C. before the High Court of Madhya Pradesh at Jabalpur, which was numbered as Criminal Appeal No.924 of 2006. The learned Single Judge of the High Court, by impugned judgment and order dated 10.07.2008, set aside the judgment and order of conviction passed by the Trial Court against the respondent. The High Court ruled that the decision of the Trial Court was not sustainable solely on the ground that the prosecution had failed to prove the fact that the girl was less than 16 years of age at the time of the incident. The reasons that weighed heavily with the ruling of the High Court were that, either the public prosecutor or P.W.7 Pramod Kumar Sharma (father of the prosecutrix) tried to file Ext. P/5 which was not part of the charge-sheet. Such type of evidence could not be created by any person except the Investigation Officer. It was for the prosecution to show that a particular document was taken on record during investigation but could not be filed. The prosecution could not create any new evidence which was not part of the investigation. Ext. P/5 and Ext. P/6 have variation in the date of birth of the prosecutrix. In certificate Ext.P/5 the date of birth was disclosed as 29.8.1987, whereas in certificate Ext.P/6 it has been disclosed as 27.8.1987. The High Court found this sufficient to disbelieve that the prosecutrix was below 16 years of age at the time of the incident. The High Court relied on the statement of PW-11 Dr. A.K. Saraf who took the X-ray of the prosecutrix and on the basis of the ossification test, came to the conclusion that the age of the prosecutrix was more than 15 years but less than 18 years. Considering this the High Court presumed that the girl was more than 18 years of age at the time of the incident. The last ground taken by the High Court was that the girl was a consenting party and was more than 18 years of age at the time of the incident and thus, no offence against the accused has been proved.

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.”

16. Thus, keeping in view the medical examination reports, the statements of the prosecution witnesses which inspire confidence and the certificates proving the age of the prosecutrix to be below 16 years of age on the date of the incident, we set aside the impugned judgment passed by the High Court and uphold the judgment and order dated 24.04.2006 passed by the IIIrd Additional Sessions Judge, Satna in Special Case No.123/2003.

17. Accordingly, this appeal is allowed. We direct that the respondent shall be taken into custody forthwith to serve out the sentence.

……………………………..J (Pinaki Chandra Ghose) ……………………………..J (Uday Umesh Lalit) New Delhi;

July 03, 2015.

Hon'ble Mr. Justice Pinaki Chandra Ghose pronounced the reportable judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Uday Umesh Lalit.

The appeal is allowed and the respondent shall be taken into custody forthwith to serve out the sentence in terms of the signed reportable judgment.

(Signed reportable judgment is placed on the file)