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2020 Supreme(MP) 413
S.C. Sharma and Shailendra Shukla, JJ.
Dillu @ Dilip v. State of M.P.
Criminal Appeal No. 1305 of 2015 (I); Decided on 28.1.2020
Pradeep Gupta for appellants; Vikas Yadav, Public Prosecutor for respondent/State.
Headnote:
Penal Code, 1860 -- Ss. 376D, 366A and 363 -- alleged that while prosecutrix was sleeping outside her house, appellants/accused took her to deserted spot and committed rape -- difficult to imagine that prosecutrix who was sleeping along with her brother and sister-in-law did not raise alarm -- prosecutrix failed to prove that she was minor at time of incident -- could not prove that she was kidnapped -- failed to prove that she was gang raped by appellants -- ingredients of rape missing -- appellants acquitted. [Paras 13 to 16]
naM lafgrk] 1860 & /kkjk 376?k] 366d rFkk 363 & vfHkdfFkr fd tc vfHk;ksD=h vius ?kj ds ckgj lks jgh Fkh] vkosndx.k@vfHk;qDrx.k mls futZu LFkku ij ys x, rFkk cykRlax fd;k & dYiuk djuk dfBu gS fd vfHk;ksD=h us tks vius HkkbZ rFkk HkkHkh ds lkFk lks jgh Fkh] 'kksj ugha epk;k & vfHk;ksD=h fl} djus esa vlQy fd ?kVuk ds le; og vo;Ld Fkh & fl} ugha dj ldh fd mls O;ig`r fd;k x;k & fl} djus esa vlQy fd vihykFkhZx.k }kjk mlls lkewfgd cykRlax fd;k x;k & cykRlax ds la?kVd vfo|eku & vkosndx.k nks"keqDrA ¼iSjk 13 ls 16½
JUDGMENT
Shukla, J.--1. This criminal appeal has been filed under section 374(2) of CrPC preferred against the judgment dated 15.7.2015, passed by the 2nd Addl. Sessions Judge, Khargone in S.T.No. 243/2013, wherein the appellants - Dillu @ Dilip amnd Kamal, have been convicted under sections 363, 366A, 376D of IPC and under section 3/4 of the POCSO Act, 2012 and sentenced as under:
| S. No. | Conviction under Sections | Sentence | ||
| Imprisonment | Fine Amount | Imprisonment in lieu of fine | ||
| 1 | 376D, IPC | Life Imprisonment each | 10,000/- each | 1 year RI |
| 2 | 366 of IPC | 7 years RI each | 2,000/- each | 6 months additional RI each |
| 3 | 363 of IPC | 5 years RI each | 1,000/- | 3 months additional RI each |
2. The prosecution story in short was that on 15.5.2013 at about 11.45 PM in the night the prosecutrix, a minor lodged a report against the appellants that while prosecutrix was sleeping outside her house, the appellants came and tried to muffle her voice by holding a handkerchief against her mouth, she shouted, but the appellants took her to a deserted spot and committed rape upon her. She had named 3 persons as the accused. The two present appellants and one another accused was later found to be juvenile. On the basis of the report, FIR was registered and the investigation was carried out and charge sheet was filed under the same provisions which the appellants were charged later on.
3. The trial Court after recording the evidence, has found the appellants guilty and sentenced them as described earlier. In the appeal, it has been mentioned that there was no evidence available on record to form an opinion that the prosecutrix was a minor at the time of incident. The evidence of prosecutrix has also been termed to be unreliable and unnatural and that there was a huge delay in lodging of the FIR, that the prosecutrix was in fact, a consenting party and the impugned judgment has been sought to be set aside.
4. Submissions were made and record was perused.
5. The prosecution has examined 14 witnesses in all
6. Regarding determination of the age of the prosecutrix, no documentations such as birth certificate from school, Corporation Municipality Authority or Panchayat or Matriculation certificate have been adduced as evidence by the prosecution and thus, the only mode of determining the age as per rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 was medical opinion sought from duly constituted Board. The relevant provision is reproduced as under :
"In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat.
(b) and only in the absence of either (i) (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child.
7. In this matter Exhibit P-7 and Exhibit P-8 are the relevant medical documents exhibited by Dr. Satyam Tare (PW8). He states that he had examined the prosecutrix and he had conducted x-ray examination of radial ulna bone and concluded that the prosecutrix was between 15 to 17 years of age.
8. Learned counsel for the appellants has pointed out that for age determination the only course available was conducting examination by duly constituted medical Board, which is imperative in view of the statutory provision.
9. Learned counsel for the appellants submits that assessment by one medical specialist is inadequate to give a final repo
