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IN THE HIGH COURT OF MADHYA PRADESH
Sujoy Paul and Prakash Chandra Gupta, JJ.
Babu @ Rahul Jagtap v. State of Madhya Pradesh
Criminal Appeals No. 349 of 2013 and 357 of 2013 (Jabalpur): against the common judgment dated 29.1.2013 passed in Sessions Trial No. 209/2011; Decided on 9.7.2022
(1) Evidence Act, 1872 -- Ss. 63, 65, 35, 57 and 78 -- secondary evidence -- twin conditions required to be fulfilled -- (i) copies are made from original by mechanical process -- (ii) copies are compared with original copies -- photocopy of mark-sheet produced as secondary evidence not shown to be made from original by producing any material -- original school record not requisitioned -- original record did not come from proper custody as required by S. 35 -- Court below erroneously held that photocopy of mark-sheet can be treated as secondary evidence without comparing it with original -- conjoint reading of Ss. 57 and 78 does not permit taking judicial notice of document not marked as exhibit. 2013 (3) MPLJ 172 relied on.
[Paras 25 & 26
(2) Age -- age of prosecutrix -- finding about date of birth of prosecutrix based on photocopy -- cannot be accepted -- prosecution could not establish that prosecutrix was minor at time of alleged incident. [Para 27
(3) Age -- age of prosecutrix -- ossification test showed that prosecutrix was about 16 years old -- possibility of error of about two years -- mother of prosecutrix could not produce birth certificate -- conviction of accused cannot be based on approximate date which is not supported by any record. (2010) 1 SCC 742 followed. [Para 28
(4) Penal Code, 1860 -- Ss. 376 (2) (g) and 366 -- FIR lodged after 3½ months of alleged gang rape -- no plausible explanation for inordinate delay -- young girl of 14 years suffered huge pain and bleeding for 8-10 days -- difficult to accept that her family members and mother would not notice -- medical evidence did not support prosecution story -- singular reason for delay is fear that accused persons will make video viral on internet -- prosecution failed to establish that any videography took place -- delay in lodging complaint fatal -- only evidence is statement of prosecutrix -- her statement does not inspire confidence -- age could not be proved as per legal parameters -- her cross-examination shows that she accompanied three unknown persons -- did not narrate about incident to mother for long time -- allegedly, she was forcibly taken on motorcycle from busy place -- did not raise any voice -- not safe to uphold conviction solely on basis of ocular evidence led by prosecution -- acquitted by giving benefit of doubt. (2009) 1 SCC 420 and 2008 (12) SCALE 107 followed. 2013 SCC Online Del. 2161 relied on. (2019) 18 SCC 77 referred to. [Paras 29 to 34
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JUDGMENT
1. These appeals filed under section 374 (2) of the Code of Criminal Procedure, 1973 (In short “Cr.P.C) take exception to the common judgment dated 29/01/2013 passed in Sessions Trial No.209/2011 whereby both the appellants have been convicted under section 376(2)(g) of Indian Penal Code and directed to undergo sentence of life imprisonment with fine of Rs.1000/- and section 366 of Indian Penal Code and directed to undergo R.I. for 5 years with fine of Rs.1000/-, with default stipulation.
FACTUAL BACKGROUND
2. In short, the story of prosecution is that on 29.3.2011 when prosecutrix was coming back from a coaching class on her bicycle, near Post Office Shahpur, the accused persons namely Hridesh Soni, Babu Jagtap and Girish Dhanani, who were riding a bicycle informed her that they may provide her guess papers of Class-9th. Thereafter, in a TVS motorcycle appellant Babu proceeded further whereas appellant Girish and accused Hridesh accompanied her in a motorcycle till Devdadeo culvert. The prosecutrix was in her own bicycle. At this place, the prosecutrix’s face was tied by them by a piece of cloth and appellant Babu started the motorcycle and prosecutrix was compelled to sit in the middle seat of motorcycle and appellant Girish sat on the last seat. hey took motorcycle in a very high speed to a temple near Kotmi. As per the prosecution story, all of them committed rape with her one by one and entire incident was recorded through a video camera. Since prosecutrix was alone in the jungle, nobody helped her despite the fact that she cried and screamed. She was later-on released by said three persons near Devdadeo. At Devdadeo, the entire video recording of incident was shown to her by a video camera by appellants and she was threatened that if she tells about this incident to anybody, the video film will be uploaded to Internet and she and her mother will be killed.
3. On 11.7.2011, when prosecutrix was going to school, all the aforesaid accused persons stopped her and asked her to accompany them, otherwise they will upload the CD of said recording of incident of rape to internet. At this stage, the prosecutrix informed about the incident of rape of 29.3.2011 to her mother Babita Jain, father Sunil Jain and uncle Anil Jain. They lodged a report in Police Station Shahpur which was recorded as Crime No.161/2011 under sections 363, 366, 376(2)(g) and 506 of the IPC.
4. During the investigation, spot map of place of incident was prepared. Prosecutrix was put to medical test as well as X-ray test. The statements of witnesses were recorded. Photocopy of mark-sheet of prosecutrix was placed in the file.
5. From appellant Girish, a motorcycle and mobile phone were recovered whereas from Babu Jagtap @ Rahul, a CD and motorcycle were recovered. They were also subjected to medical test. During investigation, offences under section 293 of IPC and section 67 of Information Technology Act, 2000, were added. Thereafter, challan was filed before the Judicial Magistrate, Betul and Case No. 1831/2011 was registered against the appellants. When matter was sent to the trial Court, the appellants abjured the guilt and prayed for conducting the full fledged trial.
6. The trial Court framed four questions for determination.
7. The prosecution alleged that date of birth of prosecutrix is 11.2.1997. Thus, on the date of incident, she was aged about 14 years. The appellants committed gang rape with a minor aged about 14 years.
8. The prosecutrix (PW-3) entered witness box and produced a photocopy of the marksheet of Class 9th which contains the date of birth as 11.2.1997. The Court below considered her statement and came to hold that she was 14 years of age on the date of incident. Although Court below considered the statement of Dr. O.P. Yadav (PW-9) based on x-ray report in which he stated that prosecutrix must be aged about 16 years but there is a margin of 2 years for the purpose of determination of age.
9. The prosecutrix in her Court stateme
In cases of sexual assault, delay in lodging FIR is not fatal if explained, especially when considering societal attitudes toward victims.
The judgment emphasizes the importance of protecting the rights and dignity of victims of sexual offenses, highlighting the credibility of the prosecutrix's testimony and the significance of medical ....
The conviction for rape and trespass was upheld based on credible witness testimony, and the sentence was reduced considering the time elapsed since the crime.
Point of Law : Prosecution has failed to prove its case against the accused beyond reasonable doubt - Testimony of prosecutrix is infirm, contradictory and doubtful, which does not inspire confidence....
The testimony of the victim of sexual assault is vital and can be relied upon without corroboration, and delay in lodging a complaint does not necessarily indicate falsehood.
The main legal point established in the judgment is the requirement for the prosecution to prove the age of the prosecutrix and the reliability of her testimony beyond reasonable doubt, along with th....
Insufficient evidence and credibility issues warranted the reversal of the appellant's conviction for sexual offences under IPC.
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