Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(MP) 692

IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BENCH
G.S. AHLUWALIA, J.
Jagdish Singh and Another – Appellants
Versus
State of M.P. – Respondent
Criminal Appeal No. 898 of 2017
Decided On : 13-12-2021

Advocates:
Advocate Appeared:
For the Appellants : S.K. Tiwari, Raj Shrivastava.
For the Respondent: Padamshri Agrawal.

The duty of the court to ensure a fair trial and the importance of examining essential witnesses for the just decision of the case.

Headnote:
Criminal Appeal - Age Determination - IPC 363/34, 366/34, 376(1)(N), POCSO Act 6 r/w 5(L) - The court set aside the judgment and remanded the matter back to the Trial Court to examine the school teacher/Headmaster to prove the school record and give a fresh finding on the age of the prosecutrix after recording the evidence of the school teacher/Headmaster with regard to the date of birth of the prosecutrix.
Fact of the Case:

The appellants were convicted and sentenced for offences under IPC Sections 363, 366, 376 and POCSO Act. The appellants abjured their guilt and pleaded not guilty. The prosecution relied on statements of witnesses and the appellants did not examine any witness in their defense.
Finding of the Court:

The Trial Court convicted and sentenced the appellants. The appellants challenged the conviction, arguing that the prosecution failed to prove the prosecutrix's age and that she was a consenting party.
Issues: The main issue was the determination of the prosecutrix's age and whether the prosecution had failed to prove it.
Ratio Decidendi: The Trial Court erred in not examining the school teacher/Headmaster to prove the school record and determine the prosecutrix's age. The Court emphasized the importance of ensuring a fair trial and the duty of the court to examine essential witnesses for the just decision of the case.
Final Decision: The judgment and sentence were set aside, and the matter was remanded back to the Trial Court to examine the school teacher/Headmaster to prove the school record and give a fresh finding on the age of the prosecutrix after recording the evidence of the school teacher/Headmaster with regard to the date of birth of the prosecutrix.

JUDGMENT :

G.S. AHLUWALIA, J.

1. This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 16/5/2017 passed by Special Additional Sessions Judge, Chachauda, District Guna in Special Sessions Trial No. 73/2014, by which the appellants have been convicted and sentenced as under:

Appellant No. 1 Jagdish Singh:
Section	Act	Imprisonment	Detail of fine/if deposited	Imprisonment in lieu of fine
363/34	IPC	03 Years RI	1000/-	1 Year RI
366/34	IPC	05 Years RI	1000/-	1 Year RI
376(1)(N)	IPC	10 Years RI	2000/-	02 Years RI
6 r/w 5(L)	POCSO Act	10 Years RI	2000/-	02 Years RI
Appellant No. 2 Bhanwarlal:
363/34	IPC	3 Years RI	1000/-	1 Year RI
366/34	IPC	5 Years RI	1000/-	1 Year RI

2. The necessary facts for disposal of the present appeal in short are that on 14/5/2014, the complainant lodged a Guminsaan report that his daughter aged about 17 years had left the house on the pretext of going to forest, but has not returned back and accordingly, the Guminsaan report No. 22/2014 was registered. During the Guminsaan enquiry, statements of parents of the prosecutrix were recorded, who expressed their suspicion on the appellant no. 1. The prosecutrix was recovered. The FIR in Crime No. 214/2014 was registered. Spot map was prepared. The statements of the witnesses were recorded and after arresting the accused persons, the police filed the charge-sheet for offence under Sections 363, 366, 376 of IPC.

3. The Trial Court by order dated 19/9/2014 framed charges under Sections 363 or in the alternative 363/34 and 366 or in the alternative 366/34 of IPC against the appellant no. 2-Bhanwarlal, whereas framed charges under Sections 363 or in the alternative 363/34, 366 or in the alternative 366/34, 376 (2) (n) of IPC as well as Section 6 read with Section 5(L) of POCSO Act, 2012 against appellant no. 1-Jagdish Singh.

4. The appellants abjured their guilt and pleaded not guilty.

5. The prosecution in order to prove its case examined Dr. Abha Sharma (PW-1), Prosecutrix (PW-2), “A” (PW-3) father of the prosecutrix, “B” (PW-4) mother of the prosecutrix and Livon Minj (PW5).

6. The appellants did not examine any witness in their defence.

7. The Trial Court by impugned judgment has convicted and sentenced the appellants for the offences mentioned above.

8. Challenging the conviction recorded by the Court below, it is submitted by the counsel for the appellants that the prosecution has failed to prove that the prosecutrix was minor below the age of 18 years. In her statement recorded under Section 161 of CrPC, she had specifically stated that she had gone along with the appellant no. 1, therefore, she was a consenting party. Even otherwise, she had disclosed to the doctor that she had voluntary physical relationship with the appellant no. 1.

9. Per contra, the counsel for the State has supported the findings recorded by the Trial Court.

10. Heard the learned counsel for the parties.

11. So far as the age of the prosecutrix is concerned, the Trial Court has relied upon the evidence of the father and mother of the prosecutrix, i.e. “A” (PW-3) and “B” (PW-4). The prosecution has not proved the date of birth of the prosecutrix by examining the school Head Master/teacher. Even the ossification test was not conducted.

12. By referring to paragraph 4 of the cross-examination of “A” (PW3), it is submitted by the counsel for the appellants that although “A” (PW-3) had disclosed that the age of his eldest son is 25 years, but was not in a position to disclose the age of his remaining children. It was the evidence of “A” (PW-3) that he has 5 children and the prosecutrix is the youngest one. It is submitted that the Trial Court has wrongly held that even if the gap of two years is considered between two children of “A” (PW-3), then if the age of