Kalloo vs State Of M.P.

The present criminal appeal under Section 374(2) of Cr.P.C. is being preferred against the Judgment of conviction and order of sentence dated

06/07/2010 passed in Sessions Trial No.103/2009 by Special Judge, Shivpuri whereby appellantKalloo has been convicted under Section 376(1) of IPC

and sentenced to undergo 7 years RI with fine of Rs.1,000/- and further convicted under Section 363 of IPC and sentenced to undergo 2 years RI

with fine of Rs.500/- with default stipulation.

Case of the prosecution in short is that on 25-06-2009, prosecutrix-Devaki aged about 13 years alongwith her mother Ramwati (PW-1) went to

answer the call of nature and returned back and slept in his pator, and in the midnight at about 2-3 am when she waked up for call of nature again, she

did not find her daughter in the said pator, she searched out but could not find her. A missing person report was lodged by her vide No.4/2009 (Ex.D-

1) at Police Station Satanwada. On the said report, several witnesses were examined, and it was found that appellantaccused Kalloo alongwith others

Raju Nai, Mohan Singh and Rajkumar kidnapped the minor daughter of the complainantRamwati (PW-1) and abused the complainant and her husband

by using abusive language and caste related words. On the basis of aforesaid, FIR was registered on dated 14/07/2009 vide Crime No.66/2009 under

Section 363, 366, 34 of IPC and Section 3(1) (10) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

During investigation, Naksha Panchnama was prepared vide Ex.P-3 and on 07/09/2009, accused was taken into custody and from his possession,

prosecutrix-Devki was recovered. Statement of the prosecutrix was recorded and prosecutrix and appellant-accused were medically examined.

Recovery memo of clothes (seal packed) was prepared vide Ex.P-4. Statements of the witnesses were recorded by the police. Charge-sheet was

filed before the Judicial Magistrate Shivpuri wherefrom the case was committed to the Court of Special Judge (SC & ST), Shivpuri.

Appellant abjured his guilt. He did not take any special plea in defence, however, he has stated that he was innocent and falsely implicated in the

matter.

After considering the evidence adduced by the prosecution, learned Special Judge, Shivpuri convicted and sentenced the appellant as mentioned

above.

The learned counsel for the appellant submitted that the appellant was falsely implicated in the matter and the contents of the marg report and FIR

are also contradictory. Learned counsel for the appellant submits that since the prosecutrix given statement in favour of the appellant then it is

apparent that only on the basis of false pretext, he has been implicated in the case. 7. Heard learned counsel for the parties at length and perused the

evidence available on record.

In the present case, two grounds are worth considerable; one is contradictions in the statements and another is age of the prosecutrix. As far as

statements of the complainant is concerned, the complainant Ramwati (PW-1) (mother of the prosecutrix) on the one hand, in marg intimation referred

that at about 2-3 am when she waked up she did not find her daughter in the said pator where her daughter was sleeping, whereas on the other hand,

she mentioned in the FIR that she saw the appellant and others while kidnapping her daughter and she cried to save her. These two different

statements in itself show the extent of false implication in the present case.

The prosecutrix was examined by Dr. Anjana Jain (PW-7) and who opined that there is no external or internal injury over the body of prosecutrix

and no definite opinion in relation to recent intercourse was given. According to the Doctor, hymen of prosecutrix was found ruptured much earlier

and she was habitual for sexual intercourse. For the purpose of confirming the alleged rape she also collected the vaginal swab of prosecutrix and

clothes on which semen particles and sperm were found by FSL in its report EX-P/6. She did not give any opinion as regards age of the prosecurix

and referred the prosecutrix for radiological test to calculate her age.

Total four witnesses namely Ramwati (PW-1), Prembai (PW-2), Bhanwar Singh (PW-3) and Pappu Jatav (PW-4) were examined but except the

witness Ramwati (PW-1) who allegedly happens to be the eye witness, all others did not support the story of the prosecution. Witness Pappu Jatav

(PW-4), who is the father of the prosecutrix stated in his statement that at the time of incident he was out of city and on the information given by his

wife Ramwati (PW-1) he deposed before the trial Court. Since statements of the Ramwati (PW-1) (given in marg and the FIR) in itself carry

contradictions and the story told by her seems to be concocted therefore, testimony of witness Pappu Jatav (PW-4) cannot be taken into consideration

for proving culpability of the appellant in any manner.

Similarly, contents of Ex.D-1 (marg intimation) indicates that complainant only informed about the missing of her daughter and there is no mention

about kidnapping and rape by the appellant.

As far age of the prosecutrix is concerned, learned counsel for the appellant also submitted that prosecutrix is major and with her consent, he went

with the prosecutrix. The prosecutrix (PW5) in her statement has clearly stated that she on her own volition and consent went with the appellant

therefore, no case remains for kidnapping. She also accepted that her age was 18 years at the time of incident and now she is 19 years old. She also

narrated that since her parents were forcing her to marry with some other person with whom she did not want to marry, therefore, she on his own

volition went with the appellant to Indore where she solemnized marriage with him and after marriage she had physical relation with the appellant

many a times with her consent. She further stated that she studied up to Class-IV and her father has wrongly mentioned her age as 14 years whereas

at the time of incident, she was 18 years old. Prosecution could not place any documents as regards age of the prosecutrix and merely on the basis of

marks-sheet of Class IV, the trial Court assumed the age of the prosecutrix as 13-14 years at the time of incident.

Here in the present case, strict violation of Section 12 of Juvenile Justice Act (Care and Protection of Children), 2007 is apparent. Section 12 of

the Act provide certain exigencies for determination of age, which can be borrowed in the present case:-

Procedure to be followed in determination of Age.

(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule

19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of

making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may

be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home

or in jail.

(3) 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. In case exact assessment of the age

cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary,

give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. 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 Ihe juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the

conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age

and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or

the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further

inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-

rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in

accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate

order in the interest of the juvenile in conflict with law.

The aforesaid section provides that when there is a dispute regarding the age then aforesaid guidelines are to be followed.

Here in the present case, wherein complainant PW-1 Ramwati, who is mother of the prosecutrix referred the age of the prosecutrix as 13 years,

father Pappu Jatav (PW-4) referred the age as 14 years and the prosecutrix (PW-5) stated her age as 18 years at the time of incident and since no

cogent and reliable evidence as regards age of the prosecutrix was produced then medical examination of the prosecutrix is the necessary requirement

for assessing her age. The same procedure was not followed which also lacks confidence in prosecution story.

In view of the aforesaid discussions, the appeal preferred by the appellant-Kalloo deserves credence and acceptance and the same is hereby

allowed. Judgment of conviction and order of sentence dated 06/07/2010 passed in Sessions Trial No.103/2009 by Special Judge, Shivpuri is hereby set

aside. Since the prosecution could not prove its case beyond reasonable doubt and the trial Court erred in relying upon the weak evidence to convict

the appellant and therefore, appellant-Kalloo is directed to be set free immediately if he is in confinement.

As per record, appellant has not been admitted to bail and his jail sentence has not been suspended by this Court but since the judgment of

conviction was passed on 06/07/2010 and it is almost 8 years , therefore, most probably appellant-Kalloo would have been released by the Jail

Authorities. Looking to such confusion, the District Judge, Shivpuri is directed to look into the fact that whether the appellant-Kalloo has served his jail

sentence or not and if he has served his jail sentence and not required in any other matter, then he be set free from jail and if he is still in jail in the

present matter, then he be released forthwith. If some how bail order of appellant escaped attention of this Court or is not available on record and

some sentence is still left to be served then appropriate proceedings be ensured for serving remaining part of jail sentence of appellant-Kalloo.

Copy of the judgment be sent to the trial Court without any delay so that the judgment of this Court may be complied with as early as possible.

Appeal allowed.