Main point of discussion would be the age of the prosecutrix in order to determine as to whether she was major so as to give her consent: HIGH COURT OF MADHYA PRADESH AT INDORE


The facts of the case are that on 11.11.2014, at about 16.00 hours, when complainant’s minor daughter prosecutrix, aged about 14 years was alone in her house situated at Indira Nagar Bedi, Sanawad, District Khargone, appellant came there and on the false pretext of marriage took her to Moondi, District Khandwa, then to his sister’s house at Masangaon and thereafter to Salkanpur on his motorcycle. He kept her there captivated in a dharamshala for four days and committed rape upon her repeatedly. On the same day, when the complainant returned back home, he found the prosecutrix as well as the appellant missing. He searched for them at the nearby places as well as relatives of the appellant and on the next day i.e., on 12.11.2014, at about 18.30 hours, lodged the report against the appellant on the basis of which FIR was registered against him at Police Station Sanawad, Khargone for the offences punishable under Sections 363 and 366 of IPC. On the next day i.e., on 13.11.2014 at about 8.10 PM, Investigating Officer S. I. Jitendra Yadav went to the spot and prepared spot map. On 18.11.2014, appellant took the prosecutrix to District Court, Khandwa saying that he will marry her in the Court, where prosecutrix’s uncle Deepak and his friend Ganesh saw them. They informed police station Khandwa, who brought prosecutrix as well as appellant to Police Station Sanawad, where on the same day at about 18.30 hours, prosecutrix was recovered, as per Dastyadi Panchanama. S.I. Jitendra Yadav recorded the statement of prosecutrix in the presence of her mother. He, after getting the consent vide letter of the complainant and his wife, sent prosecutrix to Community Heath Centre, Sanawad for her medical examination. On the same day, at about 7.45 PM, Dr. Hansa Patidar medically examined her and prepared MLC report stating therein that her 28 tooth were erupted and her hymen was found ruptured. As her menstruation period was going on, she could not prepare her vaginal slides. She sealed her clothes and handed over the same to the concerned police constable. On 22.11.2014, when the prosecutrix was again brought to the Community Health Centre, she prepared her vaginal slides as per MLC report and handed over the same to the concerned police constable.

In this case, Prosecutrix’s mother and father although deposed that prosecutrix’s age was 14 years at the time of incident but both of them have fairly admitted in their cross-examination that they are not aware about the date of birth of their children including the prosecutrix. Kamal Verma also admitted that he himself went with the prosecutrix at the time of her admission in the school and on the basis of his assumption, he mentioned her age and got her admitted in the school. In such circumstances, scholar register entry is although admissible in evidence under Section 35 of the Evidence Act but the same in itself cannot be taken to be the best piece of evidence as per the decision rendered by the Apex Court in the case of Satpal Singh. In this regard, observations made by learned Trial Court during recording of statements of prosecutrix as well as observations made by Dr. Hansa Patidar during medical examination of prosecutrix are also material and cannot be ignored. Learned Trial Court has observed and written age of the prosecutrix as about 15 years on 13.07.2015 i.e., after about 9 months of the incident. Dr. Hansa Patidar (PW-8) has specifically mentioned in the MLC report that during medical examination of prosecutrix, she found her 28 tooth erupted about which she has been cross-examined by the counsel for the appellant. In the present case, incident took place on 11.11.2014 and at that time, the provisions of the Criminal Law Amendment Act, 2013 were enforced and in view of the amended clause 6 of Section 375 of IPC, sexual intercourse with a girl below 18 years was an offence, no matter whether girl consented or not consented to sexual intercourse. Since prosecutrix was below 18 years at that time, therefore, it is clear that she was not competent to give her consent at the time of incident. As the prosecution could not prove its case beyond reasonable doubt that prosecutrix was below 16 years of age at the time of incident, therefore, appellant’s conviction under Section 376 (2) (i) of IPC is not sustainable and the same is liable to be modified and converted into Section 376(1) of IPC. Findings with regard to rest of the offences is liable to be affirmed as learned Trial Court has not committed any error in finding the appellant guilty for the offences punishable under Sections 363 and 366 of IPC as also under Section 3/4 of the POCSO Act. In view of aforesaid discussion, appeal succeeds and stands partly allowed.
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