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Madhya Pradesh High Court · body

2002 DIGILAW 867 (MP)

Bhajanlal Kahar v. State of M. P.

2002-09-16

S.P.KHARE

body2002
Judgment ( 1. ) APPELLANT Bhajanlal has been convicted under Sections 363, 366, 376 and 506-B, IPC and sentenced to rigorous imprisonment for five years, five years, seven years and two years respectively. He has also been sentenced to pay a fine of Rs. 100/- on each count. (Section 366 is only an aggravated form of the offence under Section 363, IPC and therefore there could not be conviction under both the sections ). ( 2. ) IT is not in dispute that Pinki alias Sumanbai (P. W. 1) is daughter of Shankerlal (P. W. 4) and Sarojbai (P. W. 6 ). They are residents of Village Madgula. Accused Bhajanlal is aged about 25 years and he lives in front of their house. The prosecutrix was sleeping in the intervening night of 11th and 12th June, 2000 in her house but she was found missing in the morning. The accused was also not in his house. Both of them went to Village Kanhargaon and they were there in the house of the sister of the accused for about three days. ( 3. ) THE prosecution case is that the prosecutrix aged about 15 years got up at about 1 A. M. and went behind her house to pass urine and at that time the accused put a knife on her neck and took her to Village Kanhargaon and has sexual intercourse with her several times during a period of three days and he did so forcibly. She was brought back by her cousin Vijay (P. W. 5) and then she narrated the incident to her parents. She was sent for medical examination and it was found that she had old tear of hymen. ( 4. ) THE accused pleaded not guilty. In the cross-examination of the prosecution witnesses it has been suggested that the prosecutrix went with the accused of her own accord and she was fully a consenting party. ( 5. ) THE Trial Court after appreciation of the evidence on record held that the prosecutrix was about 17 years of age and was taken by the accused on the point of knife and he had forcible sexual intercourse with her after threatening her. ( 6. ( 5. ) THE Trial Court after appreciation of the evidence on record held that the prosecutrix was about 17 years of age and was taken by the accused on the point of knife and he had forcible sexual intercourse with her after threatening her. ( 6. ) IN this appeal, it is argued that the prosecutrix was more than 18 years of age as the date of her birth is 12-5-1982 and she went with the accused out of her own free will and consent. ( 7. ) THE evidence on record has been scanned by this Court. Chotelal (P. W. 3) is the Kotwar of the village. He has produced a "note-book" (Ex. P-6) in which according to him the date of birth of Sumanbai has been shown as "12-5-1982". The Trial Judge after examining the entries before and after this date has concluded that the date which is actually written is 12-5-1985 and not 12-5-1982. He has then considered the report Ex. P-5 of the ossification test conducted by Dr. Subhlaxmi Gatlewar (P. W. 2) and the usual margin of error of two years and recorded the finding that the prosecutrix was 17 years of age on the date she is said to have been taken by the accused. This finding cannot be said to be perverse or unreasonable and it has not been challenged on behalf of the prosecution before this Court and therefore, it has to be accepted as correct. ( 8. ) A close reading of the deposition sheet of the prosecutrix reveals that she was definitely a consenting party. She voluntarily accompanied the accused and he was not having knife at any point of time. It is undisputed that she disappeared in the night from her house. She claims that she went for urination on the back side of her house from the front door and the accused emerged with a knife. He lives in front of her house. In all probability she left the house of her parents quietly after making exit from the front door. She says that he took her on cycle from her village to several places like Bamhauri, Gardha, Gadarwara and then to Kanhargaon and all the time she was sitting on the front on the cycle holding the handle. In the FIR and in her statement under Section 161, Cr. PC (Ex. P-l) and (Ex. She says that he took her on cycle from her village to several places like Bamhauri, Gardha, Gadarwara and then to Kanhargaon and all the time she was sitting on the front on the cycle holding the handle. In the FIR and in her statement under Section 161, Cr. PC (Ex. P-l) and (Ex. D-2) she has stated that she was taken by the accused on feet. She could not walk such a long distance on feet. She went with the accused on cycle without any murmur. The accused took her to the house of his sister and that is also indicative of the consensual affair. If the accused had taken her on the point of knife he would not in the ordinary course have taken her to the house of his sister. He had sexual intercourse with her several times -- twice in one night and there was no protest. She did not sustain any injury. It is difficult to believe her version that he was armed with knife on each occasion. The story of brandishing of knife by the accused appears to have been invented by the prosecutrix out of the instinct of her self preservation so that she is not chastised for her conduct. She has admitted that the accused expressed that they belong to the same caste and he would marry her. She was served food by the sister of the accused. She has admitted in para 14 that she told the sister of the accused that he has promised to marry her. She did not tell anyone in that village during the period of her stay there that she has been forcibly brought there. It is clearly discernible that she was a consenting party in leaving the house of her parents and having sexual intercourse with the accused. ( 9. ) ACCORDING to Dr. Gatlewar (P,w. 2) there was no recent sign of sexual intercourse on the body or genitals of the prosecutrix muchless of any violence. There was old tear of her hymen. That is also inferential of the consent of this girl. ( 10. ) IT is not proved beyond reasonable doubt that the accused made use of knife. The greater probability is that the prosecutrix went with the accused of her own and had enjoyed sex with him. ( 11. ) THE prosecutrix was about 17 years of age. That is also inferential of the consent of this girl. ( 10. ) IT is not proved beyond reasonable doubt that the accused made use of knife. The greater probability is that the prosecutrix went with the accused of her own and had enjoyed sex with him. ( 11. ) THE prosecutrix was about 17 years of age. She was above sixteen years of age and because of her consent there was no offence of rape. There was no threat or intimidation. But the accused must have had pre-arranged plan with her and there must have been some inducement or solicitation on his part to meet in the midnight and leave for another village to enjoy sex. The prosecutrix was less than eighteen years of age and there was no consent of her parents. Her own consent was not material so far as the offence of kidnapping is concerned. The present case is covered by the dictum of the Supreme Court in Thakorlal D. Vadgama v. State of Gujarat, AIR 1973 SC 2313 . ( 12. ) THE offence under Section 366, IPC is brought home to the accused. He kidnapped the prosecutrix in order to seduce her to illicit intercourse. The expression "seduced" used in Section 366, IPC means inducing a woman to submit to illicit intercourse. The words "illicit intercourse" mean merely sexual intercourse between a man and a woman who are not husband and wife. Where a girl, over sixteen and under eighteen years of age and in lawful custody consents to an act of illicit intercourse with a man and is persuaded to elope with him for that purpose, he is guilty of an offence under Section 366 and not only under Section 363, IPC. This is also the view taken in Emperor v. Ayubkhan Mirsultan, AIR 1944 Bom 159 and State v. Sulekhchand, 1964 Cr. LJ 220 (Pun.) ( 13. ) IN view of the above discussion the appeal is partly allowed. The conviction and sentence under Sections 363, 376 and 506 (Part III), IPC are set aside and the appellant is acquitted of these charges. His conviction under Section 366, IPC is maintained but the sentence of imprisonment is reduced to the period already spent by the appellant in jail where he is lodged from 20-6-2000.