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2011 DIGILAW 520 (MP)

Suresh v. State of Madhya Pradesh

2011-05-02

U.C.MAHESHWARI

body2011
JUDGMENT U.C. Maheshwari, J. 1. The Appellant/accused has directed this appeal under Section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment dated 24-9-2003 passed by First Additional Sessions Judge, Guna in Session Trial No. 341/1997 whereby extending the acquittal to the Appellant from the charge of Sections 376 and 506-B of the IPC, he has been convicted and sentenced under Sections 363 and 366-A of the IPC with a direction to undergo for 5 years' RI only under Section 366-A in the major Section with fine of Rs. 1.000/- and default of depositing such a fine, further three months' RI has been awarded. 2. The facts giving rise to this appeal in short are that on 29-9-1997 Janakdulari d/o Daulatram aged 13 years was going to school from her home. On the way, when she was passing in front of the shop of the Appellant, she was called by him on shop and under criminal intimidation she detained there up to 9.00 p.m. in the night, thereafter he took her to some well situated at some fields. On the date of incident, the father of the victim was not at their residence but on his coming when the victim did not return to her home up to the evening, then her brother and father tried to trace her out, but could not get success, on which a missing person report in this regard was lodged with police out post Maksudangarh on 30-9-1997. It is also the case of the prosecution that on the same nigh of the incident the prosecutrix under some criminal intimidation to kill her was taken by the Appellant to Village Baskhedi and thereafter by bus to Bhopal, where he could not make the arrangement to stay on which, they came back to Village Baraoda, where by keeping her at some field she was subjected to rape by the Appellant. The Appellant also told her that after performing the Court marriage with her at Raghogarh he will keep her as his wife. But before such marriage, on receiving information by the Police, the prosecutrix was recovered from such field and the custody of the Appellant. Thereafter, a crime was also registered against the Appellant for the offence under Sections 363, 376, 342 and 506-B, IPC. But before such marriage, on receiving information by the Police, the prosecutrix was recovered from such field and the custody of the Appellant. Thereafter, a crime was also registered against the Appellant for the offence under Sections 363, 376, 342 and 506-B, IPC. After recording interrogatory statements of the witnesses and holding the investigation the Appellant was charge-sheeted before the Competent Court, from where the case was committed to the Session Court. 3. Taking into consideration the papers of the charge-sheet and the Police Report, the charges under Sections 363, 366-A, 376 and 506-B of the IPC were framed against the Appellant on which he abjured the guilt. Thereafter, the trial was held, in which after recording evidence on appreciation of the same by holding the age of prosecutrix between 16 to 18 years, the case was held to be a case of consent and in such premises, the Appellant was acquitted from the charge of Sections 366 and 506-B of IPC, while in view of aforesaid the age of prosecutrix between 16 to 18 holding the Appellant guilty for the offence under Sections 363 and 366-A of IPC, he was sentenced in the major Section, i.e., 366-A with the punishment as stated above, the same is under challenge in this appeal. 4. Shri Anil Mishra, learned Counsel of the Appellant after taking me through the papers of the charge-sheet, exhibited papers and the depositions of the witnesses argued that on appreciation of the available evidence, after extending the acquittal to the Appellant from the charges of Sections 376 and 506-B of IPC, on the basis of such evidence, the Trial Court ought to have also acquitted the Appellant from the other charges also, in continuation he said that on behalf of the prosecution in order to prove the age of the prosecutrix her parents were examined, some marks-sheets are also produced on the record. Besides this in the course of the investigation after carrying out the ossification test of the prosecutrix by Dr. Sita Ram Singh (P.W. 2). It is Report (Exh. P-2) was also prepared, according to which, the prosecutrix was found to be between 15 to 16 years of the age. Besides this in the course of the investigation after carrying out the ossification test of the prosecutrix by Dr. Sita Ram Singh (P.W. 2). It is Report (Exh. P-2) was also prepared, according to which, the prosecutrix was found to be between 15 to 16 years of the age. Simultaneously, by referring the cross-examination of such Doctor in which he deposed that the age of the prosecutrix may be 18 years on the date of the incident, he said that on proper appreciation of such deposition of the Doctor, the age of the prosecutrix was to be held to be 18 years and not less than that. In such premises, the approach of the Trial Court holding her age between 16 to 18 is not sustainable. Besides the above by referring the case law of the Apex Court in the matter of Jaya Mala v. Home Secretary Government of Jammu and Kashmir and Ors. reported in AIR 1982 SC 1297 , he said that in any case, even after carrying out the ossification test and ascertaining the age of the prosecutrix by adopting the principle regarding margin of error in the age of two years either side the Trial Court must have taken into consideration the age of prosecutrix to be 18 years, because it is settled proposition that whenever and wherever on some facts under the law if two options are available before the Criminal Court, then out of them, the option favourable to the accused should be adopted by such Court. Such principle is based on the principle that where there are two views are possible, then out of them the view favourable to the accused should be adopted as decided by the Apex Court in catena of the decision, out of which, such principle was also laid down in the matter of Harchand Singh and Anr. v. State of Haryana reported in AIR 1974 SC 344 , with these submissions, he prayed for extending acquittal to the Appellant by allowing this appeal. v. State of Haryana reported in AIR 1974 SC 344 , with these submissions, he prayed for extending acquittal to the Appellant by allowing this appeal. The case was also argued by the Counsel with one more alternative saying that for the sake of argument, if it is deemed that the prosecutrix was between the age of 17 and 18 years and not completed the 18 years, then in view of the available evidence showing that prosecutrix was not taken away by the Appellant from her lawful custody of her father, but on the way to school, without any inducement on the side of the Appellant, only on request, she came into his shop and thereafter she visited with him at various places, where with her consent, the alleged intercourse was committed by the Appellant with her and as per opinion of the Doctor who medically examined the prosecutrix, she was found to be habitual in performing the intercourse and simultaneously no external injury was found on her body and also as per initial case of prosecution, the prosecutrix and Appellant were ready and willing to get registered marriage with each other at Raghogarh but before holding such marriage they were intercepted by the Police and the prosecution was launched. If such premises, it is apparent that she was neither induced nor taken away by the Appellant from her lawful custody and therefore, the alleged offence could not be treated to be the offence of kidnapping the prosecutrix for any unlawful purpose or to perform the forceful intercourse with her and prayed for acquittal of the Appellant on this count also. In support of this contention, he also placed his reliance on the decision of the Apex Court in the matter of S. Varadarajan v. State of Madras reported in AIR 1965 SC 942 and prayed for setting aside conviction and sentence of Appellant by allowing this appeal. 5. On the other hand, responding the aforesaid argument, Shri Vijay Sundarma, learned Panel Lawyer by justifying the approach and findings of the Trial Court holding conviction and sentence against the Appellant under Sections 363 and 366-A of the IPC said that the same is based on proper appreciation of the evidence and is also in conformity with law, it does not require any interference at the stage of the appeal. In continuation he said that even after extending the acquittal to the Appellant from the offence under Sections 376 and 506-13 of the IPC, looking to the age of the prosecutrix, the Trial Court has not committed any error in holding the impugned conviction against the Appellant and prayed for dismissal of this appeal. 6. Having heard, keeping in view the arguments advanced by the Counsel, I have carefully gone through the record and perused the impugned judgment and also the principles laid down by the Apex Court in the aforesaid cited cases, it is apparent fact on record that the prosecution has not come with the case that any point of time the prosecutrix was taken away by the Appellant from her residence, as such from the lawful custody of her father. According to the case of the prosecution the prosecutrix Janakdulari was going to School with her school bag, on the way, the Appellant in front of his shop called her on which without any hesitation or objection, she herself went to his shop and remained there peacefully with her consent for whole of the day up to 9.00 p.m. in the night, thereafter went with the Appellant to some well of a field from where they went to some other places and thereafter went to Bhopal by bus also return back to same village where on residing with the Appellant she was subjected to intercourse by him with her consent. It is also apparent from the record that there was some understanding between, the Appellant and the prosecutrix that very soon they will get civil marriage with each other at Raghogarh. In this regard some letters showing affairs between the Appellant and the prosecutrix not only produced but also proved on record and the facts of such affairs have been admitted by the prosecutrix Janakdulari (P.W. 14) in Para 10 of her deposition. So in such premises, the approach of the Trial Court holding the case of the consent between the Appellant and the prosecutrix appears to be correct and that is why the State has not come up in the appeal against the acquittal of the Appellant under Sections 376 and 506-B of IPC. 7. Now the crucial question which is to be answered by this Court in this appeal is that, what was the age of the prosecutrix on the date of the incident. 7. Now the crucial question which is to be answered by this Court in this appeal is that, what was the age of the prosecutrix on the date of the incident. True it is, as per record the father of the prosecutrix Daulat Ram (P.W. 4) on recording his deposition stated the age of prosecutrix to be 13 years without producing any admissible documents in this regard. Although, the school record of the prosecutrix where she was studying has also been produced before the Court by Hemand Kumar (P.W. 5), the Head Master of such school. In his deposition, he categorically deposed that according to his record, the date of birth of the prosecutrix is 1-1-1984, but it is apparent from the deposition of such witness that he could neither produced nor proved the basic document on which the date of birth of prosecutrix was mentioned in the School record. In such premises on oral statement of the father or in the lack of any preliminary evidence, on which the date of birth of prosecutrix was stated in the school, the school record could not be taken into consideration for holding the age of the prosecutrix, specially when the ossification test report prepared by some radiologist is available on record, the same has been proved by Dr. Sitaram Singh (P.W. 2). According to such ossification test report (Exh. P-2) the age of prosecutrix was 15-16 years on the date of examination. Dr. Sitaram Singh (P.W. 2) has categorically deposed in his cross-examination that according to the medical jurisprudence, there may be a margin of error of two years in age ascertained by radiological examination, which is to be assigned on either side. In continuation he also stated that in view of such principle, the age of prosecutrix may be 18 years, or less than 2 years from 16 years. So it is apparent that keeping in view aforesaid principle the radiologist himself has stated that the age of prosecutrix may be 18 years. It is apparent fact on record that after his cross-examination, he was not re-examined to clarify such position or ambiguity, thus in such premises the Court is bound to take into consideration the age of prosecutrix to be 18 years on the date of incident. 8. It is apparent fact on record that after his cross-examination, he was not re-examined to clarify such position or ambiguity, thus in such premises the Court is bound to take into consideration the age of prosecutrix to be 18 years on the date of incident. 8. My aforesaid approach is also supported by the decision of the Apex Court in the matter of Java Mala v. Home Secretary Government of Jammu and Kashmir and Ors. (supra), cited on behalf of the Appellant in which it was held as under: However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. 9. So, in the aforesaid premises, it is held that the prosecutrix was 18 years on the date of incident and when she went with her consent not only to the shop of the Appellant but at various places like Bhopal and other places with him, then it could not be deemed that she was taken away by the Appellant from lawful custody of her parents or she was kidnapped by the Appellant for any unlawful purpose as defined under Section 366-A of the IPC. 10. Apart the above, for the sake of argument in the available circumstances, if it is deemed that the prosecutrix was between the age of 17 to 18 years, even then in the available facts and evidence showing the prosecutrix was not taken away from her residence from the lawful custody of her guardian and also there is no specific evidence showing any inducement on the part of the Appellant for taking her with him from the lawful custody of her parents for any unlawful purpose, so it could not be said that she was kidnapped by the Appellant in any manner for the purpose as alleged by the prosecution and held by the Trial Court. I would also like to mention here that as per case of the prosecution the parties were agreed to get registered civil marriage in near future with each other. So, in such premises even on taking into consideration the age of prosecutrix between 17 to 18 years, it could not be deemed that Appellant has committed an offence of kidnapping of the prosecutrix for any unlawful purpose. So, in such premises even on taking into consideration the age of prosecutrix between 17 to 18 years, it could not be deemed that Appellant has committed an offence of kidnapping of the prosecutrix for any unlawful purpose. Long before such aspect was taken into consideration and answered by the Apex Court in the matter of S. Varadarajan v. State of Madras (supra), in which it was held as under: 9. It must however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. 10. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion, if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking". 11. In view of the aforesaid principle, laid down by the Hon'ble Supreme Court, it is apparent that in spite of knowing all the consequences of the act, the prosecutrix voluntarily went with the Appellant and visited various places and was also ready to get civil marriage with the Appellant. In such premises the alleged conviction and sentence of the Appellant awarded by the Trial Court could not be sustained by dismissing this appeal. 12. It is made clear that for holding the age of the prosecutrix to be between 16 to 18 years, the cross-examination of Dr. Sita Ram Singh (P.W. 2) was not taken into consideration in which he stated that prosecutrix may be the age of 18 years. In any case on giving the interpretation to the deposition of aforesaid witnesses, if two probable views are possible, one is in favour of the prosecution to decide the age of the prosecutrix to be less than 16 years that may be 14 years and the another view to decide the age of prosecutrix to be 18 years, then in view of the settled proposition of criminal law that if two views are possible, then the view which is favourable to the accused should be adopted as laid down by the Apex Court in the matter of Harchand Singh and Anr. v. State of Haryana, reported in AIR 1974 SC 344 , in which it was held as under: The present is a case wherein one set of prosecution evidence condemns the other set of evidence produced by the prosecution. In the above state of affairs, we find it difficult to secure a firm ground upon which to base the conviction of the accused Appellants. 13. In view of the aforesaid discussion it is held that the Trial Court has committed error, perversity and infirmity in convicting and sentencing the Appellant for the offence under Sections 363 and 366-A of the IPC. Consequently, by allowing this appeal, such conviction and sentence of the Appellant is hereby set aside and he is acquitted from such charges. 13. In view of the aforesaid discussion it is held that the Trial Court has committed error, perversity and infirmity in convicting and sentencing the Appellant for the offence under Sections 363 and 366-A of the IPC. Consequently, by allowing this appeal, such conviction and sentence of the Appellant is hereby set aside and he is acquitted from such charges. In such premises his bail bonds are hereby discharged. The amount of fine imposed by the trial if deposited by the Appellant, then after proper verification, the same be refunded to him. The appeal is allowed as indicated above.