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2011 DIGILAW 973 (MP)

Bhojraj v. State of M. P.

2011-08-23

BRIJ KISHORE DUBE

body2011
JUDGMENT 1. The judgment passed in this appeal shall also govern disposal of connected Appeal No.99/06 (Sultan Singh v. State of M.P.), and Criminal No.251/06 (Ramautar v. State of M.P.), since all these appeals have arisen from a common judgment passed by the learned trial Court in Sessions Trial No.303 of 2002, convicting all the appellants. 2. Feeling aggrieved by the judgment of conviction and order of sentence dated November 30, 2005 passed by the learned Additional Sessions Judge, Sabalgarh, District Morena, in Sessions Trial No.303/2002 (State of M.P. v. Roop Singh) convicting the appellants of this appeal and the connected criminal appeals and sentenced them as under : Name of the Convicted Sentence appellant u/sections Bhojraj 366 IPC Rigorous imprisonment for 7 years and to and pay fine of Rs.200/- in default to suffer simple imprisonment for one month. 376(2)(g) IPC Rigorous imprisonment for 10 years and to pay fine of Rs.250/- in default to suffer simple imprisonment for one month. Bharat Singh 366(A) IPC Rigorous imprisonment for 7 years and to pay fine of Rs.200/- in default to suffer simple imprisonment for one month. Sultan Singh 366 IPC Rigorous imprisonment for 7 years and to and pay fine of Rs.200/- in default to suffer simple imprisonment for one month. 376(2)(g) IPC Rigorous imprisonment for 10 years and to pay fine of Rs.250/- in default to suffer simple imprisonment for one month. Ramautar 366 r/w Rigorous imprisonment for 7 years and to 368 IPC pay fine of Rs.200/- in default to suffer simple imprisonment for one month. with a further direction that the jail sentences of Bhojraj and Sultan Singh shall run concurrently, the convicted appellants of this appeal and the connected criminal appeals have preferred the appeals under section 374 of the Code of Criminal Procedure, 1973. 3. The appeal filed by co-appellant, Roop Singh (Criminal Appeal No.851/05) stood dismissed as abated against him as he had died and his name has been deleted from the cause title of the appellants. 4. The prosecution case, in brief, may be narrated as under : (i) That, in the night of December 20, 2000 Ramdayal (PW4) and his family members were sleeping in his house. 4. The prosecution case, in brief, may be narrated as under : (i) That, in the night of December 20, 2000 Ramdayal (PW4) and his family members were sleeping in his house. When wife of Ramdayal, Geeta (PW5) woke up in the night at about 11:00 hours, she found that her daughter, Guddi alias Suman, aged 14 years was not in the house, then she informed accordingly to her husband, Ramdayal. Ramdayal and his family members searched for her but finding that she was untraceable, then in the morning of December 21, 2000, Ramdayal’s father, Aangad Singh went to the Police Station Kailaras and lodged missing person report of his grand-daughter, Guddi which was registered at missing person report No.7/2000 dated 21.12.2000. During the investigation, it was revealed that Mehtab Singh Gurjar (absconding co-accused) had kidnapped Guddi alias Suman, therefore, offence at Crime No.2/2001 under sections 363 and 366 of IPC was registered at Police Station Kailaras on January 6, 2001. In the further investigation, Guddi alias Suman was recovered on December 26, 2001. Her statement was recorded and she was got medically examined. Thereafter, offence under section 376 of IPC was added and other persons were included as accused; (ii) That, after investigation, a charge-sheet was submitted against the appellants of the present appeals as well as Rameshwar, Mehtab Singh, Pappu and Neksiya (in total 9 accused persons) in the committal Court, which on its turn, committed the case to the Court of Sessions from where it was received by the trial Court for the trial; and (iii) That, co-accused, Rameshwar, Mehtab Singh, Pappu and Neksiya could not be arrested as they were absconding and, hence, their names were shown in the charge-sheet as absconders and they were declared proclaimed offenders. 5. The learned trial Court on the basis of the material placed on record framed charge punishable under sections 366 and 376(2)(g) of IPC against the appellants-accused, Bhojraj Singh and Sultan Singh, under section 366A of IPC against Bharat Singh and under section 366 read with section 368 of IPC against Ramautar. All the accused persons/appellants denied the charge and claimed to be tried. The defence of the accused persons is of false implication on account of rivalry and the same defence they set forth in their statements recorded under section 313 of the Code of Criminal Procedure, 1973. 6. All the accused persons/appellants denied the charge and claimed to be tried. The defence of the accused persons is of false implication on account of rivalry and the same defence they set forth in their statements recorded under section 313 of the Code of Criminal Procedure, 1973. 6. In order to prove the charge, the prosecution has examined as many as 11 witnesses and placed on record the documents, Exs.P-1 to P-15. None has been examined by the accused persons in their defence. 7. The learned trial Court after close scrutiny of the evidence placed on record came to hold that charge under section 366A of IPC has been found proved against the appellant, Bharat Singh while charge under sections 366 and 376(2)(g) of IPC has been found proved against the appellants, Bhojraj Singh and Sultan Singh and under section 366 read with section 368 of IPC has been found proved against the appellant, Ramautar and, eventually, convicted them and passed the sentence as mentioned hereinabove. 8. In this manner, this appeal and the connected appeals have been preferred by the present appellants and the appellants of connected criminal appeals assailing their judgment of conviction and order of sentence passed by the learned trial Court. 9. At the outset, learned counsel, Shri N.P. Dwivedi appearing for the appellants Bhojraj and Bharat Singh (Criminal Appeal No.851/2005) has submitted that the appellant, Bharat Singh has served his entire sentence and has been released from the jail. So far as the other appellant, Bhojraj is concerned, the learned counsel submitted that there was no cogent evidence to establish the ingredients of offence punishable under sections 366 and 376(2)(g) of IPC against the appellant. He has further submitted that the prosecution has failed to prove that age of the prosecutrix was either below 16 years or below 18 years at the time of occurrence of the alleged offence. On the other hand, in the ossification test report her age has been found to be above 16 years and below 19 years. The judicial notice can be taken of the fact that the margin of error in age ascertained by the radiological examination is two years on either side, therefore, the age of the prosecutrix during the relevance period could have been 21 years. The judicial notice can be taken of the fact that the margin of error in age ascertained by the radiological examination is two years on either side, therefore, the age of the prosecutrix during the relevance period could have been 21 years. Learned counsel has further contended that the prosecutrix was taken to different places and lived in different villages for a considerable period in the family of the accused persons but she did not make any complaint or made any alarm, therefore, this conduct of the prosecutrix clearly indicates that she was a consenting party. It is further submitted that according to the statement of lady doctor, Archna Karpur (PW8) who examined the prosecutrix, neither external injury nor any injury on the genetical part of the prosecutrix has been found. No opinion was expressed by the Doctor regarding commission of rape on the prosecutrix, therefore, the learned trial Court has erred in convicting the appellants, hence, this appeal may be allowed and the appellants may be acquitted from the charge. Learned counsel has placed reliance on four decisions, they are : (i) S. Varadarajan v. State of Madras [ AIR 1965 SC 942 ]; (ii) Lalta Prasad v. State of Madhya Pradesh [ AIR 1979 SC 1276 ]; (iii) State of Karnataka v. Sureshbabu Pukraj Porral [ AIR 1994 SC 966 ]; (iv) Lallusingh s/o Jagdishsingh Samgar v. State of M.P. [1996(2) CCrJ 269 M.P.]. 10. An alternate submission has also been put-forth by the learned counsel for the appellants that if the statement of the prosecution witnesses appears to be true, the sentence of the appellant, Bhojraj may be reduced to the period already undergone as he has served the sentence about eight and half years including the period of remission. 11. Shri Brijesh Sharma, learned counsel for the appellant in the connected Criminal Appeal No.9/06 and Shri Anoop Nigam, learned counsel for the appellant in Criminal Appeal No.251/06 have submitted that there are material infirmities in the testimony of the prosecutrix with reference to the contents of her case-diary statement (Ex.D-2), therefore, the appellants could not be convicted for kidnapping and committing rape on the prosecutrix. An alternate submission has also been put-forth by both the learned counsel that the incident was occurred in the month of December, 2000 and the appellant, Sultan Singh has served the sentence about eight and half years including the period of remission while the appellant, Ramautar has served the sentence of two and half years including the period of remission and he is suffering from paralysis due to which he is unable even to stand, therefore, their sentences may be reduced to the period already undergone by them. 12. In response, Shri B.K. Sharma, learned Public Prosecutor while making reference to the incriminating pieces of the evidence, has submitted that the conviction of the appellants is well merited and prayed for dismissal of the appeals. 13. In order to appreciate the merits of the rival contentions in a proper perspective, it would be necessary to advert to the evidence available on record. 14. According to Ramdayal (PW4) at the relevant point of time, he and his family members were sleeping in his house. At about 10:00 hours in the night, his wife Geeta woke up and told him that their daughter, Suman was not on the cot, then he and his family members searched for her but finding that she was not traceable, in the next day morning, his father, Aangad Singh went to the Police Station Kailaras and lodged a missing person report of his daughter, Suman. 15. Ramdayal further deposed that after one year, his daughter was found at Karoli by Jagannath and then, he (Jagannath) brought her from there to Gwalior. He has also deposed that his daughter, Suman narrated the entire story by saying that Mehtab, Sultan, Bharat, Neksiya have taken her to different places and committed rape on her. 16. PW9, V.S. Ahmana, the then Town Inspector of Police Station Kailaras has stated that on the information, he has recorded the missing person report on December 21, 2000 (Ex.P-5). 17. 16. PW9, V.S. Ahmana, the then Town Inspector of Police Station Kailaras has stated that on the information, he has recorded the missing person report on December 21, 2000 (Ex.P-5). 17. PW6, the prosecutrix has categorically deposed that on the fateful day at about 10-11 hours in the night she had gone outside of her house for a pee and while she was returning insider her house, she saw Sultan Singh along with his associates, namely; Bharat, Neksiya, Bojraj and Mehtab, total five in number were standing near wall of her house, they caught hold of her and threatened her for causing death of her father and brother if she cries and shouts and took her forcibly outside the village where she saw an unknown person of dark in complexion having gun and Roop Singh were also standing underneath the Remja tree. Thereafter, all the aforesaid persons brought her on the bank of Chambal river where Pappu Mallah had crossed them river Chambal by a patia (a boat type wooden structure), thereafter, the person having gun went away and the remaining persons, Sultan, Bharat, Neksiya, Bhojraj, Mehtab and Roop Singh took her to the village Bhuhari and kept her in the house of Ramautar for three months. The prosecutrix (PW6) has further deposed that on the way, she wept but she was threatened and took her forcibly by the accused persons and after passing the whole night in the way, she reached early in the morning in the house of Ramautar. During her detention in the house of Ramautar, he (Ramautar) provides her daily needs. The accused persons have confined in a room and kept tight surveillance and also threatened to kill her in case she cries and make any alarm. 18. PW6, the prosecutrix has further deposed that after keeping her in the house of Ramautar for three months, Bharat, Neksiya, Bhojraj, Sultan and Mehtab taken her by a jeep in the village Karoli and kept her there for 8 days in the house of Rameshwar Pandit. Later on, she was taken to the village Gadola Pahadi and kept her there in the house of Neksiya where Bhojraj, Sultan and Neksiya have forcibly performed sexual intercourse (Bura Kam) like husband and wife do it. Later on, she was taken to the village Gadola Pahadi and kept her there in the house of Neksiya where Bhojraj, Sultan and Neksiya have forcibly performed sexual intercourse (Bura Kam) like husband and wife do it. She stayed there for about 9 months and during such period, Bhojraj, Sultan and Neksiya did bad work with her but due to fear of the accused persons, she did not shout during her stay in the house of Neksiya. PW6, the prosecutrix further deposed that one day she was brought by the accused, Sultan, Neksiya, Bhojraj and Bharat at Karoli to purchase the clothes where she has seen her maternal uncle, Jagannath and seeing him, she rushed towards him and enfolded with Jagannath. On seeing this, all the accused persons took to their heels and she was brought to Gwalior by Jagannath and his associates and then at the residence of Smt. Uma Sengar who informed the incident to the Inspector General of Police, Gwalior on telephone and then the Inspector General of Police, Gwalior informed the matter to the Police Kailaras on telephone and thereafter she along with her family members went to the Police Station Kailaras where her statement was recorded and she was sent to Sabalgarh Hospital where she was medically examined. Her statement under section 164 of the CrPC, was also recorded. PW6, the prosecutrix further deposed that she narrated the entire incident to her parents and other family members. Nothing could be elicited in her cross-examination so as to suggest that she was interested in securing the conviction of the appellants on absoloutely false grounds. 19. It is true that Geeta (PW5), the mother of the prosecutrix did not come forward to support the corresponding version of the commission of kidnapping and commission of rape by the accused persons but she fairly stated that on the fateful night when her daughter (prosecutrix) was not found in the house then she appraised of missing of her daughter to her husband. 20. The proposition of law that the victim of rape cannot be treated as an accomplice and, therefore, no corroboration is necessary to act upon her evidence, is well settled {State of U.P. v. Chhote Lal [ AIR 2011 SC 697 referred to]}. 21. 20. The proposition of law that the victim of rape cannot be treated as an accomplice and, therefore, no corroboration is necessary to act upon her evidence, is well settled {State of U.P. v. Chhote Lal [ AIR 2011 SC 697 referred to]}. 21. It is also true that there are certain discrepancies and omissions in the testimony of PW6, prosecutrix but they are natural as she is a villager and she was examined in the Court after about 40 months after the date of the incident, however, the alleged discrepancies and omissions does not affect the core of the prosecution case. Therefore, this Court finds that her testimony inspires full confidence. 22. The apex Court in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat [ AIR 1983 SC 753 ], has observed that discrepancies which did not go to the root of the matter and shake the basic version of the witnesses, cannot be annexed with undue importance. Injury on the body or private parts of the prosecutrix is also not sine qua non to prove the charge of rape. 23. The absence of corresponding injuries during the medical examination of the prosecutrix conducted on December 29, 2001 at 3:10 p.m., i.e., more than 50 hours after her recovery (recovered on December 26, 2001 at 1:00 p.m.), and after so many days of sexual assault in question, was not by itself sufficient to falsify the case of alleged rape on her as laid down by the apex Court in the case of Sheikh Zakar v. State of Bihar [ AIR 1983 SC 911 ], and reiterated in the case of State of Madhya Pradesh v. Dayal Sahu [ 2006(2) JLJ 135 = AIR 2005 SC 3570 ], even no examination of Doctor and non-production of doctor’s report would not be fatal to the prosecution case, if the statement of prosecutrix and the other prosecution witnesses inspires confidence. 24. The unproved and unexhibited report as to radiological examination of the prosecutrix produced by the prosecution yet favouring the defence to a certain extent could be used by the appellants {See : Lallu Singh v. State of M.P. [1996(1) Vidhi Bhavsar 269= 1996 MPLJ 452 ], and Ramdayal v. State of M.P. [1994(1) Vidhi Bhasvar 114= 1993 MPLJ 532 ]}. Thus, according to the ossification test report, the prosecutrix was 16-19 years of age. Thus, according to the ossification test report, the prosecutrix was 16-19 years of age. Shri N.P. Dwivedi, learned counsel for the appellants contended that the age determined by ossification test may differ by two years on either side, hence, as per ossification test, the age of the prosecutrix could have been 21 years on the date of the incident. Since the age of the prosecutrix was more than 18 years on the date of the incident and she was consenting party, therefore, the appellants cannot be convicted under sections 366 and 376 of IPC. 25. It is settled principle of law that when cogent and reliable evidence in respect of age and date of birth of the prosecutrix is available on record then the ossification test loses its importance and the age of the prosecutrix cannot be determined on the basis of ossification test. In this regard, in the case of Arjun Singh v. State of Himachal Pradesh [ (2009)4 SCC 18 ], the apex Court has held as under : “9. So far as the age aspect is concerned in Vishnu v. State of Maharashtra [ (2006)1 SCC 283 ], it was inter alia held as follows : “20. It is urged before us by Mr. Lalit that the determination of the age of the prosecutrix by conducting ossification test is scientifically proved and, therefore, the opinion of the doctor that the girl was of 18-19 years of age should be accepted. We are unable to accept this contention for the reasons that the expert medical evidence is not binding on the ocular evidence. The opinion of the Medical Officer is to assist the Court as he is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character and not binding on the witness of fact.” “10. In State of Chhattisgarh v. Lekhram [2006(2) BLJ 81= (2006)5 SCC 736 ], it was held that : (SCC p.739, paras 12 and 13) “The register maintained in a school is admissible in evidence to prove the date of birth of the person concerned in terms of section 35 of the Indian Evidence Act, 1872. It may be true that an entry in the school register is not conclusive but it has evidentiary value.” 26. It may be true that an entry in the school register is not conclusive but it has evidentiary value.” 26. The report, Ex.P-5 which was proved by PW9, V.S. Ahmana shows that the prosecutrix was 14 years of age at the time of the incident. 27. PW6, the prosecutrix herself stated that she was 16 years old at the time of the incident. She denied the suggestion of the accused persons in paragraph 28 of her cross-examination that she was more than 16 years old at the time of occurrence. Nothing has been elicited in the cross-examination of the said witness to show that her statement was not correct. The prosecutrix in her statement recorded under section 164 of CrPC, stated that her age was 16 years. 28. PW6, the prosecutrix has also stated that she was admitted in 1st Class in the school of village, Semai by her father and studied there upto 8th Class. After passing 8th Class, she had left Semai school and took admission in the Joura school and studied there upto 10th Class. The examination certificate of Sambagiya Purv Madhyamik Pariksha, 1988 (Ex.P-7) reveals that the prosecutrix had passed 8th Class examination as a student of Semai school in the year 1988 and her date of birth is 5.10.1984. It may be true that the entry regarding date of birth in the school certificate is not the conclusive but it has evidentiary value. Such an evidentiary value is corroborated by oral evidence of the prosecutrix, PW6. 29. In a recent pronouncement, in the case of State of U.P. v. Chhote Lal [ AIR 2011 SC 697 ], the apex Court has observed as under : “We find ourselves in agreement with the view of the trial Court regarding the age of the prosecutrix. The High Court conjectured that the age of the prosecutrix could be even 19 years. This appears to have been done by adding two years to the age opined by PW5. There is no such rule much less an absolute one that two years have to be added to the age determined by a doctor. The High Court conjectured that the age of the prosecutrix could be even 19 years. This appears to have been done by adding two years to the age opined by PW5. There is no such rule much less an absolute one that two years have to be added to the age determined by a doctor. We are supported by a 3 Judges Bench decision of this Court in State of Karnataka v. Bantara Sudhakara @ Sudha [ (2008)11 SCC 38 at page 41 of the Report stated as under : Additionally, merely because the doctors evidence showed that the victims belong to the age group of 14 to 16, to conclude that the two years age has to be added to the upper age-limit is without any foundation.” 30. In view of the above discussion, it appears that the prosecutrix was under the age of 18 years on the date of the incident of the alleged offence. 31. During the course of arguments much emphasis has been made about the consent of the prosecutrix. 32. The crux of the offence of rape under section 375, IPC is sexual intercourse by a man with a woman against her ill and without her consent under any one of the six circumstances mentioned in the section. 33. Consent is of paramount importance to determine the liability of a person for the offence of rape. Consent exonerate the accused from liability altogether. It may be either express or implied depending upon the nature and circumstances of a case. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled (not hampered) right to forbid or withhold what is being consented to, it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. 34. Consent of the woman in order to relieve the accused of the charge of rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one’s will or pleasure. 35. 34. Consent of the woman in order to relieve the accused of the charge of rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one’s will or pleasure. 35. Submission under the influence of fear or terror is not consent and will not exonerate a person from liability. There is difference between consent and submission. 36. In the case of Satpal Singh v. State of Haryana [ (2010)8 SCC 714 ], the apex Court has explained the meaning of ‘consent’ and held as under : “30. It can be held that a woman has given consent only if she has freely agreed to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to, it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. An act of helplessness in the face of inevitable compulsions is not consent in law. More so, it is not necessary that there should be actual use of force. A threat of use of force is sufficient. 31. The concept of “consent” in the context of section 375 IPC has to be understood differently, keeping in mind the provision of section 90 IPC, according to which a consent given under fear/coercion or misconception/mistake of fact is not a consent at all. Scheme of section 90 IPC is couched in negative terminology. Consent is different from submission. {Vide Uday v. State of Karnataka [ (2003)4 SCC 46 ], Deelip Singh v. State of Bihar [(2005)1 SCC 33], and Yedla Srinivasa Rao v. State of Andhra Pradesh [ (2006)11 SCC 615 ]}. 32. In State of Himachal Pradesh v. Mange Ram [(2007)7 SCC 224], this Court, while considering the same issue, held as under : (SCC pp.230-31, para 13) “13. .... Submission of the body under the fear of terror cannot be construed as a consented sexual act. 32. In State of Himachal Pradesh v. Mange Ram [(2007)7 SCC 224], this Court, while considering the same issue, held as under : (SCC pp.230-31, para 13) “13. .... Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent.” 37. In the backdrop of the above legal position, the evidence of the prosecutrix needs to be analysed. It may be apposite to mention here that at the relevant point of time, the prosecutrix was under 18 years of age. 38. The evidence of prosecutrix, PW6, has been analysed and stated hereinabove. According to it, she was removed from the lawful custody in the night of December 20, 2000. Out of fear, she could not raise hue and cry. She was taken to different places by five adult male persons under threat and kept in a separate room for many days where she was not only confined there but also kept under tight surveillance and in the village Gadola Pahadi, three accused, namely; Sultan Singh, Bhojraj and Neksiya have forcibly committed sexual intercourse with her and she was repeatedly threatened. Learned counsel for the appellants submitted that no alarm was raised nor any complaint was made by the prosecutrix during her stay with the accused or at the places where she was taken by them and that creates serious doubt of truthfulness of her evidence. This argument of the learned counsel overlooks the situation in which the prosecutrix was placed. She had been kidnapped by five adult male persons and threatened her and she was taken away from her village and kept confined her in a room under strict surveillance. In such circumstances, she took a sensible decision not to raise alarm and any alarm at unknown place might have endangered her life. The absence of alarm by her cannot be led to an inference that she had willingly accompanied the appellants. The circumstances made her submissive victim and that does not mean that she was inclined to and willing to intercourse with the appellants, Bhojraj, Sultan Singh and the absconding co-accused, Neksiya. The absence of alarm by her cannot be led to an inference that she had willingly accompanied the appellants. The circumstances made her submissive victim and that does not mean that she was inclined to and willing to intercourse with the appellants, Bhojraj, Sultan Singh and the absconding co-accused, Neksiya. She has no free act of mind during her stay with the appellants as she was under constant fear. 39. The prosecutrix has also been examined under section 164 of CrPC, wherein she had deposed that the accused persons have forcibly kidnapped her and committed rape on her. 40. There had been no enmity proved between the families of the appellants and the prosecutrix and, therefore, there could be no reason for the prosecutrix and her family to rope the appellants falsely in a case where the honour of the family itself remains at stake as the prosecutrix has to suffer mental agony through out her life. 41. The defence of the appellants is of false implication on account of rivalry also seems apparently impossible because no father would stoop so low so as to level a false charge of rape on his unmarried daughter. An unmarried woman ordinarily would not come forward to make a false charge of rape as it involves risk of her marriage prospects. 42. Therefore, looking to the above facts and circumstances of the case, especially the testimony of the prosecutrix, it appears that she was forcibly kidnapped and compelled to sexual intercourse without her willingness or free consent. 43. It is apposite to mention here that in the case of Satpal Singh (supra), it has also been held that if the prosecution successfully establishes that there was no consent, issue of majority becomes irrelevant. 44. In the case of S. Varadarajan (supra), relied upon and cited by learned counsel for the appellants, it has been held that taking or enticing away a minor girl out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. It has been further held as under: “.... 44. In the case of S. Varadarajan (supra), relied upon and cited by learned counsel for the appellants, it has been held that taking or enticing away a minor girl out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. It has been further held as under: “.... when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of the father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Registrar’s Office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have “taken” her out of the keeping of her lawful guardianship.” 45. In the case of Sureshbabu Pukraj Porral (supra), relied upon by the learned counsel for the appellants, it has been observed as under : “.... PW21 was a doctor and Radiologist working in K.M. Hospital, Hubli. PW7 was referred to him for determination of her age. He conducted all the necessary tests and then also took x-rays. From the ossification test, according to him, her age could be under 18 years. But according to Isshial Tuberosity, her age could be below 20 years. Like that, from the tests and examinations of Distal end femur and Tibia etc. the doctor gave the approximate age stating that it could be 16 years. But the data given would show that she could be aged 18 years also. In this context, the evidence of PW5, the mother of PW7 throws any amount of doubt about her age. The Courts below no doubt have relied on a transfer certificate Ex.P-1 in which the date of birth of PW7 was given as 5.9.1961 and this certificate was obtained after the date of the offence namely on 12.1.1977. In this context, the evidence of PW5, the mother of PW7 throws any amount of doubt about her age. The Courts below no doubt have relied on a transfer certificate Ex.P-1 in which the date of birth of PW7 was given as 5.9.1961 and this certificate was obtained after the date of the offence namely on 12.1.1977. That apart, the Headmistress simply stated that the entry was made on the basis of the information given by the parents. A lady doctor, PW20, who also examined PW7 stated that she refused to get herself admitted or even be examined. But, however, she was again brought back and was examined. PW20 did not find any injury on her body including private parts. The doctor deposed that PW7 was used to sexual intercourse and in the cross-examination she stated that her age could extend to 16 to 17 years also. We are only pointing these aspects because regarding the age the evidence is not very convincing.” Therefore, it has been held that the age of the victim has not been satisfactory to be below 16 years. 46. In the case of Lalta Prasad (supra), cited by the learned counsel for the appellants, the victim found to have gone with the accused of her free will and with consent of her mother. The prosecution has failed to prove that the victim was below 16 years of age at the time of the alleged occurrence. Therefore, the accused was held not guilty under sections 366/376 of IPC. 47. The facts of the cases relied upon by the learned counsel for the appellants are apparently quite different with the case in hand and, therefore, not helpful to the appellants in many manner. 48. Thus, even on re-appreciation of the entire evidence on record in the light of the contentions raised against the legality and propriety of the impugned conviction, I am of the view that there is no merit or substance in this appeal and the connected appeals of conviction. The overwhelming evidence on record was rightly considered to be sufficient to bring home the charge, as a result of which, the conviction of the appellants deserves to be maintained as well merited. 49. Now this Court comes to the alternate submission put-forth by the learned counsel for the appellants. The appellants have been convicted and sentenced by the learned trial Court as stated hereinabove. 49. Now this Court comes to the alternate submission put-forth by the learned counsel for the appellants. The appellants have been convicted and sentenced by the learned trial Court as stated hereinabove. The learned Public Prosecutor, Shri B.K. Sharma, has submitted information received from the concerned jail authorities that the appellants, Bhojraj, Bharat Singh and Sultan Singh have served out their sentences and released from the jail on December 10, 2010. 50. The alleged incident took place in the month of December, 2000. No previous criminal conduct of the appellant, Ramautar has been proved by the prosecution. It appears from the order dated October 6, 2010 passed by this Court that the appellant, Ramautar is suffering from paralysis due to which he is unable to even stand. He has served two years one month and twenty-seven days sentence excluding the period of remission. Under these circumstances, the interest of justice would be sub-served, if the jail sentence of the appellant, Ramautar is reduced to the period already undergone him. 51. Consequently, Criminal Appeal No.851 of 2005 (Bhojraj and Bharat Singh v. State of M.P.), and Criminal Appeal No.99 of 2006 (Sultan Singh v. State of M.P.), are dismissed. The impugned judgment of conviction and the corresponding sentences are hereby affirmed. 52. The Criminal Appeal No.251 of 2006 (Ramautar v. State of M.P.), is allowed in part. The conviction of the appellant, Ramautar is hereby affirmed but the sentence passed by the learned trial Court is set aside instead thereof, the appellant is sentenced to the period already undergone by him with fine as imposed by the learned trial Court and in default of payment of fine, the appellant shall serve additional simple imprisonment for one month. The appellant, Ramautar is on bail, therefore, his bail bonds stand discharged. The fine amount if not already deposited be deposited within one month from today. 53. In the result, connected Criminal Appeal No.251 of 2006 (Ramautar v. State of M.P.), is allowed in part to the extent indicated hereinabove. However, Criminal No.851 of 2005 (Bhojraj and Bharat Singh v. State of M.P.), and Criminal Appeal No.99 of 2006 (Sultan Singh v. State of M.P.), are dismissed. 54. The Registry is directed to send a copy of this judgment immediately along with the record to the learned trial Court, for necessary compliance. 55. However, Criminal No.851 of 2005 (Bhojraj and Bharat Singh v. State of M.P.), and Criminal Appeal No.99 of 2006 (Sultan Singh v. State of M.P.), are dismissed. 54. The Registry is directed to send a copy of this judgment immediately along with the record to the learned trial Court, for necessary compliance. 55. A copy of this judgment shall be placed in the record of connected criminal appeals. .............