Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 1044 (MP)

Rajendra Charmkar v. State of M. P.

2012-10-10

N.K.GUPTA

body2012
Judgment N.K. Gupta, J.;- 1. The appellant has preferred this appeal against the judgment dated 21.8.2000 passed by the learned First Additional Sessions Judge, Sidhi in S.T. No. 129/1999, whereby the appellant was convicted for the offence punishable under section 363 of IPC and sentenced for 3 years' rigorous imprisonment with fine of Rs. 5,000/-. In default of payment of fine, 6 months' rigorous imprisonment was also directed in addition. The prosecution's case, in short, is that, on 16.3.1999, at about 8-9 p.m., the prosecutrix (P.W.5) was sitting in her house. Her parents went to Khalihan. The appellant came to the house of the prosecutrix and told her to accompany him. Initially, the prosecutrix refused to go with him. Thereafter, the appellant convince her to go with him and thereafter, the appellant took her to his house. He took a sum of Rs. 500/- from his father and then, he took the prosecutrix to a temple. Thereafter, he took her to village Chadwahi and thereafter to village Jayant. At village Jayant, the appellant committed rape upon the prosecutrix and he kept her in a hut. On third day, some witnesses reached at the spot, where the appellant kept the prosecutrix and therefore, the prosecutrix as well as the appellant were brought to the Police station Behri, District Sidhi, where the complainant Samaylal, father of the prosecutrix had already lodged an FIR. The prosecutrix was directed for her medico legal examination and ossification test. The appellant was also directed for his medico legal examination. After due investigation, a charge-sheet was filed before the Additional Chief Judicial Magistrate, Sidhi, who committed the case to the Sessions Court and ultimately, it was transferred to the First Additional Sessions Judge, Sidhi. 2. The appellant abjured his guilt. He did not take any specific plea in the case but, he has stated that he was falsely implicated in the matter. However, in defence Buddhu (D.W.1) was examined. 3. On considering the evidence adduced by the parties, the learned First Additional Sessions Judge, acquitted the appellant from the charges of offence punishable under sections 366 and 376(1) of the IPC but, convicted him for the offence punishable under section 363 of IPC and sentenced him as mentioned above. 4. I have heard the learned counsel for the parties. 5. On considering the evidence adduced by the parties, the learned First Additional Sessions Judge, acquitted the appellant from the charges of offence punishable under sections 366 and 376(1) of the IPC but, convicted him for the offence punishable under section 363 of IPC and sentenced him as mentioned above. 4. I have heard the learned counsel for the parties. 5. The learned counsel for the appellant has submitted that the appellant was a young youth of 25 years of age at the time of the incident. She took the prosecutrix due to love affair. The prosecutrix was a consenting party and therefore, the appellant was acquitted from the charges of offence punishable under section 376 and 366 of IPC. He was convicted for the offence punishable under section 363 of IPC on technical grounds. The appellant remained in the custody for 361 days during the trial and for few days during the appeal. Under such circumstances, he remained in the custody for one year approximately. Looking to the age of the appellant and consent of the prosecutrix, whereas the appellant has faced the trial and appeal for the last 13 years, it is prayed by the learned counsel for the appellant that the appellant may not be sent to the jail again. 6. On the other hand, the learned Panel Lawyer has submitted that the conviction and sentence directed by the trial Court appears to be correct and therefore, there is no need to make any change in this appeal. 7. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it appears that the appellant does not press the appeal on merits. Only concentration has been directed on the sentence passed against the appellant. However, case of the appellant may be considered on merits in a concise manner. It is true that the prosecutrix was a consenting party but, she was found to be 15 to 16 years of age in the ossification test done by Dr. Kalpana Ravi (P.W.7). Dr. Kalpana Ravi has stated in her cross-examination that there may be a difference of 6 months' in the age of the prosecutrix in her assessment. The learned counsel for the appellant has submitted that 2-3 years may be added on both the sides in computation done by the radiological examination. However, in the present case, Dr. Kalpana Ravi (P.W.7). Dr. Kalpana Ravi has stated in her cross-examination that there may be a difference of 6 months' in the age of the prosecutrix in her assessment. The learned counsel for the appellant has submitted that 2-3 years may be added on both the sides in computation done by the radiological examination. However, in the present case, Dr. Kalpana Ravi has not only examined the prosecutrix radiologically but, she had examined the prosecutrix physically and internally. She found that pubic hair of the prosecutrix were scattered. Under such circumstances, assessment of age is not done on the basis of radiological examination only. Looking to the physical appearance of the prosecutrix, two years cannot be added to her radiological age. The prosecutrix (P.W.5) and her father Samaylal (P.W.8) could not say anything about the age of the prosecutrix. He was not given any suggestion from the side of the defence. Under such circumstances, age of the prosecutrix was to be assessed on the basis of the medico legal examination and therefore, the trial Court has rightly observed that the prosecutrix was below 18 years of age at the time of the incident and hence, the trial Court has rightly convicted the appellant for the offence punishable under section 363 of IPC because he did not take the consent of the parents of the prosecutrix while kidnapping her. 8. So far as the sentence is concerned, it is clear that the appellant remained in the custody for entire one year during the trial and appeal. He was a youth of 25 years of age at the time of the incident and it appears that the crime has been committed by the appellant due to love affair. The prosecutrix was a consenting party and the appellant has suffered with the prosecution and appeal for more than 13 years. Under such circumstances, it is a good case in which the appellant may not be sent to the jail again. The trial Court has already imposed a fine of Rs. 5,000/- upon the appellant and therefore, there is no need to enhance the fine imposed upon him. 9. On the basis of the aforesaid discussion, the appeal filed by the appellant is hereby partly allowed. The trial Court has already imposed a fine of Rs. 5,000/- upon the appellant and therefore, there is no need to enhance the fine imposed upon him. 9. On the basis of the aforesaid discussion, the appeal filed by the appellant is hereby partly allowed. The conviction directed against the appellant for the offence punishable under section 363 of IPC is hereby maintained but, sentence is reduced to the period which he has already undergone in the custody. There is no change in the fine amount imposed by the trial Court. The appellant is directed to deposit the remaining fine amount before the trial Court within two months from today, if he has not deposited the sum before the trial Court. If the appellant fails to deposit the fine amount before the trial Court within stipulated period then, the trial Court shall execute the default sentence as directed in the judgment dated 21.8.2000 passed by the trial Court. 10. At present, the appellant is on bail. His Presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. A copy of the judgment be sent to the trial Court alongwith its record for information and compliance.