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Madhya Pradesh High Court · body

2012 DIGILAW 108 (MP)

Vikki @ Vyay Sonkar v. State of M. P.

2012-01-23

U.C.MAHESHWARI

body2012
JUDGMENT : Now, at this stage, this court has to answer the two questions firstly what was the age of the prosecutrix on the date of incident and secondly if she was minor then whether she was taken away by the appellant from the lawful custody of her parents without their consent. It is apparent fact on record that during investigation, even on availability of the prosecutrix, her ossification test to find out her correct age, was not carried out. It is also apparent from the record that in order to prove the actual age, the birth certificate of the prosecutrix has neither been produced nor proved on record. On the contrary, in para -15 of the prosecutrix, it has come on record that the prosecutrix was born at her resistance and, in such premises, her date of birth was not informed to the Muncipal Corporation. In the entire deposition, this witness has not stated that at any place, at any point of time, she noted the date of birth of the prosecutrix on which the same was stated in the form relating to the school admission of the prosecutrix. Although on admission of the prosecutrix in the school, her date of birth 21.4.86 filled -up by this witness in the requisite form and on the basis of such information and declaration the aforesaid date was mentioned in the school record by the school management. Shri Kamal Rai (PW12) the Head Master of the concerning school while exhibiting the School leaving Certificate (Ex.P/15) and declaration form (Ex P/ 16) signed by the parents of the prosecutrix and submitted by them at the time of her admission in the school, said that in the record of the school, the information was filled -up on the basis of aforesaid declaration form (Ex P/16). In such circumstances, on the basis of the school record, no inference could be drawn that the date of birth of the prosecutrix was correctly stated by her parents while submitting the admission form because at that time also there was no prima facie proof of the actual date of birth of the prosecutirx with them. In such circumstances, on the basis of the school record, no inference could be drawn that the date of birth of the prosecutrix was correctly stated by her parents while submitting the admission form because at that time also there was no prima facie proof of the actual date of birth of the prosecutirx with them. So, in such premises, the approach of the trail court being based only on such school record could not be relied -on because the testimony of Smt. Saroj (P.W.1) in this regard itself is suspicious with respect of the actual date of birth and, if the entry in the school record was made under suspicion then the same could not be a foundation to hold the conviction against the appellant. At this stage, I would like to examine the name with the another angle also. For the sake of the argument if the approach of the trial court based on the School record holding the age of the prosecutrix between 17 to 18 then it should be deemed that the prosecutrix was at the eve to attained the qiaturity and she was in a positions to understand the consequence of her act and also the future. It is apparent fact on record that the appellant has neither visited the residence of the prosecutrix to bring her nor he brought her from her residence or from the custody of her natural guardian. On the contrary, on the way of coaching class, either she went or she was taken away by the appellant but during that time as per the prosecution case itself, she did not make any alarm and voluntarily, with her own choice, had gone with the appellant and remained at the place where, as alleged, she was kept by the appellant and from such place some relative of the appellant, namely, Lekhraj, took her away and left her at the residence of her parents. In the lack of any independent evidence showing that the prosecutrix was taken away by the appellant from the way of coaching class forcibly, it could not be said that she was kidnapped or taken away forcibly by the appellant contrary to her wish. Apart the above, I have also found some of the letters, appear to be the love letters written by the prosecutrix to the appellant prior to the alleged incident. Apart the above, I have also found some of the letters, appear to be the love letters written by the prosecutrix to the appellant prior to the alleged incident. The sameare placed on the record in defence of the appellant as Ex.D/5 to D/9. Such evidence in defence of the appellant, has not been returned on behalf of the prosecution agency. So on the basis of such letters, this inference could be drawn that because of the love affair between the appellant and the prosecutrix, on the way of the coaching class, she voluntarily for one day and one night and only on intervation of some relative of the appellant she was left to her parental home. It is settled proposition that whenever a person like prosecutrix after leaving her / his residence, if voluntarily accompanied with some other person like appellant went to some place then it could not be said that the prosecutrix was kidnapped or abducted by the appellant. In such premises also, it could not be said that appellant committed the alleged offence of kidnapping the prosecutrix from the lawful custody of her parents.