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2015 DIGILAW 121 (MP)

Bato @ Veeru v. State of M. P.

2015-01-31

SUSHIL KUMAR GUPTA

body2015
ORDER 1. The judgment passed in this appeal shall also govern the disposal of connected Criminal Appeal No.816/2012 (Ganeshram v. State of M.P.) since both have arisen from the same common judgment. 2. Feeling aggrieved with the judgment of conviction and order of sentence dated 31.8.2012 convicting the appellants under sections 363 and 366 of IPC and sentencing them to suffer four years R.I. with a fine of Rs.5,000/- for each of the offences, the appellants have knocked the doors of this Court by preferring this appeal as well as connected Criminal Appeal No.816/12. 3. Facts of the case, in brief, are that complainant has lodged a report that on 31.7.2011 at 3 O'clock in the night he was sleeping in his house. His sister was also sleeping nearby. When in the morning he awoke, he did not find his sister. On this report, missing person report No.4/11 was registered and enquiry was conducted. During enquiry, statements of Matua and Neksiya were recorded and they stated that appellant Bato @ Veeru has taken away the prosecutrix on the pretext of marriage and appellant Ganeshram and accused Kalu have helped him. Thereafter, the police registered the FIR at Crime No.105/11 against the appellants and Kalu for the offence punishable under sections 363, 366, 34 of IPC. 4. After investigation, police submitted the charge-sheet against the appellants and Kalu in the committal Court which committed the case to the Court of Session and from where it was received by the trial Court for trial. 5. The learned trial Court framed the charges under sections 363 and 366 of IPC against the appellants which they denied and pleaded for trial. In examination under section 313 of CrPC, they pleaded innocence and false implication. They did not examine any witness in support of their defence. 6. In the trial in order to prove the charges, prosecution examined as many as 11 witnesses and placed Ex.P-1 to P-16, the documents on record. 7. The learned trial Court after appreciating and marshalling the evidence convicted and sentenced the appellants as mentioned above. 8. In this manner, present appeal and connected Criminal Appeal No. 816/2012 have been filed. 9. Learned counsel for the appellants has submitted that prosecutrix was major and a consenting party. She herself left her house. 7. The learned trial Court after appreciating and marshalling the evidence convicted and sentenced the appellants as mentioned above. 8. In this manner, present appeal and connected Criminal Appeal No. 816/2012 have been filed. 9. Learned counsel for the appellants has submitted that prosecutrix was major and a consenting party. She herself left her house. Appellant Bato @ Veeru did not abduct the prosecutrix, but she herself went with the appellant, and therefore, no offence under section 366 of IPC is made out. Learned counsel further submitted that most of the witnesses turned hostile during trial and only on the omnibus statements of the witnesses, the appellants have been convicted. It is also submitted that there are material contradictions and omissions in the statements of the witnesses. In the alternative, it is submitted by learned counsel for the appellants that the appellants are facing the agony of criminal trial for the last four years and they are in jail since 15.8.2011, and therefore, sentence awarded to them may be reduced to the period which they have already undergone. 10. On the other hand, learned counsel for the State has supported the impugned judgment and submitted that Court below has not committed any illegality in convicting and sentencing the appellants, and therefore, no interference is warranted. 11. Heard the learned counsel for the parties and perused the record of trial Court. 12. First of all, I would like to consider the arguments advanced by learned counsel for the appellants on the following points :- (A) Whether the prosecutrix was major at the time of incident ? (B) If yes, whether prosecutrix herself went with appellant Bato @ Veeru and was a consenting party ? (C) Whether the prosecution witnesses are not reliable and trustworthy, and hence, conviction recorded is liable to be set aside ? (D) Whether sentence awarded to the appellants can be reduced to the period which they have already undergone ? Regarding question No.A 13. The prosecutrix (PW4) has stated in her cross-examination that she was 15 years old at the time of incident. Her father Neksia (PW2) stated that her daughter was 14 years of age at the time of incident. Anil Kumar Dangi (PW11), In-charge Headmaster of Govt. Regarding question No.A 13. The prosecutrix (PW4) has stated in her cross-examination that she was 15 years old at the time of incident. Her father Neksia (PW2) stated that her daughter was 14 years of age at the time of incident. Anil Kumar Dangi (PW11), In-charge Headmaster of Govt. Higher Secondary School, Durgapur, stated that prosecutrix was admitted in the school in the year 2009 in class V and on the basis of admission entry (Ex.P-14), her date of birth is 19.5.1997. He also stated that this date of birth was entered in the register (Ex.P-14) on the basis of school leaving certificate (Ex.P-15). The mark-sheet of class V (Ex.P-16) was also produced by this witness which proves prosecutrix's date of birth as 19.5.1997. Therefore, on the basis of school record as well as statement of the witnesses, it is proved that at the time of incident i.e. 31.7.2011, the age of the prosecutrix was 14 years, two months and twelve days. As such, at the time of incident, she was below 16 years of age and was not major. Regarding question No.B 14. The prosecutrix (PW4) stated in her statement that before 4-5 months when she had gone to answer the call of nature, at that time, appellant Veeru came there and asked to accompany him, he will get her marriage solemnized at a good place. On the basis of this false promise, she went with him. At that time, appellant Ganeshram also came there and both the appellants took her to Shivpuri by bus. Appellant Veeru threatened to kill her by means of knife if she cried. In cross-examination, she specifically denied that because there is enmity in between her family and family of the appellants, she is stating against the appellants. There is nothing in her cross-examination to disbelieve her testimony. 15. For a moment even if it is presumed that prosecutrix herself went with the appellant Bato, even then when the prosecutrix was minor and had gone with appellant Bato on the basis of false promise of appellant Bato that he will get her marriage solemnized at a good place, her consent does not amount to consent in the eyes of law. Therefore, it is proved that prosecutrix was minor and was not a consenting party. Regarding question No.C 16. Therefore, it is proved that prosecutrix was minor and was not a consenting party. Regarding question No.C 16. Apart from the statement of the prosecutrix (PW4), prosecution has examined ten witnesses, namely Ramkrishna (PW1), Neksiya (PW2), Matua (PW3), Bhanusingh (PW5), Ravi Mehtar (PW6), Janaksingh (PW7), Rajendra Sharma (PW8), Narendra Sharma (PW9), Mahavir Prasad (PW10) and Anil Kumar Dangi (PW11), but nothing has been brought in their cross-examination to disbelieve their evidence. On perusal of the evidence and material available on record, I am of the considered view that prosecution witnesses are reliable and trustworthy. I have not found any perversity, infirmity or anything contrary to the propriety of law in the judgment of trial Court in holding the appellants guilty for the aforesaid offence, therefore, there is no scope in the case for acquittal of the appellants. Consequently, the conviction of the appellants is hereby affirmed. Regarding question No.D 17. Learned counsel for the appellants submitted that considering the long pendency of the case, mental agony of the appellants suffered during such period and that the appellants have already suffered jail sentence for almost three years and ten months including remission period since 15.8.2011, therefore, by adopting a lenient view their jail sentence be reduced to the period already undergone by them. 18. I do not find it fit to extend the benefit of the provisions of Probation of Offenders Act to the appellants. 19. Coming to the alternative prayer of learned counsel for the appellants for reducing the jail sentence, I have found some substance in it. It is apparent on record that the appellants are facing the mental agony of the case since long from the date of their arrest and also suffered jail sentence of almost three years and ten months and as per available record, they do not have any criminal antecedents and in such premises, they appear to be first offenders. Thus, considering all these circumstances by adopting a lenient view, I deem it fit to reduce the jail sentence of the appellants to the period which they have already undergone. 20. Therefore, affirming the conviction of the appellants under sections 363 and 366 of IPC, this appeal is partly allowed and the jail sentence of the appellants for each of the offences is reduced to the period already undergone by them. 20. Therefore, affirming the conviction of the appellants under sections 363 and 366 of IPC, this appeal is partly allowed and the jail sentence of the appellants for each of the offences is reduced to the period already undergone by them. There is no change in the fine amount which was imposed by the learned trial Court. 21. Both the appeals are partly allowed to the extent indicated above by affirming the conviction of the appellants under sections 363 and 366 of IPC and reducing their jail sentence for each of the offences to the period already undergone by them. D. S. Tomar and G. S. Chauhan for appellants; M. Bhardwaj, Public Prosecutor for respondent/State.