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Madhya Pradesh High Court · body

2016 DIGILAW 547 (MP)

State of M. P. v. Yogesh

2016-07-12

N.K.GUPTA, S.A.DHARMADHIKARI

body2016
ORDER 1. Heard on I.A. 601/2016, an application for condonation of delay in filing the leave application. 2. After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it appears that a delay of only 25 days has been caused in filing the present leave application. After undergoing the complicated process of sanction from the Law Department, such delay has been caused. Therefore, delay of 25 days in filing the present leave application, is hereby condoned. I.A.601/2016 is hereby disposed off accordingly. 3. Heard on leave application. 4. The State has challenged the judgment dated 22.9.2015, passed by the First Additional Sessions Judge, Ashok Nagar in S.T.No.12/2014, whereby the respondent has been acquitted from the charges of sections 366(A), 376(1) and 506(B) of IPC. 5. Facts of the case, in short, are that Sehjadi Be (PW2) mother of the prosecutrix, had lodged an intimation on 31.7.2011 at Police Station, Nai Sarai that four days back the prosecutrix aged 16 years, was missing. On investigation, it was found that the prosecutrix was living with the respondent and in medico-logical examination, she was found with the pregnancy of eight weeks. After due investigation, the charge-sheet was filed and the case was committed to the Court of Session. 6. After considering the conduct of the prosecutrix (PW1) as depicted in her statement, certainly she was above 16 years of age at the time of incident and at that time, the age of consent for the offence under section 376 was 16 years. The prosecutrix remained with the respondent for a longer period without any resistance and she could be recovered when she was having pregnancy of eight weeks. In these circumstances, looking to the conduct of the prosecutrix, she was apparently a consenting party. The trial Court has rightly acquitted the respondent from the charge of section 376 of IPC. Since she was residing with the respondent with her consent, then the fact of threat could not be proved. The trial Court has rightly acquitted the respondent from the charge of section 506(B) of IPC. 7. So far as the offence of section 366(A) of IPC is concerned, the age of the prosecutrix is not relevant fact for that offence. It is surprising that the trial Court did not frame the charge of section 363 of IPC against the respondent. 7. So far as the offence of section 366(A) of IPC is concerned, the age of the prosecutrix is not relevant fact for that offence. It is surprising that the trial Court did not frame the charge of section 363 of IPC against the respondent. However, if it would have been framed, then it appears that Sehjadi Bee (PW2), mother of the prosecutrix, Wasid Ali (PW3) father of the prosecutrix, Wali Mahmmed (PW4) brother of the prosecutrix, have tried to hide the actual age of the prosecutrix. Teacher Shanti Devi Bhargav (PW10) has proved the educational record to show that the date of birth of the prosecutrix was 6.2.1995. However, Sehjadi Be (PW2) has accepted that such date of birth was recorded without any basis. On the other hand, Dr. S.S. Chhari (PW5) in his radio-logical examination report Ex.P-4 found that the prosecutrix was above 18 years of age and below 20 years of age. Hence, if the charge of section 363 of IPC had been appended, then the respondent would have been acquitted from such charge. 8. When it is apparent from the conduct of the prosecutrix that she was a consenting party leaving her parents house and had gone with the respondent, then prima facie no offence under section 366(A) of IPC is made out. The trial Court has rightly acquitted the respondent from the charge of such offence. 9. On the basis of aforesaid discussion, there is no reason to grant leave to file an appeal. Consequently, leave application filed by the State, is hereby dismissed. Copy of the order passed today be sent to the Court below along with its record for information. Prabal Pratap Solanki, Public Prosecutor for State/applicant; S. K. Mishra for respondent.