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Madhya Pradesh High Court · body

2018 DIGILAW 89 (MP)

BABLOO @ RAMESH v. STATE OF M. P.

2018-01-20

VIJAY KUMAR SHUKLA

body2018
JUDGMENT : 1. Both these appeals have been filed challenging the common order of conviction and sentence dated 4-5-2009 passed by 3rd Additional Sessions Judge (Fast Track) in S.T. No. 79/2008. The appellants have been convicted and sentenced as under :— Appellants in Cr.A. No. 1089/2009 : Babloo @ Ramesh and Sheela Conviction Sentence Under section 363, Indian Penal Code R.I. for 3 years and fine of Rs. 500/- in default of fine R.I. for 3 months. Under section 306, Indian Penal Code R.I. for 3 years and fine of Rs. 500/- and in default of fine R.I for 3 months. Under section 376(1) of Indian Penal Code R.I. for 7 years and fine of Rs. 1000/-. In default of fine R.I. for 3 months. Under section 506 Part (2) of Indian Penal Code R.I. for 2 years and fine of Rs. 500/- Appellant No. 2 Sheela 376(1) read with 120-B of Indian Penal Code R.I. for 7 years and fine of Rs. 1000/-. In default of fine, R.I. for 3 months. Appellants in Cr.A. No. 1282/2009 :- Ram Kumar Conviction Sentence Under section 363, Indian Penal Code R.I. for 3 years and fine of Rs. 500/- in default of fine R.I. for 3 months. Under section 306, Indian Penal Code R.I. for 3 years and fine of Rs. 500/- and in default of fine R.I for 3 months. Under section 344, Indian Penal Code R.I. for 3 years and fine of Rs. 500/-. In default of fine R.I. for 3 months. Under section 376(1) of Indian Penal Code R.I. for 7 years and fine of Rs. 1000/-. In default of fine R.I. for 3 months. Under section 506 Part (2) of Indian Penal Code R.I. for 2 years and fine of Rs. 500/- 2. The prosecution case in short is that Babloo @ Ramesh and appellant Ramkumar kidnapped a 17 years old prosecutrix by inducing her for marriage and then she was kept in a room at Shakti Nagar for a period between 2-11-2007 to 3-2-2008. Both these accused persons committed rape with the prosecutrix in between the aforesaid period. It is also alleged that accused Sheela has also facilitated in the said crime. Appellant Babloo @ Ramesh was teaching the prosecutrix and used to go to the house of the prosecutrix. Both these accused persons committed rape with the prosecutrix in between the aforesaid period. It is also alleged that accused Sheela has also facilitated in the said crime. Appellant Babloo @ Ramesh was teaching the prosecutrix and used to go to the house of the prosecutrix. On 2-11-2007 the appellant Babloo @ Ramesh had asked the prosecutrix (P.W.1) to accompany him to Beohari and asked her to make any excuse in the house. The other co-accused Ramkumar also accompanied him. When they were taking the prosecutrix, one Siyasharan had also seen them. The prosecutrix was taken from Shahdol to Katni and thereafter from Katni to Singrauli and then from Singrauli to Shaktinagar and thereafter, she was kept in the house of Bhaiya Lal where she was confined in the room and it is alleged that accused persons committed rape. On 3-2-2008, one aunty of prosecutrix has traced out the prosecutrix and brought her back. On 6-7-2008 the report was lodged at Police Station Deolond and thereafter, F.I.R. was registered for the offences mentioned herein above. 3. Learned counsel for the appellant submitted that from the facts of the case and the conduct of the prosecutrix it is clear that she was a consented party as she has not raised any alarm when she was being taken to different places. It is submitted that the prosecutrix could not establish any case against appellant Sheela but despite that, she has been convicted under section 376(1) of Indian Penal Code. It is submitted by learned counsel for the appellants that as per the definition of ‘rape’ given under section 375 of Indian Penal Code, a charge under section 376 of Indian Penal Code can be levelled only against man and not against woman. There was no other charge against appellant No. 2 Sheela. 4. So far as the contention of the appellants is concerned regarding consent of the prosecutrix, I do not find any merit in the said argument. Prosecution has produced School Certificate (Exhibit P/5) which has been proved by P.W.1. In the school mark-sheet, the Date of Birth of prosecutrix is recorded as 15-7-1990. Thus, on the date of incident she was below 18 years. The Doctor has also found her age to be between the age of 17 to 18 years. There is no other evidence to dislodge the Date of Birth recorded in the school certificate. In the school mark-sheet, the Date of Birth of prosecutrix is recorded as 15-7-1990. Thus, on the date of incident she was below 18 years. The Doctor has also found her age to be between the age of 17 to 18 years. There is no other evidence to dislodge the Date of Birth recorded in the school certificate. In absence of any other contrary evidence, this Court does not find any fault with the order of trial Court regarding age of the prosecutrix. Since the age of the prosecutrix has been found to be less than 18 years and from the evidence of prosecutrix (P.W.1) and the other witnesses, it is crystal clear that the prosecutrix was taken by the appellants from the custody of the legal guardian unlawfully. As per definition of “rape” given under section 375 of Indian Penal Code, if the prosecutrix is under 18 years of age and even if sexual intercourse is committed with her consent, the same would amount to rape. 5. In view of the aforesaid, I do not find any error in the order of conviction and sentence of the appellant Babloo @ Ramesh in Cr.A. No. 1089/2009 and Ramkumar appellant in Cr.A. No. 1282/2009. 6. So far as appellant No. 2 Sheela in Cr.A. No. 1089/2009 is concerned, on the examination of testimony of P.W.1 nothing has been stated against her that at any point of time, she had extended any kind of threat or facilitation to the other accused persons. Even otherwise a charge under section 376(1) of Indian Penal Code has been framed against her which is not permissible as per definition given in section 375 of Indian Penal Code being a lady. She cannot be punished under section 376 of Indian Penal Code. My view is fortified by the judgment passed by the Apex Court in the Case of Priya Patel vs. State of M.P., (2006) 6 SCC 263 wherein the Court has held that under the definition of ‘rape’ under sections 375 and 376 of Indian Penal Code a woman cannot be prosecuted for gang rape even if she facilitates the commission of rape. It has been informed that the said view has not been overruled. 7. It has been informed that the said view has not been overruled. 7. In view of the assimilation of entire facts and evidence of the witnesses and taking into consideration the evidence against appellant No. 2 Sheela and definition of ‘rape’ as per section 375 of Indian Penal Code, I find that the conviction and sentence of appellant No. 2 Sheela cannot be sustained. Therefore, the conviction and sentence of appellant No. 2 Sheela in Cr.A. No. 1089/2009 is set aside. She be immediately released, if not warranted in any other case. 8. Resultantly, Cr.A. No. 1089/2009 is partly allowed so far as appellant No. 2 Sheela is concerned and the appeals filed by appellant Babloo @ Ramesh and Ramkumar are dismissed.