Rajendra Singh @ Mithori vs State Of M.P. on 29 June, 2017

1 Cr.A. No. 733 of 2007

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
PRESENT:
HON’BLE MR. JUSTICE G.S. AHLUWALIA

Criminal Appeal No. 733/2007
Rajendra Singh @ Mithori
-Vs-
State of M.P.
_
None for the appellant even in the second round.
Shri Girdhari Singh Chauhan, Public Prosecutor for
the respondent/State.
_

JUDGMENT

(29/06/2017)
This appeal is pending since 2007 and more than 10
years have passed. None appeared on behalf of the
appellant even in the second round.

Shri Prakhar Dhengula, Advocate who is in the Panel
of Legal Aid Authority is present in the Court. Shri
Dhengula has a vast experience of appearing on criminal
side. He is requested to go through the record of the case.
Shri Dhengula, accepted the request made by the Court
and went through the record and argued the matter at
length on behalf of the appellant.

This appeal has been filed under Section 374 of
Cr.P.C. against the judgment and sentence dated 10-9-
2007 passed by Special Judge Bhind, in Special Case No.
2 Cr.A. No. 733 of 2007

106/2006 by which the appellant has been convicted for
offence punishable under Section 363 of I.P.C. and has
been sentenced to undergo the rigorous imprisonment of 3
years and a fine of Rs. 1000/- with default imprisonment.

The necessary facts for the disposal of the present
appeal in short are that on 20-9-2005, the complainant
Ramnarayan lodged a report alleging that his daughter,
aged about 15 years, is a student of Class 10. On 20-9-
2005, She had gone to the School from where the
appellant by enticing her has taken away. On the basis of
the complaint, the police registered the F.I.R. Ex. P.1 and
prepared the spot map Ex. P.2. The statements of the
witnesses were recorded. The prosecutrix was recovered
and recovery memo Ex. P.3 was prepared. The prosecutrix
was got medically examined. The caste certificate was
obtained and after completing the investigation, filed the
charge sheet for offence punishable under Sections
363,366,376 of I.P.C. and under Section 3(2)(5) of
Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act, 1989.

The Trial Court by order dated 28-11-2006 framed
charges under Sections 363,366, 376(1) of I.P.C. and
under Section 3(2)(5) of Scheduled Caste and Scheduled
Tribes (Prevention of Atrocities) Act, 1989.

The appellant abjured his guilt, and pleaded not
guilty.

The Trial Court after recording the evidence of the
parties and hearing both the parties, acquitted the
appellant for offence under Sections 366, 376(1) of I.P.C.

3 Cr.A. No. 733 of 2007

as well as for offence under Section 3(2)(5) of Scheduled
Caste and Scheduled Tribes (Prevention of Atrocities) Act,
1989, and convicted the appellant for offence under
Section 363 of I.P.C. and sentenced him to undergo the
rigorous imprisonment of 3 years and a fine of Rs. 1000
with default imprisonment.

The State did not challenge the acquittal of the
appellant for offence under Section 366, and 376(1) of
I.P.C. and under Section 3(2)(5) of Scheduled Caste and
Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Hence, the evidence shall be considered only in respect of
offence under Section 363 of I.P.C.

The Prosecution in order to prove its case, has
examined Ram Narayan (P.W.1), Savitri (P.W.2), Mithun
(P.W.3), Komal Singh (P.W.4), Dinesh (P.W.5), Dr. Dinesh
Kumar Gupta (P.W.6), J.R. Lachoria (P.W.7), Ramakant
Shukla (P.W.8), Sudhir Kumar Agrawal (P.W.9), Dr. Chitra
Maheshwari (P.W. 10), and Dashrath Singh (P.W.11). The
appellant did not examine any witness in his defence.

It is not out of place to mention here that the
prosecutrix could not be examined as it appears that She
committed suicide by hanging herself before her
examination in the Court.

Komal Singh (P.W. 4) has proved the age of the
prosecutrix. According to this witness, the prosecutrix was
admitted in the school on 7-7-2004 and the date of birth
as per the school record is 1-8-1990. On the basis of the
school record, he had issued the certificate mentioning the
date of birth of the prosecutrix as 1-8-1990. The School
4 Cr.A. No. 733 of 2007

Admission Register is Ex. P.5 and the photocopy of the
register is Ex. P.5C. The certificate issued by this witness
is Ex. P.6. In cross examination this witness has clarifed
that on 7-7-2004, the prosecutrix was admitted in class
IX. He further admitted that the School Admission
Register is not in his handwriting. Ramnarayan (P.W.1)
and Savitri (P.W.2) who are the parents of the prosecutrix
have specifically stated that the prosecutrix was aged
about 15 years and She was studying in class X.
Considering the evidence led by the prosecution, it is clear
that the prosecutrix was around 16 years on the date of
incident, thus She was below 18 years of age (As required
under Section 363 of I.P.C.) and was minor on the date of
incident.

According to the prosecution case, the prosecutrix
eloped with the appellant on 20-9-2005 and was
recovered on 4-9-2006, i.e., near about 1 year. After her
recovery, the police had recorded the case diary statement
of the prosecutrix. However, in the present case, the
unfortunate aspect of the matter is that the prosecutrix
after 3-3 1/2 months of her recovery, committed suicide
by hanging herself. This fact has been admitted by her
father Ram Narayan (P.W.1). As the prosecutrix died
because of committing suicide and the allegations made
against the appellant were not the cause of her death,
therefore, the case diary statement of the prosecutrix
cannot be read as the same cannot be placed in the
category of dying declaration. As the prosecutrix died
before her examination in the Court, therefore, it cannot
5 Cr.A. No. 733 of 2007

be held that She was raped by the appellant.

Dinesh (P.W. 5) has stated that he had seen that one
boy was driving the motor cycle, whereas the prosecutrix
was sitting behind him and the appellant was sitting on
the motor cycle behind the prosecutrix. This witness was
cross examined in detail, however, nothing could be
elicited from his cross examination which may make his
evidence unreliable.

Ramnarayan (P.W.1) has stated that he was informed
by Dinesh (P.W. 5) that he had seen the prosecutrix on the
motor cycle along with the appellant and one more
person. Ramnarayan (P.W.1) has also stated that the
prosecutrix was recovered from the custody of the
appellant. Sudhir Kumar Agrawal (P.W.9) had prepared
the recovery memo of the prosecutrix Ex. P.3 on 4-9-
2006. She was sent for medical examination by
requisition Ex. P.10 and thereafter the prosecutrix was
sent to Short period Women house (vYidkyhu efgyk
vkoklx“g) and he arrested the appellant on 4-9-2006 by
arrest memo Ex. P. 13. Thus, it is clear that the
prosecutrix was recovered from the custody of the
appellant. Thus, it is clear that the appellant with the help
of one unknown person had kidnapped the prosecutrix
who was below the age of 18 years, from the lawful
guardianship of her parents, without their consent.

However, as already mentioned that the prosecutrix
committed suicide after 3 or 3 ½ months from the date of
her recovery and She could not be examined in the Court,
therefore, it cannot be held that the appellant had
6 Cr.A. No. 733 of 2007

kidnapped her with an intention to compel her to marry.

Further more, there is no evidence on record to show
that the prosecutrix was kidnapped only because She
belonged to Scheduled Caste.

Thus, from the appreciation of evidence which has
come on record, it is clear that the appellant had
kidnapped the prosecutrix, who was below the age of 18
years, from the lawful guardianship of her parents, without
their consent. In absence of any evidence, it cannot be
held that the prosecutrix was kidnapped with an intention
to compel her to marry or she was ever subjected to rape.
Further, there is nothing on record to show that the
prosecutrix was kidnapped only because of the fact that
She belongs to Scheduled Caste.

The Trial Court has also acquitted the appellant for
offence punishable under Section 366, 376(1) of I.P.C. and
under Section 3(2)(5) of Scheduled Caste and Scheduled
Tribes (Prevention of Atrocities) Act, 1989.

This Court has found that the appellant had taken
away the prosecutrix, who was below 18 years of age,
from the lawful guardianship of her parents without their
consent, therefore, it is held that the appellant is guilty of
committing offence under Section 363 of I.P.C.

The Trial Court has also convicted the appellant for
offence under Section 363 of I.P.C.

The judgment passed by the Trial Court convicting
the appellant for offence under Section 363 of I.P.C. is
hereby confirmed.

So far as the question of sentence is concerned, the
7 Cr.A. No. 733 of 2007

Trial Court has awarded the sentence of rigorous
imprisonment of 3 years and a fine of Rs. 1000/- with
default imprisonment. Considering the age of the
prosecutrix, this Court donot find any reason to interfere
with the sentence awarded by the Trial Court and hence,
the sentence of R.I. of 3 years and a fine of Rs. 1000 with
default imprisonment is maintained.

Even otherwise, it appears from the record, that
although the appellant was earlier granted bail, but as he
did not appear before the office of this Court, therefore,
his bail bonds were forfeited and was taken into custody
and was produced before the court from custody on 21-6-
2010 and thereafter he was never released on bail. Thus,
it appear that even otherwise, the appellant might have
completed the jail sentence.

Consequently, the judgment and sentence dated 10-9-
2007 passed by Special Judge Bhind, in Special Case No.
106/2006 is hereby affirmed.

Accordingly, this appeal fails and is hereby dismissed.

(G.S. Ahluwalia)
Judge

Leave a Comment

Your email address will not be published. Required fields are marked *