Rakesh (Jail Appeal) vs The State Of Madhya Pradesh on 16 August, 2017

-( 1 )-
Cr.A.No.960/2014

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
Criminal Revision No.960/2014
Rakesh
Versus
The State of Madhya Pradesh
——————————————————————————
Shri Padam Singh, learned counsel for the appellant.
Shri Kuldeep Singh, learned Public Prosecutor for
respondent/State.
——————————————————————————
ORDER

( .08.2017)
The appellant Rakesh has preferred the present
appeal against the judgment dated 24.05.2014 passed
by the Second Additional Session Judge, Dabra,
District Gwalior (M.P.) in Session Trial No.100/2014,
whereby the appellant has been convicted of offences
punishable under Sections 363 and 376 of the Indian
Penal Code (in short ‘IPC’) and Section 6 of the
Protection of Children from Sexual Offences Act 2012
(in short ‘POCSO’ Act) and sentenced to undergo
rigorous imprisonment for 5 years with a fine of
Rs.1000/-, rigorous imprisonment for 10 years with
fine of Rs.1000/- and rigorous imprisonment for 10
years with fine of Rs.1000/- respectively with default
of payment of fine.

2. The prosecution story, in short, is that a missing
person report was lodged by Ramsingh (PW-3) on
19.11.2013 at about 5:00 PM in Police Station Dabra,

-( 2 )-

Cr.A.No.960/2014

District Gwalior to the effect that his daughter is
missing from 5:00 PM evening. On the basis of this
report, Crime No.839/2013 for the offences
punishable under Sections 363 and 366 of IPC was
registered and on 20.12.2013, when the prosecutrix
was recovered, a recovery memo (Exhibit P-7) was
prepared. The statement of the prosecutrix was
recorded in which she has stated that on 19.11.2013
at about 5:00 PM, when she was in her house, the
accused Rakesh and Laxman came there. They
abducted her and took her his own house situated at
village Rai and kept her for three days. Thereafter,
they took the prosecutrix at Delhi and kept her in a
rented house where they committed sexual
intercourse upon her. After recording of the
statement, the prosecutrix was handed over to the
custody of her parents and punchnama was prepared.

3. The consent of the prosecutrix was obtained for
medical examination and Dr. Reen Saxena (PW-10)
medically examined the prosecutrix. The appellant
Rakesh was arrested and he was got medically
examined. The school certificate of the prosecutrix
was obtained in order to prove her age. Vaginal swab
of the prosecutrix as well as undergarment of the
appellant were sent to the Forensic Science
Laboratory. The statements of the witnesses were
recorded. After completion of investigation, the
charge-sheet was filed against the appellant Rakesh
before the Judicial Magistrate First Class, Dabra who
committed the case to Session Court and ultimately it

-( 3 )-

Cr.A.No.960/2014

was transferred to the Second Additional Session
Judge, Dabra, District Gwalior.

4. The appellant abjured his guilt. He stated that he
is innocent and has been falsely implicated in the
matter because his Rs.2,00,000/- was in custody of
father of the prosecutrix but he does not wish to
return this amount. Therefore, a false case was lodged
against him. In his defence, he did not examine any
witness.

5. The prosecution, in order to prove its case,
examined fourteen witnesses namely, prosecutrix (PW-

6), Dr. Harish Arya (PW-1), Lady Constable Shyama
Bai (PW-2), father of the prosecutrix Ram Singh (PW-

3), mother Sheela Bai (PW-4), Head Constable Shyam
Sunder Sharma (PW-5), Seizure witness Ramesh
Chandra Sharma (PW-7), Bhupendra Singh (PW-8),
Sub-Inspector B.L.Bansal (PW-9), Medical Officer Dr.
Reena Saxena (PW-10), Head Constable Ramsingh
Gour (PW-11), Head Constable Jagdish Singh (PW-12),
Constable Shivshant Pandey (PW-13) and Head Master
Raghuvir Singh Dharmesh (PW-14).

6. The first question for determination is that what
was the age of prosecutrix on the date when she was
alleged to have been kidnapped.

7. Raghuvir Singh Dharmesh (PW-14) has stated
that he is working as Headmaster in Government
Middle School, Gadolkala, District Gwalior. He had
stated that as per the school record, the prosecutrix
got admitted in the school on 1.7.2010 and the date of
birth of the prosecutrix is 8.5.1998. Her date of birth

-( 4 )-

Cr.A.No.960/2014

as 8.5.1998 is also mentioned in the mark-sheet
(Ex.P-8) and school leaving transfer certificate
(Ex.P-14). In the cross-examination, this witness has
admitted that when the prosecutrix was admitted in
the school he was not posted there.

8. Except the school certificate, no other document
has been filed by the prosecution to prove the age of
the prosecutrix.

9. In the case of Jarnail Singh v. State of
Haryana reported in 2014 (1) M.P.L.J.(Cri.) (S.C.)
196 (2013) 7 SCC 263, the Supreme Court has
held as under:-

“22. On the issue of determination of
age of a minor, one only needs to make
a reference to Rule 12 of the Juvenile
Justice (Care and Protection of
Children) Rules, 2007 (hereinafter
referred to as the 2007 Rules). The
aforesaid 2007 Rules have been framed
under Section 68(1) of the Juvenile
Justice (Care andd Protection of
Childran) Act, 2000. Rule 12 referred
to hereinabove reads as under:

“12. Procedure to be followed
in determination of age: – (1) in
every case concerning a child or a
juvenile in conflict with law, the court
or the Board or as the case may be the
Committee referred to in rule 19 of
these rules shall determine the age of
such juvenile or child or a juvenile in
conflict with law within a period of
thirty days from the date of making of
the application for that purpose.

(2) The court or the Board or as
the case may be the Committee shall
decide the juvenility or otherwise of
the juvenile or the child or as the case
may be the juvenile in conflict with law,

-( 5 )-

Cr.A.No.960/2014

prima facie on the basis of physical
appearance or documents, if available,
and send him to the observation home
or in jail.

(3) In every case concerning a
child or juvenile in conflict with law,
the age determination inquiry shall be
conducted by the court or the Board or,
as the case may be, the Committee by
seeking evidence by obtaining –

(a) (i) the matriculation or
equivalent certificates, if available; and
in the absence whereof;

(ii) the date of birth certificate
from the school (other than a play
school) first attended; and in the
absence whereof;

(iii) the birth certificate given by
a corporation or a municipal authority
or a panchayat;

(b) and only in the absence of
either (i), (ii) or (iii) of clause (a) above,
the medical opinion will be sought from
a duly constituted Medical Board,
which will declare the age of the
juvenile or child. In case exact
assessment of the age cannot be done,
the Court or the Board or, as the case
may be, the Committee, for the reasons
to be recorded by them, may, if
considered necessary, give benefit to
the child or juvenile by considering
his/her age on lower side within the
margin of one year and, while passing
orders in such case shall, after taking
into consideration such evidence as
may be available, or the medical
opinion, as the case may be, record a
finding in respect of his age and either
of the evidence specified in any of the
clauses (a)(i), (ii), (iii) or in the absence
whereof, clause (b) shall be the
conclusive proof of the age as regards
such child or the juvenile in conflict
with law.

-( 6 )-

Cr.A.No.960/2014

(4) If the age of a juvenile or child
or the juvenile in conflict with law is
found to be below 18 years on the date
of offence, on the basis of any of the
conclusive proof specified in sub-rule
(3), the court or the Board or as the
case may be the Committee shall in
writing pass an order stating the age
and declaring the status of juvenility or
otherwise, for the purpose of the Act
and these rules and a copy of the order
shall be given to such juvenile or the
person concerned.

(5) Save and except where,
further inquiry or otherwise is
required, inter alia, in terms of section
7A, section 64 of the Act and these
rules, no further inquiry shall be
conducted by the court or the Board
after examining and obtaining the
certificate or any other documentary
proof referred to in sub- rule (3) of this
rule.

(6) The provisions contained in
this rule shall also apply to those
disposed off cases, where the status of
juvenility has not been determined in
accordance with the provisions
contained in sub-rule (3) and the Act,
requiring dispensation of the sentence
under the Act for passing appropriate
order in the interest of the juvenile in
conflict with law.”

23. Even though Rule 12 is strictly
applicable only to determine the age of
a child in conflict with law, we are of
the view that the aforesaid statutory
provision should be the basis for
determining age, even for a child who
is a victim of crime. For, in our view,
there is hardly any difference in so far
as the issue of minority is concerned,
between a child in conflict with law,
and a child who is a victim of crime.
Therefore, in our considered opinion, it

-( 7 )-

Cr.A.No.960/2014

would be just and appropriate to apply
Rule 12 of the 2007 Rules, to
determine the age of the prosecutrix
PW-6. The manner of determining age
conclusively, has been expressed in
sub-rule (3) of Rule 12 extracted
above. Under the aforesaid provision,
the age of a child is ascertained, by
adopting the first available basis, out of
a number of options postulated in Rule
12(3). If, in the scheme of options
under Rule 12(3), an option is
expressed in a preceding clause, it has
overriding effect over an option
expressed in a subsequent clause. The
highest rated option available, would
conclusively determine the age of a
minor. In the scheme of Rule 12(3),
matriculation (or equivalent) certificate
of the concerned child, is the highest
rated option. In case, the said
certificate is available, no other
evidence can be relied upon. Only in
the absence of the said certificate, Rule
12(3), envisages consideration of the
date of birth entered, in the school first
attended by the child. In case such an
entry of date of birth is available, the
date of birth depicted therein is liable
to be treated as final and conclusive,
and no other material is to be relied
upon. Only in the absence of such
entry, Rule 12(3) postulates reliance on
a birth certificate issued by a
corporation or a municipal authority or
a panchayat. Yet again, if such a
certificate is available, then no other
material whatsoever is to be taken into
consideration, for determining the age
of the child concerned, as the said
certificate would conclusively
determine the age of the child. It is
only in the absence of any of the
aforesaid, that Rule 12(3) postulates
the determination of age of the

-( 8 )-

Cr.A.No.960/2014

concerned child, on the basis of
medical opinion.”

10. As per Rule 12 of Juvenile Justice (Care and
Protection of Children) Rules, 2007, the following
documents are required for determination of age :-

(a)(i) Matriculation or equivalent
certificates, if available; and in the
absence whereof;

(ii) date of birth certificate from the
school (other than a play school) first
attended; and in the absence whereof;

(iii) the birth certificate given by
corporation or municipal authority or a
panchayat;

(b) and only in the absence of either

(i), (ii) and (iii) of clause a a above, the
medical opinion will be sought from a
duly constituted Medical Board, which
will declare the age of the juvenile or
child.

11. From the provision of Section 12 of Juvenile
Justice (Care and Protection of Children) Rules, 2007,
it clear that the medical opinion about the age of the
prosecutrix can be sought from the medical board
when the school certificate or birth certificate is not
available. The present case from the school certificate
of the prosecutrix it is proved that her date of birth is
8.5.1998 hence at the time of incident she was below
18 years.

12. Furthermore, the prosecutrix in examination-in-
chief stated that her date of birth is 8.5.1998 and at
the time of incident, she was aged about 15 and half
years. Ramsingh (PW-3) and Sheela Bai (PW-4)
parents of the prosecutrix also stated in their
examination-in-chief that the age of the prosecutrix is

-( 9 )-

Cr.A.No.960/2014

about 15 and half years. In the cross-examination, no
question was put to these witnesses about the age of
the prosecutrix therefore, from uncontroverted
statements of the prosecutrix and her parents, it is
proved that the prosecutrix was aged about 15 and
half years on the date of the incident.

13. Now the next question is that whether the
appellant is guilty of kidnapping and rape.

14. Referring to the statement of the prosecutrix,
learned counsel for the appellant also submitted that
the prosecutrix had gone alongwith appellant without
any coercion or pressure and had remained with the
appellant for near about one month and she was
moving to different places alongwith the appellant.
Therefore, it would be clear that she was a consenting
party.

15. The prosecutrix (PW-6) deposed that the
appellant took her to village Rai where they kept her
for three days. Thereafter, the appellant took her at
Delhi where they resided in a rented house. It was
stated by the prosecutrix that in spite of her
objections, the appellant used to have physically
intercourse with her. In the cross-examination, the
prosecutrix admitted that she went to Delhi by train
and there were a number of passengers in the train
but she did not raise any alarm there. However, she
denied this suggestion that the appellant did not take
her alongwith him and he has not committed sexual
intercourse upon her. Ramsingh (PW-3) has stated
that the prosecutrix is his daughter and on

-( 10 )-

Cr.A.No.960/2014

19.11.2013 when he was on his duty, by inducing her
daughter, the appellant took away with him. When, in
spite of intense search made by them, they could not
discover the whereabouts of the prosecutrix, then a
missing person report Ex.P-3 was lodged then the
police had brought the prosecutrix from Delhi and she
was handed over to him. It is further stated by him
that he was told by his daughter that the appellant has
taken her away by force and had sexual intercourse
with her.

16. Sheela Bai (PW-4) is the mother of the
prosecutrix. She has also stated that on 19.11.2013
when she returned home after delivering food to her
husband, she found that the prosecutrix was missing.
She was informed by old lady that two young boys
came on the motor-cycle and they have taken away
her daughter towards Bhitarwar then she informed
the incident to her husband and then a missing person
report was lodged. She further stated that she was
told by her daughter that the appellant Rakesh had
committed sexual intercourse with her.

17. Learned counsel for the appellant submitted that
the prosecutrix (PW-6) has stated that she was
recovered by the police from Delhi but as per the
recovery memo Ex.P-7 she was recovered from the
Railway Station, Gwalior which creates doubts about
her recovery from the possession of the appellant,
therefore the benefit of doubt should be given to the
appellant but this contention is not acceptable in the
light of the judgment in the case of Govind vs. State

-( 11 )-

Cr.A.No.960/2014

of M.P., reported in 2005 Cr.L.J.1244 in which it has
been held that defective investigation would not be a
ground for acquittal of the accused. From the
statement of the prosecutrix, it is proved beyond
reasonable doubt that she was forcibly taken away
from her house and was subjected to physically
intercourse. This Court has already come to a
conclusion in the earlier paragraphs that the
prosecutrix is aged about fifteen and half years on the
date when she was kidnapped, then no question of
consent of the prosecutrix is material. Once the
prosecution has succeeded in proving the fact that the
prosecutrix was minor on the date when she was
kidnapped, then the appellant cannot submit that no
offence is made out because of the fact that the
prosecutrix was a consenting party.

18. Thus, the prosecution has succeeded in proving
the fact that the prosecutrix was kidnapped from the
legal guardianship of her parents without their
knowledge and consent and she was subjected to
physically intercourse therefore, the appellant is held
guilty of committing offences punishable under
sections 363 and 376 of the IPC and under section 6
read with Section 5(1) of Protection of Children from
Sexual Offences Act, 2012. The judgment passed by
the trial Court, convicting the appellant, is hereby
affirmed.

19. Now the question arises that what should be the
sentence.

20. The trial Court has awarded a sentence of

-( 12 )-

Cr.A.No.960/2014

rigorous imprisonment of 10 years for the offence
punishable under section 376 and section 6 of the
POCSO Act in which the minimum sentence provided
is 10 years. Therefore, the trial Court has not
committed any mistake in awarding the sentence to
the appellant.

21. On the basis of the discussion hereinabove, the
appeal filed by the appellant is hereby dismissed. The
conviction and sentence of the appellant for the
offences punishable under Sections 363 and 376 of
the IPC and section 6 read with Section (5)(1) of the
POCSO Act are maintained.

Copy of the judgment be sent to the court below
along with record for compliance.

(S.K.Awasthi)
Judge
AK/-

Leave a Comment

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