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Judgments of Supreme Court of India and High Courts

Wasim vs The State Of M.P. on 10 April, 2018

: 4 :
Cr. A. No. 437 / 1998

THE HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE

SINGLE BENCH

Criminal Appeal No. 437 / 1998

Wasim ……… Appellant
vs.
State of Madhya Pradesh ……… Respondent
———————————————————————————–
Coram :
Hon’ble Shri Justice S.K. Awasthi

————————————————————————————
Shri Pritam Singh Kushwaha, learned counsel for the appellant.
Shri Ramakant Sharma, learned Govt. Advocate for the respondent/State.
——————————————————————————————

JUDGMENT

(Delivered on 10/04/2018)

1. The appellant has preferred the present appeal against the
judgment dated 17.3.1998 passed by the First Additional Sessions Judge,
Ujjain in Sessions Trial No.137/1997, whereby the appellant has been
convicted for the commission of offence punishable under Section 363 of
the IPC and sentenced to undergo three years rigorous imprisonment
with fine of Rs.500/- with default stipulation.

2. Brief facts of the prosecution case are that, on 11.10.1996, the
appellant/accused forcibly kidnapped the minor prosecutrix, took her to
various places and he has committed sexual intercourse with her. A
missing person report (Ex.P/8) was lodged on 12.10.1996 by the father of
the prosecutrix. It is alleged in the aforesaid report that the prosecutrix
was aged 13 -14 years and she was missing since 11.10.1996. It is also
alleged that six months ago the prosecutrix went with the accused/
appellant Wasim. The prosecutrix was recovered on 5.3.1997 and her
statement was recorded and after that she was sent to the medical
: 4 :
Cr. A. No. 437 / 1998

examination. After that the Police registered a case against the
accused/appellant for offence under Section 363, 366, 376 and 506 of the
IPC. The accused/appellant was arrested on 18.3.1997 and he was also
sent for medical examination. The Police prepared the spot map (Ex.P/5)
and the seized articles received from the hospital were sent for chemical
analysis to Forensic Science Laboratory. Ossification test of the
prosecutrix was also conducted, in which, the Doctor was opined that she
is above 14 years of age. After completion of the investigation, charge-
sheet was presented before the Judicial Magistrate First Class, Tarana,
District-Ujjain, who committed the case to the Court of Sessions and
ultimately, it was transferred to the First Additional Sessions Judge,
Ujjain.

3. The trial Court framed charges under Sections 363, 363, 376 and
506 of the IPC. The appellant abjured his guilt and requested for trial of
the matter. He took the plea that he had given a loan to the father of the
prosecutrix, when he demanded for the payment of the loan amount then
he has been falsely implicated in the present crime by the father of the
prosecutrix. However, he has not produced any witness in his defence.

4. The trial Court, after considering the evidence adduced by the
parties pronounced the impugned judgment dated 17.3.1998 held that at
the time of the incident, the prosecutrix was aged about 17 years and she
was a consenting party, therefore, the appellant has been acquitted from
the offence under Sections 366, 376 and 506(2)of the IPC. However,
appellant is liable to be convicted for the commission of the offence under
Section 363 of the IPC and sentenced him as stated hereinabove.

5. Learned counsel for the appellant has submitted that the appellant
has been convicted illegally by the trial Court. The trial Court has
committed error in determining the age of the prosecutrix. He further
submitted that there is material on record to establish that the prosecutrix
was definitely more than 18 years of age. Therefore, he cannot be
convicted for offence under Section 363 of the IPC.

6. Learned Public Prosecutor for the respondent /State opposed the
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Cr. A. No. 437 / 1998

prayer made by the learned by the learned counsel for the appellant and
contended that the trial Court has believed the opinion given by Dr.(Smt.)
Lalita Parmar (PW-9) and arrived at proper conclusion that the
prosecutrix was aged about 17 years at the time of the occurrence and
the said findings cannot be faulted with.

7. I am carefully perused the records and considered the rival
contentions of the parties.

8. The Prosecutrix (PW-1) testified that at the time of the incident she
was studying at Girls School, village – Kayadha and her date of birth is
14.7.1981. Although she has accepted that she knew about her age from
her father. However, her father Ratanlal Rathore deposed that he has not
remembered the date of birth of his daughter, but he claims that the age
of his daughter is 15-16 years.

9. Headmaster Jagnath Agrwal (PW-5) stated that as per School
record’s the prosecutrix was admitted on 9.7.1993 in the Sixth class, her
date of birth is 14.7.1981. In this regard he has issued certificate Ex.P/7.
However, Mr. Agrawal (PW-5) accepted in his cross-examination that he
cannot say that on what basis the aforesaid age was recorded. In these
circumstances, the trial Court has rightly disbelieved the aforesaid
certificate and date of birth of the prosecutrix mentioned therein.

10. Ossification test of the prosecutrix was also conducted by Dr.
A.K. Pal (PW-8) and he has opined that the prosecutrix is aged about 14
years. Although he has admitted in his cross-examination that the
variation of age in the ossification test came at 3 years difference. Dr.
(Smt.) Lalita Parmar (PW 9) testified that on the basis of clinical
examination in her opinion, the prosecutrix appears to be aged about 16
to18 years. Therefore, considering in the opinion given by Dr. (Smt.)
Lalita Parmar and Dr. A.K. Pal, the trial Court has arrived at the
conclusion that the prosecutrix was aged about 17 years at the time of
the occurrence.

: 4 :

Cr. A. No. 437 / 1998

11. Taking into consideration of the opinion under Ex.P/5 the
ossification test report of the prosecutrix and the permissible margin, I am
of the view that determination of the age of the prosecutrix appears to be
correct and it can be safely concluded that at the time of occurrence the
prosecutrix was below 18 years of age. Thus, I am of the considered
view that the conviction recorded by the trial Court under Section 363 of
the IPC is acceptable. So far as the question of sentence is concerned,
it appears that the appellant was a young man of aged about 23 years at
the time of the occurrence and the prosecutrix was a consenting party,
the appellant is the first offender and he is suffering prosecution since the
last 21 years. Keeping in these factual back ground, I am of the
considered opinion that the custodial sentence should be reduced to the
period of two years as that would meet the ends of justice. The custody
period shall be adjusted towards his jail sentences awarded by this
Court.

12. In the result, the appeal is allowed in part while affirming the
conviction for the offence under Section 363 of the IPC the sentence of
the appellant is reduced from three years rigorous imprisonment to two
years. The appellant is on bail; his bail bond is hereby cancelled. He is
directed to surrender before the concerned trial Court without any delay
so that he may send to the jail for execution of his remaining sentence.

13. A copy of this judgment be sent to the concerned trial Court for
compliance.

(S. K. Awasthi)
Judge
moni

Digitally signed by Moni Raju
Date: 2018.04.10 14:10:29
+05’30’

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