SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Deepak Prajapati vs The State Of Madhya Pradesh on 16 July, 2021

Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

1

THE HIGH COURT OF MADHYA PRADESH
Criminal Appeal No.12/2015
(Deepak Prajapati Vs. State of Madhya Pradesh )
Gwalior, Dated 16.07.2021
Mr. Ashirbad Dwivedi, learned counsel for the appellant.

Ms. Kalpana Parmar, learned counsel for the State.

Record of the Court below has been received.

1.

Heard on I.A. No.11968/2021, an application seeking

permission to change the counsel.

2. Since this application is not opposed by earlier counsel

appearing for the appellant, therefore, the same is allowed and

Mr. Ashirbad Dwivedi is permitted to appear on behalf of the

appellant.

3. Also heard on I.A. No.5582/2021, an application under

Section 389 of the Code of Criminal Procedure for suspension of

sentence and grant of bail to the appellant.

4. It is submitted by learned counsel for the appellant that the

appellant is in jail for almost about seven years out of the total

jail sentence of ten years awarded by the Trial Court, therefore,

his prayer for bail may be considered on the ground of his period

of detention as well as the fact that the hearing of this appeal

may take time.

5. An option was given to learned counsel for the appellant

that if he so desires, then he can argue the matter finally.

Accordingly, Mr. Ashirbad Dwivedi, learned counsel for the

appellant submitted that he is ready willing to argue the case

today finally.

2

6. Thus, with the consent of learned counsel for the parties,

this appeal is heard finally.

7. This Criminal Appeal under Section 374(2) of the Code of

Criminal Procedure has been filed against the judgment and

sentence dated 30.10.2014 passed by the Additional Sessions

Judge Karera, District-Shivpuri (M.P.) in Special Sessions Trial

No.59/2014 by which the appellant has been convicted for

offence under Section 363 of the Indian Penal Code and has been

sentenced to undergo the rigorous imprisonment for three years

with fine of Rs.1,000/-, for offence under Section 366-A of the

Indian Penal Code, and has been sentenced to undergo the

rigorous imprisonment for five years with fine of Rs.1,000/-, for

offence under Section 376(1) of the Indian Penal Code, and has

been sentenced to undergo the rigorous imprisonment for 10

years with fine of Rs.2,000/-, for offence under Section 4 of the

Protection of Children from Sexual Offences Act, 2012, and has

been sentenced to undergo the rigorous imprisonment for 10

years with fine of Rs.2,000/- with default stipulations. All the

jail sentences have been directed to run concurrently.

8. According to the case of the prosecution, on 13.04.2014 at

about 3:00 pm, complainant Santuram (PW.1) instructed the

prosecutrix to fetch water from the well. It was replied by the

prosecutrix that the complainant may proceed and she would

follow her. When the complainant returned back after fetching

water from the well then he saw that prosecutrix “X” was not at

home. When he enquired from his another daughter “A” about the
3

whereabouts the prosecutrix “X” then she informed that the

prosecutrix “X” has been taken away by the appellant. When the

complainant searched for the prosecutrix “X ” in the locality, he

was informed by Nilesh Jatav and Arvind that they had seen the

prosecutrix “X” going with the appellant. Thereafter, the

complainant went to the house of the appellant and found that

the appellant was also missing. It was further alleged that the

complainant he had seen the appellant talking to the prosecutrix

“X” very often and, therefore, the appellant must have kidnapped

her by enticing her. The F.I.R was lodged vide Exhibit-P/1 and

the Crime No.131/2014 was registered by Police Station-Dinara,

District-Shivpuri for offence under Sections 363, 366 of the

Indian Penal Code and Section 3/4 of the POCSO Act, 2012.

After recovery, the prosecutrix “X” reported that she was raped

by the appellant and accordingly offence under Section 376 of

the Indian Penal Code was also added. The spot map was

prepared. The statements of the witnesses were recorded under

Section 161 of the Code of Criminal Procedure. The prosecutrix

was got medically examined and the ossification test was also

conducted. The appellant was also sent for medical examination.

The undergarments, vaginal slide and other articles of the

prosecutrix were seized, which were sent to F.S.L, Sagar and the

Police after completing the investigation filed the charge-sheet

for the offence under Sections 363, 366, 376, 120-B of the Indian

Penal Code and under Section 3/4 of the Protection of Children
4

from Sexual Offences Act, 2012 against the appellant and as well

as against co-accused Mukesh.

9. The Trial Court vide order dated 27.06.2014 framed charges

under Sections 363, 366(A), 376(1) of the Indian Penal Code and

Section 4 of the Protection of Children from Sexual Offence Act,

2012 against the appellant whereas the charges under Sections

363, 366(A) read with Section 120-B of the Indian Penal Code

were framed against the co-accused Mukesh. The appellant as

well as co-accused Mukesh abjured their guilt and pleaded

complete innocence stating therein that they have been falsely

implicated in this case.

10. The prosecution in order to prove its case examined the

father of prosecutrix (P.W-1), aunt of the prosecutrix (P.W-2),

the prosecutrix (P.W-3), sister of the prosecutrix (P.W-4), Nilesh

Jatav (P.W-5), Arvind (P.W-6), Dr. Sunil Gupta (P.W-7), Smt

Prabhavati (P.W-8), Dr. Mamta Chouhan (P.W-9), Ashok Kumar

Sharma (P.W-10), Dr. M.L. Agrawal (P.W-11), Rakhi Soni (P.W-

12) and Parmanand Sharma (P.W-13). The appellant did not

examine any witness in support of his defence.

11. The Trial Court by the impugned judgment dated

30.10.2014 acquitted co-accused Mukesh but convicted and

sentenced the appellant for the above-mentioned charges.

12. Challenging the judgment and sentence passed by the Court

below, it is submitted by learned counsel for the appellant that

the prosecutrix was a consenting party. The Trial Court has

wrongly held that she was minor. As per the ossification test
5

report Exhibit-P/11, her age was found to be above 16 years and

below 18 years and if the margin of error of two years is taken in

favour of the appellant then it is clear that the prosecutrix was

major.

13. Per Contra, the submission made by the counsel for the

appellant is vehemently opposed by learned counsel for the

State. It is submitted that as per school record, the date of birth

of the prosecutrix is 30.03.2001 and she was kidnapped by the

appellant on 13th of April, 2014. Thus, it is clear that the

prosecutrix was slightly above 13 years of age and she was

minor. In the F.S.L. report, human sperms were also found.

14. Heard the learned counsel for the parties.

15. It is the case of the appellant that the prosecutrix herself

was a consenting party and she went to Jhansi from Dinara and

from Jhansi, they went to Satna. At Satna Bus Stand, the

appellant offered to marry her but it was refused by the

prosecutrix. It is alleged that from Satna, they returned to Jhansi.

At Jhansi Bus Stand, the appellant went to bring food for her and

taking advantage of the opportunity, she came to Dinara Police

Station. It is submitted that although the prosecutrix had alleged

that she was forcibly raped by the appellant but the manner in

which she was moving from one place to another without

resisting or making complaint or raising any alarm, it is clear

that the prosecutrix herself was a consenting party. As per the

M.L.C report, it was found that the hymen of the prosecutrix was
6

torn but no injury was found on her person. Thus, it is clear that

she was never subjected to forcible sexual intercourse.

16. Before considering the submissions made by the counsel for

the appellant regarding the consent of the prosecutrix, this Court

thinks it apposite to consider the age of the prosecutrix.

17. Rakhi Soni (P.W-12) is In-Charge Headmaster of

Government Middle School Damroun Kala, Police Station-

Dinara, District-Shivpuri (M.P.). This witness has proved the

school admission register in which the date of birth of the

prosecutrix has been mentioned as 30th of March, 2001. The

original school register is Exhibit-P/12 and the photocopy

thereof is Exhibit-P/12-C. In her cross-examination, Rakhi Soni

(P.W-12) admitted that she had not given admission to the

prosecutrix and she does not know on what basis, the date of

birth of the prosecutrix was recorded.

18. By referring to the evidence of the father of prosecutrix

P.W-1, it is submitted by learned counsel for the appellant that

the father of the prosecutrix has admitted that he has five

children and had lost his wife about three years back. He further

admitted that his eldest daughter is of 16 years of age and is

already married. The prosecutrix had left her studies about two

years back as she was weak in study and had failed twice. It is

submitted that the evidence of this witnesses was recorded on

07.07.2014. If a child is given admission in Class-I at the age of

5 then it would be clear that she would reach Class VI at the age

of 11 years. Since the prosecutrix had already failed twice and
7

had left her studies two years prior to the examination of the

father of the prosecutrix P.W-1, therefore, it is clear that the

prosecutrix was aged about 15 years on the date of her

kidnapping. It is fairly conceded that even if the age of the

prosecutrix is calculated in the manner suggested by him, still

the prosecutrix would be minor. However, learned counsel for

the appellant insisted that this Court must consider the

ossification test report filed as Exhibit-P/11 and if the margin of

error of two years is taken in favour of the appellant then the

prosecutrix would be major.

19. Unfortunately, the submissions made by learned counsel for

the appellant cannot be considered in the light of the judgment of

the Supreme Court in the case of Jarnail Vs. State of Haryana

reported in (2013) 7 SCC 263 wherein the Apex Court has held

as under:-

“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 of a child who is a victim of crime. For, in
our view, there is hardly any difference insofar 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
would be just and appropriate to apply Rule 12 of
the 2007 Rules, to determine the age of the
prosecutrix VW, 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
8

scheme of Rule 12(3), matriculation (or equivalent)
certificate of the child concerned 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 child concerned, on the basis of medical
opinion.”

20. In the present case, the incident took place in the year 2014

whereas the Juvenile Justice (Care and Protection of Children)

Rules, 2007 were framed under Section 68(1) of Juvenile Justice

(Care and Protection of Children) Act, 2000 were in force. From

bare perusal of Rule 12 of the Rules of 2007, it is clear that if

the matriculation certificates are available and in the absence

whereof, the date of birth certificate from the school first

attended is available and in absence whereof, the birth certificate

given by a Corporation or Municipal Authority or a Panchayat is

available and in only in absence of the above mentioned

documents, the medical opinion would be sought from a duly

constituted Medical Board, which will declare the age of the

Juvenile or Child. Thus, where the birth certificate from the

school is available then, the ossification test report cannot be

looked into.

9

21. Under these circumstances, this Court is of the considered

opinion that the Ossification Test Report (Exhibit-P/11) is not

material piece of evidence for proper determination of the age of

the prosecutrix. Even otherwise, according to the Ossification

Test Report (Exhibit-P/11), the age of the prosecutrix was

between 16 to 18 years but there is no straight jacket formula to

the effect that in every case the margin of error of two years has

to be taken in favour of the accused irrespective of the

surrounding circumstances. If the surrounding circumstances

indicate the margin of error in favour of the prosecution then

there is no bar under the law in considering the same against the

accused. In that view of the matter, this Court is of the

considered opinion that the Trial Court did not commit any

mistake by holding that the prosecutrix was minor on the date of

the incident.

22. As this Court has already come to a conclusion that the

prosecutrix was minor on the date of the incident, therefore,

under such circumstances, her consent is immaterial. The

prosecutrix has specifically stated in her evidence that she was

raped by the appellant. Even in the FSL report, human sperms

were found. Even otherwise it is well established principle of

law that if the evidence of the prosecutrix is reliable

trustworthy then looking for corroborative evidence is nothing

but adding a pinch of salt to her injury.

23. Under these circumstances, this Court is of the considered

opinion that the prosecution was successful in establishing the
10

guilt of the appellant beyond reasonable doubt that he had

committed rape upon the prosecutrix.

24. It is next contended by the counsel for the appellant that

since the prosecutrix had herself left the house out of her own

volition without any objection, therefore, the prosecution has

failed to prove that the prosecutrix was kidnapped.

25. The submission made by the counsel for the appellant

cannot be accepted in the light of the judgment passed by the

Supreme Court in the case of Anversinh @ Kriansinh Fatesinh

Zalaversus the State of Gujarat passed in Criminal Appeal

No.1919/2010 vide order dated 13th of January, 2021 wherein

in Paragraph No.17, the Apex Court has held as under:-

“17.The ratio of S.Varadarajan (supra), although
attractive at first glance, does little to aid the
appellant’s case. On facts, the case is
distinguishable as it was restricted to an instance of
“taking” and not “enticement”. Further, this Court
in S.Varadarajan (supra) explicitly held that a
charge of kidnapping would not be made out only in
a case where a minor, with the knowledge and
capacity to know the full import of her actions,
voluntarily abandons the care of her guardian
without any assistance or inducement on part of the
accused. The cited judgment, therefore, cannot be of
any assistance without establishing: first,
knowledge and capacity with the minor of her
actions; second, voluntary abandonment on part of
the minor; and third, lack of inducement by the
accused.”

26. The father of the prosecutrix in his F.I.R (Exhibit-P/1) had

specifically stated that he had noticed that the appellant and the

prosecutrix were in talking terms and upon search he was

informed by Nilesh Jatav and Arvind that the appellant and the

prosecutrix were going away. Thus, a specific allegation of
11

enticing the prosecutrix was levelled by her father PW-1 in the

F.I.R (Exhibit P/1) itself.

27. Under these circumstances, this Court is of the considered

opinion that if a minor girl leaves her house on the enticement by

the accused then it cannot be said that the prosecutrix has left

her house on her own volition. Thus, it is held that the appellant

is also guilty of kidnapping the prosecutrix as well as guilty of

procuration of minor girl under Section 366A of the Indian Penal

Code.

28. Considering the totality of the facts circumstances of the

case, this Court is of the considered opinion that the prosecution

has succeeded in establishing the guilt of the appellant beyond

reasonable doubt that he has committed the offence under

Sections 363, 366(A), 376(1) and under Section 4 of the

Protection of Children From Sexual Offences Act, 2012.

29. So far as the question of sentence is concerned, it appears

that the Trial Court has awarded jail sentence of Rigorous

imprisonment of 10 years for offence under Section 376(1) of the

Indian Penal Code as well as rigorous imprisonment of 10 years

for offence under Section 4 of the Protection of Children From

Sexual Offences Act, 2012. Thus while awarding such jail

sentence, the Trial Court has lost sight of Section 42 of POCSO

Act, 2012. According to Section 42 of the POCSO Act, 2012, if

the accused is found guilty for the offence punishable under

POCSO Act, 2012 as well as under Section 376 of the Indian

Penal Code, then the offender found guilty of such offence shall
12

be liable to punishment under the POCSO Act, 2012 or under the

Indian Penal Code as provides for punishment, which is greater

in degree.

30. In the year 2014, the maximum sentence for the offence

under Section 4 of the POCSO Act was seven years whereas the

maximum sentence for the offence under Section 376 of the

Indian Penal Code was ten years. However, this anomaly was

also rectified by the legislation by amending the POCSO Act,

2012 by Amendment Act No.25/2019 and the minimum sentence

for the offence under Section 4 of POCSO Act 2012 has been

enhanced to rigorous imprisonment for ten years. Since the

appellant has been held guilty for the offence under Section

376(1) of the Indian Penal Code as well as for the offence under

Section 4 of POCSO Act, 2012 and at the relevant point of time,

the sentence provided for offence under Section 376(1) of the

Indian Penal Code was greater in degree, therefore, this Court is

of the considered opinion that it was not necessary for the Trial

Court to award a separate sentence for offence under Section 4 of

POCSO Act, 2012. The sentences awarded for offence under

Sections 363, 366-A and 376(1) of I.P.C. are hereby affirmed.

No separate sentence is awarded for offence under Section 4 of

POCSO Act, 2012 in view of Section 42 of POCSO Act, 2012.

31. With aforesaid observations, the judgment of conviction

and sentence dated 30.10.2014 passed by the Additional Sessions

Judge Karera, District-Shivpuri (M.P.) in Special Sessions Trial

No.59/2014 is hereby affirmed.

13

32. All the sentences are directed to run concurrently. Since the

appellant is in jail, therefore, free copy of this judgment be

furnished to the appellant for necessary information.

33. Resultantly, this appeal fails and is hereby dismissed.

(G.S. AHLUWALIA)
JUDGE
julie

Digitally signed by JULIE SINGH
Date: 2021.07.19 16:38:01
+05’30’

Leave a Reply

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


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link
MyNation Times Magzine


All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

Recent Comments

STUDY REPORTS

Copyright © 2024 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation