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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.
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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
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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
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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
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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
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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
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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
8scheme 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.
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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
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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
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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
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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.
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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’