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Hemant Khangar vs The State Of Madhya Pradesh on 25 July, 2018

1 CRA-3072-2015
The High Court Of Madhya Pradesh
CRA-3072-2015
(HEMANT KHANGAR Vs THE STATE OF MADHYA PRADESH)

13
Jabalpur, Dated : 25-07-2018
Hemant Khangar ……………. Appellant
Versus
State of Madhya Pradesh ……………. Respondent

For the petitioner : Shri D.K. Tiwari, Advocate
For the respondent/State : Shri Ramjee Pandey, Panel
Lawyer.

Present: Hon’ble Mr.Justice Sushil Kumar Palo

————————————————————————

(JUDGMENT)
[25/07/2018]
This appeal has been filed by the appellant aggrieved by the
judgment dated 03.09.2013, passed by the Second Additional Session
Judge, Khurai, Sagar, in S.T. No. 639/2011, wherein the appellant has
been sentenced for offence under Sections 363, 366 and 376 of the IPC
for five years, seven years and ten years rigorous imprisonment with fine
of Rs. 1,000/- for ‘each’ offence respectively.

2. The prosecution case in brief is that the prosecutrix was
leaving with her parents at Veer Sawarkar Ward, Bina. Her date of birth
is 14.06.1997. She was a minor at that time. On 15.07.2011, at about
01:00 ‘O’clock, the accused called the prosecutrix near the Municipality
Office. When the prosecutrix went there, he asked her to accompany him
to Sagar. The prosecutrix refused. The accused threatened her and took
her to her mother, who lived at Sagar, near Apsara Talkies. She was kept
there till 21.07.2011. When she was being taken to the Court for
marriage, police caught them, The prosecutrix narrated the whole
incident. On 15.07.2011, when the prosecutrix was not found, search was
made and her father Lakhpati lodged a missing report (Ext.P/1).

3. After the prosecutrix was recovered Exht.-P/5 was drawn.
Subsequently, report Ext. P/11 was lodged. During the investigation, the
prosecutrix was examined medically. Spot map Ext. P/2 was prepared.
After recording the statements of the witnesses, the accused was
2 CRA-3072-2015
arrested. The slide prepared from the “vaginal swab” of the prosecutrix
was seized. Her mark-sheet was seized by seizure memo Ext.P/4. The
semen slide of appellant seized by Ext. P/7. These items were sent to
FSL Sagar, for examination by letter Ext.P/14. Charge-sheet was filed
before JMFC Bina. Subsequently, the casewas committed to the Session
Court and later it was transferred to Additional Session Judge, Khurai.
Charges under Sections 363, 366-A and 376 of the IPC was framed
against the appellant. The appellant abjured guilty.

4. The learned Additional Session Judge after recording the
evidence, analyzing the same and passed the judgment impugned on
03.09.2013. The appellant was held guilty for offence as mentioned
above and sentenced as described above.

5. The appellant has preferred this appeal on the ground that, the
learned Court below committed error by not properly considering the
evidence of the prosecution witnesses. The prosecution witnesses have
not supported the prosecution story. Is is also contended during
arguments that the prosecutrix was more than 16 years at the relevant
time, therefore, offence under sections 363, 366 and 376 IPC is not made
out.

6. Perused the record and the judgment impugned.

7. The prosecutrix PW-4 has stated that the incident took place
approximately about one year back. Her date of birth is 14.06.1997. The
accused whenever met her, insisted for marriage. The prosecutrix replied
to him that she is a minor now, therefore she is not ready for marriage.
The accused committed sexual intercourse with her forcibly. He also
threatened her of her life and committed criminal intimidation. He asked
her to come near the Municipal office. From there he took her forcibly to
Sagar near Apsara Talkies, where the appellant’s mother was living.
There also she committed sexual intercourse with her. When she was
being taken to the Court for marriage near Peeli Kothi, police caught
them. She was brought to Bina. She narrated the incident to police.

8. Police prepared panchnama Ext.P/5. She consented by Ext.P/6
for her medical examination. Father of the prosecutrix Lakhpati PW/1 has
lodged the missing report Ext. P/1 after his daughter found missing.
According to him, his daughter was 14 years old. The accused enticed
her and took her from the lawful guardianship of her father. The spot
map prepared is Ext.P/2 and the clothes of the prosecutrix after her
recovery were seized by Ext.P/3. He also submits that the mark-sheet of
3 CRA-3072-2015
the prosecutrix has been seized by Ext.P/4 seizure memo. Mother of the
prosecutrix Lakshmi PW/2 has also contended that her daughter aged
about 14 years was missing. When she could not be found at 03:00 P.M.
They searched her, but could not succeed. She informed her husband
about the missing of the daughter after he returned from his work.

9. The accused enticed the prosecutrix and took her with him.
Doctor P.K. Sen PW-6 had conducted the medical examination of the
appellant and submitted the report Ext.P/8. According to him, the
appellant is capable of committing sexual intercourse. His undergarment
and the slide prepared was handed over to the Constable who had
brought the accused for examination. The F.S.L. Report Ext.P/14, which
indicates that in articles A, B, C and D have sign of human sperm has
been found. A is the undergarment of the prosecutrix and B is the vaginal
slide. Article C is the slide prepared from the appellant semen and D is
the undergarment of the appellant. In Article A and D, the human sperm
available was insufficient for serological test. There was no reason the
prosecutrix and her family members would involve the appellant falsely.
The prosecutrix even if is a consenting party, it cannot be held that her
consent is a valid consent. She was a minor at the date of incident. In this
regard, apart from the prosecutrix, the statement of Smt. Prakash Katare
PW/7 Principal of the Samaj Kalyan Kendra Railway Colony, Bina has
deposed that the prosecutrix was admitted into the school on 01.07.2001.
At that time, her date of birth has been entered as 14.06.1997 in the
school-register is Ext.P/9. The mark-sheet of class eighth of the
prosecutrix is Ext-P/10.

10. As per Sub-Rule3 of Rule 12 of the Juvenile Justice (Care
and Protection of Child) Rules, 2007, the age of the child or a juvenile
can be determined on the basis of the evidence by obtaining (i) the
matriculation or equivalent certificate, if available or in absence thereof

(ii) the date of birth certificate from the school other than the play school
is appended and in absence thereof (iii) the birth certificate issued by a
Corporation or a Municipal Authority. If all the above are not available
then (iv) by the medical opinion by the Medical Board.

11. The earliest entry into the primary school was on 01.07.2001.
The school register Ext. P/9 indicates the date of birth of the prosecutrix
as 14.06.1997. As the incident took place on 15.07.2011, on the date of
incident i.e 15.07.2011, the prosecutrix was 14 years 1 month and one
day old. Therefore, she was below 18 years on the date of incident. For
4 CRA-3072-2015
the purpose of committing kidnapping from lawful guardianship the upper
age limit is 16 years for a male and 18 years for a female. The
prosecutrix was kidnapped for compelling or likely that she may be
compelled to marry or in order that she may be forced to illicit
intercourse for a women under 16 years.

12. Under Section 375 of IPC, the offence is called rape, when
the prosecutrix was subjected to sexual intercourse. Even if the same was
committed against her will, without her consent, or with her consent,
when the consent is obtained by putting her or any person in whom she is
interested in fear of death or hurt, or with her consent when man knows
that he is not her husband and with or without her consent, when she is
under 16 years of age.

13. In view of Clause 6 of Section 375 of IPC, sexual intercourse
with a girl, not related as wife, below 16 years is an offence of rape, no
matter whether the victim girl consented or not consented to sexual
intercourse. When the girl is below 16 years, consent is immaterial. In
this regard, “Vishnu Dayal Vs. State of Bihar AIR 1981 SC 39” can be
referred.

14. The appellant committed sexual intercourse with the
prosecutrix, who 14 years old at the time of the offence. Consent of the
prosecutrix even if presumed, is no valid consent, therefore, the appellant
committed the offence of rape.

15. Regarding the age, the arguments of the learned counsel for
the appellant that the prosecutrix was a consenting party and aged 17
years do not hold good. Even if assuming that she was 17 years
according to the estimated age derived by the counsel for the appellant on
the basis of the statements of the father and mother of the prosecutrix then
also the prosecutrix being less than 18 years on the date of incident, her
consent would not be a valid consent. The appellant’s contention cannot
be accepted. Offence of rape stands constituted as such consent is totally
irrelevant or immaterial. The appellant has been rightly convicted.

16. As regarding the sentence, the appellant has been sentenced
under Section 363 of the IPC for five years rigorous imprisonment and
fine of Rs. 1,000/-, for offence under Section 366 of the IPC for five
years rigorous imprisonment and fine of Rs. 1,000/-, for offence under
Section 366 of the IPC for seven years rigorous imprisonment and fine of
Rs. 1,000/-

17. Keeping in view that the appellant was also a boy of 19 years
5 CRA-3072-2015
at the time of the incident and belong to the OBC class among whom
marriages are performed at early age, the sentence of 10 years imposed
for offence under Section 376 of the IPC is reduced to 7 years rigorous
imprisonment with fine of Rs.1,000/-. In lieu of the fine amount the
appellant is directed to undergo sentence of three months of simple
imprisonment.

18. The appellant is in custody for the period from 22.07.2011 to
12.12.2011, and from 07.05.2011 to 24.07.2012, and from 03.07.2013
till date. The period undergone be adjusted under Section 428 of the
Cr.P.C.

19. With the above modification, this appeal is dismissed.

(SUSHIL KUMAR PALO)
JUDGE

kundan
Digitally signed by
KUNDAN SHARMA
Date: 2018.07.28
00:46:17 -07’00’

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