HIGH COURT OF MADHYA PRADESH: JABALPUR (MP)
sh
SINGLE BENCH: Hon’ble Mr. Justice Subodh Abhyankar
e
ad
CRIMINAL APPEAL NO.1371 OF 2014
Hiralal @ Hira.
Vs.
Pr
a
State of Madhya Pradesh.
hy
——————————————————————————–
ad
Shri Sandeep Dubey, Advocate- amicus curiae for the appellant.
M
Shri Saurabh Shrivastava, learned Govt. Advocate for the State.
of
——————————————————————————-
rt
JUDGEMENT
ou
C
(Delivered on this the 5th day of January, 2018)
h
ig
This criminal appeal under Section 374 (2) of the Code of
H
Criminal Procedure has been preferred by the appellant being
aggrieved of the judgment dated 12/7/2013 passed by the 13th
Additional Sessions Judge, Bhopal in ST No.622/2009, whereby
the present appellant has been convicted and sentenced as under:
Conviction
Sentence Default clause
u/s
RI for 7 years with
sh
363 of IPC RI for one year
fine of Rs.3,000/-
e
RI for 10 years with
366 (A) of IPC RI for one year
ad
fine of Rs.3000/-.
Pr
2. In brief, the case of the prosecution is that in the night of
a
hy
12.2.2009 at around 8 Oâclock the present appellant enticed
ad
and abducted the prosecutrix, who was minor from Kaveri Colony,
M
Kolar Road Bimakunj, Bhopal and took her to Village Alot
of
Chamola District Ujjain and sold her to co-accused Ramesh, who
rt
in turn raped her and kept her with him for around three months.
ou
Co-accused Ramesh and Prahlad Suryavanshi had already been
C
tried in different ST No.622/2009 wherein the co-accused
h
Prahalad Suryavanshi has been acquitted whereas co-accused
ig
Ramesh has been convicted under Sections 363, 366, 376(1) of
H
IPC, and since the present appellant Hiralal @ Hira was
absconding at the time of trial of co-accused persons, hence his
case was kept pending under Section 173(8) of Cr.P.C. and was
tried separately.
3. The case of the prosecution is that on 23.2.2009 a missing
person report was lodged by Narayan, who is the father of the
prosecutrix at Police Station Kolar Road to the effect that on
15.2.2009 he was informed by one Bhaiyalal on phone that his
daughter is missing since 12.2.2009, who at around 8:00 in the
sh
night had gone to answer the natureâs call. It is the story of the
e
ad
prosecution that the prosecutrix, who used to live with her
Pr
parents at Seoni had come to Bhopal with the said Bhaiyalal to
a
work as labourer. It is the further case of the prosecutrix that on
hy
4.5.2009 the prosecutrix was brought to the Police Station Kolar
ad
Road by her mother and it was informed that she was working as
M
a labourer at Sarvadharm Sector, Bhopal where she came to know
of
present appellant Hira, who was also working on the same site
rt
and developed acquaintance. On 12.2.2009 when she had gone to
ou
answer the natureâs call, the present appellant met her and
C
asked her to marry with him and when she refused, then Hira and
h
co-accused Prahalad forcefully took her to Ujjain from a jeep and
ig
from Ujjain they went to Hiraâs brother-in-law Mohan and on
H
14.2.2009 Hira and Mohan sold the prosecutrix to Ramesh and
Nagu Maharaj and went away from there. It is further the story of
the prosecution that Ramesh and Nagu Maharaj took her to
Village Dokarkheda District Jhalawad (Rajasthan) where Ramesh
kept her as his wife for around three months and had also raped
her during this period. There she also came to know one Arjun
and with the help of Arjun and his friend Narayan, she came back
to Ujjain from where she called her mother and neighbour
Mahesh Chourasiya on phone who came to Ujjain, took her to
sh
Bhopal and lodged a report on 4.5.2009 at Police Station Kolar
e
ad
Road vide Crime No.168/2009 under Sections 363, 366, 376/34,
Pr
506 of IPC against the accused persons Hira, Mohan, Prahalad,
a
Ramesh and Nagu Maharaj.
hy
4. A charge sheet was filed against the accused Ramesh and since
ad
the present appellant Hira and other co-accused Nagu Maharaj
M
were absconding at that time, hence the investigation was kept
of
pending against them under Section 173(8) of Cr.P.C. and during
rt
the investigation present appellant Hira was also arrested and
ou
subsequently the charge sheet was also filed against him. After
C
recording of the evidence, the learned Judge of the trial Court has
h
convicted and sentenced the present appellant as aforesaid and
ig
being aggrieved of the same, the present appeal has been filed
H
before this Court.
5. Learned counsel for the appellant has submitted that firstly the
prosecutrix was not minor as projected by the prosecution and
secondly she was a consenting party, because she was travelling
with the accused persons by public transport and was also
working as a labourer while alleged to be in the custody of the
accused persons and during all this period, she neither tried to
run away from the custody of the accused persons nor had
informed any person to help her. Thus, her statement cannot
sh
accepted, hence it is prayed that the present appellant may be
e
ad
acquitted from all the charges levelled against him.
Pr
6. On the other hand, learned counsel for the State has submitted
a
that the learned Judge of the trial Court has not committed any
hy
illegality in convicting the present appellant and has rightly
ad
arrived at the conclusion that the prosecutrix was minor at the
M
time of incident, hence her consent has no significance. Apart
of
from that, it is further submitted that the learned Judge of the
rt
trial Court has rightly held that there was no consent on the part
ou
of the prosecutrix as she was abducted by the accused persons.
C
Thus, it is prayed that the present appeal may be dismissed.
h
7. Heard the learned counsel for the parties and perused the
ig
record.
H
8. So far as the age of the prosecutrix is concerned, in her
deposition dated 6.5.2009 she has stated her age to be 16 years,
although there is nothing on record to prove her age. In such
circumstances only reliable evidence is the ossification test
carried out by Dr. M.K.Jain (PW-2), who had conducted the
ossification test of the prosecutrix on 6.5.2009 and has opined her
age between 15 to 17 years. Thus, taking into account this aspect
of the matter and as has been held by the Honâble Apex Court
in a catena of judgments that in ossification test, there is always
sh
of margin of error of two years on either side is possible. In such
e
ad
circumstances, by giving benefit of doubt the age of the
Pr
prosecutrix can be considered to be that of 19 years. In such
a
circumstances, the conviction under Section 366-A of IPC cannot
hy
be sustained. However, merely proving the prosecutrix to be
ad
major cannot be ground of presuming that she was also a
M
consenting party and for that specific evidence has to be led by
of
the accused persons to prove their innocence on the basis of the
rt
consent of the prosecutrix.
ou
9. A bare perusal of the deposition of the prosecutrix (PW-1)
C
reveals that she was living at Bhopal with one Bhaiyalal, whereas
h
her parents were residing at Seoni. Bhaiyalal and the prosecutrix
ig
were also working as a labourer whereas the prosecutrix
H
developed acquaintance with the present appellant and in the
night of the incident, Hiralal approached her and proposed to
marry her and when she refused, he and co-accused Prahlad
forcefully took her to Ujjain from a jeep and from Ujjain they went
to Hiraâs brother-in-law Mohan and on 14.2.2009 Hira and
Mohan sold the prosecutrix for sixty thousand to Ramesh and
Nagu Maharaj and went away from there. Thereafter Ramesh and
Nagu Maharaj took her to Village Dokarkheda District Jhalawad
(Rajasthan) where Ramesh kept her as his wife for around three
sh
months and had also raped her. The prosecutrix has also stated
e
ad
that when she refused for the first time, she was also beaten by
Pr
Ramesh. She has further stated that when she was working with
a
Ramesh at Dokarkheda, she came to know one Arjun and with the
hy
help of Arjun and his friend Narayan, she came back to Ujjain
ad
where she called her mother and neighbour Mahesh Chourasiya
M
on phone and narrated the entire incident. Thus even though the
of
appellant Hiralal has not committed rape with the prosecutrix, but
rt
still he is the main accused, who abducted the prosecutrix and
ou
sold her to Ramesyh and Nagu Maharaj.
C
10. The prosecutrix was again examined on 8.4.2013 as PW-4. She
h
has also stated that Hiralal had also told her that she should tell
ig
others that he is her brother and he is getting her to marry
H
Ramesh. She has reiterated her earlier statement that she came to
know Arjun at Dokarkheda, who helped her to come to Ujjain.
Nothing substantial could be extracted from the cross
examination of the prosecutrix. In the cross examination a
question was put to the prosecutrix that whether she had gone
with Hiralal on her own volition and had also gone with Ramesh
on her own will to which she has denied. Other witness Mira Bai
(PW-5) mother of the prosecutrix has also supported the case of
the prosecution.
sh
11. A bare perusal of the deposition of the prosecutrix as well as
e
ad
documents on record reveal that the prosecutrix cannot be said a
Pr
consenting party even assuming that she was a major on the date
a
of incident. It is admitted fact that the parents of the prosecutrix
hy
were residing at Seoni, whereas the prosecutrix was working at
ad
Bhopal as a labourer and there was no occasion for her to go with
M
Hiralal to marry Ramesh specially when she had no knowledge
of
about Ramesh and his background or where he lives. It is
rt
apparent that Hiralal was instrumental in procuring the
ou
prosecutrix as a subject of sale to Ramesh.
C
12. In such circumstances, the prosecution has been able to make
h
out the case against the appellant but instead of Section 366-A of
ig
IPC the appellant is liable to be convicted under Section 366 of
H
IPC. Even if the prosecutrix did not complain or raise alarm when
she had an opportunity, in that case also her consent cannot be
presumed taking into account the facts and circumstances of the
case, and also her age as opined by Dr.M.K.Jain (PW-2) to be 15 to
17 years and even assuming the same to be 19 years, it can be
safely presumed that she had no knowledge of wordily affairs and
cannot be said to be a consenting party. In the facts and
circumstances of the case, there appears to be no error on the
part of the learned Judge of the trial Court in convicting and
sh
sentencing the present appellant under Section 363 of IPC but so
e
ad
far as his conviction under Section 366-A of IPC is concerned, the
Pr
same is set aside and instead he stands convicted under Section
a
366 of IPC and is sentenced to seven yearsâ RI with a fine of
hy
Rs.10,000/-, and in default of payment of fine, he is further
ad
sentenced to one yearâs RI.
M
13. In the result, the appeal filed by the present appellant Hiralal
of
@ Hira is partly allowed and the sentence stands modified to the
rt
aforesaid extent. If the fine amount is deposited by the appellant,
ou
the same shall be disbursed to the prosecutrix by the trial Court.
C
14. A certified copy of this judgment be sent to the trial Court for
h
compliance.
ig
(Subodh Abhyankar)
Judge
H
05/01/2018
Ansari
Digitally signed by MANZOOR
AHMED
Date: 2018.01.08 20:35:30 -08’00’
