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Hiralal @ Hira vs The State Of Madhya Pradesh on 5 January, 2018

HIGH COURT OF MADHYA PRADESH: JABALPUR (MP)

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SINGLE BENCH: Hon’ble Mr. Justice Subodh Abhyankar

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CRIMINAL APPEAL NO.1371 OF 2014
Hiralal @ Hira.
Vs.
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State of Madhya Pradesh.
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Shri Sandeep Dubey, Advocate- amicus curiae for the appellant.
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Shri Saurabh Shrivastava, learned Govt. Advocate for the State.
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JUDGEMENT

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(Delivered on this the 5th day of January, 2018)
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This criminal appeal under Section 374 (2) of the Code of
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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

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363 of IPC RI for one year
fine of Rs.3,000/-

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RI for 10 years with
366 (A) of IPC RI for one year

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fine of Rs.3000/-.

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2. In brief, the case of the prosecution is that in the night of
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12.2.2009 at around 8 O’clock the present appellant enticed
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and abducted the prosecutrix, who was minor from Kaveri Colony,
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Kolar Road Bimakunj, Bhopal and took her to Village Alot
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Chamola District Ujjain and sold her to co-accused Ramesh, who
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in turn raped her and kept her with him for around three months.

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Co-accused Ramesh and Prahlad Suryavanshi had already been
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tried in different ST No.622/2009 wherein the co-accused
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Prahalad Suryavanshi has been acquitted whereas co-accused
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Ramesh has been convicted under Sections 363, 366, 376(1) of
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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

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night had gone to answer the nature’s call. It is the story of the

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prosecution that the prosecutrix, who used to live with her

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parents at Seoni had come to Bhopal with the said Bhaiyalal to
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work as labourer. It is the further case of the prosecutrix that on
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4.5.2009 the prosecutrix was brought to the Police Station Kolar
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Road by her mother and it was informed that she was working as
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a labourer at Sarvadharm Sector, Bhopal where she came to know
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present appellant Hira, who was also working on the same site
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and developed acquaintance. On 12.2.2009 when she had gone to
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answer the nature’s call, the present appellant met her and
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asked her to marry with him and when she refused, then Hira and
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co-accused Prahalad forcefully took her to Ujjain from a jeep and
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from Ujjain they went to Hira’s brother-in-law Mohan and on
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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

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Bhopal and lodged a report on 4.5.2009 at Police Station Kolar

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Road vide Crime No.168/2009 under Sections 363, 366, 376/34,

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506 of IPC against the accused persons Hira, Mohan, Prahalad,
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Ramesh and Nagu Maharaj.

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4. A charge sheet was filed against the accused Ramesh and since
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the present appellant Hira and other co-accused Nagu Maharaj
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were absconding at that time, hence the investigation was kept
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pending against them under Section 173(8) of Cr.P.C. and during
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the investigation present appellant Hira was also arrested and
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subsequently the charge sheet was also filed against him. After
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recording of the evidence, the learned Judge of the trial Court has
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convicted and sentenced the present appellant as aforesaid and
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being aggrieved of the same, the present appeal has been filed
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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

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accepted, hence it is prayed that the present appellant may be

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acquitted from all the charges levelled against him.

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6. On the other hand, learned counsel for the State has submitted
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that the learned Judge of the trial Court has not committed any
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illegality in convicting the present appellant and has rightly
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arrived at the conclusion that the prosecutrix was minor at the
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time of incident, hence her consent has no significance. Apart
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from that, it is further submitted that the learned Judge of the
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trial Court has rightly held that there was no consent on the part
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of the prosecutrix as she was abducted by the accused persons.
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Thus, it is prayed that the present appeal may be dismissed.
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7. Heard the learned counsel for the parties and perused the
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record.

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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 Hon’ble Apex Court

in a catena of judgments that in ossification test, there is always

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of margin of error of two years on either side is possible. In such

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circumstances, by giving benefit of doubt the age of the

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prosecutrix can be considered to be that of 19 years. In such
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circumstances, the conviction under Section 366-A of IPC cannot
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be sustained. However, merely proving the prosecutrix to be
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major cannot be ground of presuming that she was also a
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consenting party and for that specific evidence has to be led by
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the accused persons to prove their innocence on the basis of the
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consent of the prosecutrix.

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9. A bare perusal of the deposition of the prosecutrix (PW-1)
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reveals that she was living at Bhopal with one Bhaiyalal, whereas
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her parents were residing at Seoni. Bhaiyalal and the prosecutrix
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were also working as a labourer whereas the prosecutrix
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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 Hira’s 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

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months and had also raped her. The prosecutrix has also stated

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that when she refused for the first time, she was also beaten by

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Ramesh. She has further stated that when she was working with
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Ramesh at Dokarkheda, she came to know one Arjun and with the
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help of Arjun and his friend Narayan, she came back to Ujjain
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where she called her mother and neighbour Mahesh Chourasiya
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on phone and narrated the entire incident. Thus even though the
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appellant Hiralal has not committed rape with the prosecutrix, but
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still he is the main accused, who abducted the prosecutrix and
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sold her to Ramesyh and Nagu Maharaj.
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10. The prosecutrix was again examined on 8.4.2013 as PW-4. She
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has also stated that Hiralal had also told her that she should tell
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others that he is her brother and he is getting her to marry
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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.

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11. A bare perusal of the deposition of the prosecutrix as well as

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documents on record reveal that the prosecutrix cannot be said a

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consenting party even assuming that she was a major on the date
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of incident. It is admitted fact that the parents of the prosecutrix
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were residing at Seoni, whereas the prosecutrix was working at
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Bhopal as a labourer and there was no occasion for her to go with
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Hiralal to marry Ramesh specially when she had no knowledge
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about Ramesh and his background or where he lives. It is
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apparent that Hiralal was instrumental in procuring the
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prosecutrix as a subject of sale to Ramesh.
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12. In such circumstances, the prosecution has been able to make
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out the case against the appellant but instead of Section 366-A of
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IPC the appellant is liable to be convicted under Section 366 of
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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

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sentencing the present appellant under Section 363 of IPC but so

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far as his conviction under Section 366-A of IPC is concerned, the

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same is set aside and instead he stands convicted under Section
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366 of IPC and is sentenced to seven years’ RI with a fine of
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Rs.10,000/-, and in default of payment of fine, he is further
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sentenced to one year’s RI.

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13. In the result, the appeal filed by the present appellant Hiralal
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@ Hira is partly allowed and the sentence stands modified to the
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aforesaid extent. If the fine amount is deposited by the appellant,
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the same shall be disbursed to the prosecutrix by the trial Court.

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14. A certified copy of this judgment be sent to the trial Court for
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compliance.

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(Subodh Abhyankar)
Judge
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05/01/2018
Ansari
Digitally signed by MANZOOR
AHMED
Date: 2018.01.08 20:35:30 -08’00’

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