Cr.A.No.292/2012

4.4.2017
Shri Jitendra Sharma on behalf of Shri Virendra Sharma, learned
counsel for the appellants.
Shri Himanshu Joshi, learned Panel Lawyer for the
respondent/State.
Arguments heard. Reserved for orders.

(Rajeev Kumar Dubey)
Judge

Patil

7.7.2017
Order passed separately, signed and dated.

(Rajeev Kumar Dubey)
Judge

Patil
Cr.A.No.292/2012

HIGH COURT OF MADHYA PRADESH
BENCH INDORE

SINGLE BENCH: HON’BLE SHRI JUSTICE RAJEEV KUMAR DUBEY, J.

Cr.A.No.292/2012

Lokesh @ Mukesh S/o Ganeshlal and another

Versus

State of M.P.

JUDGMENT

Post for 07/07/2017.

(Rajeev Kumar Dubey)
Judge.
07/07/2017.
Cr.A.No.292/2012

HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE

SINGLE BENCH: HON. JUSTICE SHRI RAJEEV KUMAR DUBEY, J.

Cr.A.No.292/2012

Lokesh @ Mukesh S/o Ganeshlal and another

Versus

State of M.P.

——————————————————————————————-
Shri Jitendra Sharma on behalf of Shri Virendra Sharma, learned
counsel for the appellants.

Shri Himanshu Joshi, learned Panel Lawyer for the respondent/State.

——————————————————————————————-

JUDGMENT
(Delivered on 07/07/2017)
This criminal appeal has been filed under Section 374 of Cr.P.C.

against the judgment of conviction dated 22.2.2012 passed by 7th
Addl.Sessions Judge, Ujjain in S.T.No.280/2011, whereby learned Judge
found appellants guilty for the offence under Section 363, 366 of IPC and
sentenced them to undergo seven years and ten years RI with fine of
Rs.200 – 200/- and Rs.500 – 500/- respectively and also found appellant
No.1 Lokesh @ Mukesh guilty for the offence under Section 376(I) of IPC
and sentenced him to undergo ten years RI with fine of Rs.500/- with
default stipulation.

2. Brief facts of the case are that on 21.3.2011 Shanti Bai (PW-2)
lodged missing person report Ex.D/8 at P.S., Barnagar, Ujjain averring
that on the same day when she had gone to market for some work from
home, her daughter prosecutrix (PW-1) (name and identity imposed by
law contained in Section 228 of IPC is not disclosed) was at home. When
she returned after finishing work from the market she did not find the
prosecutrix at home, then she asked her young daughter Sharmila who
told her that prosecutrix had gone out from home without giving any
information. She suspected that her girl (prosecutrix) may have taken by
neighbour appellant Lokesh. On that missing person case No.13/2011
Cr.A.No.292/2012

was registered at P.S., Barnagar. On 25.3.2011 prosecutrix returned to
her home. On that Shanti Bai (PW-2) mother of prosecutrix took her at
P.S., Barnagar, where Head Constable Karan Singh (PW-7) prepared
recovery memo (ExP/1) of prosecutrix and recorded her statement. From
her statement it is revealed that on 21.3.2011 at 1.00 PM when
prosecutrix was standing on Otla in front of her house and her younger
sister Sharmila (PW-3) was inside the house, appellants came there on
motorcycle. Appellant Lokesh @ Mukesh took out a knife and told her to
come with him on which She asked Lokesh as why she would go with
him. On this Lokesh told her that if she would not go with him he would kill
her and Lokesh gloved her hands and forcibly took her on a motorcycle.
That motorcycle was being driven by appellant Lokesh and Raju sat
behind her (prosecutrix) and they took her to Ratlam at his relative’s
house. After leaving prosecutrix to the relative’s house Raju went from
there. In that house Lokesh @ Mukesh committed rape with the
prosecutrix on the point of knife and kept her in that house for three days.
On 25.3.2011 prosecutrix escaped from that house and returned to her
home and narrated the incident to her mother Shanti Bai (PW-2). On that
Head Constable Karan Singh (PW-7) sent her for medical examination
alongwith letter Ex.P/13. Dr.Vinita Khatod (PW-4) examined her and also
prepared slide of vaginal discharge of prosecutrix and also seized her
undergarments and pubic hairs and sent to Police Station in a sealed
packet alongwith seal impression and Police prepared seizure memo
Ex.P/11. The statements of prosecutrix (PW-1), her mother Shanti Bai
(PW-2), her younger sister Sharmila (PW-6) and Head Constable Karan
Singh (PW-7) were recorded and on finding that appellants had abducted
prosecutrix and that appellant Lokesh @ Mukesh committed rape with
her, Crime No.111/2011 was registered for the offence punishable under
Section 363, 366, 376, 506 read with Section 34 of IPC. To ascertain
prosecutix’s age her ossification test was conducted by Dr.Ramesh
Pandya (PW-9), who gave report Ex.P/15 that prosecutrix’s age was 16
years. Appellant Mukesh was arrested on 26.3.2011 and co-accused
Rajulal was arrested on 20.3.2011 arrest memos Ex.P/5 and Ex.P/8 were
Cr.A.No.292/2012

respectively prepared . Appellant Lokesh @ Mukesh also was medically
examined by Dr.Bhaskar Bangde (PW-5), and was found capable of
doing intercourse and gave report ExP/10. Doctor also seized underwear
of accused-appellant Lokesh and prepared slide of his semen and sent it
to Police Station, where after seizing that article seizure memo Ex.P/12
was prepared. During interrogation Appellant Lokesh gave information
regarding concealment of knife. On his information knife was also
recovered from his possession and information memorandum Ex.P/7 and
seizure memo Ex.P/6 were prepared. P.C.Chouhan (PW-10) prepared
spot map and sent all seized articles to FSL, Gwalior along with a draft
Ex.P/18 and after completion of investigation Police filed charge sheet
against the appellants before JMFC, Barnagar, who committed the case
to the Court of Sessions, where S.T.No.280/2011 was registered.
Learned 7th Addl.Sessions Judge, Barnagar framed charge against
appellant Lokesh @ Mukesh for the offence punishable under Section
363, 366, 506 Part II and 376(1) of IPC and against appellant Rajulal
under Section 363,366 of IPC and tried the case. However, appellants
abjured their guilt and took defence that they have falsely been implicated
in the case. The prosecutrix was major and consenting party and also
produced Udayveer Singh (DW-1) and Moolibai (DW-2) in defence.In this
regard also produced photographs of prosecutrix and affidavit of
prosecutrix and the alleged report lodged by the prosecutrix Ex.D/3 to
Ex.D/7 respectively to prove the fact that she was a consenting party and
herself came to appellant’s house. The prosecution produced as many as
ten witnesses to prove its case. However, after trial learned trial Court
acquitted the appellants for the offence punishable under Section 506
Part II of IPC but found them guilty for the offence punishable under
Section 363, 366 of IPC and also found appellant Lokesh guilty for the
offence punishable under Section 376(1) of IPC and sentenced them as
aforesaid. Being aggrieved by the same appellants filed this criminal
appeal.

3. Learned counsel for the appellants submitted that prosecutrix was
major at the time of incident and she was a consenting party. Learned
Cr.A.No.292/2012

trial Court without appreciating the evidence wrongly found that
prosecutrix was minor and appellants took her forcibly to Ratlam and
appellant No.1 Lokesh @ Mukesh committed rape with her.

4. On the other hand learned counsel for the respondent/State
submitted that from the ossification test report Ex.P/4, which was proved
by Dr.Ramesh Pandya (PW-9) and the statement of Shanti Bai (PW-2)
mother of the prosecutrix, it is clearly proved that prosecutrix was minor at
the time of incident. The fact that prosecutrix was minor was corroborated
by the statement of Shanti Bai (PW-2) mother of the prosecutrix. It is
clearly proved that appellants abducted prosecutrix from her house
situated at Barnagar and took her to Ratlam, where appellant No.1
Lokesh @ Mukesh committed rape with her. So, the learned trial Court
did not commit any mistake in holding the appellant No.1 Lokesh @
Mukesh guilty under Section 363, 366 and 376 of IPC and appellant No.2
Rajulal for the offence under Section 363, 366 of IPC.

5. For disposal of this appeal the points for determination are as
follows. :-

(i) Whether prosecutrix was minor on the date of
incident.

(ii) Whether appellants abducted prosecutrix from her
house situated at Barnagar to Ratlam, where appellant
No.1 Lokesh @ Mukesh committed rape with her.

6. As far as age of prosecutrix on the date of incident is concerned,
Shanti Bai (PW-2) mother of the prosecutrix clearly deposed that at the
time of incident prosecutrix was 16 years old. Her statement is also
corroborated by ossification test report Ex.P/14, which was proved by
Dr.Ramesh Pandya (PW-9), who conducted the ossification test.
Dr.Ramesh Pandya deposed that he had examined the prosecutrix on
29.3.2011 at Civil Hospital, Ujjain. In the examination he found that her
epiphysis of right wrist joint was not fused. The epiphysis of right elbow
joint fused. Epiphysis of right knee joint not fused. Epiphysis of right iliac
creast not appeared. On that basis he estimated age of prosecutrix as 16
years. His statement is also supported by the report Ex.P/14, which he
Cr.A.No.292/2012

gave on the basis of x-ray Ex.P/15. This witness is an independent
witness. There is no reason to disbelieve this witness.

7. Learned counsel for the appellants submitted that Dr.Ramesh
Pandya (PW-9) clearly admitted in his cross-examination that there may
be difference of two years in the age given by him, on that basis the
prosecutrix appears to be 18 years of age at the time of incident. The
learned trial Court committed mistake in not placing reliance on his
statement. In this regard he placed reliance on this Court’s judgment
passed in Sanjay @ Sanju Solanki Vs. State of M.P., reported in
2011(1) MANISA 104 (M.P.), but facts of that case do not match with this
case. In that case prosecution had not proved ossification test report of
prosecutrix by producing expert, who gave that report. He also placed
reliance on judgment of Division Bench of this Court passed in the case of
State of M.P. Vs. Narendra Kumar Haridas Deshlahare, reported in
2000(2) MPLJ 399, in which this Court held that the finding on age of
prosecutrix as between 14 to 16 years reached by trial Court is merely
approximation based on medical examination and two years margin on
either side could be given. The prosecution, therefore, failed to
conclusively prove that the prosecutrix was below 16 years of age. He
also placed reliance of this Court’s judgment passed in the case of
Ashok Vs. State of M.P., reported in 2011(1) MANISA 43 (M.P.), in
which this Court held that it is legal position to normally take margin of
one to two year on either side in the opinion of the expert.

8. He has further placed reliance on the judgment of Chhattisgarh
High Court in the case of Subelal Vs. State of M.P., reported in 2012(I)
MANISA 70 (C.G.) in which it is held that difference of 3 years on either
side may be there in the age determined on the basis of ossification test.
But Hon’ble Apex Court in its judgment passed in the case of State of
Karnataka Vs. Bantara Sudhakara, reported in (2008) 11 SCC 38 held
that merely because doctor’s evidence showed that the victim’s belong to
the age group of 14 to 16, to conclude that two years had to be added to
the upper age-limit is without any foundation. Hon’ble Apex Court in the
Cr.A.No.292/2012

case of State of U.P. Vs. Choteylal, reported in AIR 2011 SC 697 has
observed as under :-

“We find ourselves in agreement with the view of the
trial Court regarding the age of the prosecutrix. The
High Court conjectured that the age of the prosecutrix
could be even 19 years. This appears to have been
done by adding two years to the age opined by doctor
(PW-5). There is no such rule much less and absolute
one that two years have to be added to the age
determined by doctor.”

9. So only on the assumption of Dr.Ramesh Pandya (PW09) that
there may be difference of two years in the age approximated by him, it
cannot be assumed that prosecutrix’s age on the date of incident was
sixteen plus two – eighteen years.He had clearly stated in his statement
that epiphysis of right wrist bone of prosecutrix, which is fused on the age
of 16 years was not fused . Also epiphysis of right knee and right hip was
not fused. Only the epiphysis of right knee was fused and on that basis he
approximated the prosecutrix’s age to be 16 years. In these
circumstances it cannot be assumed that prosecutrix’s age was plus
minus two – eighteen years. In the considered opinion of this Court
learned trial Court did not commit any mistake to hold that prosecutrix
was 16 years of age at the time of incident and below 18 years and that
she was minor at the time of incident.

10. As regard to point No.2 the prosecutrix (PW-1) clearly deposed in
her statement that on the date of incident at about 12.30 PM when she
was standing outside of her house on Otla, appellants came to her house
on a bike. Appellant Lokesh suddenly gloved his hands and pointed out a
knife and told her to go with him and when she asked him as why she
would go with him, Lokesh told her that if she would not go with him he
would kill her and Lokesh forcibly took her on bike. Appellant Rajulal sat
behind her on bike and appellant Lokesh drove the bike and took her
Ratlam, where appellants kept her in a house of relative, where appellant
confined her for three days and repeatedly committed rape with her on
the point of knife. On third day mother of appellant Lokesh @ Mukesh and
appellant Rajulal brought her at Barnagar and left her outside of her
Cr.A.No.292/2012

house and appellants also forcibly got some documents signed from her.
After reaching home she narrated the incident to her parents. They took
her to P.S., Barnagar. In this regard her statement is also corroborated
from the statement of her mother Shanti Bai (PW-2), who also deposed
that on the date of incident when she had gone to market, her daughter
prosecutrix and younger daughter Sharmila (PW-6) were at home. At
2.30 PM when she returned back Sharmila (PW-6) told her that
appellants forcibly took prosecutrix on motorcycle. On that she lodged
missing person report at P.S., Barnagar. Three days after the incident
appellant Lokesh’s, mother and appellant Rajulal left her in front of her
house. Then she narrated the whole incident and stated that on the date
of incident when she was standing outside of her house appellants came
on bike and forcibly took her on the point of knife to Ratlam, where
appellants kept her in a room and got some papers signed from her and
appellant Lokesh committed rape with her. In this regard her statement is
also corroborated from the statement of Sharmila, younger sister of
prosecutrix, who also gave same statement.

11. But on the point that appellants had forcibly taken prosecutrix
(PW-1) on bike from outside of her house to Ratlam, statement of
prosecutrix (PW-1) and her sister Sharmila (PW-6) did not appear to be
correct. Sharmila (PW-6) deposed that on the date of incident appellants
came to her house on bike in the noon when her sister prosecutrix
(PW-1) was standing outside the house and forcibly took her on bike on
the point of knife. At that time her mother Shanti Bai (PW-2) was not at
home. When she returned from market she narrated the incident to her.
Shanti Bai (PW-2) also deposed that at the time of incident she had gone
to Bazar. Her daughter prosecutrix (PW-1) and Sharmila (PW-6) were at
home. When she returned home at 2.30 PM her younger daughter
Sharmila (PW-6) informed her that appellants forcibly took the prosecutrix
on the point of knife. On that she lodged missing person report Ex.D/8.
But in that report it is not mentioned that appellants forcibly took the
prosecutrix on bike. Only what is mentioned is that when she had gone to
market ,her daughter prosecutrix (PW-1) and younger daughter Sharmila
Cr.A.No.292/2012

(PW-6) were at home and when she returned , the prosecutrix was not at
home. Her younger daughter Sharmila informed that prosecutrix went
without giving any information. If Sharmila (PW-6) had seen appellants
forcibly taking the prosecutrix on bike, she would have informed that fact
to Shanti Bai (PW-2) and she would have stated that fact in Ex.D/8
missing person report. So statement of Sharmila (PW-6) that appellants
forcibly took the prosecutrix from the front of her house on a bike and
statement of Shanti Bai (PW-2) mother of prosecutrix that when she
returned back from the market Sharmila informed her that appellants had
forcibly taken the prosecutrix on bike becomes afterthought.

12. As far as prosecutrix’s statement in this regard is concerned,
although prosecutrix deposed that on the date of incident appellants
came to her house and took her forcibly on bike to Ratlam but prosecutrix
also admitted in her cross-examination that 25 other houses were also
situated near her house. Moolibai, Gangabai, Ratanlal also resided near
her house. She also admitted that appellants took her to Ratlam, 50 Kms.
away from her house through diversion road. On the way many people
saw her. While in missing person report Ex.D/8 it is not mentioned that
appellants took prosecutrix forcibly from her house on bike. Appellants
also produced photographs Ex.D/2 to Ex.D/5 of prosecutrix and Lokesh.
Prosecutrix also admitted that the photographs were of her but did not
explain at which time that photos were taken. Prosecutrix also admitted in
her statement that when appellant Lokesh committed rape with her, she
did not shout. So statement of prosecutrix that appellant Lokesh @
Mukesh forcibly took her on bike from her home to Ratlam appears false.
But as discussed above, the prosecutrix was minor at the time of incident
so her consent has no meaning. From the statement of prosecutrix it is
clearly proved that appellants took her from her home to Ratlam, where
appellant Lokesh committed intercourse with her. So it is clearly proved
that appellants abducted the prosecutrix in order that she may be forced
or seduced to illicit intercourse .

13. Although, it appears that prosecutrix went with appellants on her
will but only on that ground it cannot be assumed that prosecutrix was
Cr.A.No.292/2012

consenting party for intercourse. Prosecutrix in her statement clearly
deposed that appellant Lokesh @ Mukesh forcibly raped with her on the
point of knife. Had the prosecutrix been a consenting party why she would
narrate the incident to her mother soon after the incident. So only on the
ground that prosecutrix went with appellants, it cannot be assumed that
prosecutrix also gave consent for intercourse.

14. Although, learned counsel for the appellants submitted that
Dr.Vinita Khatod (PW-4), who conducted medical examination of
prosecutrix soon after the incident, clearly deposed that she did not find
any external injury on the body of prosecutrix or on her private part. If the
accused had committed intercourse with prosecutrix against her will then
there would have been injuries on her body. But only on the ground that
no injury was found on the body of prosecutrix in her medical examination
it cannot be said that no rape was committed with her. If appellants had
not taken the prosecutrix from her house to Ratlam and appellant Lokesh
@ Mukesh had not committed rape with prosecutrix then why she would
give false statement against appellants. There had been no enmity
between the two families, and, therefore, there could be no reason for the
prosecutrix and her family to drag the appellant falsely in a case where
the honour of the family itself remains on stake and the prosecutrix has to
suffer mental agony throughout her life.

15. The Hon’ble Apex Court in the case of Uday Vs. State of
Karnataka, reported in (2003) 4 SCC 46, observed that the concept of
“consent” in the context of Section 375 IPC has to be understood
differently, keeping in mind the provision of Section 90 IPC, according to
which a consent given under fear/coercion or misconception/mistake of
fact is not a consent at all. Scheme of Section 90 IPC is couched in
negative terminology. Consent is different from submission.

16. The Apex Court in the case of State of H.P. Vs. Mango Ram,
reported in (2000) 7 SCC 224, considering the same issue held as under
:-

Cr.A.No.292/2012

“Submission of the body under the fear of terror
cannot be construed as a consented sexual act.
Consent for the purpose of Section 375 requires
voluntary participation not only after the exercise of
intelligence based on the knowledge of the significance
and moral quality of the act but after having fully
exercised the choice between the resistance and
assent. Whether there was consent or not, is to be
ascertained only on a careful study of all relevant
circumstances”

17. The subsequent conduct of the prosecutrix also shows that she
was very much resistant to the sexual onslaught on her. When She came
to her house she immediately told the entire incident to her mother as to
how she was ravished by the accused. The evidence as a whole indicates
that there was resistance by the prosecutrix and there was no voluntary
participation by her for the sexual act. From the evidence on record, it
cannot be said that the prosecutrix had given consent and thereafter she
turned round and acted against the interest of the accused. So only on
that ground that prosecutrix went with appellants it cannot be assumed
that prosecutrix also gave consent for intercourse. Although, appellants
also produced photographs of prosecutrix Ex.D/2 to D/5 and also
produced affidavit Ex.P/6 and report allegedly lodged by the prosecutrix at
P.S., Barnagar but that affidavit and report was not proved by the
appellants by producing reliable evidence in this regard. Even otherwise,
from the report or affidavit it does not appear that prosecutrix gave
consent for intercourse. So in the considered opinion of this Court there is
no reason to disbelieve the prosecutrix’s statement that appellant Lokesh
@ Mukesh confined her in a room for three days and committed rape with
her and learned trial Court did not commit any mistake in holding the
appellants Rajulal and Lokesh @ Mukesh guilty under Section 363, 366
of IPC and appellant Lokesh @ Mukesh for the offence under Section
376(1) of IPC.

18. As far as sentence is concerned learned trial court sentenced
appellants under section 363, seven years RI and under section 366 of
IPC ten years RI which is maximum jail sentence prescribed for these
offences and appellant No.1 Lokesh @ Mukesh was also sentenced
Cr.A.No.292/2012

under Section 376(I) of IPC ten years RI, but for offence under Section
376 of the IPC minimum sentence is prescribed as 7 years, no
antecedent were reported against appellants so looking to the facts and
circumstances of the case it is appropriate that jail sentence of appellant
Rajulal for the offence under section 366 of IPC and jail sentence of
appellant Lokesh @ Mukesh for the offences under section 366 and 376
of IPC be reduced.

19. Accordingly the appeal is partly allowed and jail sentence of
appellant Rajulal under section 366 of IPC is reduced from 10 years R.I.
to 7 years R.I. and that of appellant Lokesh @ Mukesh for the offences
under section 366 and 376 of IPC is reduced from 10-10 years R.I. to 7, 7
years R.I.. The period already undergone be set off from the jail
sentences. All jail sentences shall run concurrently. Appellants are in jail
and shall undergo remaining part of sentence.

The appeal stands disposed off accordingly.

(Rajeev Kumar Dubey)
Judge
07/07/2017

Patil