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THE HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
*****************
SB:- Hon’ble Shri Justice G. S. Ahluwalia

Cr.A.695/1999

Narayan Makwana Another

Vs.

State of MP

None for the appellants.
Ms. Mamta Shandilya, learned Public Prosecutor for the
respondent/ State.

JUDGMENT

(Delivered on 21/08/2018)

On 16/04/2018 none had appeared for the appellants

and on 02/08/2018 also, none appeared for the appellants.

Since the appellants are on bail from 14/07/2000 and this

appeal is pending since 1999 i.e almost 19 years, therefore,

in the light of the judgment passed by the Supreme Court in

the matter of Surya Baksh Singh vs. State of Uttar

Pradesh, reported in 2014 (14) SCC 222, this Court has no

option, but to decide this appeal on merits after hearing the

counsel for the State and going through the appeal memo as

well as the record of the trial Court. A detailed order has also

been passed in this regard on 2/8/2018.

(2) This Criminal Appeal under Section 374 of CrPC has

been filed against the judgment and sentence dated

10/05/1999, passed by First Additional Sessions Judge,

Ratlam in Sessions Trial No. 86/1998, by which appellant No.1
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Narayan has been convicted under Section 366 of IPC and has

been sentenced to undergo the rigorous imprisonment of four

years and a fine of Rs.500/- and appellant No.2 Ramesh alias

Gudda has been convicted under Sections 366, 376 of IPC

and sentenced to undergo the rigorous imprisonment of four

years and a fine of Rs.500/- and rigorous imprisonment of

seven years and a fine of Rs.500/- respectively, with default

stipulation.

(3) The necessary facts for the disposal of the present

appeal in short are that the father of the prosecutrix lodged a

Guminsaan report on 09/03/1998 to the effect that the

prosecutrix had gone to her school on 09/03/1998 at about

07:30 in the morning and did not come back to the house at

2:00 pm as per daily routine. She was searched by the family

members and since Gudda and Narayan were not in the

house, therefore, a suspicion was expressed against them. In

the Guminsaan report, it was mentioned that the prosecutrix

is aged about 15 years. The FIR Ex.P16 was lodged and

during investigation, it was found that the appellants had

taken away the prosecutrix from the custody of her guardian

to the bus stand and her cycle was parked in the cycle stand.

Thereafter, they went to Mandsaur where appellant Ramesh

alias Gudda took a room on rent in Mahesh Hotel by disclosing

himself as well as the prosecutrix, as husband and wife,

where appellant Ramesh alias Gudda committed rape on the

prosecutrix and also extended a threat that in case if she
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narrates the incident to anybody then she would be killed.

Thereafter, appellant Ramesh alias Gudda took the prosecutrix

to a village near Neemuch, where they went to Piplyamandi in

search of some job and also stayed in a lodge where also, the

prosecutrix was raped. Thereafter, the prosecutrix was taken

to Sukheda and Banjli, where again she was raped by

appellant Ramesh alias Gudda. Later on, appellant Ramesh

alias Gudda took the prosecutrix to the factory of his friend

Dilip and there also, he committed rape on the prosecutrix

and extended a threat. After the recovery, the prosecutrix was

sent for medical examination and in medical examination her

age was clinically assessed in between 14-16 years. The

prosecutrix was found to be habitual for intercourse and was

in menses. For determination of age, the radio-logical test

was also conducted and the age of the prosecutrix was found

in between 15-16 years. The police, during the investigation,

seized mark sheet of the prosecutrix and as per the said

mark sheet, the date of birth of the prosecutrix was

27/04/1983.The undergarment, vaginal slides and pubic hair

of the prosecutrix were sent for FSL examination along with

undergarment of appellant Ramesh alias Gudda and the FSL

report was received, according to which human semen and

sperms were found on the ”Salwar” as well as undergarment

of the prosecutrix and the undergarment of appellant No.2

Ramesh alias Gudda. The register of Mahesh Hotel was

seized. Similarly, a token slip of deposit of cycle of the
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prosecutrix was also seized and after completing the

investigation, the police filed charge sheet against the

appellants for offence under Sections 366 376 of IPC.

(4) The trial Court by judgment dated 15/07/1998 framed

charge under Section 366 of IPC against appellant No.1

Narayan and framed charge under Sections 366 and 376 of

IPC against appellant No.2 Ramesh alias Gudda.

(5) The appellants abjured their guilt and pleaded not

guilty.

(6) The prosecution, in order to prove its case, examined

Yogesh Sharma (PW1), Shekh Mehboob (PW2), Narendra

Singh (PW3), Dinesh Parmar (PW4), Kamlesh Patidar (PW5),

Dr.D.C.Boriwal (PW6), Dr.Manoj Solanki (PW7), Kailash

Chandra Goswami (PW8), Dr. Sudha Rajawat (PW9), Prakash

(PW10), Mangulal (PW11), P. S. Solanki (PW12), prosecutrix

(PW13), Kalkai Singh (PW14), Dharmpal (PW15), Suresh

Vikram (PW16) and Devendra Singh Rathore (PW17). The

appellants examined Dinesh (DW1) in their defence.

(7) The trial Court by judgment dated 10/05/1999 passed in

Sessions Trial No.86/1998 convicted both the appellants for

offence under Section 366 of IPC and also convicted

appellant No.2 for offence under Section 376 of IPC and both

the appellants have been sentenced to undergo the rigorous

imprisonment of four years and a fine of Rs.500/- with default

imprisonment for offence under Section 366 of IPC and

appellant No.2 Ramesh alias Gudda has also been sentenced
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to undergo rigorous imprisonment of seven years and a fine

of Rs.500/- with default stipulation for offence under Section

376 of IPC.

(8) Challenging the judgment and sentence passed by the

Court below, it is mentioned in the memo of this appeal that

the prosecutrix (PW13) was herself a consenting party and

according to the prosecution case itself, she went along with

the appellants and parked her cycle in the cycle stand of the

Railway Station from where she went to Neemuch along with

the appellants and from Neemuch on-wards, the prosecutrix

accompanied appellant No.2 Ramesh alias Gudda to different

places and they had stayed in the lodge also, but she never

made complaint to anybody alleging that she has been

kidnapped by the appellants and thus, it is clear that the

prosecutrix herself was a consenting party.

(9) Per contra, it is submitted by counsel for the State

that whether the prosecutrix was a consenting party or not,

would be material only when if it is found that the prosecutrix

was above the age of 16 years. However, in the present case,

admittedly, the prosecutrix was minor, below the age of 16

years and thus, even if it is presumed that the prosecutrix

was a consenting party, then in view of Section 375 (Sixthly)

of IPC, the consent of minor is immaterial and accordingly,

the trial Court did not commit any mistake in convicting both

the appellants for offence under Section 366 of IPC as well as

convicting appellant no.2 Ramesh alias Gudda for offence
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under Section 376 of IPC.

(10) Heard the learned Public Prosecutor for the State.

(11) Before considering the allegations that whether the

prosecutrix was a consenting party or not, it would be

relevant to consider the provision of Section 375 (Sixthly) of

IPC which reads as under:-

”With or without her consent, when she is under
sixteen years of age.”

(12) The prosecution in order to prove the age of the

prosecutrix has relied upon the school mark sheet of the

prosecutrix as well as the clinical assessment of the age of

prosecutrix and the ossification test report. Dr. D.C. Boriwal

(PW6) has stated that on 02/04/1998, he was posted as

Radiologist in the District Hospital, Ratlam and the prosecutrix

was brought to him by Dr. Rajawat for assessment of her age.

This witness had taken X-rays of elbow joint, knee joint and

wrist joint and on the assessment of X-ray reports, he had

found that the age of the prosecutrix is in between 15-16

years. The ossification test report given by this witness is

Ex.P7, whereas X-ray plates are Ex.P8. In cross-examination,

this witness has admitted that as per Medical Jurisprudence of

Modi, there might be margin of three years and the age of the

prosecutrix might be in between 18-19 years. However, on

the question put by the Court, this witness has further

admitted that the age of the prosecutrix might be less than

16 years also.

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(13) Dr. Sudha Rajawat (PW9) had medically examined the

prosecutrix, who had stated that she had found five abrasions

on the scalp of the prosecutrix and clinically she had assessed

the age of the prosecutrix in between 14-16 years and for

ascertaining the age of the prosecutrix, she had referred the

prosecutrix to the Radiologist. The MLC report given by this

witness is Ex.P7. In cross-examination, she admitted that she

had disclosed the reasons for assessing the age of prosecutrix

in between 14-16 years. She further admitted that she agrees

with the Medical Jurisprudence of Modi, according to which

the menses starts from the age of 14 years, however, she

further clarified that there might be certain exceptions also.

(14) Kailash Chandra Goswami (PW8) has proved the seizure

of mark sheet of the prosecutrix. The mark sheet is Ex.P10

and the same was seized vide seizure memo Ex.P11. In the

mark sheet, the date of birth of the prosecutrix is mentioned

as 27/04/1983.

(15) It is mentioned in the grounds raised in the memo of

appeal that the trial Court has committed a material illegality

by holding the prosecutrix as minor.

(16) Per contra, it is submitted by the Public Prosecutor for

the State that there is no discrepancy in the date of birth

mentioned in the mark sheet of the prosecutrix as well as in

the ossification test report of the prosecutrix and clinical

assessment of the age of the prosecutrix. Dr. Sudha Rajawat

(PW9) had clinically assessed the age of the prosecutrix in
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between 14-16 year. Dr.D.C. Bariwal (PW6) had assessed the

age of the prosecutrix in between 15-16 years and as per

mark sheet of the prosecutrix, her date of birth was

27/04/1983. According to the prosecution case, the

prosecutrix was kidnapped by the appellants on 09/03/1998.

Thus, if the date of birth of the prosecutrix as mentioned in

the mark sheet is considered in the light of clinical

assessment of the age of the prosecutrix as well as

ossification test report of the prosecutrix, then it would be

clear that on the date of kidnapping, the prosecutrix was aged

about 15 years and was below the age of 16 years. Thus, it is

held that the prosecution has succeeded in establishing

beyond reasonable doubt that the prosecutrix was minor on

the date of incident and was below the age of 16 years. Under

these circumstances, it is clear that the consent of the

prosecutrix is immaterial in view of provision of Section

375(Sixthly) of IPC. Although the prosecutrix (PW13) had

stated that the appellants had taken her to the railway station

where appellant No.1 Narayan had parked her cycle in the

cycle stand of the Railway Station and handed over the key

of the said cycle to appellant No.2 Ramesh alias Gudda, from

where both of the appellants took the prosecutrix to Neemuch

by train and at Neemuch, appellant No.1 Narayan came back

after leaving the prosecutrix along with appellant No.2

Ramesh alias Gudda and thereafter, appellant No.2 Ramesh

alias Gudda had taken her to different places, where she was
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committed rape by appellant No.2 Ramesh alias Gudda, but

as already held by this Court that the prosecutrix was minor

on the date of kidnapping, therefore, whether she was a

consenting party or not, is not required to be considered

because the consent of the minor is immaterial. Accordingly, it

is held that appellant No.2 Ramesh alias Gudda is guilty of

committing for offence under Sections 366 and 376 of IPC.

(17) So far as the case of appellants for offence under

Section 366 of IPC is concerned, this Court has already come

to the conclusion that the prosecutrix was minor on the date

of incident and was aged about 15 years. In order to make

out an offence under Section 366 of IPC, the prosecution is

required to prove that the prosecutrix was kidnapped.

(18) ”Kidnapping” is defined in Section 361 of IPC, which

reads as under:-

”361. Kidnapping from lawful guardianship.–

Whoever takes or entices any minor under 1[sixteen]
years of age if a male, or under 2[eighteen] years of
age if a female, or any person of unsound mind, out
of the keeping of the lawful guardian of such minor
or person of unsound mind, without the consent of
such guardian, is said to kidnap such minor or person
from lawful guardianship.”

(19) Thus, it is clear that where a person is a female below

eighteen years of age and if she is taken out of the lawful

guardian of such minor, without the consent of such guardian,

then the said act of the accused would be a ”kidnapping” of

such minor or a person from lawful guardianship. In the

present case, as this Court has already held that the
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prosecutrix was less than 16 years on the date of kidnapping,

therefore, it is clear that she was below 18 years of age for

the purpose of offence under Section 366 of IPC. The

prosecutrix (PW13) in her evidence has specifically stated that

appellant No.1 and appellant No.2 had taken her to a Railway

Station where appellant No.1 Narayan had parked her cycle in

the cycle stand of the Railway Station and from where, both

of the appellants took her to Neemuch by train and at

Neemuch, appellant No.1 Narayan came back after leaving

the prosecutrix along with appellant No.2 Ramesh alias

Gudda. Thus, it is clear that the prosecutrix was kidnapped by

appellant No.1 Narayan also from Ratlam and brought her to

Neemuch. From there, the appellant No.2 Ramesh alias

Gudda took her to different places and committed rape on

her. Considering the allegations made against the appellants,

it is clear that the prosecution has established beyond

reasonable doubt that the appellant No.1 along with the

appellant No.2 had kidnapped the prosecutrix. Accordingly,

appellants are also held guilty for offence under Section 366

of IPC.

(20) So far as the question of sentence is concerned, the

appellant No.2 has been awarded the jail sentence of rigorous

imprisonment of seven years for offence under Section 376 of

IPC, which is the minimum sentence provided under the law.

Therefore, the sentence awarded to the appellant No.2 by the

trial Court for offence under Sections 366 and 376 of IPC does
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not call for any interference and accordingly, the sentence

awarded to the appellant No.2 for offence under Sections 366

and 376 of IPC is affirmed.

(21) So far as the sentence awarded to the appellants for

offence under Section 366 of IPC is concerned, it is clear that

no minimum jail sentence is provided. The allegation against

appellant No.1 Narayan is that he had facilitated the appellant

No.2 Ramesh alias Gudda to kidnap the prosecutrix and the

appellants took the prosecutrix to the Railway Station, Ratlam

where her cycle was parked in the cycle stand of the Railway

Station and from there, they went to Neemuch by train and at

Neemuch, appellant No.1 Narayan left appellant No.2 Ramesh

alias Gudda and the prosecutrix and came back. There is no

allegation against the appellant No.1 to the effect that he, in

any manner, had molested or sexually violated the

prosecutrix. From the record of the trial Court, it appears

that during trial the appellant No.1 had remained in jail from

25/03/1998 to 13/05/1998 and he was granted bail by this

Court by order dated 14/07/2000 after his conviction by

judgment dated 10/05/1999. Thus, it is clear that the

appellant No.1 has remained in jail from 10/05/1999 to

14/07/2000 after his conviction. Under the facts and

circumstances of the case, this Court is of the considered

opinion that the jail sentence already undergone by the

appellant No.1 Narayan for offence under Section 366 of IPC

would serve the ends of justice. Therefore, the sentence
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awarded to the appellant No.1 Narayan for offence under

Section 366 of IPC is modified to the period already

undergone by him. Accordingly, the judgment and sentence

dated 10/05/1999 passed by First Additional Sessions Judge,

Ratlam in ST No.86/1998 is hereby affirmed with the above-

mentioned modification.

(22) So far as appellant No.1 Narayan is concerned, as he

has been sentenced to the period already undergone by him,

therefore, his bail bonds and surety bonds are discharged. He

is no more required in the present case.

(23) So far as appellant No.2 Ramesh alias Gudda is

concerned, as he is on bail, therefore, his bail bonds and

surety bonds are hereby cancelled. He is directed to

immediately surrender before the trial Court for undergoing

the remaining jail sentence.

(24) Accordingly, the appeal succeeds in part and is

Allowed accordingly.

(G.S.Ahluwalia)
Judge

MKB Digitally signed by MAHENDRA KUMAR BARIK
Date: 2018.08.21 18:09:24 +05’30’

Digitally signed by MAHENDRA
KUMAR BARIK
Date: 2018.08.21 18:09:42 +05’30’