SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Ramkishan @ Raja vs State Of M.P. on 26 July, 2018

1 CRA No.24/2006

HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON’BLE SHRI JUSTICE G.S. AHLUWALIA
Criminal Appeal No.24/2006
………Appellant: Ramkishan @ Raja
Versus
…….Respondent : State of M.P.
———————————————————————-
Shri V.K. Saxena, Senior Advocate with Shri Aditya Singh,
Counsel for the appellant.
Shri Devendra Chaubey, Public Prosecutor for the
respondent/State.
———————————————————————-
Date of hearing : 19/07/2018
Date of Judgment : 26/07/2018
Whether approved for reporting : Yes

JUDGMENT

(26/07/2018)

This criminal Appeal under Section 374 of Cr.P.C. has

been filed against the judgment dated 13.12.2005 passed by

1st ASJ, Dabra, District Gwalior in S.T.No.191/2005 by which

the appellant has been convicted for offence punishable under

Sections 363, 366 and 376 of IPC and has been sentenced to

undergo the rigorous imprisonment of three years and a fine of

Rs.1,000/-, five years rigorous imprisonment and a fine of

Rs.5000/- and 10 years rigorous imprisonment and a fine of

Rs.10,000/- with default imprisonment, respectively. It has
2 CRA No.24/2006

also been directed by the Trial Court that out of the total fine

amount, an amount of Rs.10,000/- be paid to the prosecutrix

by way of compensation and all the sentences have been

directed to run concurrently.

2. The necessary facts for the disposal of the present appeal

in short are that on 1.4.2004, the complainant Atar Singh Jatav

lodged a Gum Insan report alleging that his 13 years of old

daughter had gone to Chinor on 24.3.2004 for appearing in the

examination of Class 8th and has not returned back and inspite

of the best efforts, her whereabouts could not be ascertained.

A Gum Insan case was registered as 3/2004 and the matter

was investigated by Head Constable Pancham Singh. The

statements of the witnesses were recorded who stated that the

appellant Ramkishan @ Raja has taken away the prosecutrix.

Accordingly, the FIR in Crime No.53/2004 was registered for

offence under Sections 363, 366 of IPC. The prosecutrix was

recovered from the possession of the appellant along with

three months old boy. The prosecutrix was got medically

examined, her statement was recorded and she made specific

allegations of commission of rape by the appellant and it was

also stated by her that the co-accused Kamlesh had assisted

the appellant Ramkishan @ Raja. Accordingly, the police after

concluding the investigation filed the charge sheet against the

appellant and the co-accused Kamlesh for offence under

Sections 363, 366, 376 of IPC.

3 CRA No.24/2006

3. The Trial Court framed charges under Section 363, 366,

376 of IPC against the appellant and framed the charge under

Section 366 of IPC against the co-accused Kamlesh.

4. The appellant and the co-accused Kamlesh, abjured their

guilt and pleaded not guilty.

5. The prosecution in order to prove its case, examined the

prosecutrix (PW-1), Atar Singh (PW-2), Sohan Singh (PW-3),

Jogendra (PW-4), Pancham Singh (PW-5), Ramvaran Singh

(PW-6), Ramsharan Barua (PW-7), Dr. Shobha Chaturvedi (PW-

8), Dr. J.S. Sikarwar (PW-9), Mohar Singh (PW-10), Bhawar

Singh Jadon (PW-11), S.K. Saxena (PW-12), Naresh Dubey

(PW-13) and Chandrabhan Singh (PW-14).

6. The appellant and the co-accused did not examine any

witness in their defence.

7. The Trial Court by judgment dated 13.12.2005 passed in

S.T.No.191/2005, convicted the appellant for offence under

Sections 363, 366, 376 of IPC and sentenced him to undergo

the rigorous imprisonment of three years and a fine of

Rs.1,000/-, five years rigorous imprisonment and a fine of

Rs.5000/- and 10 years rigorous imprisonment and a fine of

Rs.10,000/- with default imprisonment, respectively.

8. The co-accused Kamlesh was acquitted of all the charges.

9. The acquittal of the co-accused Kamlesh Viswas has not

been challenged by the State or by the complainant, therefore,

any reference to Kamlesh Viswas would be in respect of the
4 CRA No.24/2006

allegations made against the present appellant.

10. Challenging the judgment and sentence dated

31.12.2005, it is submitted by the counsel for the appellant

that the prosecutrix was major on the date of incident and she

on her own had moved from one place to another and had

stayed with the appellant for near about one year and was

blessed with a son and thus it is clear that the prosecutrix was

a consenting party.

11. Per contra, it is submitted by the counsel for the

respondent/State that the appellant Raja @ Ramkishan was

already a married person having three children. The prosecutrix

was undoubtedly minor below 16 years of age and the

prosecutrix has specifically stated that during her stay with the

appellant for a period of one year the appellant used to beat

her mercilessly and she was not allowed to go back to her

home. Thus, the prosecutrix has specifically stated that during

this period of one year, she was raped by the appellant.

12. The prosecutrix (PW-1) has stated that her date of birth is

2.1.1991 and on 24.3.2004 she had gone to fill up her

Examination form for appearing in the examination of Class

8th. She was followed by the appellant who threatened her to

accompany her to Gwalior, otherwise she and her brother

would be killed. It is further stated that in Gwalior, the

appellant took her to hostel where one Sardar Jatav was

studying and in the evening of the same day, the appellant
5 CRA No.24/2006

took her to Indore and they reached Indore in the morning of

the next day. The appellant took her to the house of his relative

and stayed there for three days and during these three days,

the appellant had committed rape on her. Thereafter he took

her to Ujjain where they stayed in Shriram Lodge for five days

and at Ujjain also she was raped by the appellant. From Ujjain

they came to Devas and they stayed there for one day in a

lodge situated behind the bus stand where also she was raped

by the appellant. From Devas they came to Bhopal and stayed

in Gurudwara for a period of one month, and there also, she

was raped by the appellant. From Bhopal they came to Guna

where they stayed for a period of six months with the

assistance of co-accused. The appellant used to beat her and

rape her. From Guna they went to Sadhora where the appellant

opened a clinic. At Sadhora, she gave birth to a child who is

now five months old and is residing with her. At Sadhora they

stayed for a period of four months and thereafter the appellant

extended a threat to compromise the matter and accordingly,

brought her to village Pipraua by bus where he was caught by

the police. It was further stated that the appellant used to beat

her child as well as used to beat the prosecutrix. The appellant

was already married and had three children, out of which two

were girl and one was boy. The prosecutrix was recovered from

the possession of the appellant and the recovery memo is

Ex.P/1. She was sent for medical examination and her
6 CRA No.24/2006

ossification test was also conducted. Her marksheet is Ex.P/2

and her date of birth is 2.1.1991. The appellant kept her like

his wife but he never allowed her to speak. Her statement

under Section 164 of Cr.P.C. was recorded. The prosecutrix was

cross-examined in detail and a suggestion was given to her

that the date of birth mentioned in the mark sheet Ex.P/2 is

wrongly mentioned and the said suggestion was specifically

denied by the prosecutrix. She also denied that she was 19 to

20 years of age on the date of the incident. Certain omissions

were also got proved from the prosecutrix. A question was put

to the prosecutrix with regard to date of birth of her younger

brother which she denied for want of knowledge. She also

denied that her younger brother was 16 years on the date of

incident. She could not narrate the name of the hospital where

she gave birth to the child. She further denied the suggestion

of enmity on the question of local elections.

13. Atar Singh (PW-2) has also stated that on 24.3.2004 his

daughter had left the house for appearing in the examination of

Class 8th and thereafter she did not come back and accordingly

a Gum Insan Report was lodged on 1.4.2004 as he was trying

to search out the prosecutrix. In the meanwhile, he was told by

one Gautam that the present appellant has eloped with the

daughter of this witness. The Gum Insan Report Ex.P/3 was

lodged.

14. Sohan Singh (PW-3) has stated that the appellant had
7 CRA No.24/2006

stayed in Gurudwara along with his wife and the name of his

wife was disclosed as Mrs. Sonu R/o Chinor. This witness had

brought the register of Gurudwara Nanaksar, Hamidiya Road,

Bhopal of the period 10.12.2003 to 18.11.2004 in which the

details of the name of the persons staying in Gurudwara, total

number of persons, time, place from where they come as well

as the place to which they would go and the reasons for

staying in the Gurudwara are mentioned. The amount

deposited by said persons as well as the number of the room

allotted to them is also mentioned in the register. The said

register was in 200 pages and as per entry at Srl. No.525 on

Page 76, the appellant had stayed in Gurudwara on 31.3.2004

along with his wife and he had disclosed his address as Village

Post Chinor, District Gwalior and had disclosed that he has

come to Bhopal for taking certificate from the doctor. The

relevant entry is Ex.P/4 and its photocopy is Ex.P/4C. The

register was seized by the police vide seizure memo Ex.P/5 and

it contains the signatures of President of the Managing

Committee of Gurudwara. This witness was cross-examined

and it was admitted by him that Langar is distributed to

devotees and nothing is charged from them. It was accepted

by him that the ladies also stay in the Gurudwara and there

was no obstruction by the Gurudwara Managing Committee.

The appellant along with his wife had stayed there for a period

of one month and during this period he had never heard any
8 CRA No.24/2006

dispute between them. He had further clarified that the rooms

are having attached latrine and bathroom and the appellant

and his wife were staying in the same room.

15. Jogendra (PW-4) has stated that the prosecutrix is known

to him who is aged about 14 years. He saw her at bus stand

Pipraua along with the appellant as well as one and half month

old child. The appellant was arrested and the prosecutrix was

recovered by the police. The recovery panchanama Ex.P/1 was

prepared. The appellant was arrested by Ex.P/5.

16. Pancham Singh (PW-5) has stated that on 1.4.2004 he

had received the diary of Gum Insan Report No.3/2004 and the

FIR lodged by him after conducting the enquiry is Ex.P/6 and

the Gum Insan enquiry report is Ex.P/7. In cross-examination,

it was clarified by this witness that a separate case diary is

prepared for Gum Insan enquiry in which every detail of

enquiry conducted by the Enquiry Officer is mentioned.

17. Ramvaran Singh (PW-6) has stated that he had seized the

register from Sriram Lodge vide seizure memo Ex.P/8 and the

papers of register were seized vide Ex.P/9 and P/10.

Thereafter, they went to Gurudwara Hamidiya Road, Bhopal

where the photocopy of the register was seized which is

Ex.P/4C and the seizure memo is Ex.P/5. These documents

were seized from his possession vide seizure memo Ex.P/11 on

20.5.2005.

18. Ramsharan Barua (PW-7) has stated that Constable
9 CRA No.24/2006

Ramkishan had brought three packets and three specimen of

seal from hospital which were seized by this witness vide

Ex.P/11.

19. Dr. Shobha Chaturvedi (PW-8) had medically examined

the prosecutrix and did not find any external injury and

prosecutrix had given birth to a child which was visible from

the symptoms from the body of the prosecutrix. The medical

report is Ex.P/12. In cross-examination, this witness has stated

that for delivery, the prosecutrix had not undergone Cesarean

operation. She has further stated that the prosecutrix appeared

to be 13 years of age and as the mensuration cycle starts from

the age of 13 years, therefore, the prosecutrix was competent

to give birth to a child.

20. Dr. J.S. Sikarwar (PW-9) had conducted the ossification

test of the prosecutrix and had opined that the age of the

prosecutrix is more than 16 years but she was below 18 years

of age. The ossification report given by Dr. J.S. Sikarwar is

Ex.P/13 and the x-ray plates are Ex.P/14, Ex.P/15 and Ex.P/16.

21. Mohar Singh (PW-10) had arrested the co-accused

Kamlesh vide arrest memo Ex.P/17 and he was sent for

medical examination vide Ex.P/18.

22. Bhawar Singh Jadon (PW-11) is the Head Constable who

went to Primary Health Centre, Shadhora, District Guna where

he seized the bed head ticket dated 11.1.2005 of the

prosecutrix concerning the delivery of child by the prosecutrix.
10 CRA No.24/2006

The bed head ticket is Ex.P/19 and the OPD ticket of the

prosecutrix is Ex.P/20. Thereafter, this witness went to Sriram

Lodge, Ujjain near bus stand Devas Gate and seized the record

of Sriram Lodge, according to which the appellant had stayed

in the said hotel from 26.3.2004 to 29.3.2004 and copy of the

register is Ex.P/9 and Ex.P/10 which was seized vide seizure

memo Ex.P/8. Thereafter this witness went to Gurudwara,

Bhopal on 13.4.2005 and seized the register from Gurudwara

vide seizure memo Ex.P/15 and the photocopy of the register

of the Gurudwara is Ex.P/4C which is attested by the Manager

of the Gurudwara Managing Committee.

23. S.K. Saxena (PW-12) had medically examined the

appellant and he was found competent for intercourse and the

MLC report is Ex.P/21.

24. Naresh Dubey (PW-13) is the Investigating Officer who

had lodged the FIR Ex.P/7, on the basis of the Gum Insan

Report submitted by Pancham Singh Head Constable No.1776.

The spot map Ex.P/3 was prepared and this witness had

recorded the statements of Atar Singh and Rajeshwari Devi. In

cross-examination, a question was put to this witness that why

the Gum Insan Complaint has not been filed in the present

case, then in reply, it was submitted by him that it was not

possible to include the copy of Gum Insan complaint and other

documents in the case diary. He further admitted that a

separate diary is maintained for Gum Insan complaints. He
11 CRA No.24/2006

further stated that he had recorded the statements of the

person in the same manner in which it was narrated by them.

25. Chandrabhan Singh (PW-14) has stated that he had

arrested the appellant from Pipraua Tiraha on 9.4.2005 vide

arrest memo Ex.P/5 and the prosecutrix aged about 14 years

was recovered from the possession of the appellant along with

a minor boy aged about three months and the recovery memo

Ex.P/1 was prepared. The case dairy statement of the

prosecutrix Ex.D/1 was recorded. The appellant was got

medically examined which is Ex.P/21 and the medical report of

the prosecutrix is Ex.P/12. For verifying the statement of the

appellant as well as the prosecutrix, he had sent Bhawar Singh,

the Head Constable as well as the appellant who was on police

remand. In cross-examination he has submitted that he got the

information at the police station that the appellant has started

by bus from Gwalior at 11:00 AM. As this witness was not in

possession of Rojnamcha Sanha, therefore, he could not tell

that whether the said information was recorded in the

Rojnamcha Sanha or not. It is further submitted that he

reached on the spot at about 12:15-12:30 PM and at that time

the appellant was at Pipraua Tiraha and the prosecutrix was

sitting near the appellant. At the time of his arrest, the search

was taken but nothing was found. He denied that the brother of

the prosecutrix had called him from the police station by

informing that the prosecutrix is sitting near the square. The
12 CRA No.24/2006

prosecutrix was sent for medical examination along with a lady

constable and the parents of the prosecutrix had not met with

this witness prior to her medical examination. He further

denied that the case diary statement Ex.D/1 was prepared at

the police station.

26. Challenging the findings and conviction recorded by the

Trial Court, it is submitted by the counsel for the appellant that

the prosecutrix was above 16 years of age at the relevant time.

As per Section 375 sixthly of IPC the minimum age prescribed

was 16 years. It is further submitted that as per the

ossification report, the prosecutrix was above 16 years of age

and under these circumstances the date of birth of the

prosecutrix mentioned in the school record should be

discarded.

27. Per contra, it is submitted by the counsel for the

respondent/State that in order to ascertain the age of the

victim, Rule 12 of the Juvenile Justice (Care and Protection of

Children) Rules, 2007 would be relevant and under these

circumstances when the school record is available, then no

reliance can be placed on the ossification report. Even

otherwise, it is well established principle of law that the

ossification report is not conclusive, and the school

certificate/marksheet is admissible under Section 35 of

Evidence Act.

28. Heard the learned counsel for the parties.
13 CRA No.24/2006

29. The following two questions would arise in the present

case:-

(i) Whether the prosecutrix was below 16 years of age

on the date of the incident? and

(ii) whether the prosecutrix was a consenting party?

The answer to the question No.2 would depend on the

answer to the question No.1.

30. In the present case, the prosecutrix went missing on

24.3.2004 and she could be recovered on 9.5.2005 i.e. after

more than one year after she was kidnapped. When the

prosecutrix was recovered, she was having a three months old

child in her lap. The ossification test of the prosecutrix was

conducted on 11.4.2005 i.e. one year after the prosecutrix was

taken away by the appellant.

31. A Gum Insan Report was lodged on 1.4.2004 and the said

diary was handed over to the Head Constable Pancham Singh

(PW-5) and after recording the statements of various

witnesses, Pancham Singh (PW-5) submitted a report Ex.P/6 on

21.4.2004 to the effect that the prosecutrix has gone away

with the appellant. Thereafter, the prosecutrix was recovered

from the possession of the appellant on 9.4.2005 from Bus

Stand, Police Station Chinor, District Gwalior along with a minor

boy aged about three months.

32. The prosecutrix (PW-1) has stated that her date of birth is

2.1.1991 and her mark sheet is Ex.P/2 in which her date of
14 CRA No.24/2006

birth is mentioned as 2.1.1991 and the said mark sheet is of

the Primary School Examination 2002. Although the appellant

has challenged the date of birth of the prosecutrix but if the

date of birth of the prosecutrix is considered in the light of the

ossification test report Ex.P/13, then it would be clear that

when the appellant took away the prosecutrix with him, she

was below 16 years of age. As already pointed out that the

appellant took away the prosecutrix with her on 23.4.2004 and

she was recovered from the possession of the appellant on

9.4.2005 i.e. after more than one year. She was subjected to

ossification test on 11.4.2005 and as per the ossification test

report Ex.P/13, the prosecutrix was more than 16 years of age

but below 18 years of age. The report given by Dr. J.S.

Sikarwar (PW-9) reads as under:-

“All the epiphysis at elbow its appears
fused, epiphysis at the lower end of radius
and ulna are incompletely fused as well as
iliac crest is also incompletely fused. Hence
age of the subject in my opinion is above 16
years below 18 years.”

33. So far as the ossification test report is concerned, it is not

conclusive proof. The Supreme Court in the case of Mukarrab

Vs. State of U.P. reported in (2017) 2 SCC 210 has held as

under :

“26. Having regard to the circumstances of
this case, a blind and mechanical view
regarding the age of a person cannot be
adopted solely on the basis of the medical
opinion by the radiological examination. At p.

31 of Modi’s Textbook of Medical
15 CRA No.24/2006

Jurisprudence and Toxicology, 20th Edn., it
has been stated as follows:

“In ascertaining the age of young persons
radiograms of any of the main joints of the
upper or the lower extremity of both sides of
the body should be taken, an opinion should
be given according to the following Table, but
it must be remembered that too much
reliance should not be placed on this Table as
it merely indicates an average and is likely to
vary in individual cases even of the same
province owing to the eccentricities of
development.”

Courts have taken judicial notice of this fact
and have always held that the evidence
afforded by radiological examination is no
doubt a useful guiding factor for determining
the age of a person but the evidence is not of
a conclusive and incontrovertible nature and it
is subject to a margin of error. Medical
evidence as to the age of a person though a
very useful guiding factor is not conclusive
and has to be considered along with other
circumstances.

27. In a recent judgment, State of M.P. v.
Anoop Singh, it was held that the ossification
test is not the sole criteria for age
determination. Following Babloo Pasi and
Anoop Singh cases, we hold that ossification
test cannot be regarded as conclusive when it
comes to ascertaining the age of a person.
More so, the appellants herein have certainly
crossed the age of thirty years which is an
important factor to be taken into account as
age cannot be determined with precision. In
fact in the medical report of the appellants, it
is stated that there was no indication for
dental x-rays since both the accused were
beyond 25 years of age.

28. At this juncture, we may usefully refer to
an article “A study of wrist ossification for age
estimation in paediatric group in Central
Rajasthan”, which reads as under:

“There are various criteria for age
determination of an individual, of which
eruption of teeth and ossification activities of
bones are important. Nevertheless age can
usually be assessed more accurately in
16 CRA No.24/2006

younger age group by dentition and
ossification along with epiphyseal fusion.
[Ref.: Gray H. Gray’s Anatomy, 37th Edn.,
Churchill Livingstone Edinburgh London
Melbourne and New York: 1996; 341-342];
A careful examination of teeth and ossification
at wrist joint provide valuable data for age
estimation in children.

[Ref.: Parikh C.K. Parikh’s Textbook of
Medical Jurisprudence and Toxicology, 5th
Edn., Mumbai Medico-Legal Centre Colaba:
1990; 44-45];

* * *
Variations in the appearance of centre of
ossification at wrist joint shows influence of
race, climate, diet and regional factors.
Ossification centres for the distal ends of
radius and ulna consistent with present study
vide article “A study of wrist ossification for
age estimation in paediatric group in Central
Rajasthan” by Dr Ashutosh Srivastav, Senior
Demonstrator and a team of other doctors,
Journal of Indian Academy of Forensic
Medicine (JIAFM), 2004; 26(4). ISSN 0971-
0973].”

29. In the present case, their physical, dental
and radiological examinations were carried
out. Radiological examination of skull (AP and
lateral view), sternum (AP and lateral view)
and sacrum (lateral view) was advised and
performed. As per the medical report, there
was no indication for dental x-rays since both
the accused were much beyond 25 years of
age. Therefore, the age determination based
on ossification test though may be useful is
not conclusive. An x-ray ossification test can
by no means be so infallible and accurate a
test as to indicate the correct number of years
and days of a person’s life.”

In the case of Ramdeo Chauhan alias Raj Nath v.

State of Assam reported in (2001) 5 SCC 714 , the
Supreme Court has held as under :

“….An X-ray ossification test may provide a
surer basis for determining the age of an
individual than the opinion of a medical expert
17 CRA No.24/2006

but it can by no means be so infallible and
accurate a test as to indicate the exact date of
birth of the person concerned. Too much of
reliance cannot be placed upon text books, on
medical jurisprudence and toxicology while
determining the age of an accused. In this vast
country with varied latitudes, heights,
environment, vegetation and nutrition, the
height and weight cannot be expected to be
uniform.”

17. It is well settled that it is neither feasible
nor desirable to lay down an abstract formula to
determine the age of a person. The date of birth
is to be determined on the basis of material on
record and on appreciation of evidence adduced
by the parties. The Medical evidence as to the
age of a person, though a very useful guiding
factor, is not conclusive and has to be considered
along with other cogent evidence.”

The Supreme Court in the case of Arjun Singh Vs. State
of H.P. reported in AIR 2006 SC 1568 has held as under :

“7. In State of Chhattisgarh v. Lekhram [2006
(5) SCC 736] it was held that the register
maintained in a school is admissible evidence to
prove the date of birth of the person concerned
in terms of Section 35 of the Indian Evidence
Act, 1872 (in short ‘Evidence Act’). It may be
true that the entry of the school register is not
conclusive but it has evidentiary value.”

34. Dr. J.S. Sikarwar (PW-9) in his cross-examination has

stated that he is sure that the prosecutrix on the date of the

ossification test was more than 16 years of age i.e. on

11.4.2005 and therefore, if the age of the prosecutrix, as on

the date of her disappearance i.e. on 24.3.2004 is assessed on

the basis of ossification test report, Ex. P/13 , then it would

certainly come to 15 years. It is submitted by the Counsel for

the appellant, that when there is a possibility of margin of error

of two years, then the view in favor of the appellant/accused
18 CRA No.24/2006

should be taken and it should be held that on the date of the

kidnapping, the prosecutrix was above 16 years of age. The

submission made by the Counsel for the appellant cannot be

accepted and hence it is rejected. Now it is well known, that

the margin of error two years in assessing the age of the

victim, on the basis of report of ossification test is possible.

However, there is no hard and fast rule, that the said margin of

two years should always be taken on the higher side. Whether

the margin of error of two years, is to be taken on lower side

or on higher side, would depend on the facts and circumstances

of each case. The Supreme Court in the case of Ram Suresh

Singh Vs. Prabhat Singh reported in (2009) 6 SCC 681 has

held as under :

“15. We are not oblivious of the fact that it is
difficult to lay down a law as to whether in a
case of this nature, the lower or the upper
age or the average age should be taken into
consideration. Each case depends on its own
facts.”

In the case of Jaya Mala v. Govt. of JK reported in
(1982) 2 SCC 538, the Supreme Court has held as under :

“9. … However, it is notorious and one can
take judicial notice that the margin of error in
age ascertained by radiological examination
is two years on either side.”

Thus, if the ossification test report, Ex. P.13 is considered

along with the school certificate, then it would be clear that the

prosecutrix was less than 16 years of age on the date of

kidnapping.

19 CRA No.24/2006

35. So far as the offence punishable under Sections 363 and

366 of IPC are concerned, Atar Singh PW-2 has specifically

stated that without the permission and knowledge of this

witness, the prosecutrix did not return back on 24.3.2004. The

prosecutrix (PW-1) has also not stated in her evidence that she

had left her house after obtaining due permission from her

father and mother. Offence under Section 363 of IPC would be

made out if a person takes away or entices any minor under

sixteen years of age if a male, or under eighteen years of age if

a female, out of the keeping of the lawful guardian of such

minor without the consent of such guardian from lawful

guardianship. It is not the case of the appellant or the

prosecutrix or Atar Singh (PW-2) that the appellant had taken

away the prosecutrix after obtaining due permission from her

father. In the present case, it is also clear from the record that

the prosecutrix was kidnapped by the appellant in order to

compel her for marriage and accordingly, she was blessed with

a child who was aged about three months, on the date of the

recovery from the possession of the appellant. Accordingly, it is

clear that the prosecution has succeeded in establishing that

the appellant had kidnapped the prosecutrix with an intention

to compel her for marriage. The prosecutrix (PW-1) has stated

in her examination-in-chief itself that the appellant was already

married having three children. This statement of the

prosecutrix has not been challenged by the appellant in his
20 CRA No.24/2006

cross-examination. Thus it is clear that the appellant who was

already married and was having three children, kidnapped the

prosecutrix who was minor below the age of 16 years on the

date of the incident and moved from one place to another and

stayed at different places and at every place he projected the

prosecutrix as his wife and because of the physical relationship

between the appellant and the prosecutrix, the prosecutrix was

blessed with a son.

36. Now the next question for determination is that whether

the prosecutrix was a consenting party or not?

37. As this Court has already come to a conclusion that the

prosecutrix was below the age of 16 years on the date when

she was kidnapped by the appellant, therefore, under these

circumstances, the submissions made by the counsel for the

appellant that the prosecutrix herself was a consenting party

as she was moving along with the appellant from one place to

another and she also gave birth to a child, cannot be accepted

as the prosecutrix was minor, below the age of 16 years on the

date of the kidnapping, therefore her consent would be

immaterial.

38. The Supreme Court in the case of Satish Kumar Jayanti

Lal Dabgar Vs. State of Gujarat reported in (2015) 7 SCC

359 has held as under:-

“14. The first thing which is to be borne in
mind is that the prosecutrix was less than 16
years of age. On this fact, clause sixthly of
21 CRA No.24/2006

Section 375 IPC would get attracted making
her consent for sexual intercourse as
immaterial and inconsequential. It reads as
follows:

“375. Rape.–A man is said to commit ‘rape’
who, except in the case hereinafter excepted,
has sexual intercourse with a woman under
circumstances falling under any of the six
following descriptions–

***
Sixthly.–With or without her consent, when
she is under sixteen years of age.
Explanation.–Penetration is sufficient to
constitute the sexual intercourse necessary to
the offence of rape.”

15. The legislature has introduced the
aforesaid provision with sound rationale and
there is an important objective behind such a
provision. It is considered that a minor is
incapable of thinking rationally and giving any
consent. For this reason, whether it is civil law
or criminal law, the consent of a minor is not
treated as valid consent. Here the provision is
concerning a girl child who is not only minor
but less than 16 years of age. A minor girl can
be easily lured into giving consent for such an
act without understanding the implications
thereof. Such a consent, therefore, is treated
as not an informed consent given after
understanding the pros and cons as well as
consequences of the intended action.
Therefore, as a necessary corollary, duty is
cast on the other person in not taking
advantage of the so-called consent given by a
girl who is less than 16 years of age. Even
when there is a consent of a girl below 16
years, the other partner in the sexual act is
treated as criminal who has committed the
offence of rape. The law leaves no choice to
him and he cannot plead that the act was
consensual. A fortiori, the so-called consent of
the prosecutrix below 16 years of age cannot
be treated as mitigating circumstance.

The Supreme Court in the case of Kailash Vs. State of
M.P. reported in (2013) 14 SCC 340 has held as under :
22 CRA No.24/2006

“13. When we apply the above principles laid
down by this Court with particular reference to
the consideration made by the trial court in
para 14, the evidence of doctor, PW 2 as well
as the conclusion arrived at by the High Court
in para 9, we are convinced with the
conclusion that PW 4 was in the age group of
13/14 years. Once the said conclusion cannot
be altered, that the sexual intercourse
indulged in by the appellant was with the
consent of PW 4 will be of no consequence.”

39. Under these circumstances, as the prosecutrix was below

the age of 16 years on 24.3.2004 when she was kidnapped by

the appellant and was certainly below the age of 18 years for

the purposes of offence under Sections 363, 366 of IPC on

23.4.2004, this Court is of the considered opinion that the

prosecution has succeeded in establishing that the appellant

had committed an offence punishable under Sections 363, 366,

376 of IPC. Accordingly, the appellant is held guilty for

committing offence under Sections 363, 366, 376 of IPC.

40. It is next contended by the counsel for the appellant that

under Section 376 of IPC, the jail sentence of rigorous

imprisonment of 10 years is excessive.

41. Considered the submissions made by the counsel for the

appellant.

42. The prosecutrix in paragraph 1 of her examination-in-

chief has stated that the appellant was already married and

was having three children and this claim/allegation of the

prosecutrix has not been challenged by the appellant by

challenging the same in the cross-examination of this witness.
23 CRA No.24/2006

Under these circumstances, when the appellant himself was

already married and was having three children, then

kidnapping a minor girl below the age of 16 years and moving

from one place to another for a period of one year, as a result

of which the prosecutrix gave birth to a male child, this Court is

of the considered opinion that the sentence of rigorous

imprisonment of 10 years as awarded by the Trial Court for

offence under Section 376 of IPC does not require any

interference. Accordingly, the judgment and sentence dated

13.12.2005 passed by 1st ASJ, Dabra, District Gwalior in

S.T.No.191/2005 is hereby affirmed.

43. The appellant in on bail. His bail bonds and surety bonds

are hereby cancelled. The appellant is directed to immediately

surrender before the Trial Court for undergoing the remaining

jail sentence.

44. The appeal fails and is hereby dismissed.

Digitally signed by ALOK KUMAR
Date: 2018.07.26 12:38:36 +05’30’
(G.S. AHLUWALIA)
Judge
(alok) 26/07/2018

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation