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Sanjay Kumar vs The State Of M.P. on 30 July, 2018

1
Cr.Appeal.No.1023/1999

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
(SB : HON’BLE SHRI JUSTICE J.P.GUPTA )

Criminal Appeal No.1023/1999

Sanjay Kumar
Vs.
State of Madhya Pradesh

Shri P.k. Saxena, learned Senior Advocate with Shri Sunil Verma,
Advocate for the appellant.
Shri Abhishek Soni, learned G.A. for the respondent-State.
—————————————————————————————————————

Whether approved for reporting : (Yes / No).

JUDGMENT

(Delivered on 2/8/2018)

This appeal under Section 374 of the Code of Criminal
Procedure has been filed against the judgment of conviction and
order of sentence dated 3.8.1999 passed by Fourth Additional
Sessions Judge, Ujjain in S. T. No.180/98 whereby the appellant has
been convicted under Section 363 of the IPC and sentenced to
undergo 6 years RI along with fine of Rs.1000/-, with default
stipulation as mentioned in the impugned judgment.

2. The facts in brief giving rise to this appeal are that on
16.2.1998 the prosecutrix, below 18 years of age, was found
missing from the house, for which, a missing person report was
recorded in the Police Station Makron, District Ujjain on the
information of the step father of the prosecutrix. Later on, the
prosecutrix was recovered and on 2.3.1998 her statement was
recorded, in which, she disclosed that on 16.2.1998 the appellant
came to her house and she came for natural call out of the house.

2

Cr.Appeal.No.1023/1999

Seeing her, the appellant asked her for roaming and enticed her
and took her by bus to Depalpur and various other places and
committed rape with her. Her medical examination was conducted
with regard to collecting evidence of commission of rape and for
determination of age of the prosecutrix. After completion of the
investigation, charge sheet was filed before the court concerned
from where the case was committed to the court of Fourth
Additional Sessions Judge, Ujjain and the appellant was tried for
commission of offence punishable under Sections 363, 366n and
376 of the IPC. Learned trial court acquitted the appellant /
accused of the charges under Sections 366 and 376 of the IPC but
convicted under section 363 of the IPC and sentenced as
mentioned above.

3. Learned trial court has convicted the appellant / accused on
the finding that on the date of incident, the prosecutrix was minor
and the appellant took her without consent of her lawful guardian.

4. On behalf of the appellant / accused, the aforesaid finding
has been assailed on the ground that the finding with regard to
age of the prosecutrix is based on incredible evidence. Natural
parents of the prosecutrix have not been examined to prove the
age of the prosecutrix. The prosecutrix herself went with the
appellant and she has been found to be of more than 17 years old
at the time of incident. She has having knowledge to understand
the consequences and left the house on her own will. There is
nothing on record to prove the fact that the appellant / accused
enticed the prosecutrix to leave the house without permission of
her lawful guardian. In other words, the evidence adduced by the
prosecution is not sufficient to prove the case beyond reasonable
doubt. Hence, the appellant/ accused deserves acquittal.

3

Cr.Appeal.No.1023/1999

5. Learned counsel for the appellant has placed reliance on a
judgment of the Apex court in the case of S. Varadarajan Vs. State
of Madras, AIR (SC) 1965 Page 942. Relevant Paragraphs no. 9 and
10 are quoted here as under :-

9. It must, however, be borne in mind
that there is a distinction between taking
and allowing a minor to accompany a
person. The two expressions are not
synonymous though we would like to
guard ourselves from laying down that in
no conceivable circumstances can the two
be regarded as meaning the same thing
for the purposes of Section 361 of the
Indian Penal Code. We would limit
ourselves to a case like the present where
the minor alleged to have been taken by
the accused person left her father’s
protection knowing and having capacity to
know the full import of what she was
doing voluntarily joins the accused person.

In such a case we do not think that the
accused can be said to have taken her
away from the keeping her lawful
guardian. Something more has to be
shown in a case of this kind and that is
some kind of inducement held out by the
accused person or an active participation
by him in the formation of the intention of
the minor to leave the house of the
guardian.

4

Cr.Appeal.No.1023/1999

10. It would, however, be sufficient if
the prosecution establishes that though
immediately prior to the minor leaving the
father’s protection no active part was
played by the accused, he had at some
earlier stage solicited or persuaded the
minor to do so. In our opinion, if evidence
to establish one of those things is lacking it
would not be legitimate to infer that the
accused is guilty taking the minor out of
the keeping of the lawful guardian merely
because after she has actually left her
guardian’s house or a house where her
guardian had kept her, joined the accused
and the accused helped her in her design
not to return to her guardian’s house by
taking her along with him from place to
place. No doubt, the part played by the
accused could be regarded as facilitating
the fulfillment of the intention of the girl.
That part, in out opinion, falls short of an
inducement to the manor to slip out of the
keeping of her lawful guardian and is,
therefore, not tantamount to “taking”.

On behalf of the appellant, on the strength of the aforesaid
pronouncement of the Apex Court, prayed that the appellant be
acquitted.

6. Learned Government Advocate opposed the aforesaid
contention and stated that there is a material on record to
establish the fact that the appellant induced the prosecutrix to
5
Cr.Appeal.No.1023/1999

leave the house without consent of legal guardian. Hence, the
appeal be dismissed.

7. Having considered the contentions of learned counsel for
both the parties and on perusal of the record, so far as the finding
with regard to the age of the prosecutrix is concerned, the
prosecution has produced birth certificate Ex.P/3 which has been
proved by Kanhaiyalal (PW-2) Headmaster of the school
concerned, according to him, as per the entry of school register,
date of birth of the prosecutrix was recorded as 12.7.1983 which
was recorded on the basis of mark sheet of the 5 th class. This
witness was unable to disclose the actual source of date of birth.
But on behalf of the prosecution, medical evidence has also been
produced. Dr. A.K. Pal (PW-1) Radiologist has stated that he
examined the prosecutrix on 4.3.1998 and on the basis of radio-
logical examination, the age of the prosecutrix was near about 15
years. In this regard, his report is Ex.P/1 and X-ray report is Ex.P/2.
Learned trial court considering the margin of error of two years in
the medical opinion determined the age of the prosecutrix near
about 17 years. Learned trial court has not committed any error in
appreciation of the aforesaid evidence and the finding that at the
time of incident, age of the prosecutrix was below 18 years does
not require any interference. Hence, it is upheld.

8. Now the question is that whether the appellant took or
enticed the prosecutrix to leave the house of the parents without
the consent of her lawful guardian. In this case, the prosecution
has not adduced the evidence of mother of the prosecutrix as a
witness who was the natural guardian of the prosecutrix. Apart
from it, grand father who at the time of incident was at home has
also not been examined. Step father Ramesh (PW-4) has only been
examined but at the time of incident he was not at the house. In
6
Cr.Appeal.No.1023/1999

this case, the prosecutrix’s mother is legal guardian of the
prosecutrix. This court cannot deny that the step father cannot be
considered to be legal guardian of the step daughter. But both of
them were out of the house at the time of the incident and grand
father Devi Singh was only in the house who was also lawful
guardian of the prosecutrix. His examination was very essential as
at that time he was in a position to give permission to the
appellant or the prosecutrix to go with the appellant. In absence
of the statement of Devi Singh, it cannot be said that the
prosecution has established beyond reasonable doubt that the
prosecutrix was taken by the appellant without consent of the
lawful guardian. The mother of the prosecutrix was also material
witness in this case. In absence of her statement it cannot be said
that in absence of permission of the mother of the prosecutrix, the
prosecutrix was taken by the appellant. It is the duty of the
prosecution to prove its case beyond reasonable doubt, in this
regard, burden cannot be shifted on the accused to prove that he
took the prosecutrix with the consent of the lawful guardian of
her. In the circumstances, in view of this court, the prosecution has
failed to prove that the appellant took the prosecutrix without the
consent of the lawful guardian of her.

9. Apart from it, if this court considers the facts of the case in
the light of the aforesaid judgment of the Apex court, the
prosecutrix herself went with the appellant. The appellant did not
entice her or induce her to leave her house without consent of her
lawful guardian. However, in her statement the prosecutrix (PW-

3) has stated that the appellant asked her to bring the key of the
house and also asked to give Rs.2000/- for roaming along with him
and then the appellant took her on motorcycle. But all these facts
are missing in her police statement Ex.D/1. The averments of the
7
Cr.Appeal.No.1023/1999

FIR Ex.P/6 disclosed that in the house grand father Devi Singh
locked the room and kept the key with him which was found
missing and lock was found open and the prosecutrix was also
missing. This fact shows that the prosecutrix opened the lock from
inside, therefore, there is no need to make demand of key by the
appellant and she also went with the appellant after taking
Rs.2000/- with her from the house and has remained so many days
with the appellant without any resistance. All these facts and
circumstances of the case show that she herself went with the
appellant willfully and there is no circumstance to establish the
fact that the appellant enticed or induced the prosecutrix to slip
out of the keeping of her lawful guardian. Therefore, in the
aforesaid background also, it is found that the prosecution has
failed to prove the fact that the appellant took or induced the
prosecutrix without the consent of her lawful guardian.

10. In view of the aforesaid discussion, the finding of the learned
trial court is not sustainable in the eyes of law and the appeal
deserves to be allowed. Hence, the appeal is allowed and the
impugned judgment of conviction and order of sentence passed
against the appellant are hereby set-aside. The appellant is
acquitted of the charge levelled against him. He is on bail. His bail
bonds stand discharged. Fine amount, if any deposited by the
appellant, the same be returned to him.

11. A copy of this order be sent to the trial court for information
and its compliance.

(J.P. GUPTA)
Judge
JP/-

Digitally signed by JITENDRA
KUMAR PAROUHA
Date: 2018.08.03 15:44:56

-07’00’

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