Madhya Pradesh High Court
Ramu @ Ramniwas vs The State Of Madhya Pradesh on 19 April, 2022
Author: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
CRR-138-2022
Ramu @ Ramniwas Vs. State of M.P. & Another
Gwalior, Dated : 19-04-2022
Shri Gaurav Mishra, Counsel for the applicant.
Shri P.P.S. Vajeeta, Counsel for the State.
This criminal revision under Section 397, 401 of Cr.P.C has
been filed against the order dated 05.01.2022 passed by the Fifth
Additional Sessions Judge/Special Judge (POCSO Act), Bhind, by
which the charges have been framed against the applicant under
Sections 363, 366, 366-A, 376(3) read with Section 109 of IPC and
Section 3 read with Section 4 and 17 of POCSO Act.
It is submitted by counsel for applicant that a report was made
by the complainant on 23.06.2019 to the effect that on 22.06.2019 at
about 8 pm, the prosecutrix went to answer the call of nature and some
unknown persons have taken her away along-with them. On
24.06.2019, prosecutrix was recovered by the police, and she narrated
that the co-accused Ravi along-with four other persons took her in
four-wheeler and kept her in a room and on 23.06.2019, someone
asked about her age and left her on Morena road, Gole ka Mandir,
Gwalior. On the basis of this, FIR at Crime No.59/2019 was registered
for offence under Section 363 of IPC by Police Station Pavai District
Bhind and after completing the investigation, the charge-sheet for
offence under Sections 363, 366, 366-A, 34, 376 (3) read with Section
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THE HIGH COURT OF MADHYA PRADESH
CRR-138-2022
Ramu @ Ramniwas Vs. State of M.P. & Another
109 of IPC and Sections 3, 4, 16 and 17 of POCSO Act was filed. The
applicant filed an application under Section 227 of Cr.P.C for
discharge which was dismissed by order dated 05.01.2022 and the
Trial Court has framed the charges by order dated 05.01.2022 for
offence under Sections 363, 366, 366-A, 376(3) read with Section 109
of IPC and Section 3 read with Section 4 and Section 17 of POCSO
Act.
By referring to the statement of the prosecutrix, it is submitted
by the counsel for the applicant that even according to the prosecution
case, she went in the night to meet the co-accused Ravi which clearly
shows that she was a consenting party. Only allegations are that the
applicant came along-with co-accused Ravi on a motorcycle and the
co-accused Ravi took her to Gwalior on the motorcycle of the
applicant. It was alleged that at Gwalior, two more persons were there
but due to dark, she could not see them and positively they might be
Ravi and Ramniwas and when they realized that the police had got the
information, then they left her with an instruction to go back to her
house. She met with two police personnels who brought her to the
police station, where the entire incident was narrated by her. It was
further alleged that nobody has committed rape on her and she does
not know as to how human sperms have been found on her panty.
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THE HIGH COURT OF MADHYA PRADESH
CRR-138-2022
Ramu @ Ramniwas Vs. State of M.P. & Another
Accordingly, on 09.03.2022, this Court passed the following order :
"This revision has been filed against the order
framing charge under Section 376 of IPC.
It is submitted that it is clear from the statement of
the prosecutrix that she was not subjected to rape.
However, in the FSL, human sperms and semen were
found in the Panty of the prosecutrix. Even the prosecution
has sent the blood sample of the co-accused Ravi for DNA
test. Thus it is clear that even the prosecution is of the
view that the applicant has not committed any rape.
Per contra, it is submitted by the counsel for the
respondent/State that according to the prosecution, the
prosecutrix was kidnapped and the applicant was one of
the kidnapper. If she was subjected to rape by Ravi, then
the applicant may also be liable for offence under Section
376-D of IPC. Accordingly, he prays for sometime to
requisition the DNA test report.
Time granted.
List in week commencing 4.4.2022."
Counsel for State has submitted that DNA test report has been
received and DNA profile of the co-accused Ravi has been found on
the cloths of the prosecutrix which was seized much prior to the arrest
of co-accused Ravi.
In view of the DNA test report, it is clear the statement made by
prosecutrix that she was not subjected to physical relationship,
appears to be false. The Supreme Court in the case of Hemudan
Nanbha Gadhvi vs. State of Gujarat reported in (2019) 17 SCC 523
has held that even if the prosecutrix has turned hostile, still the
accused can be convicted with the help of scientific / forensic
evidence. The allegations against the applicant are that he had assisted
THE HIGH COURT OF MADHYA PRADESH
CRR-138-2022
Ramu @ Ramniwas Vs. State of M.P. & Another
the co-accused Ravi in kidnapping the prosecutrix. Even if the
prosecutrix had voluntarily gone with the co-accused Ravi and
applicant, still it cannot be said that she was not enticed by the
applicant and the co-accused. The Supreme Court in the case of
Anversinh @ Kiransinh Fatesinh Zala Vs. State of Gujarat in
Criminal Appeal No. 1919/2010 decided on 12.01.2021, has held as
under:-
"17. The ratio of S. Varadarajan (supra),
although attractive at first glance, does little to aid the
appellant's case. On facts, the case is distinguishable as
it was restricted to an instance of "taking" and not
"enticement". Further, this Court in S. Varadarajan
(supra) explicitly held that a charge of kidnapping
would not be made out only in a case where a minor,
with the knowledge and capacity to know the full
import of her actions, voluntarily abandons the care of
her guardian without any assistance or inducement on
part of the accused. The cited judgment, therefore,
cannot be of any assistance without establishing: first,
knowledge and capacity with the minor of her actions;
second, voluntary abandonment on part of the minor;
and third, lack of inducement by the accused.
18. Unfortunately, it has not been the
appellant's case that he had no active role to play in the
occurrence. Rather the eyewitnesses have testified to
the contrary which illustrates how the appellant had
drawn the prosecutrix out of the custody of her parents.
Even more crucially, there is little to suggest that she
was aware of the full purport of her actions or that she
possessed the mental acuities and maturity to take care
of herself. In addition to being young, the prosecutrix
was not much educated. Her support of the prosecution
version and blanket denial of any voluntariness on her
part, even if presumed to be under the influence of her
parents as claimed by the appellant, at the very least
THE HIGH COURT OF MADHYA PRADESH
CRR-138-2022
Ramu @ Ramniwas Vs. State of M.P. & Another
indicates that she had not thought her actions through
fully.
19. It is apparent that instead of being a valid
defence, the appellant's vociferous arguments are
merely a justification which although evokes our
sympathy, but can't change the law. Since the relevant
provisions of the IPC cannot be construed in any other
manner and a plain and literal meaning thereof leaves
no escape route for the appellant, the Courts below
were seemingly right in observing that the consent of
the minor would be no defence to a charge of
kidnapping. No fault can thus be found with the
conviction of the appellant under Section 366 of IPC."
According to the prosecution case, the date of birth of
prosecutrix is 01.07.2003 and she eloped with the co-accused Ravi
and the applicant in the night of 21.06.2019. Thus, it is clear that she
was minor on the date of the incident.
Under these circumstances, this Court is of the considered
opinion that no case is made out warranting interference in the matter.
Accordingly, the order dated 05.01.2022 passed by the Fifth
Additional Sessions Judge/Special Judge (POCSO Act), Bhind, by
which charges have been framed against the applicant, is hereby
affirmed.
The revision fails and is hereby dismissed.
(G.S. Ahluwalia)
Judge
Abhi
ABHISHEK
CHATURVEDI
2022.04.22
15:48:28 +05'30'
