Mohd. Ashraf vs The State Of Madhya Pradesh
2022 Latest Caselaw 7411 MP

                                                              CRA-996-2018

                               Page 1 of 6


  IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR

                             BEFORE
                 HON'BLE SMT. JUSTICE ANJULI PALO

                         ON THE 19th MAY, 2022

                CRIMINAL APPEAL No. 996 of 2018

Between:-
MOHD. ASHRAF S/O MODH. KAZIM KHAN,
AGED ABOUT 22 YEARS, R/O H.NO. 2555,
INFRONT OF DR. BATALIYA MASOOM KA BADA,
OMTI P.S OMTI, JABALPUR (MADHYA PRADESH)
                                                           .....APPELLANT

(BY MR. MANISH KUMAR SONI - ADVOCATE FOR THE APPELLANT )

AND

THE STATE OF MADHYA PRADESH THROUH P.S HANUMANTAL
JABALPUR (MADHYA PRADESH)
                                                         .....RESPONDENT
(BY MR. DINESH PRASAD PATEL - PANEL LAWYER FOR THE RESPONDENT)
.......................................................................................................
Reserved on :- 28.04.2022
Delivered on :-19.05.2022
......................................................................................................

     This appeal coming on for final hearing this day, the Court passed the
following:
                         JUDGMENT

This criminal appeal has been filed under Section 374(2) of the Code

of Criminal Procedure by the appellant/accused being aggrieved by the CRA-996-2018

judgment dated 28.08.2017 passed by Xth Special Judge, (POCSO) Act,

Jabalpur (M.P.) in Special S.T. No.78/2016.

2. Appellant has been convicted and sentenced as under :-

          Section/Act             Sentence           Fine       In default of
                                                    amount          fine

       363 of the I.P.C.       R.I. for 5 years    Rs.1,000/-   1 Month R.I.

       366 of the I.P.C.       R.I. for 7 years    Rs.2,000/-   2 Month R.I.

376(2)(I) of the I.P.C. R.I. for 10 years Rs.5,000/- 3 Month R.I.

376(2)(N) of the I.P.C. R.I. for 10 years Rs.5,000/- 3 Month R.I.

6 of POCSO Act R.I. for 10 years Rs.5,000/- 3 Month R.I.

3. As per prosecution case, the prosecutrix was aged about 14 years at

the time of incident. Her father lodged missing report on 08.02.2016 at

Police Station - Hanumantal against unknown person stating that in the

morning around 11:45 am the prosecutrix went to school and about 03:30

pm he came to know that her daughter was not present in the school and

some unknown person abducted her. Police registered missing report and

investigated the matter. On 17.02.2016, the prosecutrix was recovered from

the possession of the appellant and one Shahjad @ Goldy Khan. It was also

came on record that they visited several places namely Bargi, Nagpur and

Bilaspur. It is alleged that appellant has committed rape with the CRA-996-2018

prosecutrix, therefore, Police registered aforesaid offences against the

appellant and, after completion of investigation, charge-sheet has been filed

against the appellant before the Competent Court.

4. Learned counsel for the appellant submitted that the appellant is

innocent and when he refused to perform Nikah with the prosecutix then

false report has been lodged by the parents of the prosecutrix against the

appellant. It is further contended that Dr. Indumati Vishwakarma (PW-1)

has clearly deposed that no definite opinion can be given regarding

intercourse, therefore, it is prayed to acquit the appellate from the aforesaid

offences.

5. Learned Panel Lawyer for the State has supported the findings given

by the trial Court and submitted that judgment given by the trial Court is

based on proper appreciation of evidence on record.

6. I have heard both the counsel for the parties at length, perused the

impugned judgment, evidence and other material on record, the learned

trial Court convicted the appellant under the aforesaid offences on the basis

of testimony of the prosecutrix. Her date of birth was 03.01.2002 and the

incident took place on 08.02.2016. The prosecutrix stated that on the date

of incident, the appellant and one Ashra Rehmani took her to the shop and CRA-996-2018

there she consumed some food item and then they went to Bargi along with

Shahjad Khan, thereafter, they took her to Nagpur and stayed in Hotel then

proceeded to Katni, Umaria, Birsinghpur Pali, Amlai and Bilaspur. The

prosecutrix visited several places with the appellant without permission and

information of her parents. During that time, the appellant committed rape

with her several time. On 17.02.2016 her parents reached to Bilaspur and

they brought her back to Jabalpur then the Police prepared Recovery Memo

(Exhibit P-2) and recorded her statement (Exhibit P-3).

7. On the basis of statement of mother of the prosecutrix (PW-4) and

birth certificate (Exhibit P-5), the trial Court rightly came to the conclusion

that at the time of incident she was minor and aged about 14 years.

8. In her medical examination, Dr. Indumati Vishwakarma (PW-1)

found her hymen ruptured with irregular margins, thus medical report

supported the testimony of the prosecutrix. The Doctor prepared vaginal

slide of prosecutrix. As per FSL, sperm were not present but from the MLC

report it is duly proved that the prosecutrix is subject to sexual intercourse.

9. Learned counsel for the appellant contended that prosecutrix was

consenting party, but as per law, her consent has no value because she was

minor and below 18 years of age. The contention of learned counsel for the CRA-996-2018

appellant is also that the prosecutrix wants to marry with the appellant and

when he refused to marry her, the complainant party has lodged false report

against him but looking to the statements of the prosecutrix and her parents,

this defence of the appellant cannot be accepted because no parents would

do so for simple reason that it would bring down their own social status in

the society apart from ruining the future prospect of their own child.

Generally, in the cases of rape, the victim and her family members find it

difficult to go and lodge a report at Police Station due to shame and fear of

defamation in the society.

10. In the opinion of this Court, there is no material contradictions and

omissions on record in the testimony of the prosecutrix and the trial Court

has rightly convicted the appellant for the offences under Sections 363,

366, 376 (2)(I), 376 (2)(N) of IPC & Section 6 of POCSO Act and awarded

proper sentenced as mentioned in the judgment. The findings recorded by

the trial Court are based on proper appreciation of the evidence available

on record and, therefore, under the appellate jurisdiction of this Court it

cannot be interfered with.

11. Learned counsel for the appellant submitted that appellant has served

sentence of about 5 years. He was in custody since 18.02.2016 to

27.07.2017, thereafter from 28.07.2017 to 21.09.2019. According to the CRA-996-2018

report of the Central Jail, Jabalpur appellant has served actual sentence of

about 3 years 8 months and 4 days, which is not appropriate to release the

appellant for undergone period.

12. Thus, in view of the foregoing discussion, the judgment and sentence

passed by the trial Court is hereby upheld. This appeal being devoid of any

merit, is hereby dismissed.

13. Let a copy of this judgment along with the record be sent back to the

learned trial Court for communication.

(SMT. ANJULI PALO) JUDGE

shahina

SHAHINA KHAN 2022.05.19 18:03:15 +05'30'