Dayachand vs The State Of Madhya Pradesh
2023 Latest Caselaw 12561 MP

                                                           1
                          IN     THE      HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                   BEFORE
                                    HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                                              ON THE 4 th OF AUGUST, 2023
                                           CRIMINAL APPEAL No. 482 of 2007

                         BETWEEN:-
                         DAYACHAND S/O HARCHAND AHIRWAR, AGED ABOUT
                         22  YEARS, VILL. SINGARCHORI, PS. JAISINAGAR,
                         DISTT. SAGAR (MADHYA PRADESH)

                                                                                        .....APPELLANT
                         (BY SHRI R. P. PRAJAPATI - AMICUS CURIAE)

                         AND
                         THE STATE OF MADHYA PRADESH THROUGH : PS.
                         JASINAGAR DISTT. SAGAR (MADHYA PRADESH)

                                                                                       .....RESPONDENT
                         (BY SHRI S. P. CHADHAR - GOVERNMENT ADVOCATE)

                               Reserved on        : 27.07.2023
                               Pronounced on      : 04.08.2023

                               This appeal having been heard and reserved for judgment, coming on

                         for pronouncement this day, the court passed the following:
                                                         JUDGMENT

T his appeal has been preferred against the judgment dated 7.2.2007 delivered in Sessions Trial No.209/2006 by the Sessions Judge, Sagar, by which the appellant was convicted for an offence punishable under section 363 IPC and sentenced to suffer two years RI with a fine of Rs.500/- and in default of payment of fine to further undergo additional RI for two months.

2. The brief facts of the prosecution case are that on 27.2.2006 minor

Signature Not Verified daughter of complainant went missing; complainant and his relatives/friends Signed by: POONAM MANEKAR Signing time: 8/5/2023 12:47:18 PM

searched for the girl but she could not be traced, hence a missing person report was lodged. She was recovered on 3.3.2006 by her family members from Rahatgarh Bus Stand where the appellant had left her before running away. The minor prosecutrix revealed that she was enticed away by the appellant who took her to his village Singarchori and then to Sagar. During this period, he raped her many a times, then dropped her at Rahatgarh Bus Stand and fled. Her family members brought her to the Police Station Jaisinagar, district Sagar, where the FIR was made by the minor prosecutrix herself. The investigation was conducted. On the basis of school record it was revealed that the prosecutrix was below 16 years at the time of incident. After conclusion of investigation,

charge-sheet was filed and the appellant was charged for the offences of sections 363, 366 and 376 IPC; for kidnapping a minor prosecutrix from the lawful custody of her guardians with an intent that she would be compelled to forcible sexual intercourse and thereafter raped her. The learned trial court acquitted the appellant of the offences of sections 366 and 376 IPC and held him guilty only for the offence of section 363 IPC and sentenced him as aforesaid.

3 . In this criminal appeal, the grounds raised are that the conclusion arrived at by the learned trial court is contrary to law, facts and circumstances of the case; the court ought to have considered that the prosecution had failed to prove its case beyond reasonable doubt; there were serious contradictions, omissions and improvements, hence no implicit reliance could have been placed on such kinds of testimonies of the prosecution witnesses. Upon failure to appreciate the material evidence in its proper perspective, the court below passed a judgment which has resulted in miscarriage of justice. Only on the Signature Not Verified Signed by: POONAM MANEKAR Signing time: 8/5/2023 12:47:18 PM

solitary testimony of prosecutrix, which was not supported even by the medical evidence, the judgment is passed. It is, therefore, prayed that it be set aside and the appellant be acquitted.

4. Learned counsel for the State has opposed the appeal by submitting that from the prosecution evidence, guilt of appellant is clearly proved and, therefore, the trial court did not commit any error in finding the appellant guilty for the aforesaid offence. A prayer for rejection of the appeal was accordingly made.

5. Heard learned counsel for the parties, perused the judgment and record of the court below.

6 . The judgment under challenge has been examined carefully. The prosecution case was that the age of prosecutrix at the time of incident was less than 16 years. For this, the prosecution has relied upon the school record of prosecutrix. Ex.P7 is the scholar register in which the date of birth of prosecutrix is written as 10.7.1991. Her Class V mark-sheet, marked as Ex.P4, also reflects the same date of birth. The learned trial court discussed these documentary evidence in the light of oral testimonies of prosecutrix (P.W.1), her father (P.W.2) and her mother (P.W.5). Pooranlal (P.W.6) was the headmaster of the school where the prosecutrix had studied. On the basis of their testimonies, the learned trial court opined that the date of birth of

prosecutrix, as written in the school record, was not reliable because it was not based on any authentic information and was recorded only on the basis of estimated age of prosecutrix. Thus, the learned court below did not find it proved that the prosecutrix was below 16 years at the time of incident and her date of birth was 10.7.1991.

7. There is an ossification test report, Ex.P10, on record in support of Signature Not Verified Signed by: POONAM MANEKAR Signing time: 8/5/2023 12:47:18 PM

which Dr. Subhash Jain (P.W.8) had testified. On the basis of this report and evidence, it was found proved that the age of prosecutrix was above 16 years. Since this assessment admits six months variation on its both sides, hence the age estimation, which was favourable to the appellant was considered and the court below reached to the conclusion that the age of prosecutrix was not less than 16 years in any condition but she had not completed the age of 18 years either. On this basis, the learned trial court found the age of prosecutrix above 16 years but less than 18 years. This finding has not been challenged by the prosecution, hence it has become final.

8. Prior to the amendment of 2013, it was not an offence to get engaged i n sexual relationship with the consent of a girl aged more than 16 years. Looking to the circumstances of the case and the long stay of prosecutrix with the appellant without raising any alarm against his sexual advances, the learned court below acquitted the appellant of the offences of sections 366 and 376 IPC.

9. The appellant was convicted only for an offence of section 363 IPC under which it is punishable to take or entice away any minor girl under 18 years of age out of the keeping of her lawful guardian without the consent of such guardian. In this reference, the age of prosecutrix was found below 18 years and on the basis of statements of prosecutrix (P.W.1), her father (P.W.2), her mother (P.W.5), independent witnesses namely, Hemraj (P.W.3) and Bhagwandas (P.W.4), the facts stated in missing person report, Ex.P5, and the FIR, Ex.P1, it was corroboratively proved that the prosecutrix was enticed away from the lawful guardianship of her parents; the appellant dropped her at Sagar Bus Stand and then ran away therefrom; the prosecutrix was recovered

Signature Not Verified Signed by: POONAM MANEKAR Signing time: 8/5/2023 12:47:18 PM

by her father and independent witnesses, namely Hemraj (P.W.3) and Bhagwandas (P.W.4) from that place and was taken to Police Station Jaisinagar where recovery memo, Ex.P3, was prepared.

10. The statement of Hemraj (P.W.3) refers to the fact that after dropping the prosecutrix at the bus stand, the appellant ran away and the statement of Bhagwandas (P.W.4) also corroborates this fact by saying that they saw the appellant along with the prosecutrix at Rahatgarh Bus Stand who ran away after seeing these persons. The testimonies of these independent witnesses have not been challenged satisfactorily. In fact, no question has been asked on this point in cross-examination of Hemraj (P.W.3). The suggestion given to this witness is that the prosecutrix had willingly accompanied the appellant. Thus, the allegation of being in the company of prosecutrix has not been challenged by the appellant. His defence is limited to the fact that it was the prosecutrix who had willingly come to him but this defence has not been proved by any cogent evidence. Even the prosecutrix has denied this narrative. Further, the age of prosecutrix was below 18 years, to give any legality to this defence.

11. In the light of above discussion of facts, it is established that the appellant took/enticed away the prosecutrix from the legal guardianship of her parents and it is also established that she was below the age of 18 years at the time of incident. Hence, the learned trial court correctly held the appellant guilty of section 363 IPC. Thus, the conviction of appellant under section 363 IPC warrants no interference.

12. The appellant was sentenced by learned trial court for the offence punishable under section 363 of IPC for two years RI and a fine of Rs.500/-, with default stipulation.

13. Looking to the nature of crime and the circumstances under which it Signature Not Verified Signed by: POONAM MANEKAR Signing time: 8/5/2023 12:47:18 PM

was committed, sentence under Section 363 of IPC is reduced to six months R.I. while the fine of Rs.500/- is confirmed. The appellant is already in custody.

14. Let copies of this judgment be sent to the concerned Court through District Judge, Sagar as well as to the Jail Superintendent, Sagar for necessary compliance.

(ANURADHA SHUKLA) JUDGE ps/pnm

Signature Not Verified Signed by: POONAM MANEKAR Signing time: 8/5/2023 12:47:18 PM