Beni Prasad vs The State Of M.P.
2023 Latest Caselaw 17516 MP

                                 1
 IN     THE      HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                          BEFORE
           HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                   ON THE 19 th OF OCTOBER, 2023
                 CRIMINAL APPEAL No. 2979 of 1998

BETWEEN:-
BENI  PRASAD, AGED ABOUT 21 YEARS, S/O
MUNSHILAL, R/O VILLAGE DHATURIA, PRESENTLY
VILLAGE DEWALKHEDA, TEHSIL BERASIA, DISTRICT
BHOPAL (MADHYA PRADESH)

                                                              .....APPELLANT
(BY SHRI AJAY GUPTA - SENIOR ADVOCATE - WITH MS. SAKSHI PAWAR
AND SHRI RAJEEV MISHRA - ADVOCATE)

AND
THE STATE OF M.P. THROUGH POLICE STATION
BERASIA DISTRICT BHOPAL

                                                            .....RESPONDENT
(BY SHRI P. CHATTERJEE - PANEL LAWYER)

      Heard on        : 17.10.2023
      Pronounced on: 19.10.2023

      This appeal having been heard and reserved for orders, coming on for
pronouncement this day, the court passed the following:
                                JUDGMENT

The judgment passed on 18.11.1998 by the Fourth Additional Sessions Judge, Bhopal, in Sessions Trial No.149/1998 has been challenged in this appeal. By that judgment, the appellant was convicted for the offences of Sections 363, 366 and 376(1) of IPC and was sentenced for those offences for three years, three years and seven years rigorous imprisonment and fine amount of Rs.100/-, Rs.100/- and Rs.200/- respectively. In default of payment of fine

he had to further undergo rigorous imprisonment of one month, one month and two months respectively.

2. The facts of the prosecution case are that the three persons, who were acquitted in this case by the trial court, namely Tej Singh alias Tejja, Hemraj and Bablu, came to the house of prosecutrix in the mid-night of 14th and 15th January, 1998; the prosecutrix was below 14 years of age at that time; they forcibly took her across the river and handed her over to the present appellant. All these persons gave life threats to her. The appellant took her to Vidisha and between the period 16.1.1998 and 25.1.1998 he forcibly committed rape with her. A missing person report was lodged by the father of prosecutrix on

15.1.1998. It was revealed that the appellant was also missing. On the basis of inquiry, it was revealed that the prosecutrix was living in Vidisha along with the appellant. She was recovered therefrom on 24.1.1998. A crime was registered at Crime No.35/1998, prosecutrix was sent for medical examination, her ossification test was conducted to determine her age, the appellant was also examined medically, he was arrested and other tasks of investigation were completed. After conclusion of investigation, the charge-sheet was filed against four persons, they all were tried and by the impugned judgment only appellant was convicted and sentenced as aforesaid, while the other three were acquitted of all the charges.

3. It has been argued in the present appeal that the judgment is bad both in law and on facts as no offence was established against the appellant, hence he could not have been convicted and sentenced. Dr. C. M. Tiwari (P.W.14) had examined the prosecutrix clinically and had found her age to be between 14 and 18 years. The prosecutrix was referred to the Department of Radiology,

Hamidia Hospital, Bhopal, for ossification test and Dr. C. S. Jain (P.W.13), upon her ossification examination, opined that her age was about 16 years with plus and minus six months. In the light of this evidence, the prosecutrix could not be said to be below 16 years but the learned trial Judge estimated her age about 14 years on the basis of her school certificate and other oral evidence. The school record was not at all authentic for assessing the age of prosecutrix because it was not based upon any documentary evidence or the information given by any responsible person. The relatives of prosecutrix were not consistent in their statements on this point. They are Hargovind (P.W.3) and Ghasiram (P.W.1), who are father and grandfather respectively of the prosecutrix. It is further contended that the findings are based upon conjectures and surmises rather than on concrete facts. There was no evidence that appellant kidnapped the prosecutrix. Those who were allegedly involved in this crime were acquitted by the learned trial court. Further, the sentence is unduly harsh and severe. It was a case where two teenagers were in love relationship and had expressed their willingness to marry. Ignoring these facts, an illegal finding was delivered under the impugned judgment. It is, therefore, prayed that the judgment under appeal be set aside and appellant be acquitted.

4 . State has opposed this appeal and during arguments it has been insisted that no interference is warranted in the judgment of conviction and

sentence passed against the appellant.

5. Arguments of both the parties have been heard and the record of the trial court is perused.

6. The finding of conviction is primarily based upon the assessment of age of prosecutrix. The learned trial court has observed in paras 12, 13 and 14 of its judgment that the age of prosecutrix was less than 16 years at the time of

incident. For this, he has referred to the school record of prosecutrix, marked as Exs.P-2 and P-3, and the statements of teacher Madanlal Badoniya (P.W.4). It is interesting to note that during cross-examination, Madanlal Badoniya has admitted that in normal practice no application for admission is taken, therefore, there is no document in which the date of birth of prosecutrix was mentioned by her guardian at the time of admission. According to this witness, the entry made in scholar register is not even signed by the guardian. According to him, only oral information is entertained about the date of birth of student, which is recorded in the scholar register. Thus, the entry made in the scholar register regarding the date of birth of prosecutrix does not appear to be authentic as it not based on any document or declaration submitted by the guardian.

7 . P.W.1 is the grandfather of prosecutrix and P.W.3 is the father of prosecutrix. From the statements of these two witnesses, it appears that they have no authentic knowledge about the date of birth or even the year of birth of prosecutrix. Their statements on the point of age of prosecutrix are based purely on assumptions and such a testimony cannot be the basis to determine the age of prosecutrix.

8. It has been rightly argued by counsel for the appellant that in the year 1998 the school certificate could not have formed the basis to determine the age of prosecutrix because in that era the guardians had the tendency to understate the age of their children at the time of admission in the school. For this, he has relied upon the decision of Akeel s/o Rehman Khan v. State of M.P. 1998 (2) M.P.L.J. 199 . In that judgment, it was held that ossification test is more authentic to find out the age of prosecutrix. Another decision relied upon by learned counsel for the appellant is Birad Mal Singhvi v. Anand Purohit

1998 (Supp.) SCC 604 in which after considering the legal position prevalent in that era, it has been held that the entries regarding date of birth contained in t h e scholar register has no probabative value as no person, on whose information the date of birth was mentioned, was examined. In the present case also, it is not disclosed on whose information the date of birth of prosecutrix was mentioned in scholar register and further, if they were the father or the grandfather of the prosecutrix, their testimonies have not been found reliable on the point of date of birth of prosecutrix. Identical legal propositions were held in Sushil Kumar v. Rakesh Kumar (2003) 8 SCC 673 wherein it was held that the admission register of a primary school does not satisfy the requirement of Section 35 of the Indian Evidence Act as there is no reliable evidence on record to show that the date of birth was recorded in the school register on the basis of statement of any responsible person.

9. On the basis of legal proposition prevailing at the time of incident, this court is of the opinion that ossification test was considered to be more credible to assess the age of prosecutrix instead of entries made in scholar register on unsubstantiated information received from the guardian of the student. Having taken into consideration this legal position, the finding about the age of prosecutrix arrived at by the learned trial court only on the basis of entry in scholar register cannot be upheld. In contrast to it, the ossification test report given by Dr. C. S. Jain (P.W.13), marked as Ex.P-11, shows that he examined all the physical features of prosecutrix comprehensively to assess her age and on the basis of this assessment, he opined that the age of prosecutrix was 16 years. Further, he has stated that there can be an addition or deduction of six months in this estimated age. It is a well-settled legal position that if there is a margin in the assessment of age of prosecutrix then the benefit of that margin

should be given to the accused by considering the age of victim on the higher side. Thus, the age of prosecutrix needs to be assessed above 16 years as per the ossification test report.

10. On the basis of above appreciation of facts and law, this court is of considered opinion that the age of prosecutrix was not less than 16 years at the time of commission of offence and the finding given by the trial court that she was under the age of 16 years at that time is found to be incorrect. The consenting age in the year 1998 for a female prosecutrix was 16 years for an offence of rape. Thus, it is held that the prosecutrix was of the age of consenting when the alleged crime of rape was committed with her.

11. It has been claimed by the prosecution that the prosecutrix was raped against her will by the appellant on number of occasions but statements of prosecutrix (P.W.5) reveal that she accompanied the appellant from her village to the village of appellant i.e. Dhaturia and for this, she walked two-three hours. She has admitted that appellant was walking ahead of her, which shows that no

force was being used upon her during this period. She followed the appellant for two-three hours to reach his village and it has been admitted by her that on the way, villagers were going to and fro but she did not make any complaint to them about her alleged kidnapping. Further, it has been admitted by her that she stayed in village Dhaturia for some time and then left for Vidisha by bus in which many other passengers were present but she did not raise any alarm inside the bus or even outside it. It is further admitted by her that she stayed in the house of Ramprasad along with the appellant but she did not reveal the fact of her kidnapping to Ramprasad. All these facts taken into consideration in their entirety disclose that the prosecutrix was a companion of appellant who

willingly accompanied him to various places and made no complaints regarding her kidnapping or the fact that she was sexually violated by the appellant. These facts reflect beyond any doubt that she was a consenting party.

12. On the basis of findings given above, it is held that the prosecutrix, who was more than 16 years of age at the time of incident, was a consenting party to the sexual activity committed by the appellant, therefore, no case of rape is made out against the appellant. Accordingly, the finding of conviction under Section 376(1) of IPC recorded by the trial court is set aside and appellant is acquitted of that offence.

13. The appellant is convicted for the offences of Sections 363 and 366 o f IPC and has been sentenced under both the Sections. The arguments of learned counsel for appellant was that the persons, who brought the prosecutrix from her house to the place where the appellant was present, were acquitted by the trial court and the appellant was not at all instrumental in crime of her kidnapping but this argument cannot be accepted because appellant might not have contributed in the kidnapping of prosecutrix from her house but he was instrumental in taking her to his own village and then to Vidisha. The age of prosecutrix was less than 18 years, as is evident from the ossification test report, Ex.P-11. Therefore, taking her from the custody of her guardian to village Dhaturiya and then to Vidisha was an act of kidnapping as no permission from her guardian was obtained for that by the appellant. It is also proved that the prosecutrix was subjected to sexual activity by the appellant. Though her consent in that activity is proved beyond doubt but still a case of kidnapping with an intention to seduce her to illicit intercourse is made out. Accordingly, the conviction of appellant under Sections 363 and 366 of IPC is factually and legally correct and cannot be interfered with.

1 4 . The learned trial court has passed the sentence under both the Sections of 363 and 366 of IPC but it has been ignored that the offence of Section 363 of IPC is of identical nature to the offence of Section 366 of IPC but of lesser gravity and by application of Section 71 of IPC, punishment could have been awarded only under one of these sections. Thus, the sentence passed by the learned trial court under Sections 363 and 366 of IPC is set aside. Having considered the fact that prosecutrix willingly accompanied the appellant, though under his inducement, with an intent to live with him and have sexual relations with him, this court considers that the sentence of three years rigorous imprisonment awarded under Section 366 of IPC is too harsh.

15. Taking these facts into consideration and also the period of custody o f appellant which is almost nine months during trial and after conviction, the appellant is sentenced to the period already undergone by him for the offence of Section 366 of IPC while the fine amount of Rs.100/- is upheld, in default of payment of which the appellant shall undergo rigorous imprisonment for an additional period of one months.

16. The appellant is in custody.

A copy of the judgment be send to the trial court along with the record for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE ps

Digitally signed by PRASHANT SHRIVASTAVA Date: 2023.10.20 15:48:59 +05'30' Adobe Reader version: 11.0.8