Hemant Khangar vs State Of Madhya Pradesh

This appeal has been filed by the appellant aggrieved by the judgment dated 03.09.2013, passed by the Second Additional Session Judge, Khurai,

Sagar, in S.T. No. 639/2011, wherein the appellant has been sentenced for offence under Sections 363, 366 and 376 of the IPC for five years, seven

years and ten years rigorous imprisonment with fine of Rs. 1,000/-Â for 'each' offence respectively.

The prosecution case in brief is that the prosecutrix was leaving with her parents at Veer Sawarkar Ward, Bina. Her date of birth is 14.06.1997.

She was a minor at that time. On 15.07.2011, at about 01:00 'O'clock, the accused called the prosecutrix near the Municipality Office. When the

prosecutrix went there, he asked her to accompany him to Sagar. The prosecutrix refused. The accused threatened her and took her to her mother,

who lived at Sagar, near Apsara Talkies. She was kept there till 21.07.2011. When she was being taken to the Court for marriage, police caught them,

The prosecutrix narrated the whole incident. On 15.07.2011, when the prosecutrix was not found, search was made and her father Lakhpati lodged a

missing report (Ext.P/1).

After the prosecutrix was recovered Exht.-P/5 was drawn.Subsequently, report Ext. P/11 was lodged. During the investigation, the prosecutrix was

examined medically. Spot map Ext. P/2 was prepared. After recording the statements of the witnesses, the accused was arrested. The slide

prepared from the ""vaginal swab"" of the prosecutrix was seized. Her mark-sheet was seized by seizure memo Ext.P/4. The semen slide of appellant

seized by Ext. P/7. These items were sent to FSL Sagar, for examination by letter Ext.P/14. Charge-sheet was filed before JMFC Bina. Subsequently,

the casewas committed to the Session Court and later it was transferred to Additional Session Judge, Khurai. Charges under Sections 363, 366-A and

376 of the IPC was framed against the appellant. The appellant abjured guilty.

The learned Additional Session Judge after recording the evidence, analyzing the same and passed the judgment impugned on 03.09.2013. The

appellant was held guilty for offence as mentioned above and sentenced as described above.

The appellant has preferred this appeal on the ground that, thelearned Court below committed error by not properly considering the evidence of the

prosecution witnesses. The prosecution witnesses have not supported the prosecution story. Is is also contended during arguments that the prosecutrix

was more than 16 years at the relevant time, therefore, offence under sections 363, 366 and 376 IPC is not made out.

Perused the record and the judgment impugned.

The prosecutrix PW-4Â has stated that the incident took placeapproximately about one year back. Her date of birth is 14.06.1997. The accused

whenever met her, insisted for marriage. The prosecutrix replied to him that she is a minor now, therefore she is not ready for marriage. The accused

committed sexual intercourse with her forcibly. He also threatened her of her life and committed criminal intimidation. He asked her to come near the

Municipal office. From there he took her forcibly to Sagar near Apsara Talkies, where the appellant's mother was living. There also she committed

sexual intercourse with her. When she was being taken to the Court for marriage near Peeli Kothi, police caught them. She was brought to Bina. She

narrated the incident to police.

Police prepared panchnamaExt.P/5. She consented by Ext.P/6 for her medical examination. Father of the prosecutrix Lakhpati PW/1 has lodged

the missing report Ext. P/1 after his daughter found missing. According to him, his daughter was 14 years old. The accused enticed her and took her

from the lawful guardianship of her father. The spot map prepared is Ext.P/2 and the clothes of the prosecutrix after her recovery were seized by

Ext.P/3. He also submits that the mark-sheet of the prosecutrix has been seized by Ext.P/4 seizure memo. Mother of the prosecutrix Lakshmi PW/2

has also contended that her daughter aged about 14 years was missing. When she could not be found at 03:00 P.M. They searched her, but could not

succeed. She informed her husband about the missing of the daughter after he returned from his work.

The accused enticed the prosecutrix and took her with him.Doctor P.K. Sen PW-6 had conducted the medical examination of the appellant and

submitted the report Ext.P/8. According to him, the appellant is capable of committing sexual intercourse. His undergarment and the slide prepared

was handed over to the Constable who had brought the accused for examination. The F.S.L. Report Ext.P/14, which indicates that in articlesÂ

A, B, C and D have sign of human sperm has been found. A is the undergarment of the prosecutrix and B is the vaginal slide. Article C is the slide

prepared from the appellant semen and D is the undergarment of the appellant. In Article A and D, the human sperm available was insufficient for

serological test. There was no reason the prosecutrix and her family members would involve the appellant falsely. The prosecutrix even if is a

consenting party, it cannot be held that her consent is a valid consent. She was a minor at the date of incident. In this regard, apart from the

prosecutrix, the statement of Smt. Prakash Katare PW/7 Principal of the Samaj Kalyan Kendra Railway Colony, Bina has deposed that the

prosecutrix was admitted into the school on 01.07.2001. At that time, her date of birth has been entered as 14.06.1997 in the school-register is Ext.P/9.

The mark-sheet of class eighth of the prosecutrix is Ext-P/10.

As per Sub-Rule3 of Rule 12 of the Juvenile Justice (Careand Protection of Child) Rules, 2007, the age of the child or a juvenile can be

determined on the basis of the evidence by obtaining (i) the matriculation or equivalent certificate, if available or in absence thereof (ii) the date of

birth certificate from the school other than the play school is appended and in absence thereof (iii) the birth certificate issued by a Corporation or a

Municipal Authority. If all the above are not available then (iv) by the medical opinion by the Medical Board.

The earliest entry into the primary school was on 01.07.2001. The school register Ext. P/9 indicates the date of birth of the prosecutrix as

14.06.1997. As the incident took place on 15.07.2011, on the date of incident i.e 15.07.2011, the prosecutrix was 14 years 1 month and one day old.

Therefore, she was below 18 years on the date of incident. For the purpose of committing kidnapping from lawful guardianship the upper age limit is

16 years for a male and 18 years for a female. The prosecutrix was kidnapped for compelling or likely that she may be compelled to marry or in order

that she may be forced to illicit intercourse for a women under 16 years.

Under Section 375 of IPC, the offence is called rape, whenthe prosecutrix was subjected to sexual intercourse. Even if the same was committed

against her will, without her consent, or with her consent, when the consent is obtained by putting her or any person in whom she is interested in fear

of death or hurt, or with her consent when man knows that he is not her husband and with or without her consent, when she is under 16 years of age.

In view of Clause 6 of Section 375 of IPC, sexual intercoursewith a girl, not related as wife, below 16 years is an offence of rape, no matter

whether the victim girl consented or not consented to sexual intercourse. When the girl is below 16 years, consent is immaterial. In this regard,

Vishnu Dayal Vs. State of Bihar AIR 1981 SC 39"" can be referred.

The appellant committed sexual intercourse with the prosecutrix, who 14 years old at the time of the offence. Consent of the prosecutrix even if

presumed, is no valid consent, therefore, the appellant committed the offence of rape.

Regarding the age, the arguments of the learned counsel forthe appellant that the prosecutrix was a consenting party and aged 17 years do not

hold good. Even if assuming that she was 17 years according to the estimated age derived by the counsel for the appellant on the basis of the

statements of the father and mother of the prosecutrix then also the prosecutrix being less than 18 years on the date of incident, her consent would not

be a valid consent. The appellant's contention cannot be accepted. Offence of rape stands constituted as such consent is totally irrelevant or

immaterial. The appellant has been rightly convicted.

As regarding the sentence, the appellant has been sentencedunder Section 363 of the IPC for five years rigorous imprisonment and fine of Rs.

1,000/-, for offence under Section 366 of the IPC for five years rigorous imprisonment and fine of Rs. 1,000/-, for offence under Section 366 of the

IPC for seven years rigorous imprisonment and fine of Rs. 1,000/-

Keeping in view that the appellant was also a boy of 19 years at the time of the incident and belong to the OBC class among whom marriages are

performed at early age, the sentence of 10 years imposed for offence under Section 376 of the IPC is reduced to 7 years rigorous imprisonment with

fine of Rs.1,000/-. In lieu of the fine amount the appellant is directed to undergo sentence of three months of simple imprisonment.

The appellant is in custody for the period from 22.07.2011 to12.12.2011, and from 07.05.2011 to 24.07.2012, and from 03.07.2013 till date. The

period undergone be adjusted under Section 428 of the Cr.P.C.

With the above modification, this appeal is dismissed.