Khemraj @ Gannu vs State of M.P.

Sushma Shrivastavaj, J.—Appellant has preferred this appeal challenging his conviction and order of sentence passed by Sessions Judge, Seoni in S.T. No. 122/93, decided on 30.04.96.

Appellant has been convicted u/s 363 of IPC and sentenced to rigorous imprisonment for five years with fine of Rs.5,000/-, in default further rigorous imprisonment for one year, by the impugned judgment.

According to prosecution, on 21.1.93 the victim girl aged about seventeen years, who was living with her parents in village Pindrai-Kala, was found missing from the house at night. Her missing report was lodged by her father Tarachand with the Police Barghat on 22.1.93. Later on complainant Tarachand came to know that his daughter was seen roaming with appellant Khemraj and his wife Munnibai in Jabalpur. He then informed the Police Barghat on 4.6.93, whereupon after enquiry an offence was registered at P.S. Barghat against the appellant and co-accused Munnibai and was investigated. The victim girl was recovered from the appellant. Her statement was recorded and the victim was sent for medical examination. Appellant was also arrested and sent for medical examination. The vaginal slides of the victim and the seminal slide of appellant Khemraj were sent for forensic examination. The investigation revealed that the appellant and his wife Munnibai used to live in the house of complainant Tarachand at the relevant time and having no children, they induced the minor daughter of the complainant to marry with the appellant and kidnapped her. Appellant Khemraj took the victim to the various places including Jabalpur and also committed rape with her. After due investigation, appellant and co-accused Munnibai were prosecuted u/s 363, 366 and 376/34 of IPC and put to trial.

Appellant Khemraj @ Gannu was charged u/s 366 and 376 of IPC, while co-accused Munnibai was charged only u/s 366 of IPC. Appellant and co-accused Munnibai abjured the guilt and pleaded false implication.

Learned Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, acquitted co-accused Munnibai of the charge u/s 366 of IPC, also acquitted appellant Khemraj of the charges u/s 376, 366 of IPC, but found him guilty for the lesser offence u/s 363 of IPC, convicted and sentenced him as aforesaid, by the impugned judgment, which has been challenged in this appeal.

Learned counsel for the appellant mainly submitted that the trial court gravely erred in holding that the victim was under the age of 18 years and erroneously convicted the appellant u/s 363 of I.P.C.

Learned counsel for the State, on the other hand, justified the conviction of the appellant.

The entire evidence on record has been closely examined. The victim (P.W.-2) categorically deposed in her evidence that her date of birth is 13.02.1976, as recorded in her school. Tarachand (P.W.-3), the father of the victim deposed that she was 17 years of age at the time of occurrence. According to Tarachand (P. W.-3), the date of birth of his daughter (victim) was recorded in her school register on the basis of the entry in the diary of village Kotwar. The school teacher of Govt. Girls'' Primary School, Pindrai-Kala, Sammilal Dhurve (P.W.-4), also produced the scholar register of Govt. Girls'' Primary School, Pindrai-Kala before the trial court and deposed that the date of birth of the victim was entered in the scholar register as 13.02.1976. The photocopy of the relevant extract of the aforesaid register (Ex. P-4) was also placed on record. According to Sammilal Dhurve (P. W.-4), as per entries in the scholar register, the victim was admitted in his school on 01.07.1981. Her school leaving certificate (Ex. P-12) as well as scholar register was also seized by ASI D.C. Tiwari (P.W.-6), vide seizure memo (Ex. P-9). The school leaving certificate (Ex. P-12) also indicates that the victim studied in the Government Primary Girls'' School, Pindrai-Kala from 1.7.81 to 30.4.86.

A perusal of the photocopy of the extract of the scholar register (Ex. P-4) also reveals that the date of birth of the victim was recorded in the school register as 13.02.76. In the last column ofthe relevant entry in the register, there is also a verification by her father Tarachand Deshmukh as to the correctness of her date of birth being 13.02.76. It clearly transpires from the evidence of victim (P.W.-2), her father Tarachand (P.W.-3) and the evidence of school teacher Sammilal Dhurve (P.W.-4) that the victim had studied in the Govt. Girls'' Primary School, Pindrai-Kala and had taken admission on 1.7.81 and her date of birth in the scholar register was recorded as 13.2.76, much prior to the date of occurrence on 21.01.93. The mere fact that full address of father of the girl was not mentioned in the scholar register (Ex. P-4) could not be a ground to discard the entry in the scholar register (Ex.P-4) particularly when the father of the victim namely Tarachand was resident of village Pindrai-Kala. There are no reasons to doubt the entries as to the date of birth of the victim in the scholar register (Ex.P-4), particularly when the father of the girl (victim) testified that her date of birth was entered in the scholar register on the basis of diary of village Kotwar, and he had stated the age of the girl according to the entry in the school register. Besides there was no challenge to the entry in the last column of the scholar register (Ex. P-4), regarding verification of date of birth of the victim by her father Tarachand.

The Apex Court in the case of Birad Mai Singhvi Vs. Anand Purohit reported in 1988 (Supp) SCC 604 has observed that if the entry in the scholar''s register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value, but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. In the instant case, it is elicited from the evidence of Tarachand (P.W.-4), the father of the victim that the date of birth of the victim was entered in the scholar register on the basis of entry made in the diary of village Kotwar. It is also clearly evident from the entries made in the scholar register (Ex. P-4) that the date of birth of victim was verified to be correct by her father Tarachand (P.W.-3).

The mere fact that Tarachand (P.W.-3) could not recollect the date of birth of the victim on the date of recording of his evidence before the court, would not be a ground to discard his testimony that his daughter was of 17 years of age at the time of incident. As per the date of birth of the victim, mentioned in the scholar register, verified by him to be true as 13.2.76, the age of the victim at the time of incident comes to be nearly 17 years.

In view of the aforesaid facts, the finding of the trial court, on the basis of date of birth of the victim as recorded in the scholar register, that the victim was under 18 years of age at the time of occurrence, does not suffer from any infirmity.

Learned counsel for the appellant strenuously urged that the lady doctor Smt. V. Jatar (P.W.-1), who had medically examined the victim (P.W.-2) had advised for radiological examination of the victim regarding confirmation of her age, but her radiological examination was not done and in absence of report of her radiological examination or ossification test, her age could not be correctly ascertained to be below 18 years. Reliance was placed in this behalf on the decision of the Apex Court in the case of Sunil Vs. State of Haryana,

Dr. V. Jatar (P.W.-1) deposed that the age of the victim was between 15 to 18 years and she had advised for her radiological examination for confirmation of her age. The investigating officer D.C. Tiwari (P.W.-6), explained that after obtaining school certificate of the girl, her radiological examination or ossification test as to her age was not considered necessary. The Apex Court in the case case of Sunil Vs. State of Haryana (supra) cited by learned Senior Counsel, though observed that that the failure of getting the prosecutrix examined from the Dental Surgeon or the radiologist was a serious flaw, in the facts of that particular case, also observed as under:-

We are not laying down as a rule that all these tests must be performed in all cases, but in the instant case, in the absence of primary evidence, reports of the dental surgeon and the radiologist would have helped us in arriving at the conclusion regarding the age of the prosecutrix.

Thus, in the instant case, when there was cogent and authentic evidence as to the date of birth of the victim (P.W.-2) as recorded in the scholar register, the same could not be brushed aside merely for want of her radiological examination. In this view of the matter, the submission made by learned counsel for the appellant in this behalf sans merit. Thus, as stated hereinabove, the trial court rightly held that the age of the victim on the basis of entry of her date of birth in the school register coupled with the other evidence on record was below 18 years on the date of occurrence.

It is also evident from the testimony of Tarachand (P.W.-3), the father of the victim that his daughter (victim) was found missing from his house at night and her missing report (Ex. P-3) was lodged with the police. The FIR (Ex. P-8) recorded by ASI D.C. Tiwari (P.W.-6), which also reproduces the missing report entered in the rojnamcha, indicates that the victim was found missing from the house of Tarachand (P. W.-3) in the night intervening 21st and 22nd January, 1993. Tarachand (P. W.-3) deposed that his daughter was recovered by police personnels from the appellant after 3-4 months. The evidence of ASI D.C. Tiwari (P.W.-6) also clearly reveals that the victim was recovered from the custody of the appellant in village Gorakhpur at the house of Radhe Dehariya on 13.6.93 vide recovery memo (Ex. P-13). The aforesaid facts have remained totally unchallenged in the cross-examination. The victim (P.W.-2) also deposed that the appellant had taken her away without the consent of her parents.

It was thus clearly deducible from the evidence on record that the victim, who was under the age of 18 years on 21.1.93, was taken away from the custody of her father without his consent and out of the keeping of his lawful guardianship on 21.1.93 and was recovered from the custody of the appellant after nearly five months on 13.6.1993. The consent of the minor girl, if any, in going with the appellant was immaterial for the purpose of the offence u/s 363 of I.P.C. It would be profitable to refer to the following observations made by their Lordships in this behalf in the case of Parkash Vs. State of Haryana,

The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor... out of the keeping of the lawful guardian of such minor" in Section 361, are significant. The use of the word "Keeping" in the context connotes the idea of charge, protection, maintenance and control; further the guardian''s charge and control appears to be compatible with the independence of action and movement in the minor, the guardian''s protection and control of the minor being available, whenever, necessity arises. On Plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial; it is only the guardian''s consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuation by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the Section.

In the instant case, even if love letters (Ex D-1 to D-6), written by the victim (P.W.-2) are taken note of, it would appear, as the evidence on record reveals, that the appellant, who was a tenant in the house of Tarachand (P.W.-3), committed breach of confidence reposed in him and even being a married person, he entangled his young minor daughter in love affair and persuaded her to leave her parental house and exploited her for four-five months, till she was recovered from his custody.

Be that as it may, when the appellant took away the minor girl of Tarachand (P. W.-3), below 18 years of age, out of the keeping of his lawful guardianship, without his consent, he was guilty for committing the offence u/s 363 of I.P.C. Thus the trial Court committed no error in finding the appellant guilty and convicting him u/s 363 of I.P.C. His conviction u/s 363 of I.P.C, therefore, deserves to be affirmed.

As regards the sentence, looking to the nature and gravity of the offence, appellant does not deserve much indulgence. However, in view of the fact that incident occurred in the year 1993, it would be just and proper in the facts and circumstances of the case, to reduce the impugned sentence of imprisonment awarded to the appellant to a period of three years'' rigorous imprisonment

Accordingly, the appeal is partly allowed The conviction of the appellant u/s 363 of I.P.C. is maintained. The impugned sentence of imprisonment awarded to him is reduced to a period of three years'' rigorous imprisonment. The impugned sentence of fine imposed on the appellant, shall, however, remain undisturbed. Needless to add that the imprisonment already undergone by the appellant shall be set off against his modified term of imprisonment

Appellant is on bail. He shall surrender forthwith to his bail bonds to serve out the remaining part of his sentence.