Narayan Makwana & Another vs State Of Madhya Pradesh

On 16/04/2018 none had appeared for the appellants and on 02/08/2018 also, none appeared for the appellants. Since the appellants are on bail from

14/07/2000 and this appeal is pending since 1999 i.e almost 19 years, therefore, in the light of the judgment passed by the Supreme Court in the matter

of Surya Baksh Singh vs. State of Uttar Pradesh, reported in 2014 (14) SCC 222, this Court has no option, but to decide this appeal on merits after

hearing the counsel for the State and going through the appeal memo as well as the record of the trial Court. A detailed order has also been passed in

this regard on 2/8/2018.

(2) This Criminal Appeal under Section 374 of CrPC has been filed against the judgment and sentence dated 10/05/1999, passed by First Additional

Sessions Judge, Ratlam in Sessions Trial No. 86/1998, by which appellant No.1 Narayan has been convicted under Section 366 of IPC and has been

sentenced to undergo the rigorous imprisonment of four years and a fine of Rs.500/- and appellant No.2 Ramesh alias Gudda has been convicted

under Sections 366, 376 of IPC and sentenced to undergo the rigorous imprisonment of four years and a fine of Rs.500/- and rigorous imprisonment of

seven years and a fine of Rs.500/- respectively, with default stipulation.

(3) The necessary facts for the disposal of the present appeal in short are that the father of the prosecutrix lodged a Guminsaan report on 09/03/1998

to the effect that the prosecutrix had gone to her school on 09/03/1998 at about 07:30 in the morning and did not come back to the house at 2:00 pm as

per daily routine. She was searched by the family members and since Gudda and Narayan were not in the house, therefore, a suspicion was

expressed against them. In the Guminsaan report, it was mentioned that the prosecutrix is aged about 15 years. The FIR Ex.P16 was lodged and

during investigation, it was found that the appellants had taken away the prosecutrix from the custody of her guardian to the bus stand and her cycle

was parked in the cycle stand. Thereafter, they went to Mandsaur where appellant Ramesh alias Gudda took a room on rent in Mahesh Hotel by

disclosing himself as well as the prosecutrix, as husband and wife, where appellant Ramesh alias Gudda committed rape on the prosecutrix and also

extended a threat that in case if she narrates the incident to anybody then she would be killed. Thereafter, appellant Ramesh alias Gudda took the

prosecutrix to a village near Neemuch, where they went to Piplyamandi in search of some job and also stayed in a lodge where also, the prosecutrix

was raped. Thereafter, the prosecutrix was taken to Sukheda and Banjli, where again she was raped by appellant Ramesh alias Gudda. Later on,

appellant Ramesh alias Gudda took the prosecutrix to the factory of his friend Dilip and there also, he committed rape on the prosecutrix and extended

a threat. After the recovery, the prosecutrix was sent for medical examination and in medical examination her age was clinically assessed in between

14-16 years. The prosecutrix was found to be habitual for intercourse and was in menses. For determination of age, the radio-logical test was also

conducted and the age of the prosecutrix was found in between 15-16 years. The police, during the investigation, seized mark sheet of the prosecutrix

and as per the said mark sheet, the date of birth of the prosecutrix was 27/04/1983.The undergarment, vaginal slides and pubic hair of the prosecutrix

were sent for FSL examination along with undergarment of appellant Ramesh alias Gudda and the FSL report was received, according to which

human semen and sperms were found on the ''Salwar'' as well as undergarment of the prosecutrix and the undergarment of appellant No.2 Ramesh

alias Gudda. The register of Mahesh Hotel was seized. Similarly, a token slip of deposit of cycle of the prosecutrix was also seized and after

completing the investigation, the police filed charge sheet against the appellants for offence under Sections 366 & 376 of IPC.

(4) The trial Court by judgment dated 15/07/1998 framed charge under Section 366 of IPC against appellant No.1 Narayan and framed charge under

Sections 366 and 376 of IPC against appellant No.2 Ramesh alias Gudda.

(5) The appellants abjured their guilt and pleaded not guilty.

(6) The prosecution, in order to prove its case, examined Yogesh Sharma (PW1), Shekh Mehboob (PW2), Narendra Singh (PW3), Dinesh Parmar

(PW4), Kamlesh Patidar (PW5), Dr.D.C.Boriwal (PW6), Dr.Manoj Solanki (PW7), Kailash Chandra Goswami (PW8), Dr. Sudha Rajawat (PW9),

Prakash (PW10), Mangulal (PW11), P. S. Solanki (PW12), prosecutrix (PW13), Kalkai Singh (PW14), Dharmpal (PW15), Suresh Vikram (PW16)

and Devendra Singh Rathore (PW17). The appellants examined Dinesh (DW1) in their defence.

(7) The trial Court by judgment dated 10/05/1999 passed in Sessions Trial No.86/1998 convicted both the appellants for offence under Section 366 of

IPC and also convicted appellant No.2 for offence under Section 376 of IPC and both the appellants have been sentenced to undergo the rigorous

imprisonment of four years and a fine of Rs.500/- with default imprisonment for offence under Section 366 of IPC and appellant No.2 Ramesh alias

Gudda has also been sentenced to undergo rigorous imprisonment of seven years and a fine of Rs.500/- with default stipulation for offence under

Section 376 of IPC.

(8) Challenging the judgment and sentence passed by the Court below, it is mentioned in the memo of this appeal that the prosecutrix (PW13) was

herself a consenting party and according to the prosecution case itself, she went along with the appellants and parked her cycle in the cycle stand of

the Railway Station from where she went to Neemuch along with the appellants and from Neemuch on-wards, the prosecutrix accompanied appellant

No.2 Ramesh alias Gudda to different places and they had stayed in the lodge also, but she never made complaint to anybody alleging that she has

been kidnapped by the appellants and thus, it is clear that the prosecutrix herself was a consenting party.

(9) Per contra, it is submitted by counsel for the State that whether the prosecutrix was a consenting party or not, would be material only when if it is

found that the prosecutrix was above the age of 16 years. However, in the present case, admittedly, the prosecutrix was minor, below the age of 16

years and thus, even if it is presumed that the prosecutrix was a consenting party, then in view of Section 375 (Sixthly) of IPC, the consent of minor is

immaterial and accordingly, the trial Court did not commit any mistake in convicting both the appellants for offence under Section 366 of IPC as well

as convicting appellant no.2 Ramesh alias Gudda for offence under Section 376 of IPC.

(10) Heard the learned Public Prosecutor for the State.

(11) Before considering the allegations that whether the prosecutrix was a consenting party or not, it would be relevant to consider the provision of

Section 375 (Sixthly) of IPC which reads as under:-

''With or without her consent, when she is under sixteen years of age.''

(12) The prosecution in order to prove the age of the prosecutrix has relied upon the school mark sheet of the prosecutrix as well as the clinical

assessment of the age of prosecutrix and the ossification test report. Dr. D.C. Boriwal (PW6) has stated that on 02/04/1998, he was posted as

Radiologist in the District Hospital, Ratlam and the prosecutrix was brought to him by Dr. Rajawat for assessment of her age. This witness had taken

X-rays of elbow joint, knee joint and wrist joint and on the assessment of X-ray reports, he had found that the age of the prosecutrix is in between 15-

16 years. The ossification test report given by this witness is Ex.P7, whereas X-ray plates are Ex.P8. In cross-examination, this witness has admitted

that as per Medical Jurisprudence of Modi, there might be margin of three years and the age of the prosecutrix might be in between 18-19 years.

However, on the question put by the Court, this witness has further admitted that the age of the prosecutrix might be less than 16 years also.

(13) Dr. Sudha Rajawat (PW9) had medically examined the prosecutrix, who had stated that she had found five abrasions on the scalp of the

prosecutrix and clinically she had assessed the age of the prosecutrix in between 14â€"16 years and for ascertaining the age of the prosecutrix, she

had referred the prosecutrix to the Radiologist. The MLC report given by this witness is Ex.P7. In cross-examination, she admitted that she had

disclosed the reasons for assessing the age of prosecutrix in between 14-16 years. She further admitted that she agrees with the Medical

Jurisprudence of Modi, according to which the menses starts from the age of 14 years, however, she further clarified that there might be certain

exceptions also.

(14) Kailash Chandra Goswami (PW8) has proved the seizure of mark sheet of the prosecutrix. The mark sheet is Ex.P10 and the same was seized

vide seizure memo Ex.P11. In the mark sheet, the date of birth of the prosecutrix is mentioned as 27/04/1983.

(15) It is mentioned in the grounds raised in the memo of appeal that the trial Court has committed a material illegality by holding the prosecutrix as

minor.

(16) Per contra, it is submitted by the Public Prosecutor for the State that there is no discrepancy in the date of birth mentioned in the mark sheet of

the prosecutrix as well as in the ossification test report of the prosecutrix and clinical assessment of the age of the prosecutrix. Dr. Sudha Rajawat

(PW9) had clinically assessed the age of the prosecutrix in between 14-16 year. Dr.D.C. Bariwal (PW6) had assessed the age of the prosecutrix in

between 15-16 years and as per mark sheet of the prosecutrix, her date of birth was 27/04/1983. According to the prosecution case, the prosecutrix

was kidnapped by the appellants on 09/03/1998. Thus, if the date of birth of the prosecutrix as mentioned in the mark sheet is considered in the light of

clinical assessment of the age of the prosecutrix as well as ossification test report of the prosecutrix, then it would be clear that on the date of

kidnapping, the prosecutrix was aged about 15 years and was below the age of 16 years. Thus, it is held that the prosecution has succeeded in

establishing beyond reasonable doubt that the prosecutrix was minor on the date of incident and was below the age of 16 years. Under these

circumstances, it is clear that the consent of the prosecutrix is immaterial in view of provision of Section 375(Sixthly) of IPC. Although the prosecutrix

(PW13) had stated that the appellants had taken her to the railway station where appellant No.1 Narayan had parked her cycle in the cycle stand of

the Railway Station and handed over the key of the said cycle to appellant No.2 Ramesh alias Gudda, from where both of the appellants took the

prosecutrix to Neemuch by train and at Neemuch, appellant No.1 Narayan came back after leaving the prosecutrix along with appellant No.2 Ramesh

alias Gudda and thereafter, appellant No.2 Ramesh alias Gudda had taken her to different places, where she was committed rape by appellant No.2

Ramesh alias Gudda, but as already held by this Court that the prosecutrix was minor on the date of kidnapping, therefore, whether she was a

consenting party or not, is not required to be considered because the consent of the minor is immaterial. Accordingly, it is held that appellant No.2

Ramesh alias Gudda is guilty of committing for offence under Sections 366 and 376 of IPC.

(17) So far as the case of appellants for offence under Section 366 of IPC is concerned, this Court has already come to the conclusion that the

prosecutrix was minor on the date of incident and was aged about 15 years. In order to make out an offence under Section 366 of IPC, the

prosecution is required to prove that the prosecutrix was kidnapped.

(18) ''Kidnapping'' is defined in Section 361 of IPC, which reads as under:-

''361. Kidnapping from lawful guardianship.â€" Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[eighteen]

years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without

the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.''

(19) Thus, it is clear that where a person is a female below eighteen years of age and if she is taken out of the lawful guardian of such minor, without

the consent of such guardian, then the said act of the accused would be a ''kidnapping'' of such minor or a person from lawful guardianship. In the

present case, as this Court has already held that the prosecutrix was less than 16 years on the date of kidnapping, therefore, it is clear that she was

below 18 years of age for the purpose of offence under Section 366 of IPC. The prosecutrix (PW13) in her evidence has specifically stated that

appellant No.1 and appellant No.2 had taken her to a Railway Station where appellant No.1 Narayan had parked her cycle in the cycle stand of the

Railway Station and from where, both of the appellants took her to Neemuch by train and at Neemuch, appellant No.1 Narayan came back after

leaving the prosecutrix along with appellant No.2 Ramesh alias Gudda. Thus, it is clear that the prosecutrix was kidnapped by appellant No.1 Narayan

also from Ratlam and brought her to Neemuch. From there, the appellant No.2 Ramesh alias Gudda took her to different places and committed rape

on her. Considering the allegations made against the appellants, it is clear that the prosecution has established beyond reasonable doubt that the

appellant No.1 along with the appellant No.2 had kidnapped the prosecutrix. Accordingly, appellants are also held guilty for offence under Section 366

of IPC.

(20) So far as the question of sentence is concerned, the appellant No.2 has been awarded the jail sentence of rigorous imprisonment of seven years

for offence under Section 376 of IPC, which is the minimum sentence provided under the law. Therefore, the sentence awarded to the appellant No.2

by the trial Court for offence under Sections 366 and 376 of IPC does not call for any interference and accordingly, the sentence awarded to the

appellant No.2 for offence under Sections 366 and 376 of IPC is affirmed.

(21) So far as the sentence awarded to the appellants for offence under Section 366 of IPC is concerned, it is clear that no minimum jail sentence is

provided. The allegation against appellant No.1 Narayan is that he had facilitated the appellant No.2 Ramesh alias Gudda to kidnap the prosecutrix and

the appellants took the prosecutrix to the Railway Station, Ratlam where her cycle was parked in the cycle stand of the Railway Station and from

there, they went to Neemuch by train and at Neemuch, appellant No.1 Narayan left appellant No.2 Ramesh alias Gudda and the prosecutrix and came

back. There is no allegation against the appellant No.1 to the effect that he, in any manner, had molested or sexually violated the prosecutrix. From the

record of the trial Court, it appears that during trial the appellant No.1 had remained in jail from 25/03/1998 to 13/05/1998 and he was granted bail by

this Court by order dated 14/07/2000 after his conviction by judgment dated 10/05/1999. Thus, it is clear that the appellant No.1 has remained in jail

from 10/05/1999 to 14/07/2000 after his conviction. Under the facts and circumstances of the case, this Court is of the considered opinion that the jail

sentence already undergone by the appellant No.1 Narayan for offence under Section 366 of IPC would serve the ends of justice. Therefore, the

sentence awarded to the appellant No.1 Narayan for offence under Section 366 of IPC is modified to the period already undergone by him.

Accordingly, the judgment and sentence dated 10/05/1999 passed by First Additional Sessions Judge, Ratlam in ST No.86/1998 is hereby affirmed

with the above-mentioned modification.

(22) So far as appellant No.1 Narayan is concerned, as he has been sentenced to the period already undergone by him, therefore, his bail bonds and

surety bonds are discharged. He is no more required in the present case.

(23) So far as appellant No.2 Ramesh alias Gudda is concerned, as he is on bail, therefore, his bail bonds and surety bonds are hereby cancelled. He is

directed to immediately surrender before the trial Court for undergoing the remaining jail sentence.

(24) Accordingly, the appeal succeeds in part and is Allowed accordingly.