Naresh Kumar vs State of Madhya Pradesh

Subhash Kakade, J.—By means of filing the present appeal u/s 374 of the Code of Criminal Procedure, 1973, appellant Naresh Kumar has assailed the order of conviction dated 19.01.1998 passed by the Second Additional Sessions Judge Mudwara in Session Case No. 380/1995 (State of M.P. Through P.S. Kemore, District Jabalpur vs. Naresh Kumar). By the judgment under challenge, the learned trial Judge convicted and sentenced appellant Naresh Kumar as follows:-

However, all the above sentences of imprisonment were to run concurrently.

The prosecution case MULTUM IN PARVO is that complainant Shabir informed at Police Station Kymore on dated 31.08.1993 that his 16 years aged daughter is missing since 24.08.1993 when she was sleeping with her mother Anvari Begam and other family members at their village Khalwara Bazar. The information also disclosed that she was sleeping with her mother Anvari Begam and other family members during the night of 24.08.1993 at their residence, but she was not found in the morning, search for her till date without success. After registration of missing person report inquiry started. On recovery after one and half year the prosecutrix agreed to accompany the accused her own. Because, this kidnapping was of minor prosecutrix from the lawful guardianship of her father Shabir, therefore First Information Report was registered. The prosecutrix refused for medical examination, after recording of statement of prosecutrix as well as her family member''s, the accused arrested and after completion of investigation charge sheet was filed. Since the case was exclusively tribal by the Court of Sessions, the learned Magistrate after taking cognizance committed the case to the Court of Sessions Judge, Sagar, from where it was received in the learned trial Court for the trial.

The learned trial Court framed the charges against the accused for commission of offence punishable under Sections 363, 366 and 376(1) of IPC, who pleaded not guilty therefore, he was put to trial.

The prosecution examined 14 witnesses including prosecutrix and also produced documents Ex. P-1 to P-8. During accused statement recording u/s 313 of Criminal Procedure Code the accused denied all the evidence put forth before him and claim to be innocent. Defense did not examine any witness.

On conclusion of trial, learned trial Court vide impugned judgment convicted the accused for the offence and imposed the sentence as referred to herein above, hence, this appeal.

Shri Pramod Kumar Chourasiya, learned counsel for the appellant submitted that evidence of 10 years'' age prosecutrix clearly goes to show that she had voluntary gone with the appellant and married with her own and as a result of that the couple blazed with the two issues, even then learned trial Court passed impugned judgment, thus the appeal deserves to be allowed.

Shri Samdarshi Tiwari, learned Government Advocate for the State has opposed the appeal vehemently contending that the appellant has rightly been convicted believing the testimony of the prosecutrix. The finding so recorded by the learned trial Court does not warrant any interference, thus, this appeal is liable to be dismissed.

I have considered the rival submissions made by learned counsel for the parties and perused the impugned judgment and available entire record.

(A) the first essential, to be established for the offence u/s 366 of the I.P.C. is that the accused kidnapped or abducted a woman. Further, to constitute the offence of kidnapping, it must be proved that the girl kidnapped is less than 16 years of age and the burden remains on the prosecution to prove it.

(B) In a case under Sections 363 and 366 of IPC, age of the prosecutrix plays a vital role. Again, in order to prove the age of the prosecutrix, and to demonstrate that she was below 16 years burden is on prosecution only.

Unless the law makes an exceptional, the personal law would not over right the statutory provisions. Muslim is also entitled to the same protection of law as persons belonging to other religions are entitled to. In the case at hand the prosecutrix is Muslim girl.

The ossification test is not a secure test, although this is generally accepted as best available test for the determination of the age of human being, but, in present case it is totally lacking. The prosecutrix straight way refused for her person''s examination when she was brought to the hospital. Dr. D.C. Singhai (PW/10) stated that that too she left the hospital also.

The prosecution produced educational certificate of the prosecutrix. Prior to discuss available evidence for this form it is a matter of common knowledge that the ages given at the time of admission of girls and boys in schools are far from being precise. More often than not, attempt is made by the parents and guardians of their ward who get admissions in the school, to under stage their ages and give the date of birth then the real one. Thus, the ages given in the school certificates or not dependable for determination of the precise date of birth of student, to whom the entry as to the date of birth as per school record pertinent.

Head Master of Girls Primary School Khalwara Bazar Shri Ramprasad Mishra (PW/8) proved the certificate (Ex. P/2) issued by him in which date of birth of the prosecutrix is mentioned 25th June 1978.

The prosecutrix admitted that her date of birth is 25.06.78. Learned trial court based its impugned judgment, ignoring parents and guardians above mentioned natural tendency, on the basis of above evidence alone, without scrutinize other available evidence on this issue on record.

Learned trial court estimated the age of the prosecutrix 22 years when she appeared in the witness box on 30.01.1996.

The learned trial court not only ignored above mentioned estimation of his own, but also ignored corroborative evidence which was available on record.

Right from missing person report (Ex. P-5C), statements of the prosecution witness, the age of the prosecutrix is mentioned 16 years and above not in any case below to 16 years. It is nowhere specifically mentioned in the report (Ex. P-5C) that the prosecutrix is minor. Anwari Begam (PW/1) and Sabbir (PW/2), parents of the prosecutrix also stated that age of her daughter was 16 years.

In this manner if the age of the prosecutrix be calculated, the age of the prosecutrix would come out 15 years 02 months to 17 years and 6 months on the date 24.08.1993 of her missing.

In above mentioned facts and circumstances, it is clear that the prosecution utterly failed to prove that the age of the prosecutrix was below 16 years on the date of the incident.

The major prosecutrix admitted that:-

She further admitted that:-

Her mother Anwari Begam (PW/1) also admitted during the cross examination:-

If the entire factual scenario is tested on the anvil of the evidence of the prosecution and after considering the evidence in a proper perspective manner, it would reveal that no offence is made out against the appellant. Above 18 years aged prosecutrix went with the appellant on her free will with her perspective marriage with the appellant which come true also and the couple blessed with children.

The prosecutrix went with the appellant on her own accord and out of her own free will; therefore, she did not seek any help from the inhabitants where ever she lived with the appellant at Amar Patan, Shadol or Nagpur. During these more then one and half years period she did not complaint to any body or to the police, therefore, irresistible conclusion would be that she left her prenatal roof on her on accord. There is also no proof of criminal intimidation or promise, persuasion, inducement or allurement from the appellant.

On the basis of aforesaid premised reasons, I have no hesitation to hold that the learned Trial Judge erred in law in convicting the appellant u/s 363, 366 and 376 of the IPC. His conviction is accordingly deserves to be set-aside.

In the result, the appeal succeeds and is hereby allowed, the conviction of the appellant is hereby set-aside. The appellant Naresh Kumar is on bail, his bail bond stands discharged.