Raghunath Singh vs State Of Madhya Pradesh

This appeal has been preferred by the appellant Raghunath Singh challenging the judgment dated 16.07.2004, passed by the Special Judge under the

SC/ST (Prevention of Atrocities) Act [for brevity of ‘the Act, 1989’), Jabalpur in S.T. No.425/03, wherein the appellant has been acquitted

from the offences punishable under sections 376(1) (two counts), 376(1) read with section 3(2)(v) of the ‘Act, 1989’ and section 366 (A) of the

IPC, but he has been convicted for offence punishable under section 363 of the IPC and sentenced to three years RI with fine of Rs.100/- and in lieu

of fine, S.I. for five days.

Factual matrix of the prosecution case in brief is that the prosecutrix (PW-3) and the accused were known to each other and they were living in the

same village. On 25.03.2003, when the prosecutrix had gone to attend the call of nature, the accused found her alone and committed sexual

intercourse by enticing to marry with her. He also allured her, not to inform this to her family members. On 26.03.2003, the accused/appellant enticed

the minor prosecutrix and at about 2:30 am in the night, eloped her. She was taken to Nandghat and subjected to sexual intercourse. Thereafter, she

was taken to Surat (Gujarat), where the accused putting vermilion on her forehead in the temple and married her. They came back to Nandghat and

lived there. The appellant fled away from there. The prosecutrix returned to her home and narrated the whole incident to her mother Janki Bai (PW-

4). On the report of prosecutrix, Police Station, Sihora on 17.06.2003, FIR (Ex.P/8) was lodged. After due investigation, charge sheet has been filed.

Subsequent to committal of the case and transfer of the sessions trial to the Court of Special Judge Jabalpur, charges have been framed as stated

above. Accused/appellant abjured guilt. He pleaded false implication.

Learned Special Judge after adducing the evidence held that, the prosecution failed to prove offence under section 376(1) (two counts), 376(1) read

with section 3(2)(v) of “the Act, 1989†and section 366-A of the IPC. However, learned trial Court held that the prosecutrix was below 18 years

at the time of offence. The accused/appellant took away the prosecutrix aged below 18 years, without the consent of her lawful guardian. The

prosecutrix though did not resist the accused/appellant, but, it is clear that the prosecutrix being a minor at the time of incident; even she was

consented to leave the house of her parents, allurement of the accused without the consent of her lawful guardian; constitutes the offence under

section 363 of the IPC and sentenced the appellant as mentioned above.

On behalf of the appellant, it is contended that, the appellant is innocent. The appellant had neither promised to marry with the prosecutrix nor he

enticed her to leave the house. It is also argued that, the evidence with regard to age of the prosecutrix is also not clear. The statement of the

witnesses regarding age of the prosecutrix is not definite. Therefore, the appellant is entitled to benefit of doubt.

Learned Government Advocate for the State, per contra, argued that medical evidence shows that the prosecutrix’s age at the time of incident

could be 17 years, which is very well supported by the certificate Ex.P/2. Admission register of the Government Primary School, Jhujhari shows the

date of birth of the prosecutrix as 05.07.1987. Therefore, on the date of incident i.e. on 26.03.2003, the prosecutrix was aged 15 years, 8 months and

21 days. Hence, she was a minor at the time of incident and without the consent of her mother, the legal guardian of the minor prosecutrix, she was

taken by the appellant. Therefore, the offence under section 363 of the IPC has been established. The trial Court has awarded proper sentence to the

appellant.

Learned counsel for the appellant strenuously argued that, the prosecutrix, even if was a minor, she went with the accused/appellant on her sweet

will, the offence under section 363 of the IPC is not made out. In this regard, reliance has been placed in case of S. Varadarajan Vs. State of Madras,

AIR 1965 SC 942. It would be appropriate to mention that in case of S. Varadarajan (supra), it has been held that “when the girl though minor had

attained the age of discretion and is on the verge of attaining majority and is a senior college student, was fled away from the house of relative of her

father, where she was kept, she telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car

gets into that car of her own accord, and the accused takes her to various places and ultimately, to the Sub-Registrar’s office, where they get an

agreement to marry registered. There was no suggestion that this was done by force or blandishment or anything like that on the part of the accused.

It is clear from the evidence that the insistence of marriage came from the prosecutrix, the accused by complying with her wishes can by no stretch of

imagination be said to have taken her out of the keeping of her lawful guardianship, that is, the father. Hence, the Apex Court held that material on

record shows no offence under section 363 of the IPC has been established.â€​

In the present case, when the evidence is looked in, it is found that Anil Kumar Dixit (PW-2), the Principal of Government Primary School, Jhujhari

has proved the admission register (Ex.P/2), which indicates the date of birth of the prosecutrix was 05.07.1987. This entry in the register has not been

challenged. This evidence is supported by the radiological examination of the prosecutrix.

Dr. M.M. Agrawal (PW-1), who performed rediological examination of the prosecutrix and submitted the report (Ex.P/1), has stated that the

prosecutrix was below 17 years of age. Therefore, age mentioned in the academic record cannot be discarded. In the present case, the prosecutrix is

a girl, who studied upto 6th class in rural background unlike in the case of S. Varadarajan (supra). It is observed that the prosecutrix was enticed by

the appellant to leave the house of her parents and he promised to marry with her, and not vice-versa.

Janki Bai (PW-4) mother of the prosecutrix has also stated that prosecutrix was aged about 14 years when incident took place. The prosecutrix

(PW-3) has stated that accused closed her mouth when she had gone to attend the call of nature four months ago and threatened her to kill, if she

does not go with him. They walked upto Nandghat near by Sihora and from there, they boarded for Gujarat. After living for some days at Gujarat, she

was brought to Katni, where he applied vermilion on the forehead and married with the prosecutrix in a temple. She narrates her age to be 14 years, at

the time when she was taken away by the appellant. Though, in her cross-examination, she has stated that she went back to her house to collect her

garments to elope with the appellant. It indicates that the prosecutrix has left village along with the appellant. But, the prosecutrix being a minor at the

point of time, her consent could not be a valid consent. Accused/appellant took the prosecutrix from one place to another, stayed in a rented house and

evidence showed that she was below 16 years of age and she was removed from lawful guardianship of her mother by deceitful means. The intention

of the appellant was clear and offence has been established under section 363 of the IPC. For the reasons stated, the conviction of the appellant for

offence under section 363 of the IPC is established.

On behalf of the appellant, it is contended that the appellant is a married man and he has two children. He was in custody for more than 1½

years. It is also contended that the appellant is the sole bread earner of his family. Therefore, on the point of sentence, the same be considered

liberally. It is also contended that during trial, the appellant remained in the custody for two months, 22 days and during this appeal, the appellant is in

custody for one year, three months and 15 days. Therefore, the appellant has been remained in the custody for one year, seven months and five days.

Considering the fact that the prosecutrix was a minor and voluntarily accompanied the appellant from her house, is a mitigating factor to reduce

the sentence. The sentence of three years RI with fine of Rs.100/- and in lieu of fine, five days SI is reduced to imprisonment for two years with fine

of Rs.100/-. In lieu of fine, the appellant has to undergo additional sentence of five days SI.

On the basis of aforesaid discussion, appeal filed by the appellant is allowed to modify the sentence as aforesaid. The trial Court shall issue a super

sessions warrant as stated above.

Copy of the judgment be sent to the trial Court along with original record for information.