State of Madhya Pradesh vs Aziz Khan

P.K. Jaiswal, J—This appeal has been filed by the State against the order of acquittal dated 31st October, 2013 passed in Sessions Trial No. 219/2013, whereby learned Additional Sessions Judge, Susner, District Shajapur acquitted respondent Aziz Khan S/o. Raustam Khan for offence under Sections 363, 366 and 376 of the Indian Penal Code, 1860 and Section 5/6 of the Prevention of Children from Sexual Offence Act, 2012.

As per the prosecution story, on 05.01.2013 minor daughter of complainant Ibrahim had left her parents'' home to attend the call of nature and did not return. On this missing report vide Missing Case No. 01/2013 was lodged by her father Ibrahim at Police Station, Nalkheda. During investigation, it was found that she was abducted by his neighbour Aziz Khan. After seven months, she was recovered and thereafter, First Information Report was registered against the respondent vide Crime No. 08/2013 at Police Station, Nalkheda for offence under Sections 363, 366 and 376(2)(i) and (n) of the Indian Penal Code, 1860 and under Section 5 read with Section 6 of the Prevention of Children from Sexual Offence Act, 2012. She was sent for medical examination; Ex. P/1 is letter for medical examination. Ex. P/2 is the consent of mother and father of the prosecutrix. Ex. P/3 is the document by which she was handed over to her parents. Ex. P/4 is her police statement. Ex. P/5 is missing report. Ex. P/6 is spot map. Ex. P/6-A is the sample of vaginal slide and clothes of the deceased. Ex. P/7 is the semen slide of the accused/respondent. Ex. P/8 is her medical report. Ex. P/12 is the birth certificate of the prosecutrix. After investigation, charge sheet has been filed before the Sessions Judge, Shajapur. The matter was transferred to the Court of Additional Sessions Judge, Susner, District Shajapur.

The respondent abjured the guilt and stated that he has been falsely implicated in the alleged offence. His 313 Cr.P.C. statement was recorded. In defence, he has not produced any witness. Learned trial Court, after appreciating the statement of the prosecution witnesses, gave finding that at the time of alleged offence, the prosecutrix was a consenting party and relying on the decision of the Apex Court in the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942 : (1965) CriLJ 33 : (1965) 1 SCR 243 held that the fact of accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father�s house or even of telling her not to accompany him, and held that no case under Sections 363 and 366 of the Indian Penal Code, 1860 is made out against the respondent.

In respect of offence under Section 376 of the Indian Penal Code, 1860, the prosecutrix in her statement very categorically stated that the accused has not committed any sexual intercourse with her, and therefore, learned trial Court acquitted him from the offence punishable under Section 376 of the Indian Penal Code, 1860.

Prosecutrix (PW-1) in her statement has deposed that in the night there was a dispute in her family; when she had gone to attend the call of nature, accused Aziz Khan met her, but she did not utter a word. As she wanted to commit suicide, but the accused saved her life and took her to Indore where they stayed for a period of seven months. On 2nd August, 2013, they came to Village Hamukhedi, District Ujjaiin at the house of the accused. At village Hamukhedi, police personnel came and took her to Police Station and after medical examination, she was handed over to her parents vide Ex. P/3. She has been declared hostile. In paragraph 10 of her statement, she admitted that she stayed with the accused as his wife. She denied that accused exhorted her or due to fear, she was in the company of the accused. In paragraph 12, she very categorically stated that she had no physical relation with the accused. In paragraph 13, she denied that she is making false statement before the court due to fear of accused Aziz or his family members. In paragraph 16, she expressed her desire to stay and live along with accused. In paragraph 16 of her cross-examination, she has deposed that now she is 18 years� of age and she wants to stay along with accused.

Ibrahim Khan (PW-2), father of the prosecutrix, in paragraph 6 of his deposition stated, that her daughter narrated the whole incident that the accused lured her and kept at village Hamukhedi for a period of seven months and also committed rape upon her. In paragraph 9, he stated that when prosecutrix was recovered, at that time, she was 16 years� of age, and therefore, on the basis of Superdagi Panchnama Ex. P/3, she was handed over to him. In his cross-examination, this witness has deposed that after a period of seven months, he met his daughter at Nalkheda Police Station. In paragraph 14, he also admitted that he does not know orally about the date of birth of the prosecutrix. In paragraph 15, he admitted that accused Aziz was known to him from his childhood.

Badri Prasad Gothi (PW-3) Head Constable has recorded missing report vide Ex. P/5.

Dr. Arti Parmar (PW-4) in her statement has deposed that as per medical examination of the prosecutrix no external or internal injury was found on the person of the prosecutrix. She suspected about pregnancy of the prosecutrix, but for positive pregnancy, sonography test was advised, but no report is on record nor ossification test of the prosecutrix was conducted to prove her age. In paragraph 4 of her cross-examination, she very categorically admitted that sonography, pregnancy and U.P.T. report was not produced before her nor the same is on record. She also admits that she never referred the prosecutrix for ossification test.

Mohanlal Dashmaniya (PW-5) is Government Teacher of Primary School. He proved the scholar register Ex. P/8 in which date of birth of the prosecutrix is recorded as 05.06.1997. In paragraph 3 of his cross-examination, this witness has categorically stated that no birth certificate was produced to the school to record the date of birth of the prosecutrix. He also admits that father of the prosecutrix gave date of birth and on the basis of the aforesaid information, in the scholar register, date of birth of the prosecutrix has been recorded.

Shabina Bee (PW-6) is mother of the prosecutrix. She in her statement made allegation that the prosecutrix was lured by the accused and forcibly took her with him. But statement of the father and mother of the prosecutrix has been disbelieved by the learned trial Court, because they were hearsay witnesses. When the prosecutrix especially denied in her statement about rape, and therefore, learned trial Court relying on the statement of the prosecutrix gave finding that no case for committing offence under Section 376 of the Indian Penal Code, 1860 is made out and acquitted the respondent from the alleged offence.

In respect of the judgment of the Apex Court in the case of S. Varadarajan v. State of Madras (supra), which has been relied upon by the learned trial Court, it is submitted that in the aforesaid case, girl was at the age of discretion, as she was college going girl, and her age was around 17 years, and therefore, the said judgment is distinguishable on facts.

Shri Deepak Rawal, learned Deputy Advocate General has drawn our attention to the statement of the prosecutrix and other prosecution witnesses and submitted that the prosecutrix was below 18 years� of age, and therefore, as per Section 361 of the Indian Penal Code, 1860, offence under Section 363 of the IPC is made out. Learned trial Court committed an error in acquitting the respondent from the offence under Sections 363 and 366 of the Indian Penal Code, 1860 and prayed, that the findings recorded by the learned trial Court to that effect are erroneous and prayed that appeal be allowed and respondent be convicted.

Per contra, Shri Asif Warsi, learned counsel for the respondent has drawn our attention to the decision of the Apex Court in the case of S. Varadarajan v. State of Madras (supra) and submitted that the aforesaid decision still holds the field and on identical facts, Hon''ble Supreme Court considered the provisions of Section 361 of the Indian Penal Code, 1860 in paragraph 7 of the judgment, which has been quoted by the learned trial Court and submitted that there is distinction between "taking" and "allowing a minor to accompany a person". Paragraph 9 of the decision of the Apex Court in the case of S. Varadarajan v. State of Madras (supra) is relevant, which reads, as under:--

"It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father''s protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian."

In the present case also, the statement of the prosecution witnesses establishes that though immediately prior to the minor leaving the father�s protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our considered opinion, if evidence to establish one of those things is lacking, it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of her lawful guardian merely because after she has actually left her guardian�s house and when she was going to commit suicide, accused met her and tried to save her and thereafter, she joined the accused and the accused helped her in her design not to return her guardian�s house by taking her along with him to his house where she stayed for a period of more than six months.

During trial, the accused/respondent was in custody from 04.08.2013 and was released after the impugned judgment of acquittal has been passed by the trial Court on 31.10.2013. If we appreciate the evidence of the prosecutrix and other prosecution witnesses, there is no evidence of any inducement proceeding from the end of the accused. Therefore, we are of the view that the prosecutrix had already left her parents'' guardianship. We are of the view that the ratio laid down by the Apex Court in the case of S. Varadarajan v. State of Madras (supra) will fully apply to the present facts and circumstances of the case. Learned trial Court rightly acquitted the respondent from the alleged offence by the impugned judgment and order dated 31.10.2013. No case to interfere with the aforesaid finding of fact, which has recorded on the basis of the admission made by the prosecutrix. Criminal Appeal No. 579/2014 filed by the State has no merit and is accordingly dismissed.

Copy of this judgment be sent to the trial Judge.