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2011 Supreme(MP) 648
2012(1) JLJ 131
Brij Kishore Dubey, J.
Bhojraj v. State of M.P.
Criminal Appeals No.851 of 2005 and 99 and 251 of 2006 (Gwalior) : against the judgment of Additional Sessions Judge, Sabalgarh, District Morena, passed in Trial No.303 of 2002; Decided on 23.8.2011.
N.P. Dwivedi, Brijesh Sharma and Anoop Nigam for appellants;
B.K. Sharma, Public Prosecutor for respondent/State.
Headnote:(1) Penal Code, 1860 -- Ss.366, 366A, 368 and 376(2)(g) -- offence of kidnapping and rape --no previous enmity between the parties proved -- no reason for false implication -- victim submissive because of being under constant fear -- cannot be considered as accomplice -- submission under the influence of fear or terror -- does not amount to consent -- offence proved.
Held : She had been kidnapped by five adult male persons and threatened her and she was taken away from her village and kept confined her in a room under strict surveillance. In such circumstances, she took a sensible decision not to raise alarm and any alarm at unknown place might have endangered her life. The absence of alarm by her cannot be led to an inference that she had willingly accompanied the appellants .... She has no free act of mind during her stay with the appellants as she was under constant fear. (2010)8 SCC 714 followed. AIR 1965 SC 942, AIR 1994 SC 966 and AIR 1979 SC 1276 distinguished.
(2) Age -- if cogent and reliable evidence regarding age of prosecutrix available on record -- then, ossification test loses its importance -- age cannot be determined on the basis of such test in such premises. (2009)4 SCC 18, 2006(2) BLJ 81 (SC) and AIR 2011 SC 697 followed. 1996 Vidhi Bhasvar 269 and 1994(1) Vidhi Bhasvar 114 referred to.
[Paras 24 to 30
(3) Penal Code, 1860 -- S.376 -- testimony of rape victim if inspires full confidence -- discrepancies and omissions cannot be annexed with undue importance unless affect the core of prosecution. AIR 1983 SC 753, AIR 1983 SC 911 and 2006(2) JLJ 135 (SC) followed. [Paras 21 to 23
(4) Penal Code, 1860 -- S.376 -- victim of rape -- cannot be treated as an accomplice -- corroboration to act upon her evidence -- not necessary. AIR 2011 SC 697 referred to. [Para 20
(5) Penal Code, 1860 -- S.376 -- offence of rape -- if consent of victim is disproved -- issue of majority becomes irrelevant. (2010)8 SCC 714 followed. [Para 43
¼1½ naM lafgrk] 1860 && /kkjk 366] 366d] 368 rFkk 376¼2½¼N½ && O;igj.k rFkk cykRlax dk vijk/k && i{kdkjksa ds e/; dksbZ dksbZ iwoZ ‘k=qrk lkfcr ugha && feF;k vkfyIr djus ds fy, dksbZ dkj.k ugha && vuojr~ Hk; ds v/khu gksus ds dkj.k ihfM+r o‘; && lg&vijk/kh ugha ekuk tk ldrk && Hk; ;k vkrad ds izHkko ds v/khu ijo‘krk && lgefr dh dksfV esa ugha vkrh gS && vijk/k lkfcrA
vfHkfu/kkZfjr % mldk ik¡p o;Ld iq:"k O;fDr;ksa }kjk O;igj.k fd;k x;k rFkk /kedh nh xbZ rFkk mls mlds xzke ls ys tk;k x;k rFkk dBksj fuxjkuh ds v/khu d{k esa ifj:) fd;k x;kA ,slh ifjfLFkfr;ksa esa] mlus ‘kksj us epkus dk mfpr fu.kZ; fy;k rFkk vKkr LFkku ij dksbZ ‘kksj mlds thou dks ladV esa Mky ldrk FkkA mlds }kjk ‘kksj ds vHkko ls ;g vuqeku ugha yxk;k tk ldrk fd mlus vihykFkhZx.k dk bPNkiowZd lkFk fn;k FkkA -----vihykFkhZx.k ds lkFk mlds Bgjus ds nkSjku mlds efLr"d dk Lora= dk;Z ugha Fkk D;ksafd og vuojr~ Hk; ds v/khu FkhA ¼2010½ 8 ,l lh lh 714 vuqlfjrA , vkb vkj 1965 ,l lh 942] , vkb vkj 1994 ,l lh 966 rFkk , vkb vkj 1979 ,l lh 1276 izHksfnrA
¼2½ vk;q & ;fn vfHk;ksD=h dh vk;q ds ckjs esa n`<+ rFkk fo‘oluh; lk{; vfHkys[k ij miyC/k gks && rc vfLFkfodkl ijh{k.k dkj egRo ugha jgrk && ,slh fLFkfr esa bl ijh{k.k ds vk/kkj ij vk;q dk vo/kkj.k ugha fd;k tk ldrkA ¼2009½ 4 ,l lh lh 18] 2006¼2½ ch ,y ts 81 ¼mPpre U;k-½ rFkk , vkb vkj 2011 ,l lh 697 vuqlfjrA 1996 fof/k HkkLoj 269 rFkk 1994 ¼1½ fof/k HkkLoj 114 fufnZ"VA ¼iSjk 24 ls 30
¼3½ naM lafgrk] 1860 & /kkjk 376 && ;fn cykRlax ihfM+r dk ifjlk{; iw.kZ fo‘okl mRiUu djrk gS && folaxfr;ksa rFkk yksiksa dks vlE;d~ egRo ugha fn;k tk ldrk tc rd fd os vfHk;kstu ds dsanz&fcanq dks izHkkfor u djsaA , vkb vkj 1983 ,l lh 753] , vkb vkj 1983 ,l lh 911 rFkk 2006 ¼2½ ts ,y ts 135 ¼mPpre U;k-½ vuqlfjrA ¼iSjk 21 ls 23
¼4½ naM lafgrk] 1860 && /kkjk 376 && cykRlax dh ihfM+r && lg&vijk/kh ugha ekuk tk ldrk && mlds lk{; dks izHkko nsus ds fy, laiqf"V && vko‘;d ughaA , vkb vkj 2011 ,l lh 697 fufnZ"VA ¼iSjk 20
¼5½ naM lafgrk] 1860 && /kkjk 376 && cykRlax dk vijk/k && ;fn ihfM+r dh lgefr uklkfcr && o;Ldrk dk eqn~nk vlaxrA ¼2010½ 8 ,l lh lh 714 vuqlfjrA ¼iSjk 43
1. The judgment passed in this appeal shall also govern disposal of connected Appeal No.99/06 (Sultan Singh v. State of M.P.), and Criminal No.251/06 (Ramautar v. State of M.P.), since all these appeals have arisen from a common judgment passed by the learned trial Court in Sessions Trial No.303 of 2002, convicting all the appellants.
2. Feeling aggrieved by the judgment of conviction and order of sentence dated November 30, 2005 passed by the learned Additional Sessions Judge, Sabalgarh, District Morena, in Sessions Trial No.303/2002 (State of M.P. v. Roop Singh) convicting the appellants of this appeal and the connected criminal appeals and sentenced them as under :
Name of the Convicted Sentence
appellant u/sections
Bhojraj 366 IPC Rigorous imprisonment for 7 years and to and pay fine of Rs.200/- in default to suffer simple imprisonment for one month.
376(2)(g) IPC Rigorous imprisonment for 10 years and to pay fine of Rs.250/- in default to suffer simple imprisonment for one month.
Bharat Singh 366(A) IPC Rigorous imprisonment for 7 years and to pay fine of Rs.200/- in default to suffer simple imprisonment for one month.
Sultan Singh 366 IPC Rigorous imprisonment for 7 years and to and pay fine of Rs.200/- in default to suffer simple imprisonment for one month.
376(2)(g) IPC Rigorous imprisonment for 10 years and to pay fine of Rs.250/- in default to suffer simple imprisonment for one month.
Ramautar 366 r/w Rigorous imprisonment for 7 years and to 368 IPC pay fine of Rs.200/- in default to suffer simple imprisonment for one month.
with a further direction that the jail sentences of Bhojraj and Sultan Singh shall run concurrently, the convicted appellants of this appeal and the connected criminal appeals have preferred the appeals under section 374 of the Code of Criminal Procedure, 1973.
3. The appeal filed by co-appellant, Roop Singh (Criminal Appeal No.851/05) stood dismissed as abated against him as he had died and his name has been deleted from the cause title of the appellants.
4. The prosecution case, in brief, may be narrated as under :
(i) That, in the night of December 20, 2000 Ramdayal (PW4) and his family members were sleeping in his house. When wife of Ramdayal, Geeta (PW5) woke up in the night at about 11:00 hours, she found that her daughter, Guddi alias Suman, aged 14 years was not in the house, then she informed accordingly to her husband, Ramdayal. Ramdayal and his family members searched for her but finding that she was untraceable, then in the morning of December 21, 2000, Ramdayal’s father, Aangad Singh went to the Police Station Kailaras and lodged missing person report of his grand-daughter, Guddi which was registered at missing person report No.7/2000 dated 21.12.2000. During the investigation, it was revealed that Mehtab Singh Gurjar (absconding co-accused) had kidnapped Guddi alias Suman, therefore, offence at Crime No.2/2001 under sections 363 and 366 of IPC was registered at Police Station Kailaras on January 6, 2001. In the further investigation, Guddi alias Suman was recovered on December 26, 2001. Her statement was recorded and she was got medically examined. Thereafter, offence under section 376 of IPC was added and other persons were included as accused;
(ii) That, after investigation, a charge-sheet was submitted against the appellants of the present appeals as well as Rameshwar, Mehtab Singh, Pappu and Neksiya (in total 9 accused persons) in the committal Court, which on its turn, committed the case to the Court of Sessions from where it was received by the trial Court for the trial; and
(iii) That, co-accused, Rameshwar, Mehtab Singh, Pappu and Neksiya could not be arrested as they were absconding and, hence, their names were shown in the charge-sheet as absconders and they were declared proclaimed offenders.
5. The learned trial Court on the basis of the material placed on record framed charge punishable under sections 366 and 376(
