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IN THE HIGH COURT OF MADHYA PRADESH
G. S. Ahluwalia, J.
Ranu Kushwaha v. State of M. P.
Criminal Appeal No. 358 of 2009 (Gwalior); against the judgment dated 21.4.2009 passed by II Additional Sessions Judge (Fast Track), Ganjbasoda, Vidisha in Sessions Trial No. 205 of 2006;
Decided on 4.10.2018
(2) Penal Code, 1860 -- Ss.375 Sixthly (unamended) and 376 -- prosecutrix above 16 years of age -- went with accused/appellant on her own to different places -- never complained on way, nor to any of the relatives where she stayed -- even met police personnel on railway station but admitted that out of friendship, she did not complain against appellant -- shows that prosecutrix was consenting party - appellant cannot be held guilty for offence under section 376. 2013(III) MPWN 169 (SC) followed. [Paras 12 & 16
(3) Penal Code, 1860 -- Ss. 375 Sixthly and 376 -- Criminal P. C., 1973 -- Ss. 161 and 172 -- prosecutrix above 16 years of age on date of incident -- having physical relations with accused/appellant prior to date of incident -- mentioned in case diary statement but not part of evidence recorded in Court -- cannot be considered against interest of accused. [Para 15
(4) Criminal P. C., 1973 -- Ss.161 and 172 -- Evidence Act, 1872 -- Ss. 80 and 145 -- case diary statement -- not a substantive piece of evidence -- can be used for corroborative purposes and to find out contradictions or improvements -- any allegation in case diary statement not mentioned in evidence cannot be considered against interest of accused. [Para 15
(5) Penal Code, 1860 -- Ss.361, 363 and 366A -- it is an offence against guardian -- consent of minor immaterial -- only material aspect is that consent of guardian should be obtained before taking or enticing minor out of lawful guardianship of guardian. (2003)1 SCC 605, (2018)1 SCC (Cri.) 840 and AIR 1965 SC 942 followed. [Para 21
(6) Penal Code, 1860 -- Ss.361, 363 and 366A -- "entice" -- would necessary mean that minor is persuaded -- "takes" would necessarily include taking away minor by putting her under fear, without her willingness. [Para 23
(7) Penal Code, 1860 -- Ss.361, 363 and 366A -- prosecutrix undisputedly below 18 years - asking her to run away with him -- would certainly amount to persuasion -- accused/appellant guilty -- in jail for 1 year 26 days -- period already undergone would serve interest of justice. [Paras 24 to 26
¼1½ lk{; vf/kfu;e] 1872 && /kkjk 80 NBk rFkk 145 && vfHk;kstui{k dk nLrkost && lkfcr vkSj iznf'kZr ugha && U;k;ky; vfHk;qDr ds i{k esa ml ij lnSo fopkj dj ldrk gSA ¼iSjk 10 ¼2½ naM lafgrk] 1860 && /kkjk 375 NBk ¼vla'kksf/kr½ rFkk 376 && vfHk;ksD=h 16 o"kZ ls vf/kd vk;q dh && vfHk;qä@vihykFkhZ ds lkFk LosPNk ls fHkUu&fHkUu LFkkuks aij xbZ &&jkLrs esa dgha f'kdk;r ugha dh vkSj tgk¡ og :dh] ogk¡ fdlh fj'rsnkj dks Hkh f'kdk;r ugha dh &&jsy LVs'ku ij iqfyl dfeZ;ksa ls Hkh feyh ijarq Lohdkj fd;k fd ca/kqRo ds dkj.k mlus vihykFkhZ ds fo:) f'kdk;r ugha dh && nf'kZr gksrk gS fd vfHk;ksD=h lEer i{kdkj Fkh && vihykFkhZ }kjk 376 ds vèkhu vijk/k ds fy, nks"kh vfHkfu/kkZfjr ugha fd;k tk ldrkA 2013¼3½ e-iz- ohDyh uksV~l 169 ¼mPpre U;k-½ vuqlfjrA ¼iSjk 12 ,oa 16 ¼3½ naM lafgrk] 1860 && /kkjk 375 NBk rFkk 376 && naM izfØ;k lafgrk] 1973 && /kkjk 161 rFkk 172 &&?kVuk fnukad dks vfHk;skD=h 16 o"kZ ls vf/kd vk;q dh && ?kVuk fnukad ds iwoZ ls vfHk;qDr@vihykFkhZ ds lkFk 'kkjhfjd laca/k && dsl Mk;jh dFku esa mfYyf[kr ijarq U;k;ky; esa vfHkfyf[kr lk{; dk Hkkx ugha && vfHk;qDr ds fgrfc:) fopkj ugha fd;k tk ldrkA ¼iSjk 15 ¼4½ naM izfØ;k lafgrk] 1973 && /kkjk 161 rFkk 172 && lk{; vf/kfu;e] 1872 && /kkjk 80 rFkk 145 && dsl Mk;jh dFku && lkjHkwr lk{; ugha && larks"kd iz;kstuksa ds fy, rFkk fojks/kkHkkl ,oa lq/kkj irk yxkus ds fy, mi;ksx fd;k tk ldrk gS && dsl Mk;jh dFkuksa esa ,sls fdlh vfHkdFku ij vfHk;qä ds fgrfo:) fopkj ugha fd;k tk ldrk tks lk{; esa mfYyf[kr ughA ¼iSjk 15 ¼5½ naM lafgrk] 1860 && /kkjk 361] 363 rFkk 366d && laj{kd ds fo:) vijk/k gS && vzizkIro; dh lEefr rRoghu && ,dek= rkfRod igyw ;g gS fd laj{kd dh fof/kiw.kZ laj{kdrk ls vizkIro; dks ys tkus ;k cgdk ys tkus ds iwoZ laj{kd dh lEefr vfHkizkIr dh tkuk pkfg,A ¼2003½1 ,l lh lh 605] ¼2018½1 ,l lh lh ¼fØ-½ 840 rFkk , vkb vkj 1965 ,l lh 942 vuqlfjrA ¼iSjk 21 ¼6½ naM lafgrk] 1860 && 361] 363 rFkk 366d && ßcgdk ys tkukÞ && vko'd;r% vfHkiszr gS fd vizkIro; dks euk fy;k x;k && ßys tkukÞ esa vizkIro; dks Hk; fn;k dj mldh jtkeanh ds fcuk ys tkuk vko';dr% lfEefyr gksxkA ¼iSjk 23 ¼7½ naM lafgrk] 1860 && /kkjk 361] 363 rFkk 366d && vfHk;ksD=h fufoZokfnr :i ls 18 o"kZ ls de dh && mls vius lkFk Hkkxus ds fy, dguk && fuf'pr :i ls euk ysus dh dksfV esa vk,xk && vfHk;qä@vihykFkhZ nks"kh && 1 o"kZ 26 fnu ls dkjxkj esa && Hkksxh tk pqdh vof/k ls U;k;fgr dh iwfrZ gksrh gSA ¼iSjk 24 ls 26
1. This criminal appeal under section 374(2) of CrPC has been filed against the judgment dated 21.4.2009 passed by 2nd Additional Sessions Judge (Fast Track), Ganjbasoda District Vidisha in Sessions Trial No. 205/2006, by which the appellant has been convicted for an offence under sections 363, 366-A and 376 of IPC and has been sentenced to undergo rigorous imprisonment of three years and a fine of Rs.500/- and rigorous imprisonment of three years and a fine of Rs.500/- and rigorous imprisonment of seven years and a fine of Rs.500/- respectively with default imprisonment. All the sentences have been directed to run concurrently.
2. The prosecution story, in short, is that the complainant Narendra Sharma lodged a Guminsan report on 21.7.2006 that his daughter is missing. Accordingly, Guminsan No. 34/2006 was registered. In the report, it was alleged that at about 10:00 p.m. he went to sleep after taking his meal and his daughter (prosecutrix) and other children were sleeping together. At about 12:00 in the night, when the complainant woke up for getting himself eased, then he found that his eldest daughter is not there. He tried to search her but could not know about her whereabouts. The police ultimately registered the FIR in Crime No. 525/2006. The prosecutrix was recovered. Statements of the witnesses were recorded. The prosecutrix as well as the accused were sent for medical examination and the appellant was arrested. The police after concluding the investigation filed the charge-sheet for offence under sections 363, 366A and 376 of IPC.
3. The Trial Court by order dated 29.11.2006 framed the charge under sections 363, 366A and 376 of IPC.
4. The appellant abjured his guilt and pleaded not guilty.
5. The prosecution in order to prove its case examined the prosecutrix (PW1), Narendra Sharma (PW2), Smt. Jamna Sharma (PW3), Ramratan (PW4), Harish @ Hemant (PW5), Durgaprasad Shrivastava (PW6), Anuradha (PW7), Sumer Singh (PW8), Anita Singh (PW9), Dr. P.K. Jain (PW10), Ghanshyam Sarma (PW11), Shivraj Tiwari (PW12) and Shailendra Singh (PW13).
6. The appellant did not examine any witness in his defence.
7. The trial Court by judgment dated 21.4.2009 passed in S.T. No. 205/2006 convicted the appellant for offence under sections 363, 366A and 376 of IPC and awarded the jail sentence as mentioned in the previous paragraph.
8. Challenging the judgment and sentence passed by the Court below, it is submitted by the counsel for the appellant that the prosecutrix was major on the date of the incident and the trial Court itself has come to a conclusion that the date of birth of the prosecutrix was 2.4.1990 and the incident took place on 20.7.2006. Thus, according to the trial Court itself the prosecutrix was more than 16 years of age on the day when she eloped with the appellant. Since the incident took place prior to the amendment in IPC, therefore, at the relevant time, under section 375 (6thly) of IPC, the offence was treated as raped if the prosecutrix is below 16 years of age. Since the prosecutrix was above 16 years of age, therefore, the fact that whether the prosecutrix was a consenting party or not would assume importance. By referring to the evidence of prosecutrix (PW1), it is submitted by the counsel for the appellant that according to the prosecutrix (PW1), at about 11:00-12:00 in the night, the prosecutrix went outside the house to answer the call of nature, then at the point of knife, appellant took her to a nearby place, where he committed rape on her. In the night itself, the appellant took her to the house of her Bua and from where, he took her to Vidisha to the house of his parents and where ever she was taken, the appellant had committed rape on her and prior to that she was never subjected to sexual intercourse. Although in the examination-in-chief itself, the prosecutrix had stated that she was not in love with the appellant and she did not go with him on her own but she admitted that she stayed with the appellant
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