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2018 Supreme(MP) 771
IN THE HIGH COURT OF MADHYA PRADESH
(DIVISION BENCH)
Huluvadi G. Ramesh and Rajendra Kumar Srivastava, JJ.
Bhagwan and another v. State of M. P.
Criminal Appeal No. 2090 of 1999 with 1703 of 2001 (Jabalpur): against the judgment dated 13.7.1999 passed by the II
Additional Sessions Judge, East Nimar, Khandwa in Sessions Trial No. 13 of 1999; Decided on 5.12.2018
Amit Dubey for appellants;
Vaibhav Tiwari, Public Prosecutor for respondent/State.
Headnote:(1) Penal Code, 1860 -- Ss.366 and 376 -- engagement had taken place between accused and prosecutrix -- presence of semen on undergarments cannot be ruled out -- no evidence to show that sexual intercourse took place -- no injury on person of prosecutrix including her private part -- clearly shows that she was consenting party -- above 16 years of age on date of incident -- abrasion on neck could be self-inflicted -- appellant No. 1 had worked under father of victim -- there was some animosity or misunderstanding over payment -- possibility of false implication cannot be ruled out -- no cogent evidence of involvement of appellant No. 2 to allure, procure and send prosecutrix to appellant No. 1 - prosecution unable to establish case of rape and abduction. (2007)12 SCC 57 and 2010(2) JLJ 85, followed. [Paras 25, 29 to 35
(2) Penal Code, 1860 -- S.375 sixthly and 376 (2) (i) -- as per radiologist, age of prosecutrix would be around 14-15 years -- margin of error in age ascertained by radiological examination is two years on either side -- age determined by ossification test can be accepted as above 16 years on date of incident for giving consent -- investigating officer could not explain why he did not bring birth register though it was available in police station -- age determined by ossification test is more probable and reasonable. AIR 1982 SC 1297 followed. [Paras 23 & 25
¼1½ naM lafgrk] 1860 && /kkjk 366 rFkk 376 && vfHk;qDr vkSj vfHk;ksD=h ds e/; lxkbZ gqbZ Fkh && varoZL=ksa ij 'kqØk.kqvksa dh fo|ekurk vlaHko ugha && ;g n'kkZus dks lk{; ugha fd eSFkqu gqvk && vfHk;ksD=h ds xqIrkaxksa lfgr 'kjhj ij dksbZ {kfr ugha && Li"Vr% nf'kZr fd og lEer i{k Fkh && ?kVuk ds fnukad dks 16 o"kZ ls vf/kd vk;q dh && xys ij [kjksap Lo;a igq¡pkbZ xbZ gks ldrh gS && vihykFkhZ Ø-1 us ihfM+rk ds firk ds v/khu dk;Z fd;k Fkk && lank; ds ckjs esa dqN 'k=qrk vFkok xyrQgeh Fkh && feF;k vkysiu dh laHkkouk vlaHko ugha && vfHk;ksD=h dks vihykFkhZ Ø-1 ds ikl Qqlyk dj vkSj mikIr dj Hkstus esa vihykFkhZ Ø-2 ds varoZfyr gksus dk dksbZ rdZiw.kZ lk{; ugha && vfHk;kstui{k cykRlax vkSj vigj.k dk ekeyk LFkkfir ugha dj ldkA ¼2007½12 ,l lh lh 57 rFkk ¼2010½3 ,l lh lh 232 vuqlfjrA ¼iSjk 25] 29 ls 35
¼2½ naM lafgrk] 1860 && /kkjk 375 NBok¡ rFkk 376¼2½¼>½ && fofdj.k &fpfdRlk foKkuh ds vuqlkj vfHk;ksD=h dh o; 14&15 o"kZ ds vklikl gksxh && fofdj.k&fpfdRlk ijh{kk }kjk vfHkfuf'pr o; esa xyrh dk varj nksuksa vksj nks o"kZ gS lgefr nsus ds fy, ?kVuk fnukad dks] vfLFkfodkl ijh{kk }kjk voèkkfjr o; 16 ls vf/kd Lohdkj dh tk ldrh gS && vUos"k.k vf/kdkjh Li"V ugha dj ldrk fd og tUe jftLVj D;ksa ugha yk;k tcfd iqfyl Fkkus esa miyCèk Fkk && vfLFk fodkl ijh{kk }kjk vo/kkfjr o; vf/kd vf/klaHkkO; vkSj ;qfä;qä gSA , vkb vkj 1982 ,l lh 1297 vuqlfjrA ¼iSjk 23 ,oa 25
Ramesh, J.-- 1. These two appeals have been filed against the impugned judgment of conviction and order of sentence dated 13.7.1999 passed by the learned Second Additional Sessions Judge, East Nimar, Khandwa in Sessions Trial No. 13/1999. Therefore, both the appeals are being taken up for hearing together and decided by this common judgment.
2. Criminal Appeal No. 2090/1999 has been filed by the appellants feeling aggrieved by their conviction and sentence whereby the Trial Court has convicted the appellant No.1 Bhagwan for the offence punishable under section 366 of IPC and sentenced him to suffer RI for three years and fine of Rs.300/-, in default of payment of fine, RI for six months; further convicted him under section 376 of IPC and sentenced to RI for five years and fine of Rs.500/-, in default of payment of fine, RI for one year; further convicted him under section 506 Part II of IPC and sentenced him to suffer RI for one year and fine of Rs.200/-, in default of fine RI for further one month. Further convicted appellant No. 2 - Devakibai for the offence under section 363 of IPC and sentenced her to RI for three years and fine of Rs.200/-, in default of payment of fine further RI for six months and further convicted her for the offence punishable under section 366 of IPC and sentenced her to suffer RI for three years and fine of Rs.300/-, in default of payment of fine, further RI for six months. All sentences to run concurrently.
3. Criminal Appeal No.1703/2001 has been filed by the State under section 377(i) of CrPC for enhancement of sentence imposed upon appellant No. 1 Bhagwan.
4. According to the prosecution, on 8.11.1998, at around 7:30 PM, complainant Jangu (PW3), who is father of the prosecutrix “S”, lodged a report at Police Station Chhaigaonmakhan to the effect that prosecutrix has been lost in their house. The same was recorded at Rojnamchasanha No. 254 (Ex.P-8). Report is to the effect that they live at Village Karoli and on the date of incident had gone for labour work. His wife had also accompanied him but in the evening she returned back some time earlier than him. When the complainant returned, his wife informed him that the victim is not at home. They searched her here and there but the victim was not found. As such, father of the victim lodged a missing report describing his daughter. Thereafter, the crime was registered at Police Station Chhaigaonmakhan.
5. During the course of investigation, it was found that accused persons had kidnapped the victim from the lawful custody of her parents and appellant No.1 Bhagwan has committed rape upon her. The victim was medically examined and ossification test was conducted to ascertain her age. The Investigating Agency after investigating the case framed the charges against the appellant No. 1 under sections 363, 366, 376, 506(2) of IPC while appellant No. 2 was charged with the offence under sections 363 and 366 of IPC, which the appellants denied and requested for the trial. Apart from the appellants, charge-sheet was also filed against Guddibai and Jashodabai for the offence under sections 363 and 366 of IPC.
6. The prosecution, thereafter, examined its witnesses and also proved certain documents. Learned trial Court framed following four questions for determination and holding the appellants-accused guilty of the offence, which are :
(i) Whether on the date of incident all the accused had kidnapped the victim from the lawful custody of her parents without her consent?
(ii) Whether on the date, time and place of incident, the prosecutrix was kidnapped by the accused persons with a view to forcibly commit illegal intercourse or violate her or was induced to marry without her consent?
(iii) Whether during the intervening night of 8.11.1998 and 9.11.1998 in the forest of Sahejla accused Bhagwansingh repeatedly violated the prosecutrix without her consent?
(iv) Whether on 8.11.1998 at about 4 p.m. in village Karoli while kidnapping the prosecu
