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2017 Supreme(MP) 1228
IN THE HIGH COURT OF MADHYA PRADESH
G.S. AHLUWALIA, J.
Arjun Ahirwar – Petitioner
Versus
State of M.P. – Respondent
Cri. Appeal No. 879 of 2014
Decided On : 02-02-2017
Advocate Appeared:
For the Petitioner: Raghuveer Singh.
For the Respondent: R.D. Agarwal.
The legal principle established is that the age of the prosecutrix, medical evidence, and absence of consent from legal guardians are crucial in determining guilt for kidnapping and sexual offences against a minor.
Headnote:
Kidnapping - Sexual Offences - Indian Penal Code, sections 363, 366, 376(2)(n) - Protection of Children from Sexual Offences Act, 2012, section 6 read with section 5(1)
Fact of the Case:
The appellant was convicted under sections 363, 366, 376(2) of Indian Penal Code and under section 6 read with section 5(1) of Protection of Children from Sexual Offences Act, 2012 for kidnapping a minor girl, engaging in physical intercourse with her, and impregnating her.
Finding of the Court:
The court found the appellant guilty of kidnapping the minor girl, subjecting her to physical intercourse, and impregnating her. The court affirmed the trial court's judgment and maintained the appellant's conviction and sentence.
Issues: The main issues were the age of the prosecutrix at the time of the incident, whether she was a consenting party, and the guilt of the appellant for kidnapping and rape.
Ratio Decidendi: The court relied on the prosecutrix's age, medical evidence of pregnancy, and the absence of consent from her legal guardians to conclude that the appellant was guilty of kidnapping and sexual offences.
Final Decision: The appellant's appeal was dismissed, and the conviction and sentence under sections 363, 366, 376(2)(n) of Indian Penal Code and section 6 read with section 5(1) of Protection of Children from Sexual Offences Act, 2012 were maintained.
ORDER :
1. Shri Raghuveer Singh, counsel for the appellant. Shri R.D. Agarwal, Panel Lawyer for the respondent/State. This appeal has been filed under section 374 of Criminal Procedure Code against the judgment dated 25-7-2014 passed by Additional Sessions Judge, Chachaura, District-Guna in Special Sessions Trial No. 05/2014 by which the appellant has been convicted under sections 363, 366, 376(2) of Indian Penal Code and under section 6 read with section 5(1) of Protection of Children from Sexual Offences Act, 2012.
2. The allegations against the appellant are that on 23-6-2013 at about 6-7:00 A.M. the appellant kidnapped the prosecutrix aged about 15 to 16 years. The prosecutrix remained in the company of the appellant from 23-6-2013 till 29-12-2013 and during this period, the appellant had frequent physical intercourse with her. It is also undisputed fact that the appellant and the prosecutrix were known to each other and the appellant took the prosecutrix to Kota and Jakota and at the time of recovery, she was having a pregnancy of 22-24 weeks.
3. The prosecution story in short is that a missing person report was lodged by Suraj Lal (PW-2) on 25-6-2013 in Police Station-Kumbhraj to the effect that his daughter is missing from 23-6-2013. Crime No. 188/2013 for offences punishable under sections 363, 366 of Indian Penal Code was registered and on 29-12-2013, when the prosecutrix was recovered, a recovery memo (Exhibit P/1) was prepared. The statement of the prosecutrix was recorded. The prosecutrix was handed over to the custody of her parents and punchnama was prepared. The consent of the prosecutrix was obtained for medical examination and Dr. Reshma Pathan medically examined the prosecutrix. In order to ascertain the age and the fetus of the prosecutrix, she was referred to Guna Hospital. Sonography was done in Guuna Hospital and the report was given. The appellant was arrested and he was got medically examined. The school certificate of the prosecutrix was obtained in order to prove her age. The clothes, vaginal swab of the prosecutrix as well as undergarment of the appellant were sent to the FSL. Accordingly, a charge-sheet was filed against the appellant for offences punishable under sections 363, 366, 376 and 342 of Indian Penal Code and under section 6 of Protection of Children from Sexual Offences Act, 2012.
4. By order dated 13-1-2014, charges under sections 363, 366, 376(2)(n) of Indian Penal Code and under section 6 read with section 5(1) of Protection of Children from Sexual Offences Act, 2012 were framed.
5. The appellant abjured his guilt and pleaded not guilty.
6. The prosecution, in order to prove its case, examined the prosecutrix (PW-1), Suraj Lal (PW-2), Rachhna Bai (PW-3), Kalyan (PW-4), Dr. Reshma Pathan (PW-5), Jagdish Kumar Uikey (PW-6), Amar Lal (PW-7), Brijmohan (PW-8), Vijay Singh (PW-9), Dr. Sitaram Raghuvanshi (PW-10) and Ravinder Singh (PW-11).
7. The appellant did not examine any witness in his defence.
8. The first question for determination is that what was the age of the prosecutrix on the date when she was alleged to have been kidnapped.
9. Jagdish Prasad Uikey (PW-6) has stated that he was working on the post of Headmaster in Government Primary School, Bahukheedi. He had stated that on 3-1-2014, some police personnel from the police station, Kumbhraj had come in order to get the certificate pertaining to the date of birth of the prosecutrix. A certificate (Exhibit-P/8) was issued by him on the basis of the entry available in the school record and as per the school record, the date of birth of the prosecutrix is 2-5-1998. The original admission register of the school was also brought by this witness and on the basis of the date of birth mentioned in the admission register, certificate was issued.
10. In the cross-examination, this witness has admitted that the said certificate was issued by him without there being any written request. No application was given by the concerning police personnel. This
