Sanjay Kumar vs State Of Madhya Pradesh

This appeal under Section 374 of the Code of Criminal Procedure has been filed against the judgment of conviction and order of sentence dated

3.8.1999 passed by Fourth Additional Sessions Judge, Ujjain in S. T. No.180/98 whereby the appellant has been convicted under Section 363 of the

IPC and sentenced to undergo 6 years RI along with fine of Rs.1000/-, with default stipulation as mentioned in the impugned judgment.

The facts in brief giving rise to this appeal are that on 16.2.1998 the prosecutrix, below 18 years of age, was found missing from the house, for

which, a missing person report was recorded in the Police Station Makron, District Ujjain on the information of the step father of the prosecutrix.

Later on, the prosecutrix was recovered and on 2.3.1998 her statement was recorded, in which, she disclosed that on 16.2.1998 the appellant came to

her house and she came for natural call out of the house.Seeing her, the appellant asked her for roaming and enticed her and took her by bus to

Depalpur and various other places and committed rape with her. Her medical examination was conducted with regard to collecting evidence of

commission of rape and for determination of age of the prosecutrix. After completion of the investigation, charge sheet was filed before the court

concerned from where the case was committed to the court of Fourth Additional Sessions Judge, Ujjain and the appellant was tried for commission of

offence punishable under Sections 363, 366n and 376 of the IPC. Learned trial court acquitted the appellant / accused of the charges under Sections

366 and 376 of the IPC but convicted under section 363 of the IPC and sentenced as mentioned above.

Learned trial court has convicted the appellant / accused on the finding that on the date of incident, the prosecutrix was minor and the appellant took

her without consent of her lawful guardian.

On behalf of the appellant / accused, the aforesaid finding has been assailed on the ground that the finding with regard to age of the prosecutrix is

based on incredible evidence. Natural parents of the prosecutrix have not been examined to prove the age of the prosecutrix. The prosecutrix herself

went with the appellant and she has been found to be of more than 17 years old at the time of incident. She has having knowledge to understand the

consequences and left the house on her own will. There is nothing on record to prove the fact that the appellant / accused enticed the prosecutrix to

leave the house without permission of her lawful guardian. In other words, the evidence adduced by the prosecution is not sufficient to prove the case

beyond reasonable doubt. Hence, the appellant/ accused deserves acquittal.

Learned counsel for the appellant has placed reliance on a judgment of the Apex court in the case ofS. Varadarajan Vs. State of Madras, AIR

(SC) 1965 Page 942. Relevant Paragraphs no. 9 and 10 are quoted here 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 circumstances 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 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.

It would, however, be sufficient if the prosecution 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 opinion, if evidence to establish one of

those things is lacking it would not be legitimate to infer that the accused is guilty taking the minor out of the keeping of the lawful guardian merely

because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in

her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be

regarded as facilitating the fulfillment of the intention of the girl. That part, in out opinion, falls short of an inducement to the manor to slip out of the

keeping of her lawful guardian and is, therefore, not tantamount to “takingâ€​.

On behalf of the appellant, on the strength of the aforesaid pronouncement of the Apex Court, prayed that the appellant be acquitted.

Learned Government Advocate opposed the aforesaid contention and stated that there is a material on record to establish the fact that the appellant

induced the prosecutrix to leave the house without consent of legal guardian. Hence, the appeal be dismissed.

Having considered the contentions of learned counsel for both the parties and on perusal of the record, so far as the finding with regard to the age

of the prosecutrix is concerned, the prosecution has produced birth certificate Ex.P/3 which has been proved by Kanhaiyalal (PW-2) Headmaster of

the school concerned, according to him, as per the entry of school register, date of birth of the prosecutrix was recorded as 12.7.1983 which was

recorded on the basis of mark sheet of the 5th class. This witness was unable to disclose the actual source of date of birth. But on behalf of the

prosecution, medical evidence has also been produced. Dr. A.K. Pal (PW-1) Radiologist has stated that he examined the prosecutrix on 4.3.1998 and

on the basis of radiological examination, the age of the prosecutrix was near about 15 years. In this regard, his report is Ex.P/1 and X-ray report is

Ex.P/2. Learned trial court considering the margin of error of two years in the medical opinion determined the age of the prosecutrix near about 17

years. Learned trial court has not committed any error in appreciation of the aforesaid evidence and the finding that at the time of incident, age of the

prosecutrix was below 18 years does not require any interference. Hence, it is upheld.

Now the question is that whether the appellant took or enticed the prosecutrix to leave the house of the parents without the consent of her lawful

guardian. In this case, the prosecution has not adduced the evidence of mother of the prosecutrix as a witness who was the natural guardian of the

prosecutrix. Apart from it, grand father who at the time of incident was at home has also not been examined. Step father Ramesh (PW-4) has only

been examined but at the time of incident he was not at the house. In this case, the prosecutrix's mother is legal guardian of the prosecutrix. This court

cannot deny that the step father cannot be considered to be legal guardian of the step daughter. But both of them were out of the house at the time of

the incident and grand father Devi Singh was only in the house who was also lawful guardian of the prosecutrix. His examination was very essential

as at that time he was in a position to give permission to the appellant or the prosecutrix to go with the appellant. In absence of the statement of Devi

Singh, it cannot be said that the prosecution has established beyond reasonable doubt that the prosecutrix was taken by the appellant without consent

of the lawful guardian. The mother of the prosecutrix was also material witness in this case. In absence of her statement it cannot be said that in

absence of permission of the mother of the prosecutrix, the prosecutrix was taken by the appellant. It is the duty of the prosecution to prove its case

beyond reasonable doubt, in this regard, burden cannot be shifted on the accused to prove that he took the prosecutrix with the consent of the lawful

guardian of her. In the circumstances, in view of this court, the prosecution has failed to prove that the appellant took the prosecutrix without the

consent of the lawful guardian of her.

Apart from it, if this court considers the facts of the case in the light of the aforesaid judgment of the Apex court, the prosecutrix herself went with

the appellant. The appellant did not entice her or induce her to leave her house without consent of her lawful guardian. However, in her statement the

prosecutrix (PW3) has stated that the appellant asked her to bring the key of the house and also asked to give Rs.2000/- for roaming along with him

and then the appellant took her on motorcycle. But all these facts are missing in her police statement Ex.D/1. The averments of the FIR Ex.P/6

disclosed that in the house grand father Devi Singh locked the room and kept the key with him which was found missing and lock was found open and

the prosecutrix was also missing. This fact shows that the prosecutrix opened the lock from inside, therefore, there is no need to make demand of key

by the appellant and she also went with the appellant after taking Rs.2000/- with her from the house and has remained so many days with the

appellant without any resistance. All these facts and circumstances of the case show that she herself went with the appellant willfully and there is no

circumstance to establish the fact that the appellant enticed or induced the prosecutrix to slip out of the keeping of her lawful guardian. Therefore, in

the aforesaid background also, it is found that the prosecution has failed to prove the fact that the appellant took or induced the prosecutrix without the

consent of her lawful guardian.

In view of the aforesaid discussion, the finding of the learned trial court is not sustainable in the eyes of law and the appeal deserves to be allowed.

Hence, the appeal is allowed and the impugned judgment of conviction and order of sentence passed against the appellant are hereby set-aside. The

appellant is acquitted of the charge levelled against him. He is on bail. His bail bonds stand discharged. Fine amount, if any deposited by the appellant,

the same be returned to him.

A copy of this order be sent to the trial court for information and its compliance.