Madhya Pradesh High Court
Lakhan Singh And Ors. vs State Of M.P. on 4 February, 2004
Equivalent citations: 2004CRILJ2473, 2004(2)MPHT146
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
JUDGMENT
1. Feeling aggrieved by the judgment of conviction and order of sentence dated 28-2-2000 passed by learned IInd Addl. Sessions Judge, As-
hoknagar, Distt. Guna in Sessions Trial No. 348/1998, the appellants have preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973. Learned Trial Court convicted the appellants and passed the sentences against them as under :--
Name Offence Sentence
(i) Shivraj 363, IPC 5 years' R.I. with fine of Rs. 1000/- in default one year's R.I. 366A, IPC 7 years' R.I. with fine of Rs. 1000/- in default one year's R.I. 376, IPC Seven year's RI with fine of Rs. 1000/-in default, one year's R.I.
(ii) Lakhan 363, IPC 5 Year's R.I. with fine of Rs. 1000/- in default one year's R.I. 366A, IPC Seven years' R.I. with fine of Rs. 1000/-in default, one year.'s R.I. 118, IPC Five years' R.I. with fine of Rs. 1000/- in default one year's R.I.
(iii) Rani Bai Raghuvanshi 118, IPC Five years' R.I. with fine of Rs. 1000/-, in default R.I. for one year.
(iv) Pran Singh 118, IPC Five years' R.I. with fine of Rs. 1000/- , in default one year's R.I. In brief, the case of prosecution is that in the mid night of 10-4-1998, accused Rani Bai came inside the house of prosecutrix who was sleeping there and asked to accompany her. Both of them came out from the house and went to the house of Rani Bai where, accused persons namely Shivraj and Lakhan were present. Thereafter, these two accused persons carried the prosecutrix on a Rajdoot Motor Cycle and went to the Bus Stand from where, it is said that Lakhan came back to his house and accused Shivraj carried the prosecutrix to Village Maholi in a bus. It is said that in Village Maholi, accused Shivraj kept the prosecutrix at the house of his maternal uncle namely Pran Singh who is also an accused in this case. These two persons stayed for 15 days and during this period, it is said that Shivraj committed rape for several times, despite being resisted by the prosecutrix. After 15 days, one day prosecutrix came out from the house and ran away. On the way, she met with her brother Kamal Singh who was searching her. Thereafter, FIR (Ex. P-1) was lodged by prosecutrix on 30-4-1998. Earlier to this report, one Hari Singh who is the brother of the prosecutrix lodged a missing report of on 11-4-1998 in Police Station, Shadhora.
2. On the basis of FIR (Ex. P-1), lodged by the prosecutrix, a case under Sections 363, 376 and 366A/34 of the IPC was registered against Shivraj and Lakhan and the criminal law was set in motion. The Investigating Officer sent prosecutrix for medical examination, recorded statements of the witnesses and seized the necessary articles. During investigation, Investigating Officer found that accused Rani Bai and Pran Singh also committed offence, as such, they were also arrayed as accused persons. After completion of the investigation, the prosecution filed charge-sheet before the Competent Court who on its turn, committed the case to the Court of Session and from where, it was received by the Trial Court for trial.
3. Learned Trial Judge, on perusal of charge-sheet, framed the charges punishable under Sections 363/34, 366A and 376 of IPC against Shivraj. Accused Lakhan was charged under Sections 363/34, 366A and 376 of IPC, accused Rani Bai was charged under Sections 363/34 and 366A of IPC and similarly, accused Pran Singh was charged under Sections 363/34 and 366A of IPC. Needless to emphasis that all the accused persons abjured their guilt. The defence of the accused persons is that of false implication. In their defence, accused persons examined one Ghanshyam Singh Raghuvanshi who is a teacher of Primary School, Mathner.
4. In order to prove the charges, the prosecution examined as many as fourteen witnesses and placed the documents (Ex. P-1 to P-27) on record. In defence, accused persons examined one Ghanshyam Singh Raghuvanshi (D.W. 1).
5. The learned Trial Judge, after appreciating evidence, came to hold that the appellants committed offences as mentioned hereinabove and eventually they have been convicted to suffer the sentences which have been mentioned by me hereinabove, hence, this appeal.
6. In this appeal, Shri R.K. Shrivastava, learned Counsel for the appellants assisted by Shri M.M. Tripathi and Pramod Pachauri, submitted that if the entire evidence of the prosecution and the defence evidence is considered in proper perspective, no offence has been made out. According to learned Counsel on going through the evidence, one could safely say that the prosecutrix was the consenting party and if that be the position, no offence is made out as the prosecutrix is a major lady.
7. Combatting the aforesaid submission of learned Counsel for the appellants, it has been contended by Ku. Sudha Srivastava, learned Counsel appearing for the respondent-State that the Trial Court gave cogent reasons for holding that the prosecutrix was a minor on the date of incident and if that is the position then even if she was a consenting party, it can not be said that the offence was not committed. According to her, the appeal sans substance and the same be dismissed.
8. After having heard learned Counsel for the parties, I am of the view that this appeal deserves to be allowed.
9. The appellant Shivraj was charged under Sections 363/34, 366A and 376 of IPC. Accused Lakhan Singh was charged under Sections 363/34, 366A and 376 of IPC and other two accused persons namely Rani Bai and Pran Singh were charged under Sections 363/34 and 366A, IPC. In order to prove offence punishable under Sections 363, 366A and 376 of IPC, age of the prosecutrix is a relevant factor and plays a vital role. If the prosecutrix is a mirror girl then even if her consent is there, offence would be made out. However, if the prosecutrix is a major lady, then whether she is a consenting party, is to be seen. Thus, I shall decide first that what was the age of the prosecutrix on the date of commission of offence.
10. On going through the FIR (Ex. P-1), it is gathered that the incident took place on 10-4-1998 and thus, I have to see that what was the age of the prosecutrix on this date. Though in the FIR (Ex, P-1), the prosecutrix stated her age to be 17 years, however, if the evidence of the Hari Singh (P.W. 9) who is the brother of the prosecutrix coupled with the evidence of Ghanshyam Singh (D.W. 1) alongwith the school entry register is marshalled, the only inference which could be gathered is that on 10-4-1998, the prosecutrix was a major lady. The prosecutrix herself in Para 9 has stated that his elder brother Kamal Singh is two years elder to her and his age is 22 years which would mean that her age on the date of deposition, i.e., (19-4-1999), was 20 years and therefore, on the date of incident, i.e. 10-4-1998, her age would be 19 years' and thus, according to the prosecutrix own showing, on the date of incident, she was a major lady.
11. Apart from the evidence of prosecutrix, her brother Hari Singh (P.W. 9) in Para 8 says that the age of the prosecutrix is 23 years. This witness was examined on 10-6-1999 and if we calculate the age of the prosecutrix, it would come to 22 years on the date of incident. The prosecution though examined the father of the prosecutrix namely Onkar Singh (P.W. 2), but his evidence is silent so far as the age of the prosecutrix is concerned.
12. Accused persons in their defence examined a very relevant witness Ghanshyam Singh Raghuvanshi who is teacher of Primary School, Mathner, where the proseculrix studied. This witness brought the admission register of the school which is Ex. D-7. In this register, the date of birth of the prosecutrix has been mentioned as 21-9-1978 and hence the age of the prosecutrix according to the school register was more than 20 years on the date of the incident. The prosecutrix was also examined by the Radiologist on 8-5-1998. According to Dr. R.K. Jain (P.W. 6), the age of the prosecutrix on the date of examination was above 19 years and below 20 years. It would be relevant to mention that the prosecutrix was examined by Radiologist on 8-5-1998 as it appears from Ex. P-8. Thus, there is overwhelming evidence that on 10-4-1998, age of the prosecutrix was more than 18 years and she was a major lady. The finding of learned Trial Judge holding that the age of the prosecutrix was below 18 years on the date of incident, runs contrary to the evidence and as such, that finding is hereby set-aside and I hereby hold that on the date of incident, age of the prosecutrix was more than 18 years.
13. Now, the next question comes whether the prosecutrix was a consenting party or not. Shri R.K. Shrivastava, learned Counsel for the appellants has invited my attention to the statement of prosecutrix as well as FIR (Ex. P-1) and her police case diary statement (Ex. D-1). The learned Counsel for the appellants also invited my attention to the statement of the prosecutrix recorded under Section 164 of IPC which is Ex. P-15. If the testimony of the prosecutrix and these documents are considered in proper perspective, one could safely say that she was a consenting party. True, in cases under Section 376, the evidence of the prosecutrix alone is to be seen and no corroboration is required but it is equally true that if the evidence of the prosecutrix does not inspire any confidence, no conviction can be attributed on her bald statement.
14. In the FIR (Ex. P-1), it has been stated by the prosecutrix that on 10-4-1998, when she was sleeping in her house, Rani Bai who is mother of Lakhan came to her house and woke up her and thereafter, she accompanied her to her house, where Shivraj and Lakhan were present and both these accused persons carried her on a motorcycle to bus-stand from where, Shivraj took her away to Village Maholi, where she was kept for 15 days in the house of maternal uncle of accused Shivraj. In the FIR, she has further stated that during these 15 days, accused Shivraj was doing "Bura Kaam "with her despite she resisted. In the FIR she has not stated that what type of 'bura kaam" was being committed by Shivraj.
15. Statement under Section 164 of Cr.PC of the prosecutrix was recorded by the Magistrate and before Magistrate, the prosecutrix added a new story indicating that earlier to the date of the incident, appellant Shivraj committed rape upon her at the house of Lakhan, however, this fact does not find place in the FIR (Ex. P-1). The FIR was lodged on 30-4-1998 and the statement under Section 164 of Cr.PC was recorded on 8-54998. No explanation has been given by the prosecutrix why she did not narrate the earlier incident of rape in the FIR.
16. On going through the evidence of the prosecutrix, it is found that while she was sleeping in her house, the appellant Rani Bai came and asked to accompany her. Thereafter she without putting any resistance, went al-ongwith her without informing any member of her family. Thereafter, she alongwith Rani Bai went to Rani Bai's house, where accused Shivraj and Lakhan were present and thereafter without putting any resistance, she went alongwith these two persons on a motorcycle to the bus stand and from where, he went alongwith the accused Shivraj by bus to Village Maholi where she lived for 15 days. It has come in her evidence that during this period, she did not complain to anybody though she met with several persons including ladies.
17. In Para 11 of her statement, she stated that marriage was solemnized in a temple where certain photographs were taken. These photographs are Exs. P-2 to P-5. On bare perusal of these photographs, it is found that the prosecutrix is wearing the clothes which are being worn by a bride during her marriage. She is looking quite cheerful and bliss is appearing on her face. In one photograph it is seen that vermilion (Sindur) mark is being put by accused Shivraj. In the photographs, so many persons and ladies are also there. Apart from this, a very important fact has come in her evidence that before Collector, Vidisha, she alongwith Shivraj submitted an application for obtaining a marriage certificate but she did not complain to Collector that against her will appellant Shivraj has brought her. On going through the evidence of prosecutrix, it is also gathered that she went to the market of the township of Basoda and purchased some bangles but she did not complain to anybody. She further stated that she did not lodge any report at Basoda.
18. On going through the evidence of the prosecutrix, it is gathered that she was pregnant. In Para 15 of her statement, the prosecutrix says that when she was going on the motorcycle along with appellant Shivraj and Lakhan, these persons told her that she is being carried not for the abortion but for solemnizing marriage however, she did not resist and went alongwith Shivraj. In Para 2, she specifically says that when she was in Maholi for 15 days, appellant Shivraj did nothing with her while in the FIR, she says that appellant Shivraj did "bura kaam" with her during those 15 days. In Para 6, the prosecutrix says that one day Lakhan Singh also committed the same act in the same manner as Shivraj Singh did with her and Lakhan Singh also reached the stage of orgasm after cohabiting with her but this fact does not find place neither in the FIR nor in her police case diary statement. The evidence of prosecutrix is self contradictory on this point as in Para 25, she says that except appellant Shivraj, none else did "bura kaam",
19. On going through the evidence of the prosecutrix, it becomes luminously clear like a noon day that she was a consenting party. In the case of Munnalal v. State of M.P., 1977 JLJ 731, Division Bench of this Court while dealing with similar situation came to hold that the prosecutrix visited several places but she did not complain to anybody and in that situation, Division Bench held that no offence either under Sections 363 and 366 or under Section 376, IPC was made out. In this context, it shall be apposite to rely upon the decision of the Apex Court in the case of S. Vardarajan v. State of Madras, AIR 1965 SC 942, where a college going girl at the verge of majority telephoning accused and meeting him and going with him to Sub Registrar's Office for registering marriage agreement, it was held that no offence was made out. In the case of S. Vardarajan (supra), the girl was not even completed 18 years but she was on the verge of majority, even then, the Apex Court held that no offence is made out. If the ratio decidendi of S. Vardarajan's case is tested on the anvil of the present factual scenario, it would reveal that the prosecutrix as well as appellant Shivraj submitted an application for registering the marriage before Collector but prosecutrix did not complain to anybody. It has come in the evidence that so many lawyers were present but she did not complain to any of them nor she made any complaint to the Collector, on the contrary, she submitted an application for obtaining marriage certificate. Apart from this, there is evidence that she also got herself married in the temple in presence of so many persons and therefore, on the basis of overwhelming evidence, according to me, the prosecutrix was a consenting party.
20. Shri R.K. Srivastava, learned Counsel for the appellants has also invited my attention on the decisions of the Apex Court in the case of Kuldeep K. Mahato v. State of Bihar, AIR 1998 SC 2694 and Shyam v. State of Maharashtra, AIR 1995 SC 2169. The ratio decidendi decided of these cases as well as the facts squarely covers present case also and they are fully applicable on the facts of the present case and by placing reliance on these cases it is held that no offence is committed by the accused persons.
21. The learned Counsel for the appellants also placed reliance on the decisions of Badshah Khan v. State of M.P., reported in 1996 (I) MPJR-SN 19 and Peeru v. State of M.P., reported in 1996 (I) MPJR-SN 4. These two cases are also fully applicable in the present case.
22. Looking to the totality of the evidence as prosecutrix was a major lady and was a consenting party, it can not be said that any offence was committed by any of the accused. In these state of affairs, I have no option except to acquit the appellants and I accordingly do so.
23. In the result, appeal is allowed, the conviction of the appellants is hereby set aside. Appellants Lakhan and Shivraj are in jail, they be set at liberty forthwith if not required in any other case. Appellants Rani Bai and Pran Singh are on bail. Their bail bonds are discharged, the amount of fine, if deposited, be refunded to the appellants.