Madhya Pradesh High Court
Dharmendra Kumar Saket vs The State Of Madhya Pradesh on 21 January, 2020
Author: Vishnu Pratap Singh Chauhan
Bench: Vishnu Pratap Singh Chauhan
HIGH COURT OF MADHYA PRADESH : JABALPUR
S.B : HON.SHRI JUSTICE VISHNU PRATAP SINGH CHAUHAN
Cr.R.No.807/2018
Dharmendra Kumar Saket and others
Vs.
The State of M.P.
Shri Dharmendra Kumar Shah, learned counsel for
the applicants.
Shri Ashok Singh, learned Panel Lawyer for the
respondent/State.
ORDER
(21/01/2020) The applicants, who have been arraigned as an accused in the trial of Special Case No.300041/2016 arising out of Crime No.459/2016 registered at Police Station, Mada, Distt. Singrauli, have filed this revision under Section 397 read with Section 401 of Cr.P.C. being aggrieved by the order dated 06/02/2018 passed by Additional Sessions Judge to the Court of 1st Additional Sessions Judge and Special Judge (Protection of Children from Sexual Offences Act), Waidhan, Distt. Singrauli whereby charges have been framed against against the applicant No.1 for the offences punishable under Sections 363, 366, 376(2)(>), 376(2)(<). of IPC, under Section 5(B)/6 of Protection of Children from Sexual Offences Act, 2012, against 2 applicants No.2, 3, 4 for the offences punishable under Sections 376(2)(>) read with Section 109, 376(2)(<). 506 Part-II of IPC, under Section 5(B)/6 read with Section 17 of Protection of Children from Sexual Offences Act, 2012 and against applicant No.5 for the offences punishable under Sections 363, 366 of IPC.
2. The case of prosecution against each applicant, in short, is that applicant No.1-Dharmendra Kumar Saket forcibly caught hold prosecutrix when she was coming back after answering the call of nature and forcibly took her on motorcycle in Village Dhoni in the house of applicant No.4- Smt. Nagina Saket alias Binni who provided facility to accused/ applicant No.1-Dharmendra Kumar Saket where applicant No.1-Dharmendra Kumar Saket forcibly committed rape upon prosecutrix and kept her whole night in the house of applicant No.4. The prosecutrix, who was aged about 15 years, below the age of 18 years, was minor at the time of incident. Applicant No.5-Shiv Prasad Saket alias Binna Saket, who is son of applicant No.4 also facilitated applicant No.1-Dharmendra Kumar Saket for aiding the act of applicant No.1-Dharmendra Kumar Saket. On the next day, applicant 3 No.1-Dharmendra Kumar Saket forcibly took prosecutrix on motorcycle at Village Kachani and kept her in the house of applicant No.3-Sudarshan Saket who facilitated applicant No.1-Dharmendra Kumar Saket who forcibly kept prosecutrix and committed rape upon her. Father of applicant No.1 namely Asharafi Lal Saket (applicant No.2) came at the house of applicant No.3-Sudarshan Saket and pressurized the prosecutrix to solemnize Court marriage otherwise he will kill her and also threatened prosecutrix that she will not utter anything against applicant No.1-Dharmendra Kumar Saket to any one.
2. In the meantime, when brother of prosecutrix found her missing and also found applicant No.1-Dharmendra Kumar Saket missing from his house in the village, then he lodged the report. During search of prosecutrix, Police came in the house of applicant No.1-Dharmendra Kumar Saket, then again applicant No.1-Dharmendra Kumar Saket, applicant No.2-Asharafi Lal Saket and applicant No.3-Sudarshan Saket threatened prosecutrix not to utter the name of any one of applicants about the act committed against her otherwise they will kill her. On reaching home prosecutrix narrated the 4 whole incident to her family members, thereafter lodged a report against the applicants.
3. Learned counsel for the applicant submits that no case is made out against applicants No.2 to 5. Learned trial Court has wrongly framed the charges against the applicants. No offence has been made out against applicants No.2 to 5. It is further submitted that prosecutrix is a consenting party. She went along with applicant No.1-Dharmendra Kumar Saket. She is major aged about 19 years. Doctor did not found any internal and external injury on the body of prosecutrix. No evidence of forcible sexual intercourse found in the material collected during investigation, therefore, no case is made out against all the applicants, hence prayer is made to discharge the applicants of the charges.
4. On the other hand, learned Panel Lawyer vehemently opposes the aforesaid prayer made on behalf of the applicants and submits that the applicants had committed the heinous offence for which they are liable to severely punish as there is sufficient material available on record against them. This revision has been filed on wrong grounds, therefore, prays for dismissal of the revision.
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5. Having heard learned counsel for the parties and perused the documents filed along with this petition as well as the case diary of Crime No.459/2016 registered at Police Station Mada, Distt. Singrauli.
6. After perusal of the statement of prosecutrix recorded under Sections 161 and 164 of Cr.P.C. and the documents, it reveals that the date of birth of prosecutrix recorded as 17/07/2001 in the Govt. Primary School, Karsuaraja in the scholar register of Class-1 and the date of incident was 02/08/2016, thus, prima facie the age of prosecutrix at the time of incident was 15 years two months i.e. below the age of 16 years. If the age is disputed, it can be decided on the basis of evidence produced by both the parties i.e. prosecution as well as defence. If the prosecutrix is below the age of 18 years, the argument that prosecutrix is a consenting party, is not material in such circumstances. No doubt, prosecutrix seems minor and other applicants kept the prosecutrix in their house knowing that she had been abducted by applicant No.1-Dharmendra Kumar Saket from the custody of her brother and family members and also provided shelter to applicant No.1-Dharmendra Kumar Saket 6 thereby aiding in committing rape upon prosecutrix. In this way, prima facie, ingredients of offence under Section 368 of IPC and Section 16, Thirdly, Explanation-II of Protection of Child from Sexual Offences Act, 2012 come in the picture.
7. Section 368 of IPC reads as under :
"368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person.- Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement."
Section 16, Thirdly, Explanation-II of POCSO Act reads as under :
"16. Firstly.- ..............
Secondly.- ...........
Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that offence.
Explanation-II.- Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."7
8. Prosecutrix is minor, therefore, the ingredients of offence under Section 16, Thirdly, Explanation-II, POCSO Act are also prima facie attracted in regard to the act of applicants No.2 to 5. The act of applicant No.1-Dharmendra Kumar Saket is prima facie reflected from the documents. Learned trial Court has not committed any error in framing the charges against applicant No.1-Dharmendra Kumar Saket. So far as framing of charges against applicants No.2 to 5 are concerned, no doubt, learned trial Court has not framed the charges against them properly. However, after perusal of the charges framed against applicants No.2 to 5, it seems that it requires amendment as there is prima facie material shows sufficient grounds for proceeding against applicants No.2 to 5 in the trial. Thus, there is no need to discharge all the applicants of the charges. Trial Court may alter the charges by invoking the powers envisaged under Section 216 of the Code of Criminal Procedure during trial. In these circumstances, this Court is of the firm view that there is no ground available for discharging the applicants of the charges.
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9. In view of aforesaid discussions, this criminal revision sans merit and the same is hereby dismissed. There shall be no order as to cost.
10. Interlocutory application, if any, is pending, the same stands dismissed.
11. Let copy of this order be sent to the trial Court for information and necessary action.
(Vishnu Pratap Singh Chauhan) Judge ts Digitally signed by TULSA SINGH Date: 2020.01.22 15:46:19 +05'30'