Madhya Pradesh High Court
Sultan Baba vs The State Of Madhya Pradesh on 28 March, 2025
Author: Atul Sreedharan
Bench: Atul Sreedharan
1 CRA-286-2015
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ATUL SREEDHARAN
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 28th OF MARCH, 2025
CRIMINAL APPEAL No. 286 of 2015
SULTAN BABA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Ms. Savita Choudhary - Advocate for the appellant.
Ms. Shweta Yadav- Deputy Advocate General for respondent/State .
ORDER
Per: Justice Atul Sreedharan Today this case has been listed for orders on I.A No. 11314 of 2024 for grant of suspension and bail pending appeal. However, as the last application was dismissed on merits, the present application is also dismissed. However, with the consent of the parties, the matter is taken up for final hearing.
2. The appellant is aggrieved by judgment and order dated 27.12.2014 by which the appellant was sentenced to life imprisonment interalia, for the offence under section 376(2)(N) of the I.P.C and for offence under section 4 of the POCSO Act.
3. The case of the prosecution is that the daughter of the complainant went missing when she went to answer the nature's call on 01.11.2013. He Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 3/29/2025 10:34:56 AM 2 CRA-286-2015 gave the missing report, which is Ex. P-2. Pursuant to that a search was carried out for the missing girl and she was recovered on 17.11.2013 from the company of the appellant. The case of the prosecution is that the appellant is an exorcist, who allegedly cures people through exorcism. The parents of the prosecutrix used to take her for treatment to the appellant who used to subject her to exorcism in the name of curing her. On 01.11.2013, when she went to the field to answer nature's call, she says that the appellant came to the spot and asked her to marry him, which she refused on account of difference in religion and thereafter she says that she does not know what kind of spell the appellant chanted that she fell unconscious and thereafter was in his custody for some time, during which he repeatedly raped her.
4 . Learned counsel for the appellant submits that the case is of consent. She has taken this Court through the statement of the prosecutrix, who is PW-3, where she has stated that she was subjected to exorcism by the appellant herein on various occasions, sometime at her own house and that she had even stayed with him for a month, where she was treated through exorcism. She further states that on the date of incident she was allegedly taken away by the appellant, the prosecutrix never tried to set herself free and neither did she raise an alarm to be rescued by the people nearby. Learned counsel for the appellant has also referred to the M.L.C of the prosecutrix, which is Ex. P-14, where the doctor has recorded that as per the information given to her by the prosecutrix, she ran away with a boy of another village on 01.11.2013. She further states that there were no injuries detected on the body of the prosecutrix, which goes to reflect that she was in Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 3/29/2025 10:34:56 AM 3 CRA-286-2015 the company of the appellant by consent the entire time till recovered by the police on 17.11.2013. As regards the F.S.L report pertaining to the underwear and and vaginal slide taken from the prosecutrix reflects that there was sperm on the vaginal slide and underwear of the prosecutrix only goes to show that she was there with the appellant willingly. She has also referred to the statement of the PW-4, who is father of the prosecutrix, wherein in his cross examination he was confronted with the Ex. P-2, which is the missing person report, in which the age of the prosecutrix was given as 18 years. The father of the prosecutrix states that he does not know how 18 years has been entered as age of the prosecutrix and reiterated that the prosecutrix was only 17 years of age on the date of incident. He also states that the year of birth of the prosecutrix is 1997. It is relevant to mention here that the father of the prosecutrix PW-2, does not specifically her mention date of birth.
5. Learned counsel for the appellant has also referred to statement u/s. 164 Cr.P.C given by the prosecutrix in which she has stated that she was taken away by an unknown person and does not name of the appellant herein. When confronted with the discrepancy between her examination-in- chief and statement given under section 164, the prosecutrix has stated that she could not explain the reason why. However, the prosecutrix has been confronted with her 161 statement the relevant portion being that she was in love with the appellant. Thus, it is seen that in the 161 statement, the name of the appellant has specifically been mentioned in the admitted portion of the statement u/s. 161 Cr.P.C with which the prosecutrix was confronted with, which can be relied upon because has taken the name of the appellant in her Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 3/29/2025 10:34:56 AM 4 CRA-286-2015 testimony while admitting that part of the 161 statement. Learned counsel for the appellant further submits that the evidence regarding date of birth as given by PW-5, who is Principal of School where the prosecutrix was studying, her date of birth entered in the school record is 10.07.1997. However, according to learned counsel for the appellant the source of this information has not been specifically mentioned, therefore, she says that there is discrepancy between the statement given by PW-5 and PW-4, father of the prosecutrix.
6 . Learned counsel for the State on the other hand submits that the conviction arrived by the learned trial Court is in consonance with the material available on record. She has further argued that the question of consent does not arise in this case because prosecutrix was a minor of 17 years on the date of the offence. She further submits that the appellant misused his position of authority and control being an exorcist who was treating her by performing exorcism on the prosecutrix periodically and therefore won over faith of the prosecutrix and after that misused his position and authority over the confidence and trust reposed upon him by the prosecutrix and her parents and had taken her away and committed rape with her. She further submits that there is no discrepancy as far as the age of prosecutrix is concerned, as father of the prosecutrix, who is PW-4 has stated even in his cross examination that the year of birth of the prosecutrix is 1997 and date of birth given in the school record is 10.07.1997 as stated by the PW-5. She has further drawn the attention of this Court to the M.L.C of the prosecutrix, which reflects that her hymen was torn, which is proof of the Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 3/29/2025 10:34:56 AM 5 CRA-286-2015 fact that she was subjected to repeated sexual intercourse by the appellant, and has referred to the F.S.L report also which reflect that there was sperm on the underwear and vaginal slide taken from the prosecutrix. All the evidence put together, specifically shows that the prosecutrix was in the company of a man, had sexual intercourse with him and was a minor. Learned counsel for the State further submits that the identity of the appellant cannot be doubted merely because the same has been left out in the 164 statement of the prosecutrix as defence has confronted her with her 161 statement with the specific part where the name of the appellant arises just to prove the fact that the prosecutrix was romantically inclined towards the appellant. Thus, on account of cross examination conducted by the counsel for the accused, the identity of the appellant has been stated specifically by the prosecutrix and therefore the same is not left to doubt.
7. Heard learned counsel for the parties and perused the record of learned trial Court.
8. The prosecutrix was taken away on 01.11.2013 and was recovered from the company of the appellant on 17.11.2013, as per the case of the prosecution. Thus, she was there with the appellant for nearly 16 days. The nature of the evidence which has come on record reflects that the prosecutrix willingly went with the appellant and element of consent as stated by learned counsel for appellant is available. To that extent this Court is in agreement with the learned counsel for the appellant.
9 . As regards sexual intercourse itself, this Court finds three pieces of evidence; (i) statement of the prosecutrix herself, who says that she was Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 3/29/2025 10:34:56 AM 6 CRA-286-2015 subjected to sexual intercourse by the appellant; (ii) M.L.C of the prosecutrix, which reflects that the hymen was torn, which also a proof of fact of sexual intercourse and (iii) F.S.L report which clearly discloses the presence of human sperm on the underwear and vaginal slide of the prosecutrix. Undoubtedly, M.L.C and F.S.L report by themselves will not go to prove that the appellant was the one who was involved, the only fact that is proved is that the prosecutrix was subjected to sexual intercourse and there was a man involved. However, the statement of the prosecutrix, which has not been controverted in cross examination by the defence in relation to the person with whom she had sexual intercourse goes to disclose the identity of the appellant herein and that the appellant is the person with whom she had sexual intercourse. The provisions of POCSO Act are stringent and it is a special statute, which provide stringent punishment. The consent of the prosecutrix is immaterial and no consent in law if she is found to be minor on the date of the offence. In fact, the POCSO is not gender specific and an adult woman can also be punished if she has a physical relationship with a boy under the age of eighteen even with his consent. Though this Court finds that the prosecutrix willingly went with the appellant, The fact remains that she was a minor and that has been sufficiently proved by the statement of the Principal of the School, where she studies and also by the statement of father of the prosecutrix. Both these pieces of evidence when seen in conjunction, goes to establish that the prosecutrix was born in the year 1997. Even if there is doubt with regard to the specific date of birth of the prosecutrix, and even if the date, for the sake of an argument is taken as 01.01.1997, even then the Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 3/29/2025 10:34:56 AM 7 CRA-286-2015 prosecutrix would be minor as on 01.11.2013.
10. Under the circumstances, in view of what has been argued, considered and held by this Court hereinabove, this Court finds no error in the marshalling and appreciation of evidence, reasoning given and finding of the learned trial Court in the judgment of conviction and sentence imposed. Under the circumstances, the appeal is dismissed.
(ATUL SREEDHARAN) (DEVNARAYAN MISHRA)
JUDGE JUDGE
tarun
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 3/29/2025
10:34:56 AM