Madhya Pradesh High Court
Lokesh @ Mukesh And Anr. vs The State Of Madhya Pradesh on 7 July, 2017
Cr.A.No.292/2012
4.4.2017
Shri Jitendra Sharma on behalf of Shri Virendra Sharma, learned
counsel for the appellants.
Shri Himanshu Joshi, learned Panel Lawyer for the
respondent/State.
Arguments heard. Reserved for orders.
(Rajeev Kumar Dubey)
Judge
Patil
7.7.2017
Order passed separately, signed and dated.
(Rajeev Kumar Dubey)
Judge
Patil
Cr.A.No.292/2012
HIGH COURT OF MADHYA PRADESH
BENCH INDORE
SINGLE BENCH: HON'BLE SHRI JUSTICE RAJEEV KUMAR DUBEY, J.
Cr.A.No.292/2012
Lokesh @ Mukesh S/o Ganeshlal and another
Versus
State of M.P.
JUDGMENT
Post for 07/07/2017.
(Rajeev Kumar Dubey)
Judge.
07/07/2017.
Cr.A.No.292/2012
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
SINGLE BENCH: HON. JUSTICE SHRI RAJEEV KUMAR DUBEY, J.
Cr.A.No.292/2012Lokesh @ Mukesh S/o Ganeshlal and another Versus State of M.P.
------------------------------------------------------------------------------------------- Shri Jitendra Sharma on behalf of Shri Virendra Sharma, learned counsel for the appellants.
Shri Himanshu Joshi, learned Panel Lawyer for the respondent/State.
-------------------------------------------------------------------------------------------
JUDGMENT (Delivered on 07/07/2017) This criminal appeal has been filed under Section 374 of Cr.P.C. against the judgment of conviction dated 22.2.2012 passed by 7th Addl.Sessions Judge, Ujjain in S.T.No.280/2011, whereby learned Judge found appellants guilty for the offence under Section 363, 366 of IPC and sentenced them to undergo seven years and ten years RI with fine of Rs.200 - 200/- and Rs.500 - 500/- respectively and also found appellant No.1 Lokesh @ Mukesh guilty for the offence under Section 376(I) of IPC and sentenced him to undergo ten years RI with fine of Rs.500/- with default stipulation.
2. Brief facts of the case are that on 21.3.2011 Shanti Bai (PW-2) lodged missing person report Ex.D/8 at P.S., Barnagar, Ujjain averring that on the same day when she had gone to market for some work from home, her daughter prosecutrix (PW-1) (name and identity imposed by law contained in Section 228 of IPC is not disclosed) was at home. When she returned after finishing work from the market she did not find the prosecutrix at home, then she asked her young daughter Sharmila who told her that prosecutrix had gone out from home without giving any information. She suspected that her girl (prosecutrix) may have taken by neighbour appellant Lokesh. On that missing person case No.13/2011 Cr.A.No.292/2012 was registered at P.S., Barnagar. On 25.3.2011 prosecutrix returned to her home. On that Shanti Bai (PW-2) mother of prosecutrix took her at P.S., Barnagar, where Head Constable Karan Singh (PW-7) prepared recovery memo (ExP/1) of prosecutrix and recorded her statement. From her statement it is revealed that on 21.3.2011 at 1.00 PM when prosecutrix was standing on Otla in front of her house and her younger sister Sharmila (PW-3) was inside the house, appellants came there on motorcycle. Appellant Lokesh @ Mukesh took out a knife and told her to come with him on which She asked Lokesh as why she would go with him. On this Lokesh told her that if she would not go with him he would kill her and Lokesh gloved her hands and forcibly took her on a motorcycle. That motorcycle was being driven by appellant Lokesh and Raju sat behind her (prosecutrix) and they took her to Ratlam at his relative's house. After leaving prosecutrix to the relative's house Raju went from there. In that house Lokesh @ Mukesh committed rape with the prosecutrix on the point of knife and kept her in that house for three days. On 25.3.2011 prosecutrix escaped from that house and returned to her home and narrated the incident to her mother Shanti Bai (PW-2). On that Head Constable Karan Singh (PW-7) sent her for medical examination alongwith letter Ex.P/13. Dr.Vinita Khatod (PW-4) examined her and also prepared slide of vaginal discharge of prosecutrix and also seized her undergarments and pubic hairs and sent to Police Station in a sealed packet alongwith seal impression and Police prepared seizure memo Ex.P/11. The statements of prosecutrix (PW-1), her mother Shanti Bai (PW-2), her younger sister Sharmila (PW-6) and Head Constable Karan Singh (PW-7) were recorded and on finding that appellants had abducted prosecutrix and that appellant Lokesh @ Mukesh committed rape with her, Crime No.111/2011 was registered for the offence punishable under Section 363, 366, 376, 506 read with Section 34 of IPC. To ascertain prosecutix's age her ossification test was conducted by Dr.Ramesh Pandya (PW-9), who gave report Ex.P/15 that prosecutrix's age was 16 years. Appellant Mukesh was arrested on 26.3.2011 and co-accused Rajulal was arrested on 20.3.2011 arrest memos Ex.P/5 and Ex.P/8 were Cr.A.No.292/2012 respectively prepared . Appellant Lokesh @ Mukesh also was medically examined by Dr.Bhaskar Bangde (PW-5), and was found capable of doing intercourse and gave report ExP/10. Doctor also seized underwear of accused-appellant Lokesh and prepared slide of his semen and sent it to Police Station, where after seizing that article seizure memo Ex.P/12 was prepared. During interrogation Appellant Lokesh gave information regarding concealment of knife. On his information knife was also recovered from his possession and information memorandum Ex.P/7 and seizure memo Ex.P/6 were prepared. P.C.Chouhan (PW-10) prepared spot map and sent all seized articles to FSL, Gwalior along with a draft Ex.P/18 and after completion of investigation Police filed charge sheet against the appellants before JMFC, Barnagar, who committed the case to the Court of Sessions, where S.T.No.280/2011 was registered. Learned 7th Addl.Sessions Judge, Barnagar framed charge against appellant Lokesh @ Mukesh for the offence punishable under Section 363, 366, 506 Part II and 376(1) of IPC and against appellant Rajulal under Section 363,366 of IPC and tried the case. However, appellants abjured their guilt and took defence that they have falsely been implicated in the case. The prosecutrix was major and consenting party and also produced Udayveer Singh (DW-1) and Moolibai (DW-2) in defence.In this regard also produced photographs of prosecutrix and affidavit of prosecutrix and the alleged report lodged by the prosecutrix Ex.D/3 to Ex.D/7 respectively to prove the fact that she was a consenting party and herself came to appellant's house. The prosecution produced as many as ten witnesses to prove its case. However, after trial learned trial Court acquitted the appellants for the offence punishable under Section 506 Part II of IPC but found them guilty for the offence punishable under Section 363, 366 of IPC and also found appellant Lokesh guilty for the offence punishable under Section 376(1) of IPC and sentenced them as aforesaid. Being aggrieved by the same appellants filed this criminal appeal.
3. Learned counsel for the appellants submitted that prosecutrix was major at the time of incident and she was a consenting party. Learned Cr.A.No.292/2012 trial Court without appreciating the evidence wrongly found that prosecutrix was minor and appellants took her forcibly to Ratlam and appellant No.1 Lokesh @ Mukesh committed rape with her.
4. On the other hand learned counsel for the respondent/State submitted that from the ossification test report Ex.P/4, which was proved by Dr.Ramesh Pandya (PW-9) and the statement of Shanti Bai (PW-2) mother of the prosecutrix, it is clearly proved that prosecutrix was minor at the time of incident. The fact that prosecutrix was minor was corroborated by the statement of Shanti Bai (PW-2) mother of the prosecutrix. It is clearly proved that appellants abducted prosecutrix from her house situated at Barnagar and took her to Ratlam, where appellant No.1 Lokesh @ Mukesh committed rape with her. So, the learned trial Court did not commit any mistake in holding the appellant No.1 Lokesh @ Mukesh guilty under Section 363, 366 and 376 of IPC and appellant No.2 Rajulal for the offence under Section 363, 366 of IPC.
5. For disposal of this appeal the points for determination are as follows. :-
(i) Whether prosecutrix was minor on the date of
incident.
(ii) Whether appellants abducted prosecutrix from her house situated at Barnagar to Ratlam, where appellant No.1 Lokesh @ Mukesh committed rape with her.
6. As far as age of prosecutrix on the date of incident is concerned, Shanti Bai (PW-2) mother of the prosecutrix clearly deposed that at the time of incident prosecutrix was 16 years old. Her statement is also corroborated by ossification test report Ex.P/14, which was proved by Dr.Ramesh Pandya (PW-9), who conducted the ossification test. Dr.Ramesh Pandya deposed that he had examined the prosecutrix on 29.3.2011 at Civil Hospital, Ujjain. In the examination he found that her epiphysis of right wrist joint was not fused. The epiphysis of right elbow joint fused. Epiphysis of right knee joint not fused. Epiphysis of right iliac creast not appeared. On that basis he estimated age of prosecutrix as 16 years. His statement is also supported by the report Ex.P/14, which he Cr.A.No.292/2012 gave on the basis of x-ray Ex.P/15. This witness is an independent witness. There is no reason to disbelieve this witness.
7. Learned counsel for the appellants submitted that Dr.Ramesh Pandya (PW-9) clearly admitted in his cross-examination that there may be difference of two years in the age given by him, on that basis the prosecutrix appears to be 18 years of age at the time of incident. The learned trial Court committed mistake in not placing reliance on his statement. In this regard he placed reliance on this Court's judgment passed in Sanjay @ Sanju Solanki Vs. State of M.P., reported in 2011(1) MANISA 104 (M.P.), but facts of that case do not match with this case. In that case prosecution had not proved ossification test report of prosecutrix by producing expert, who gave that report. He also placed reliance on judgment of Division Bench of this Court passed in the case of State of M.P. Vs. Narendra Kumar Haridas Deshlahare, reported in 2000(2) MPLJ 399, in which this Court held that the finding on age of prosecutrix as between 14 to 16 years reached by trial Court is merely approximation based on medical examination and two years margin on either side could be given. The prosecution, therefore, failed to conclusively prove that the prosecutrix was below 16 years of age. He also placed reliance of this Court's judgment passed in the case of Ashok Vs. State of M.P., reported in 2011(1) MANISA 43 (M.P.), in which this Court held that it is legal position to normally take margin of one to two year on either side in the opinion of the expert.
8. He has further placed reliance on the judgment of Chhattisgarh High Court in the case of Subelal Vs. State of M.P., reported in 2012(I) MANISA 70 (C.G.) in which it is held that difference of 3 years on either side may be there in the age determined on the basis of ossification test. But Hon'ble Apex Court in its judgment passed in the case of State of Karnataka Vs. Bantara Sudhakara, reported in (2008) 11 SCC 38 held that merely because doctor's evidence showed that the victim's belong to the age group of 14 to 16, to conclude that two years had to be added to the upper age-limit is without any foundation. Hon'ble Apex Court in the Cr.A.No.292/2012 case of State of U.P. Vs. Choteylal, reported in AIR 2011 SC 697 has observed as under :-
"We find ourselves in agreement with the view of the trial Court regarding the age of the prosecutrix. The High Court conjectured that the age of the prosecutrix could be even 19 years. This appears to have been done by adding two years to the age opined by doctor (PW-5). There is no such rule much less and absolute one that two years have to be added to the age determined by doctor."
9. So only on the assumption of Dr.Ramesh Pandya (PW09) that there may be difference of two years in the age approximated by him, it cannot be assumed that prosecutrix's age on the date of incident was sixteen plus two - eighteen years.He had clearly stated in his statement that epiphysis of right wrist bone of prosecutrix, which is fused on the age of 16 years was not fused . Also epiphysis of right knee and right hip was not fused. Only the epiphysis of right knee was fused and on that basis he approximated the prosecutrix's age to be 16 years. In these circumstances it cannot be assumed that prosecutrix's age was plus minus two - eighteen years. In the considered opinion of this Court learned trial Court did not commit any mistake to hold that prosecutrix was 16 years of age at the time of incident and below 18 years and that she was minor at the time of incident.
10. As regard to point No.2 the prosecutrix (PW-1) clearly deposed in her statement that on the date of incident at about 12.30 PM when she was standing outside of her house on Otla, appellants came to her house on a bike. Appellant Lokesh suddenly gloved his hands and pointed out a knife and told her to go with him and when she asked him as why she would go with him, Lokesh told her that if she would not go with him he would kill her and Lokesh forcibly took her on bike. Appellant Rajulal sat behind her on bike and appellant Lokesh drove the bike and took her Ratlam, where appellants kept her in a house of relative, where appellant confined her for three days and repeatedly committed rape with her on the point of knife. On third day mother of appellant Lokesh @ Mukesh and appellant Rajulal brought her at Barnagar and left her outside of her Cr.A.No.292/2012 house and appellants also forcibly got some documents signed from her. After reaching home she narrated the incident to her parents. They took her to P.S., Barnagar. In this regard her statement is also corroborated from the statement of her mother Shanti Bai (PW-2), who also deposed that on the date of incident when she had gone to market, her daughter prosecutrix and younger daughter Sharmila (PW-6) were at home. At 2.30 PM when she returned back Sharmila (PW-6) told her that appellants forcibly took prosecutrix on motorcycle. On that she lodged missing person report at P.S., Barnagar. Three days after the incident appellant Lokesh's, mother and appellant Rajulal left her in front of her house. Then she narrated the whole incident and stated that on the date of incident when she was standing outside of her house appellants came on bike and forcibly took her on the point of knife to Ratlam, where appellants kept her in a room and got some papers signed from her and appellant Lokesh committed rape with her. In this regard her statement is also corroborated from the statement of Sharmila, younger sister of prosecutrix, who also gave same statement.
11. But on the point that appellants had forcibly taken prosecutrix (PW-1) on bike from outside of her house to Ratlam, statement of prosecutrix (PW-1) and her sister Sharmila (PW-6) did not appear to be correct. Sharmila (PW-6) deposed that on the date of incident appellants came to her house on bike in the noon when her sister prosecutrix (PW-1) was standing outside the house and forcibly took her on bike on the point of knife. At that time her mother Shanti Bai (PW-2) was not at home. When she returned from market she narrated the incident to her. Shanti Bai (PW-2) also deposed that at the time of incident she had gone to Bazar. Her daughter prosecutrix (PW-1) and Sharmila (PW-6) were at home. When she returned home at 2.30 PM her younger daughter Sharmila (PW-6) informed her that appellants forcibly took the prosecutrix on the point of knife. On that she lodged missing person report Ex.D/8. But in that report it is not mentioned that appellants forcibly took the prosecutrix on bike. Only what is mentioned is that when she had gone to market ,her daughter prosecutrix (PW-1) and younger daughter Sharmila Cr.A.No.292/2012 (PW-6) were at home and when she returned , the prosecutrix was not at home. Her younger daughter Sharmila informed that prosecutrix went without giving any information. If Sharmila (PW-6) had seen appellants forcibly taking the prosecutrix on bike, she would have informed that fact to Shanti Bai (PW-2) and she would have stated that fact in Ex.D/8 missing person report. So statement of Sharmila (PW-6) that appellants forcibly took the prosecutrix from the front of her house on a bike and statement of Shanti Bai (PW-2) mother of prosecutrix that when she returned back from the market Sharmila informed her that appellants had forcibly taken the prosecutrix on bike becomes afterthought.
12. As far as prosecutrix's statement in this regard is concerned, although prosecutrix deposed that on the date of incident appellants came to her house and took her forcibly on bike to Ratlam but prosecutrix also admitted in her cross-examination that 25 other houses were also situated near her house. Moolibai, Gangabai, Ratanlal also resided near her house. She also admitted that appellants took her to Ratlam, 50 Kms. away from her house through diversion road. On the way many people saw her. While in missing person report Ex.D/8 it is not mentioned that appellants took prosecutrix forcibly from her house on bike. Appellants also produced photographs Ex.D/2 to Ex.D/5 of prosecutrix and Lokesh. Prosecutrix also admitted that the photographs were of her but did not explain at which time that photos were taken. Prosecutrix also admitted in her statement that when appellant Lokesh committed rape with her, she did not shout. So statement of prosecutrix that appellant Lokesh @ Mukesh forcibly took her on bike from her home to Ratlam appears false. But as discussed above, the prosecutrix was minor at the time of incident so her consent has no meaning. From the statement of prosecutrix it is clearly proved that appellants took her from her home to Ratlam, where appellant Lokesh committed intercourse with her. So it is clearly proved that appellants abducted the prosecutrix in order that she may be forced or seduced to illicit intercourse .
13. Although, it appears that prosecutrix went with appellants on her will but only on that ground it cannot be assumed that prosecutrix was Cr.A.No.292/2012 consenting party for intercourse. Prosecutrix in her statement clearly deposed that appellant Lokesh @ Mukesh forcibly raped with her on the point of knife. Had the prosecutrix been a consenting party why she would narrate the incident to her mother soon after the incident. So only on the ground that prosecutrix went with appellants, it cannot be assumed that prosecutrix also gave consent for intercourse.
14. Although, learned counsel for the appellants submitted that Dr.Vinita Khatod (PW-4), who conducted medical examination of prosecutrix soon after the incident, clearly deposed that she did not find any external injury on the body of prosecutrix or on her private part. If the accused had committed intercourse with prosecutrix against her will then there would have been injuries on her body. But only on the ground that no injury was found on the body of prosecutrix in her medical examination it cannot be said that no rape was committed with her. If appellants had not taken the prosecutrix from her house to Ratlam and appellant Lokesh @ Mukesh had not committed rape with prosecutrix then why she would give false statement against appellants. There had been no enmity between the two families, and, therefore, there could be no reason for the prosecutrix and her family to drag the appellant falsely in a case where the honour of the family itself remains on stake and the prosecutrix has to suffer mental agony throughout her life.
15. The Hon'ble Apex Court in the case of Uday Vs. State of Karnataka, reported in (2003) 4 SCC 46, observed that the concept of "consent" in the context of Section 375 IPC has to be understood differently, keeping in mind the provision of Section 90 IPC, according to which a consent given under fear/coercion or misconception/mistake of fact is not a consent at all. Scheme of Section 90 IPC is couched in negative terminology. Consent is different from submission.
16. The Apex Court in the case of State of H.P. Vs. Mango Ram, reported in (2000) 7 SCC 224, considering the same issue held as under
:-Cr.A.No.292/2012
"Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between the resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances"
17. The subsequent conduct of the prosecutrix also shows that she was very much resistant to the sexual onslaught on her. When She came to her house she immediately told the entire incident to her mother as to how she was ravished by the accused. The evidence as a whole indicates that there was resistance by the prosecutrix and there was no voluntary participation by her for the sexual act. From the evidence on record, it cannot be said that the prosecutrix had given consent and thereafter she turned round and acted against the interest of the accused. So only on that ground that prosecutrix went with appellants it cannot be assumed that prosecutrix also gave consent for intercourse. Although, appellants also produced photographs of prosecutrix Ex.D/2 to D/5 and also produced affidavit Ex.P/6 and report allegedly lodged by the prosecutrix at P.S., Barnagar but that affidavit and report was not proved by the appellants by producing reliable evidence in this regard. Even otherwise, from the report or affidavit it does not appear that prosecutrix gave consent for intercourse. So in the considered opinion of this Court there is no reason to disbelieve the prosecutrix's statement that appellant Lokesh @ Mukesh confined her in a room for three days and committed rape with her and learned trial Court did not commit any mistake in holding the appellants Rajulal and Lokesh @ Mukesh guilty under Section 363, 366 of IPC and appellant Lokesh @ Mukesh for the offence under Section 376(1) of IPC.
18. As far as sentence is concerned learned trial court sentenced appellants under section 363, seven years RI and under section 366 of IPC ten years RI which is maximum jail sentence prescribed for these offences and appellant No.1 Lokesh @ Mukesh was also sentenced Cr.A.No.292/2012 under Section 376(I) of IPC ten years RI, but for offence under Section 376 of the IPC minimum sentence is prescribed as 7 years, no antecedent were reported against appellants so looking to the facts and circumstances of the case it is appropriate that jail sentence of appellant Rajulal for the offence under section 366 of IPC and jail sentence of appellant Lokesh @ Mukesh for the offences under section 366 and 376 of IPC be reduced.
19. Accordingly the appeal is partly allowed and jail sentence of appellant Rajulal under section 366 of IPC is reduced from 10 years R.I. to 7 years R.I. and that of appellant Lokesh @ Mukesh for the offences under section 366 and 376 of IPC is reduced from 10-10 years R.I. to 7, 7 years R.I.. The period already undergone be set off from the jail sentences. All jail sentences shall run concurrently. Appellants are in jail and shall undergo remaining part of sentence.
The appeal stands disposed off accordingly.
(Rajeev Kumar Dubey) Judge 07/07/2017 Patil