1 [CASE NUMBER] HIGH COURT OF MADHYA PRADESH BENCH GWALIOR SB : Justice [ENTITY] [PRECEDENT] [PRECEDENT] Shri [ENTITY], counsel for the appellant. Shri [ENTITY], Public Prosecutor for the respondent/State. Date of hearing : 27.09.2018 Date of judgment : 04/10/2018 Whether approved for reporting : No JUDGMENT
(Passed on 04/10/2018) This criminal appeal under [SECTION] of [ACT] has been filed against the judgment dated 21.04.2009 passed by 2nd Additional Sessions Judge (Fast Track), Ganjbasoda District [ENTITY] in [CASE NUMBER], by which the appellant has been convicted for an offence under [SECTION], [SECTION] and [SECTION] of [ACT] and has been sentenced to undergo rigorous imprisonment of three years and a fine of Rs.500/- and rigorous imprisonment of three years and a fine of Rs.500/- and rigorous imprisonment of seven years and a fine of Rs.500/- respectively with default imprisonment. All the sentences have been directed to run concurrently. (2) The prosecution story, in short, is that the complainant [ENTITY] lodged a Guminsan report on 21.07.2006 that his daughter is missing. Accordingly, [CASE NUMBER] was registered. In the report, it was 2 [CASE NUMBER] alleged that at about 10:00 PM he went to sleep after taking his meal and his daughter (prosecutrix) and other children were sleeping together. At about 12:00 in the night, when the complainant woke up for getting himself eased, then he found that his eldest daughter is not there. He tried to search her but could not know about her whereabouts. The police ultimately registered the FIR in [CASE NUMBER]. The prosecutrix was recovered. Statements of the witnesses were recorded. The prosecutrix as well as the accused were sent for medical examination and the appellant was arrested. The police after concluding the investigation filed the charge-sheet for offence under [SECTION], [SECTION] and [SECTION] of [ACT]. (3) The Trial Court by order dated 29.11.2006 framed the charge under [SECTION], [SECTION] and [SECTION] of [ACT].
(4) The appellant abjured his guilt and pleaded not guilty.
(5) The prosecution in order to prove its case examined the prosecutrix (PW-1), [ENTITY] (PW-
2), Smt. [ENTITY] (PW-3), [ENTITY] (PW-4), [ENTITY] (PW-5), [ENTITY] (PW-6), [ENTITY] (PW-7), [ENTITY] (PW-8), [ENTITY] (PW-
9), Dr. [ENTITY] (PW-10), [ENTITY] (PW-11), [ENTITY] (PW-12) and [ENTITY] (PW-13). (6) The appellant did not examine any witness in his defence.
(7) The Trial Court by judgment dated 21.04.2009 passed in [CASE NUMBER] convicted the appellant for offence under [SECTION], [SECTION] and [SECTION] of [ACT] and awarded the jail sentence as mentioned in the previous paragraph.
3 [CASE NUMBER] (8) Challenging the judgment and sentence passed by the Court below, it is submitted by the counsel for the appellant that the prosecutrix was major on the date of the incident and the Trial Court itself has come to a conclusion that the date of birth of the prosecutrix was 02.04.1990 and the incident took place on 20.07.2006. Thus, according to the Trial Court itself the prosecutrix was more than 16 years of age on the day when she eloped with the appellant. Since the incident took place prior to the amendment in [ACT], therefore, at the relevant time, under [SECTION] of [ACT], the offence was treated as raped if the prosecutrix is below 16 years of age. Since the prosecutrix was above 16 years of age, therefore, the fact that whether the prosecutrix was a consenting party or not would assume importance. By referring to the evidence of prosecutrix (PW-1), it is submitted by the counsel for the appellant that according to the prosecutrix (PW-1), at about 11:00-12:00 in the night, the prosecutrix went outside the house to answer the call of nature, then at the point of knife, appellant took her to a nearby place, where he committed rape on her. In the night itself, the appellant took her to the house of her [ENTITY] and from where, he took her to [ENTITY] to the house of his parents and where ever she was taken, the appellant had committed rape on her and prior to that she was never subjected to sexual intercourse. Although in the examination-in-chief itself, the prosecutrix had stated that she was not in love with the appellant and she did not go with him on her own but she admitted that she stayed with the appellant for 10-12 days under the false promise of marriage. After 10 days of her stay with the appellant, the appellant himself brought her to the Police Station, from where she was sent to her 4 [CASE NUMBER] father's house. It is submitted that admittedly the prosecutrix had moved along with the appellant to different places. It is not the case, where the appellant had taken the prosecutrix to some unknown places but initially he took her to the house of his [ENTITY] (sister of father of the appellant) and thereafter he took her to his parents home at [ENTITY]. During this period of brief stay of 10 days, the prosecutrix never tried to raise any alarm and never tried to inform anybody, which clearly shows that the prosecutrix was a consenting party. By referring to the judgment passed by the Court below, it is submitted by the counsel for the appellant that even after having come to conclusion that the prosecutrix was more than 16 years of age on the day when she eloped with the appellant, the Trial Court did not consider that whether the prosecutrix was a consenting party or not ?
(9) I have gone through the judgment passed by the Court below.
(10) In paragraph 15, the Trial Court has come to a conclusion that as per the mark-sheet enclosed with the record, date of birth of the prosecutrix was 02.04.1990. Although the mark-sheet of the prosecutrix has not been proved by the prosecution, but it is the part of the charge- sheet. It is well established principle of law that if the prosecution document has remained unproved and un- exhibited, but if it is in favour of the accused, then the Court can always consider the same in favour of the accused. The Trial Court did not commit any mistake by considering the date of birth mentioned in the school certificate filed along with the charge-sheet. Thus, it is clear that the date of birth of the prosecutrix as per the school record was 02.04.1990 and un-disputedly the [CASE NUMBER] incident took place on 20.07.2006, that means the prosecutrix was above 16 years of age on the date when she eloped with the appellant. Whether the prosecutrix is a consenting party or not has to be considered in the light of the surrounding circumstances.
(11) The Supreme Court in the case of Kaini Rajan v. State of Kerala reported in (2013) 9 SCC 113 :
(2013) 3 SCC (Cri) 858, at page 117 has held as under:-
"12. [SECTION] [ACT] defines the expression "rape", which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression "against her will" means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. [SECTION] [ACT] refers to the expression "consent". [SECTION], though, does not define "consent", but describes what is not consent. "Consent", for the purpose of [SECTION], 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 resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. (See [PRECEDENT].)"
6 [CASE NUMBER] (12) If the facts and circumstances of the case are considered, then it is clear that in the wee hours at about 11:00-12:00 in the night, the prosecutrix left her house, and went along with the appellant to the house of his [ENTITY] and from thereafter she went to [ENTITY] and stayed in the house of appellant and total duration of her stay with the appellant was of 10-12 days and during this period of brief stay, the prosecutrix did not make any complaint to anybody. Even she did not make any complaint when she was on the way of these place. She was found to be habitual for intercourse and even as per the FSL report, human sperms on the vaginal slide as well as panty and salvar of the prosecutrix were found, which clearly shows that she had physical relations with the appellant. In the cross-examination, the prosecutrix has admitted that she went to [ENTITY] by train. There were lot of persons at the railway station and also there was police on the railway station but she did not make any complaint either to any of the co-passenger or to T.C. or to the police guards. However, she admitted that as the appellant had committed sexual intercourse with her, therefore, a bonding of friendship had developed and because of that only, she did not make any complaint to anybody. She has further admitted in her cross-examination that when she went outside the house to ease herself, then the appellant was standing outside and she went to him as she was called by him. Although she has stated that when the appellant asked her to accompany him, then she refused but admitted that such allegation is not mentioned in her case diary statement Ex. D-1. In her case diary statement Ex. D-1, the prosecutrix had specifically admitted that prior to the date of incident, both of them had become friends and 7 [CASE NUMBER] the appellant had already physical relations with her for 2-3 times and her friendship with the appellant was being objected by her parents. Prior to the date of incident, the appellant had shifted to a hut outside the house of the prosecutrix and she used to go to the appellant in the night and they used to have physical relations. She further stated in her case diary statement that on the date of the incident when her parents were sleeping, she came out of the house to answer the call of nature and the appellant was already standing there and he asked her to run away and, thereafter they left the house, went to the house of maternal aunt of the appellant and stayed there in the entire night and thereafter they were asked to leave the house of his maternal aunt and they went to the house of appellant's [ENTITY] by walking and stayed there for two days - night and from there, they went to [ENTITY] by bus and stayed in the house of the relative of the appellant and from there they went to Sagar by train, where they stayed in the house of relatives of the appellant. From Sagar, they went to Seedhi by train and again stayed in the house of his relatives, where the parents of the appellant were already there. Thereafter, she was told that they should appear before the Police Station and accordingly, they came back and went to the police station. From the police station, she was sent to her parents home. Thus, it is clear that the prosecutrix on her own went along with the appellant to different places and neither on the way nor to any of the relative where she had stayed, made any complaint. Even she had met with the police personnel on the railway station, but she admitted that out of friendship, she did not make any complaint to them against the appellant. This shows that the prosecutrix was a consenting 8 [CASE NUMBER] party and she voluntarily accompanied the appellant and developed physical relations with him voluntarily. (13) At this stage, it is submitted by the counsel for the State that the prosecutrix has stated that earlier to the incident, the appellant had physical relations with her, therefore, it is clear that during the minority of the prosecutrix, she was subjected to physical relations and thus, on the day when the appellant had developed physical relations for the first time, consent of the prosecutrix was immaterial as she was minor.
(14) Considered the submissions made by the counsel for the State.
(15) Contention with regard to having physical relations prior to the date of incident is mentioned in the case diary statement but it is not the part of the evidence recorded in the Court. The case diary statement is not a substantive piece of evidence. It can be used for corroborative purposes and to find out that whether there is any contradiction or improvement or not ? Thus, this Court has considered the case diary statement Ex. D-1 in that context only in the light of [SECTION] of the [ACT]. Any allegation which was made in the case diary statement but which is not mentioned in her evidence cannot be considered against the interest of the accused. (16) Accordingly, this Court is of the considered view that as already held by the Trial Court that the prosecutrix was more than 16 years of age on the date of incident and considering the evidence of the prosecutrix, it appears that she had on her own, went along with the appellant and had accompanied him to different places and had physical relations with him, therefore, the prosecutrix was a consenting party. Under these circumstances, this Court is 9 [CASE NUMBER] of the view that the appellant cannot be held guilty for offence under [SECTION] of [ACT].
(17) So far as the offence under [SECTION] and [SECTION] of [ACT] is concerned, the age of minor for these offences is 18 years.
(18) [SECTION] of [ACT] reads as under:- "361. Kidnapping from lawful
guardianship. Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation. The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
Explanation. This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."
(19) [SECTION] of [ACT] reads as under:-
"366A. Procuration of minor girl. Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine."
(20) Thus, it is clear that where minor girl less than 18 years of age is taken out of the lawful guardianship of the guardian without his consent, then the offence under 10 [CASE NUMBER] [SECTION] of [ACT] would be made out and similarly, where a person by any means whatsoever induces any minor girl under the age of 18 years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse shall be punishable under [SECTION] of [ACT]. (21) The moot question for consideration is that where the minor has eloped with the accused on her own, but without obtaining the consent of her guardian, then whether the offence under [SECTION] and [SECTION] of [ACT] would be made out or not ? From the plain reading of [SECTION], [SECTION] and [SECTION] of [ACT], it is clear that it is an offence against the guardian. Where a minor is enticed or taken out of the lawful guardianship of a guardian without his consent then the offence would be made out. Thus, the consent of the minor is immaterial and the only material aspect is that the consent of the guardian should be obtained before taking or enticing minor out of the lawful guardianship of the guardian.
(22) In the present case, this Court has already come to a conclusion that the prosecutrix on her own had left her house and eloped with the appellant and moved from one place to another and stayed for a period of 10-12 days and had physical relations but nothing has come on record to suggest that the prosecutrix or the appellant before eloping had ever taken any consent from the guardian of the prosecutrix. On the contrary, guminsan report lodged by [ENTITY] (PW-2) father of the prosecutrix clearly shows that she eloped with the appellant without obtaining the consent or note of the parents.
(23) Counsel for the appellant has relied upon the judgments passed in the case of [PRECEDENT], [PRECEDENT] and [PRECEDENT] and submitted that under the facts and circumstances of the case, where the prosecutrix, who is below 18 years of age, had eloped with the appellant voluntarily, then meaning of "enticing" and "taking" should be in the context of case found in the particular case. It is submitted that there should be some act done by the accused, which may be regarded as the proximate cause of the person for going out of the keeping of the lawful guardianship and in this case, there is nothing on record to show that the appellant had persuaded the prosecutrix to go along with him. As already pointed out, [SECTION] of [ACT] starts from the word whoever "takes" or "entices" any minor under sixteen years of age if a male, or under eighteen years of age, if a female, therefore the word "takes" and "entice" have their different meanings and word "entice" would necessary mean that if the minor is persuaded and word "takes" would necessarily includes; where the minor is also taken away by putting her under fear without her willingness. Thus, where a minor is taken away out of the keeping lawful guardianship either by force or by persuasion, then it would amount to kidnapping from lawful guardianship. (24) In the present case, it is the case of the prosecution that the prosecutrix was forcibly taken away by the appellant by show of a knife, however, she further stated that because the appellant had committed intercourse with her, therefore, a bonding of friendship had developed at a later stage. If the evidence of the prosecutrix is considered, then it would be clear that in the 12 [CASE NUMBER] case diary statement, she had stated that she was persuaded by the appellant to accompany him. Undisputedly, the prosecutrix had eloped with the appellant, therefore, one thing is clear that the prosecutrix and the appellant had moved from one place to other and had stayed at different places together. In her case diary statement, she had stated that the appellant had asked her to run away with him and, therefore, she accompanied him. This act of asking the prosecutrix to run away with the appellant would certainly amount to persuasion, therefore, even if the evidence, with regard to taking away the prosecutrix by show of a knife is considered, then it was clear that there was persuasion by the appellant to run away which amounts to either taking or enticing the prosecutrix out of keeping of the lawful guardianship of her parents. Since the prosecutrix undisputedly was below 18 years, therefore, this Court is of the considered opinion that the prosecution has succeeded in establishing that the appellant is guilty of offence under [SECTION] and [SECTION] of [ACT]. So far as the question of sentence is concerned, no minimum sentence is provided under [SECTION] and [SECTION] of [ACT]. The Trial Court has awarded the jail sentence of rigorous imprisonment of three years on both the counts and fine of Rs.500/-.
(25) From the record of the Trial Court, it appears that the appellant had remained in jail from 30.07.2006 to 01.12.2006 and after his conviction on 21.04.2009 he was granted bail by this Court by order dated 25.05.2009, thereafter, it appears that the appellant did not appear before the Registry of this Court and accordingly, the warrant of arrest was issued and the appellant was produced in custody before this Court on 08.09.2014, 13 [CASE NUMBER] thereafter again he was granted bail by order dated 28.04.2015. Thus, it is clear that the appellant in total has remained in jail for a period of approximately 1 year and 26 days.
(26) Under the facts and circumstances of the case, this Court is of the considered opinion that the period already undergone by the appellant would serve the interest of justice. Accordingly, the conviction of the appellant for offence under [SECTION] of [ACT] is set aside and he is acquitted of the charge under [SECTION] of [ACT] and he is held guilty of offence under [SECTION] and [SECTION] of [ACT] and the jail sentence of approximately 1 year and 26 days, which has already been undergone by the appellant, would be sufficient to serve the ends of justice. However, fine amount is enhanced from Rs.500/- on both the counts to Rs.10,000/- on both the counts. (27) Accordingly, the appellant is sentenced to the rigorous imprisonment which has already undergone by him and a fine of Rs.10,000/- for offence under [SECTION] of [ACT] and sentence to the period already undergone by him and a fine of Rs.10,000/- for the offence under [SECTION] of [ACT].
(28) The enhanced fine amount should be deposited within a period of three months from today. In case, if the appellant fails to deposit the enhanced fine amount, then sentence of rigorous imprisonment of three years and fine of Rs.500/- awarded by the Trial Court for offence under [SECTION] and [SECTION] of [ACT] respectively would automatically get revived and the appellant shall immediately surrender before the Trial Court for undergoing the remaining jail sentence.
(29) Accordingly, the judgment and sentence dated 14 [CASE NUMBER] 21.04.2009 passed by 2nd Additional Sessions Judge (Fast Track), Ganjbasoda District [ENTITY] in [CASE NUMBER] is set aside, so far as the offence under [SECTION] of [ACT] is concerned. The remaining part of the judgment is affirmed with the aforesaid modification. (30) The appellant is on bail. If he deposits the enhanced fine amount within three months, then he would not be required to surrender before the Trial Court. His bail bonds and surety bonds stand discharged. (31) The appeal partially succeeds and is allowed accordingly.
([ENTITY]) Judge Abhi