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2008 DIGILAW 1117 (MP)

Nandan @ Shiv Nandan v. State of Madhya Pradesh

2008-09-08

SUSHMA SHRIVASTAVA

body2008
Judgment ( 1. ) APPELLANT has preferred this appeal challenging his conviction and order of sentence passed by First Additional Sessions judge, Seoni in S. T. No. 79/93, decided on 28. 2. 94. ( 2. ) APPELLANT has been convicted under Section 376/511 of ipc and sentenced to rigorous imprisonment for four years with fine of Rs. 2,000/-, in default further imprisonment for six months by the impugned judgment. ( 3. ) ACCORDING to prosecution, on 20. 2. 90 about 7. 30 in the morning at village Bamhodi, when prosecutrix aged about nine years had gone to the field alongwith her friends Kalpana, shakun, and Mamta for collecting cowpats, appellant Nandan came to her and asked her to go with him. Prosecutrix declined, but the appellant caught hold of her hand and forcibly took her to nearby hut, fell her on the ground and committed sexual intercourse with her. When prosecutrix began crying, appellant left her and walked away. Prosecutrix then came out of the hut and narrated the incident to her friends Kalpana, Shakun and Mamta as well as to her parents at home. She was then taken to the Police Station by her father, where she lodged the FIR. On the basis of her report, an offence was registered against the appellant and was investigated. Prosecutrix was sent for medical examination. She was also subjected to radiological examination for confirmation of her age. The frock and underwear worn by the prosecutrix at the time of incident and her vaginal slide prepared during her medical examination were seized by the Police. After due investigation, appellant was prosecuted under Section 376 of IPC and was put to trial. ( 4. ) APPELLANT abjured the guilt and pleaded false implication. ( 5. ) LEARNED Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, found the appellant guilty for attempting to commit rape on a minor girl aged about nine years, convicted him under section 376/511 of IPC and sentenced as aforesaid by the impugned judgment, which has been challenged in this appeal. ( 6. ) APPEAL is preferred mainly on the ground that the trial court gravely erred in convicting the appellant on the basis of tutored and fabricated evidence without any corroboration and medical evidence on record. ( 7. ( 6. ) APPEAL is preferred mainly on the ground that the trial court gravely erred in convicting the appellant on the basis of tutored and fabricated evidence without any corroboration and medical evidence on record. ( 7. ) LEARNED counsel for the State, on the other hand, justified and supported the conviction of the appellant. ( 8. ) RECORD of the lower court perused. ( 9. ) PROSECUTRIX (P. W-1), the victim was nine years old at the time of incident. Her radiological report dated 22. 2. 90 placed on record depicting her age to be nine years was admitted on behalf of the accused/appellant. Prosecutrix (P. W-1), however, had attained the age of thirteen years at the time of her deposition in the year 1994. Prosecutrix (P. W-1) clearly deposed in her evidence that on the date of occurrence she had gone to the field to collect the cowpats alongwith her friend, appellant was also working in his field at that time and he forcibly took her to a nearby hut, fell her on the ground, removed her underwear, lay upon her and put his male organ into her vagina and ran away when she screamed out of pain. Her vagina had started bleeding. The girl somehow came out and narrated the incident to her mates Kalpana and Mamta as also to her parents at home and went to the Police Station alongwith her father Hariram and lodged the FIR. ( 10. ) HER mother Roopvati (P. W-3) and father Hariram (P. W-4) also corroborated the fact that the prosecutrix had narrated the incident to them and told them that appellant had taken her to a nearby hut in the field and had sexually assaulted her. She was taken to the Police Station Seoni to lodge the report. The FIR (Ex. P-7) was recorded by A. S. I. Vikram Singh Uike (P. W-8) same day at the instance of the prosecutrix. ( 11. ) ALTHOUGH there appears some discrepancy in the evidence of aforesaid witnesses regarding exact time of occurrence, but the record reveals that the evidence of the witnesses was recorded after lapse of three-four years, as the appellant had absconded. Therefore, some discrepancy in the timing or sequence of events was natural and bound to occur due to lapse of memory and passage of time. Therefore, some discrepancy in the timing or sequence of events was natural and bound to occur due to lapse of memory and passage of time. Moreover, despite extensive cross-examination nothing has been elicited in the evidence of aforesaid witnesses so as to indicate any reasons for false implication of the appellant. Ordinarily the parents of the victim would not concoct a false case against the appellant at the stake of modesty, honour and reputation of their minor daughter of tender age. ( 12. ) THE evidence of the prosecutrix (P. W-1) against the appellant also does not appear to be tutored or tainted. Although, the prosecutrix (P. W-1) admitted in her cross-examination that her father told her about cqjk dke (sexual assault), but she refuted the suggestion that she made any false report at the instance of her father. Moreover, prosecutrix (P. W-1) has given a vivid description of the incident and she has been categorical in her statement that appellant had sexually assaulted her when she had gone to the field ( 13. ) P. W-2 Shakun, though turned hostile to prosecution, has also corroborated the fact that the prosecutrix had gone to the field with her, Mamta and Kalpana to collect the cowpats and appellant was also seen there in the field. The medical report of the prosecutrix (Ex. P-5), which was proved to be in the handwriting of Dr. Sandhya Jain, by her husband Dr. S. C. Jain (P. W-7), as dr. Sandhya Jain had since expired, also indicates that there was a linear reddish area of about 2 mm in size at 10clock position of vestibule of the prosecutrix, which was also tender to touch; and that indicates that attempt of penetration was made on the prosecutrix, which also negatives the possibility of false implication of the appellant. Needless to add that there is nothing substantial on record to suggest that appellant was falsely implicated. The FIR (Ex. P-7) of the incident was also lodged with promptitude on the same day. ( 14. ) UPON close and careful scrutiny of the evidence of prosecutrix (P. W-1), her evidence does not appear to be tutored or fabricated and is found to be cogent and credible; it inspires confidence. Although prosecutrix (P. W-1) is a child witness, her evidence cannot be discarded on that score. ( 14. ) UPON close and careful scrutiny of the evidence of prosecutrix (P. W-1), her evidence does not appear to be tutored or fabricated and is found to be cogent and credible; it inspires confidence. Although prosecutrix (P. W-1) is a child witness, her evidence cannot be discarded on that score. As held by the Apex court in the case of Panchhi and Others Vs. State of U. P. reported in 1998 (7) Supreme Court Cases page 177 it is not the law that if a witness is child, his evidence shall be rejected even it is found reliable, though the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is an easy prey to tutoring. ( 15. ) IT is clearly borne out from the evidence of prosecutrix (P. W-1) that appellant attempted to commit rape on her, which also stands fortified by her medical report (Ex. P-5) given by dr. Sandhya Jain, which remained virtually unchallenged in the cross-examination. ( 16. ) ALTHOUGH, Dr. Sandhya Jain, who medically examined the prosecutrix after the incident, could not be examined, since she had expired, her medical report (Ex. P-5) was proved to be in her handwriting by her husband Dr. S. C. Jain (P. W-7), who was conversant with her signatures and handwriting. It has been held by the Apex Court in the case of State of M. P. Vs. Dayal Sahu reported in (2005) 8 Supreme Court Cases page 122 that non-examination of the doctor and non-production of the doctors report would not be fatal to the prosecution case if the statement of the prosecutrix and other prosecution witnesses inspire confidence. ( 17. ) IN view of the aforesaid and the evidence available on record, the conviction of the appellant under Section 376/511 of IPC as recorded by the trial court, does not call for any interference. The sentence of four years rigorous imprisonment alongwith fine of rs. 2,000/-awarded to the appellant for attempting to commit rape on a minor girl aged nine years also does not warrant any interference in appeal. ( 18. ) APPEAL being bereft of any merit is dismissed. Appellant is on bail. He shall forthwith surrender to his bail bonds to serve out the remaining part of his sentence.