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Madhya Pradesh High Court · body

2008 DIGILAW 972 (MP)

CHHOTA @ CHHOTELAL v. STATE OF M. P.

2008-08-05

S.A.NAQVI

body2008
Judgment S.A.Naqvi, J. ( 1. ) Assailed is to the judgment dated 18.06.2004 passed by Third Additional Sessions Judge, Damoh in ST. no. 8 8/2002, whereby the appellant Chhota @ Chhotelal has been convicted under section 376 (2)(f) of the IPC and sentenced to suffer 10 years R.I. fine of Rs.5000/- in default 1 year R.I. ( 2. ) It is pertinent to note that vide judgment dated 21.4.2006 the impugned judgment passed by the learned trial Court has been affirmed by this Court and appeal has been dismissed. S.L.P. was filed by the respondent/State vide Criminal Appeal No.463/2007 has been admitted for final hearing by the Apex Court. The case was remanded back by the Apex Court vide order date 30th March 2007. In this manner this appeal again came up for final hearing. ( 3. ) Facts of the case in brief are that on 10.3.2002 at about 8.00 a.m., the appellant Chhota @ Chhotelal committed rape with prosecutrix (PW 5), aged 8 years. She narrated the incident to her mother Savitri Bai (PW 1). Savitri Bai lodged F.I.R Ex.P/1. Prosecutrix was examined by Dr. Alka Nikhar (PW 10). She opined as per Ex.P/10 that forcibly sexual intercourse has been committed over prosecutrix. Slide from vaginal smear of prosecutrix was prepared and sealed by the Doctor. Underwear of the prosecutrix was also sealed by the Doctor.Both these articles were handed over to police. Same day the appellant was apprehended and he was examined by Dr. S.K. Jain (PW 12) who found him competent to perform intercourse. Underwear of the appellant seized, sealed and handed over to the police, seized articles were Sealed. Spot map was got prepared. Witnesses were examined u/s 161 Cr.P.C. Seized articles were sent for chemical analysis to FSL Sagar. After completion of investigation the appellant was charge sheeted. The case was committed to the Court of Sessions. ( 4. ) Learned trial Court framed charge u/s 376(1) of the IPC against the appellant. The appellant abjured the guilt and pleaded innocence and false implication. The defence of the appellant is that before the date of the incident i.e. 10.3.2002 he was already in police custody. He was an employee of Railway he expressed to file complaint against the police consequently, he was falsely implicated. ( 5. ) Prosecution examined 14 witnesses. No witness has been examined in defence. The defence of the appellant is that before the date of the incident i.e. 10.3.2002 he was already in police custody. He was an employee of Railway he expressed to file complaint against the police consequently, he was falsely implicated. ( 5. ) Prosecution examined 14 witnesses. No witness has been examined in defence. After hearing learned counsel for both the parties, perusing evidence and material on record learned trial Court convicted the appellant u/s 376(1) (f) of the IPC and sentenced him as aforementioned. Being aggrieved by the impugned judgment the appellant has preferred the appeal. Per contra, learned public prosecutor supported the impugned judgment and submitted that the learned trial Court did not err in convicting the appellant and sentencing him hereinab ovementioned. ( 6. ) I have heard learned counsel for both the parties, perused the impugned judgment, evidence and material on record. ( 7. ) Learned senior counsel for the appellant urged that learned trial Court committed error in relying upon the testimony of the prosecution witnesses, discarding cross-examination of prosecutrix (PW 5), Savitri Bai (PW 1) and evidence of Benugopal, giving much importance to the fact that Savitri Bai was cross-examined after about 10 months of her examination-in-chief, to rely child witness without due corroboration is hazardous there is no.reliable evidence that the appellant committed rape with prosecutrix ignoring the evidence of the prosecution witnesses that the appellant was in police custody prior to the alleged incident and convicting the appellant hereinabove mentioned. Per contra, learned Public Prosecutor supported the impugned judgment and argued that learned trial Court did not commit any error in convicting the appellant and sentencing him as aforementioned. ( 8. ) The age of the prosecutrix (PW 5) is not disputed. Admittedly, on the date of the incident, i.e. 10.3.2002 prosecutrix was 9 years of age. During the course of arguments also learned senior counsel admitted that the age of the prosecutrix was 9 years at the time of the incident. So I do not think to burden the judgment to appreciate the prosecution evidence in respect of the age of the prosecutrix. Learned trial Court rightly held that at the time of the incident age of the prosecutrix was about 9 years. ( 9. ) Prosecutrix (PW 5) deposed that she was playing in court yard of Sunder with her younger brother. Sunder was also playing with them. Learned trial Court rightly held that at the time of the incident age of the prosecutrix was about 9 years. ( 9. ) Prosecutrix (PW 5) deposed that she was playing in court yard of Sunder with her younger brother. Sunder was also playing with them. The appellant came there and caught hold her (prosecutrix) took her in his house. He removed clothes of the prosecutrix and committed rape with her. Blood came out of private part of the prosecutrix. She went to her house and narrated the incident to her mother Savitri Bai (PW 1). Savitri Bai deposed that on 10.3.2000 at about 8 a.m. prosecutrix came weeping to her. She told that she was playing in colony, appellant Chhota @ Chhotelal came there and took her to his house and committed rape with her blood was coming out of private part of the prosecutrix. She lodged F.I.R Ex.P/1 in police station Hindoriya district Damoh. Prosecutrix was medically examined. Benugopal (PW 6) father of the prosecutrix turned hostile and he has not supported the prosecution case and evidence of the prosecutrix and Savitri Bai. Ram Milan (PW3) also truned hostile. He is also not supporting the prosecution on material points. He is deposing contrary to his previous statement Ex.P/3 Statement of Ram Milan is not reliable. Hemantrao (PW 7) also turned hostile. He simply deposed that prosecutrix and Sunder were playing alongwith him in court yard of Sunder but he denied any sexual violence upon prosecutrix. He is also deposing against his previous statement Ex.P/6. Hemantrao is real brother of prosecutrix. His statement is not reliable. ( 10. ) Dr. Alka Nikhar (PW 10) on 10.3.2002 examined prosecutrix (PW 5). She deposed that there was lacerated wound/tear present in posterior forecheat extending anteriorly up to hymen and posterior just above perinal body size 1cm x 1 cm x Vi cm . Fresh bleeding present with clots in vulva . She prepared slide from vaginal smear of the prosecutrix and sealed it. She also sealed underwear of the prosecutrix and handed over it to police. Dr. Alka Nikhar opined that forceful sexual intercourse was committed with the prosecutrix. In cross- examination Dr. Alka Nikhar admitted that if girl would fall on pointed wood then there will be injury on vagina but she definitely opined that injury caused to prosecutrix caused only by forceful intercourse. ( 11. ) Dr. Dr. Alka Nikhar opined that forceful sexual intercourse was committed with the prosecutrix. In cross- examination Dr. Alka Nikhar admitted that if girl would fall on pointed wood then there will be injury on vagina but she definitely opined that injury caused to prosecutrix caused only by forceful intercourse. ( 11. ) Dr. S.K. Jain (PW 12) on 12.3.2000 examined the appellant Chhote @ Chhotelal. He deposed that secondary sexual characters of the appellant were well developed. He found three abrasions (1) Abrasion irregular around left knee size 6 cm x 2 cm, (2.) Abrasion irregular anterior over right knee 4 cm x 1 cm, and (3) Abrasion over right shoulder 3 cm x 2 cm. He was complaining pain over both buttock, back and both lower limbs. Injuries were caused by hard, blunt and rough object within 72 hrs. Dr. jain opined that the appellant was competent to perform sexual intercourse. ( 12. ) Ramsunder (PW 11) also turned hostile. He is not corroborating the prosecution case on material points. He is deposing contrary to his previous statement Ex.P/11. Statement of Ram Sunder is not reliable. Jamna Bai (PW 2) deposed date of birth of the prosecutrix (PW 5) to be 22.4.1993. Sandeep Vishwas (PW 4) prepared spot map Ex.P/4. K.S.Raikwar (PW 8) writer of FIR Ex.P/1. Mahendra Singh (PW 9) handed over sealed packet received from Doctor and it was seized as per seizure memo Ex.P/9, which contained underwear and semen slide of the appellant. Somdatt (PW13) on 10.3.2002 took prosecutrix for medical examination. Doctor handed over slide and underwear of the prosecutrix to this witness which was seized from him as per seizure memo Ex.P/13. G.P.Dwivedi (PW 14) conducted investigation. He also prepared spot map Ex.P/14, recorded evidence of the witnesses u/s 161 Cr.P.C. And seized incriminating articles from Mahendra Singh and Somdatt. ( 13. ) Prosecutrix (P W 5) in cross-examination categorically stated that she was playing in the court yard and during the course of play she sustained injury on private part by wood. She also specifically stated where wood struck. There was bleeding from that part. She also admitted that she told her mother that she sustained injury by wood. Her mother Savitri Bai (PW 1) went to Hindoriya and she (Prosecutrix) went to her house. She specifically admitted that police personal tutored her and accordingly, she deposed in examination- m-chief. She also specifically stated where wood struck. There was bleeding from that part. She also admitted that she told her mother that she sustained injury by wood. Her mother Savitri Bai (PW 1) went to Hindoriya and she (Prosecutrix) went to her house. She specifically admitted that police personal tutored her and accordingly, she deposed in examination- m-chief. Prosecutrix also admitted she does not know meaning of rape (Balatkar ) but in examination-in- chief she deposed that she told her mother that Chhotelal committed rape (Balatkar) with her. Prosecutrix took somersault in her cross-examination. Savitriy Bai also deposed that prosecutrix told her that while playing she sustained injury on her private part by wood. Savitri Bai also admitted that police told her that story of rape be told against the appellant. She also admitted that at the instance of police, she deposed in examination-in-chief that appellant committed rape with her daughter. Learned Public Prosecutor vehemently argued that learned trial Court rightly held that after about 10 months of examination-in-chief of Savitri Bai was cross-examined and she was won over by the appellant hence, she negatived the prosecution story in cross-examination. Learned trial Court giving more than one reason to rely upon the testimony of Savitri Bai and prosecutrix (PW 5) and convicted the appellant. Contrary to that learned Senior Counsel for the appellant submitted that learned trial Court committed grave error in ignoring the cross- examination of Savitri Bai and prosecutrix (PW 5), learned trial Court should have seen the whole statements of these witnesses and would have come to the conclusion that prosecution has failed to prove the guilt against the appellant. ( 14. ) Prosecutrix (PW 5) was aged 10 years when she was examined in the Court. She was able to understand questions and she could reply the question very well. Prosecutrix was not declared hostile and her statement is binding on prosecution. It is well settled principle of law that to act upon on the evidence of the child witness is hazardous without corroboration if there appears no infirmity in the statement of child witness and it is corroborated by firm and reliable witness then only the evidence of child witness can be relied upon. It is true, that examination-in-chief of Savitri Bai (PW 1) was recorded on 11.10.2002 and she was cross-examined on 10.9.2003. It is true, that examination-in-chief of Savitri Bai (PW 1) was recorded on 11.10.2002 and she was cross-examined on 10.9.2003. In cross-examination she totally denied the prosecution story and completely go by to what has been stated in examination- in-chief. In the similar situation in Vikramjit Singh alias Vocky v. State of Punjab ((2007) SCC 1 (Cri.) 732) the Apex Court held as under: "22. Furthermore, as noticed hereinbefore, the prosecution witnesses have turned hostile. It may be an act of dishonesty on their part as contended by Ms. Kochar but by reason thereof only we can not hold the appellant guilty of commission of a heinous offence. In view of their statement in the cross-examination giving a complete go by to what had been stated in the examination-in-chief, it is not possible to rely even upon a part of their statement." ( 15. ) In the case of Vikramjit Singh (Supra) all the material witnesses supported the prosecution case in their exarmnation-in-chief but in their cross-examination, did not support the prosecution case at all. Examination-in-chief Amarjit Kaur (PW 41 was recorded on 15 4 2003 her cross-examination was deferred and it resumed after a period of five months i.e. On 16.9.2003 even then the Apex Court opined that in view of the statement of their cross-examination giving a complete go by to what has been stated in the examination-in-chief, it is not possible to rely even the part of their statements. Consequently, in view of the Apex Courts observation any part of the statement of prosecutrix (PW 5) and Savitri Bai (PW 1) can not be relied upon because they completely go by to what has been stated in the examination-in-chief. Consequently, I am of the view that the learned trial Court committed error in relying upon the testimony of the prosecutrix (PW 5) and Savitri Bai (PW 1) though their statements are corroborated by medical evidence and FIR Ex.P/1. Even father and real brother of the prosecutrix did not corroborate the testimony of the prosecutrix. Prosecutrix specifically deposed that the appellant has not done anything with her. Even father and real brother of the prosecutrix did not corroborate the testimony of the prosecutrix. Prosecutrix specifically deposed that the appellant has not done anything with her. If it is taken to be proven that sexual violence has been committed over the prosecutrix there is duty cast on the prosecution to prove beyond doubt that the appellant has committed rape with the prosecutrix but as per prosecutrixs statement in cross- examination para 6 that appellant Chhota @ Chhotelal has not committed anything (rape) with her. She specifically admitted that she was tutored by police to depose against the appellant for commission of rape with her. Hence she deposed against him in examination-in-chief. Savitri Bai (PW 1) also deposed that at the instance of police inspector she deposed against appellant in examination-in-chief. She deposed that she is speaking truth in cross-examination. Savitri Bai (PW 1) also deposed that the appellant has not committed rape with the prosecutrix. Tutoring of the prosecutrix by police is also proved by the fact that prosecutrix deposed in examination-in-chief that appellant committed rape(Balatkar) with her but even on the date of her examination in Court i.e. on 10.9.2003 she does not know the meaning of rape(Balatkar). ( 16. ) Prosecutrix (PW 5) and Savitri Bai (PW 1) deposed that when they went to . police on the date of the incident the appellant Chhote alias Chhotelal was already under custody of the police. This fact got strength from the fact that appellant sustained six injuries over Jus person and he was complaining pain on both buttock, head, back and both lower limbs. On any stretch of imagination it can not be held that during commission of rape with a 9 years old girl the appellant sustained six injuries over his left knee, right knee, forehead, shoulder and pain on both buttock, head, back and both lower limbs. These injuries possibly caused by beating to the appellant by any person . The appellant was examined on 12.3.2000 as per Doctor S.K.Jain (PW 12) and injuries were caused within 72 hrs but on Ex.P/12 MLC report and application for examination the date is mentioned as 12.3.2002 and date of incident also mentioned 10.3.2002 but Dr. S.K. Jain (PW 12) examined the appellant on 12.3.2000. The appellant was examined on 12.3.2000 as per Doctor S.K.Jain (PW 12) and injuries were caused within 72 hrs but on Ex.P/12 MLC report and application for examination the date is mentioned as 12.3.2002 and date of incident also mentioned 10.3.2002 but Dr. S.K. Jain (PW 12) examined the appellant on 12.3.2000. There is every possibility that the appellant was apprehended before the incident and he was taken to police station and beaten there otherwise no question arises to sustain such injury on the person of the appellant. As per Dr. S.K . Jain (PW 12), only injuries mentioned in MLC report Ex.P/12 were found on the person of the appellant Chhote alias Chhotelal. No injury was found on genital organ of the appellant. As per prosecution, the appellant committed rape with a virgin girl aged 9 years old who sustained injury on her private part with bleeding consequently possibility of sustaining laceration or abrasion over genital organ of the appellant can not be ruled out, though the factum of non-sustaining injury on genital organ of the appellant also weakens the prosecution case and supports the evidence of prosecutrix (PW 5) and Savitri Bai (PW 1) which she stated in cross-examination. Father of the prosecutrix Benugopal (PW 6) also deposed that his wife Savitri Bai (PW 1) told him that prosecutrix sustained injury by wood though Benugopal has been declared hostile but looking to the evidence of the prosecutrix (PW 5) and Savitri Bai (PW 1) this part of the statement can not be brushed aside. In Orsu Venkat Rao v. State of Andhra Pradesh ( AIR 2004 SC 4961 ), the Apex Court held that revealation of incident made by the child witnesses only next day evening when they were examined, though child witnesses however deposing to have given statement to policemen earlier indicates that first statement of children was suppressed. Hence, conviction can not be based on the evidence of the child witness . In the present case, prosecutrix and her mother Savitri Bai (PW 1) supported the prosecution case in examination-in-chief and they took somersault in cross-examination and contradicted their statement of examination-in-chief with explanation that on insistence of police they stated against the appellant in examination-in-chief . Even though the appellant was in police custody previous to the date of the incident. In the present case, prosecutrix and her mother Savitri Bai (PW 1) supported the prosecution case in examination-in-chief and they took somersault in cross-examination and contradicted their statement of examination-in-chief with explanation that on insistence of police they stated against the appellant in examination-in-chief . Even though the appellant was in police custody previous to the date of the incident. Consequently, evidence of the prosecutrix and Savitri Bai (PW 1) in respect of commission of rape with prosecutrix can not be relied beyond doubt. ( 17. ) On going through the evidence of prosecutrix (PW 5) and Savitri Bai (PW 1) in toto, it is clear that on the basis of their evidence two views of the story appear to be probable hence, one view that was contended by the accused and favourable to the accused be accepted. I am of the considered view that learned trial Court weighing the evidence err in relying upon testimony of prosecution and Savitri Bai (P.W 1) and convicted the appellant. ( 18. ) As per the aforesaid discussion, I am of the view that the impugned judgment of the trial Court does not based on sound reasoning and principle of law laid down by the Apex Court. Learned trial Court has committed error in relying upon testimony of the prosecutrix (PW 5) and Savitri Bai (PW 1) and convicted the appellant u/s 376 (2)(f) of the IPC and sentencing him as aforementioned. Consequently, impugned judgment of conviction and order of sentence is not tenable. ( 19. ) Appeal has merit, deserves to be and is hereby allowed. Impugned judgment dated 18.6.2004 and order of sentence is hereby set aside. Appellant is in jail if he is not required in any other criminal case, he be released forthwith. Appeal allowed.