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2011 DIGILAW 1012 (MP)

Shyam Lal v. State of M. P.

2011-08-27

TARUN KUMAR KAUSHAL

body2011
JUDGMENT : T.K. Kaushal, J. This appeal has been preferred u/s 374 of the Code of Criminal Procedure, 1973 (in short the Code) against judgment dated 09/12/2005 passed by IInd Additional Sessions Judge, Satna, District-Satna in S.T. no. 344/2002 convicted the appellant u/s 376 and 450 of IPC for committing rape on prosecutrix aged about 16 years after committing house trespass and sentenced to 10 years and 5 years R.I and fine of Rs.500/- and 200/- respectively. 2. Facts of the case in short are that on 17/09/2002 at about 9.00 am in village Giduri Amodha, District- Satna, Sundariya, mother of the prosecutrix went out of his house at rivulet (Nala) for cleaning clothes. Sundarlal, father of the prosecutrix had gone out of his house for labour work. Prosecutrix, aged 15 years, a mentally retarded girl, was in the house with her younger sister Seema, aged 8 years. Appellant came in the house and asked Seema to go out of the house for calling her mother (PW-2). Appellant closed the door of the house from inside and committed rape on the prosecutrix. Sundariya, mother (PW-2) was informed by her younger daughter Seema that appellant was calling her. Mother (PW-2) reached to the house and saw the house closed from inside, but could peep inside the house from a hole of the door and saw that appellant was committing rape on her daughter the prosecutrix. On raising alarm, appellant opened the door and ran away from the house. 3. Sundariya, mother (PW-2) lodged FIR Ex.P-2 at police station Kotwali, Satna. A case at crime no. 682/2002 was registered u/s 376 of IPC against the appellant. Prosecutrix was sent for her medical examination at District Hospital Satna by police along with request letter Ex.P-7. Prosecutrix was examined by Dr. Sudha Jain (PW-5). MLC report Ex.P-8 was prepared by the doctor. For ascertaining age of the prosecutrix on 18/09/2002, she was subjected to ossification test at District Hospital Satna. Dr. Arvind Saraf, Radiologist (PW-8) took X-ray of wrist and elbow of the prosecutrix and prepared report Ex.P-10 on the basis of X-ray plate Ex. P-11. 4. Since, the prosecutrix was unable to speak, was sent for her medical examination by ENT Expert at Satna. On 01/10/2002, Dr. Dr. Arvind Saraf, Radiologist (PW-8) took X-ray of wrist and elbow of the prosecutrix and prepared report Ex.P-10 on the basis of X-ray plate Ex. P-11. 4. Since, the prosecutrix was unable to speak, was sent for her medical examination by ENT Expert at Satna. On 01/10/2002, Dr. U.S. Thakur (PW-1) examined and prepared report Ex.P-1, finding nothing abnormal in her nose, ear, throat except loss of speech and referred for her examination by expert of mental hospital. On 08/10/2002 prosecutrix was examined by Dr. Pradeep Kumar (PW-10) at Medical College Rewa and was observed that prosecutrix suffered with 60% mental disability and prepared report Ex. P-12. In the meantime, i.e. on 23/09/2002, appellant was arrested and was sent for his medical examination. Dr. B.L. Gupta (PW-12) observing him fit for physical intercourse, prepared MLC report Ex.P-13. 5. After completing investigation, citing 22 witnesses, police City Kotwali, District-Satna submitted charge sheet u/s 376/450 of IPC in the court of concerned JMFC.Case was committed to the court of session for trial. Charges u/s 376/450 of IPC were framed on the appellant. Appellant abjured guilt To substantiate case of the prosecution, statements of Dr. U.S. Thakur, ENT Expert (PW-1), Sundariya, mother of the prosecutrix (PW-2), Sundarlal, father of the prosecutrix (PW-3), Mahesh Prasad Yadav (PW-4), Dr. Sudha Jain (PW-5), Sukhlal (PW-6), Mithailal (PW-7), Dr. Arvind Saraf, Radiologist (PW-8), Shobha Namdeo, Head Constable (PW-9), Dr. Pradeep Kumar (PW-10), Ram Kishore, Home Guard Saink (PW-11), Dr. B.L. Gupta, Medical Specialist (PW-12), Bheem Sen Tiwari, Constable (PW-13), Nathulal (PW-14), D.K Singh, ASI/Investigation Officer (PW-15) were recorded. Defence of the appellant was that of false implication on account of election based political rivalry in the village. 6. Though prosecutrix was produced before the trial court, but vide order dated 30/08/2005, trial court chose not to record her statement for the reason that appellant was dumb since birth and even Investigation Officer did not record her statement during investigation. Appreciating the aforesaid evidence, trial court convicted and sentenced the appellant as above. 7. This appeal has been preferred by the appellant on the grounds that appreciation of evidence is not proper. Case of the prosecution is suffering from lapses like non-examination of prosecutrix and her younger sister Seema aged 8 years, and independent witnesses though said to be present on the scene of occurrence. 7. This appeal has been preferred by the appellant on the grounds that appreciation of evidence is not proper. Case of the prosecution is suffering from lapses like non-examination of prosecutrix and her younger sister Seema aged 8 years, and independent witnesses though said to be present on the scene of occurrence. According to medical reports, prosecutrix was a major and consenting party, hence, conviction and sentence u/s 376 of IPC is bad in law. On the other hand, Learned Panel Lawyer supported the finding of conviction and sentence both. 8. On perusal of evidence of Dr. U.S. Thakur, ENT Expert (PW-1) and MLC report Ex.P-1, Dr. Pradeep Kumar (PW-10) and report Ex.P-12, it is clear that prosecutrix age 15 years, was able to hear, but was not able to speak and was mentally retarded. She was suffering 60% metal retardedness. In view of the aforesaid evidence, it is clear that prosecutrix was not only a girl of imbecile mind having lack of understanding like stupid person rather she was mentally retarded girl. Meaning thereby her mental age was not matching with her physical age. As per medical report she was far below in her mental age, as compared to her physical age, shown to be 15-16 years. On the basis of aforesaid, medical evidence it can safely be gathered that prosecutrix had no sense of discretion to give her consent or to express her opposition as well. 9. In view of the evidence of Dr. Sudha Jain (PW-5) and Dr. Arvind Saraf, Radiologist (PW-8), it is clear that prosecutrix had an old rupture of hymen, and was found experienced of intercourse. No definite opinion was given by doctor regarding commission of rape. As per ossification test, she was found to be girl aged 14 to 15 years. Presumption of plus (+) minus (-) 3 years age can be added after keeping it in mind that 2 years margin has already been given by the doctor. Age of the prosecutrix was shown 14-15 years. In any case, she was below 17 years. 10. In this case non-examination of prosecutrix, would not affect the credibility of the prosecution much because she was not able to speak. It would be difficult for the Court to record her statement. Age of the prosecutrix was shown 14-15 years. In any case, she was below 17 years. 10. In this case non-examination of prosecutrix, would not affect the credibility of the prosecution much because she was not able to speak. It would be difficult for the Court to record her statement. It would be equally difficult for the appellant to cross-examine such a witness or to understand her expression while she was not able even to speak. In back ground of these peculiar facts in this case, it is not fatal for prosecution that prosecutrix was not examined. Observation of trial court is also on record. As per order sheet dated 30/08/2005, trial court exercised its discretion to not to record the statement of the prosecutrix though she was present in the court. In such a situation, no prejudice has been caused to the appellant by non-examination of the prosecutrix. 11. Further in view of the evidence of mother of the prosecutrix (PW-2), it is apparently clear that appellant was found inside the house with prosecutrix in compromising position. There are contradictions in her statement regarding the way she saw activities and posture of the appellant from outside the house. But these are minor and inconsequential. Her evidence is free from doubts and discrepancies regarding the fact that appellant was seen by her inside the house in compromising position and on raising alarm having opened the door, appellant ran away from the house wearing a towel only. 12. In present case evidence of mother of the prosecutrix (PW-2) is worthy of credence even without corroboration from any other independent witnesses, those said to have been assembled outside the house on raising cries by her. Appreciation of evidence done by the trial court in this respect is proper and is in right perspective. 13. Defence of the appellant was that of consent of the prosecutrix and false implication on account of election rivalry. Both such defences do not inspire the confidence. Prosecutrix was a mentally retarded girl aged about 16-17 years and had no sense of discretion to give consent or to offer resistance, no case of consent is made out. Similarly for taking revenge of election rivalry, it does not inspire confidence that a false report will be lodge by mother of the prosecutrix at police station involving her daughter in such act. 14. Similarly for taking revenge of election rivalry, it does not inspire confidence that a false report will be lodge by mother of the prosecutrix at police station involving her daughter in such act. 14. I see no error in appreciation of evidence done by the trial court. However, in view of the totality of facts and circumstances of the case, in my considered opinion 10 years jail sentences seem to be harsh, rather it should be 7 years R.I. 15. As discussed above, appeal is partly allowed on the point of sentence only. Findings of conviction of appellant u/s 376 and 450 of IPC are maintained. Sentence of appellant u/s 376 of IPC is reduced from 10 years to 7 years R.I. Sentence of appellant u/s 450 of IPC is maintained. Sentence of fine is maintained. 16. Appellant shall be entitled to have benefit of custody period spent by him pending investigation, trial and appeal.