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Madhya Pradesh High Court · body

2012 DIGILAW 456 (MP)

Santosh Kumar Vishwakarma v. State of M. P.

2012-04-27

A.K.SHRIVASTAVA

body2012
JUDGMENT 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 31.3.2010 passed by learned Special Judge Seoni, in Special Case No. 56/2009 convicting the appellant under section 376(2)(f) IPC and sentencing him to suffer rigorous imprisonment of ten years and fine of Rs. 1500/- in default to undergo further R.I. for six months, the appellant has knocked the doors of this Court by preferring the appeal under section 374 (2) of the Code of Criminal Procedure, 1973. 2. In brief, the case of the prosecution is that the prosecutrix belongs to a Gond community and is a member of scheduled tribe community while appellant belongs to a Vishwakarma community, as such, he is not either member of scheduled caste or scheduled tribe community. On 22.6.2009 the age of the prosecutrix was below 12 years. On that date, at 9.00 in the morning the prosecutrix went to pick up the leaves and to graze she-goats where she met with the appellant who offered that he will provide Gutka to her. Thereafter appellant carried the prosecutrix in the Parchi of the house of Amoldas Patekar where after undressing the prosecutrix, appellant committed sexual intercourse with her. When the prosecutrix screamed, Pappu and Dayaram who were passing away from that place, arrived at the spot and on seeing them, appellant fled from the place of occurrence. The matter was reported by the prosecutrix to her parents and they assembled the villagers. One Ram swaroop also arrived at that place. The prosecutrix narrated the entire episode to the villagers. The villagers suggested to lodge a report, as a result of which, the prosecutrix along with her parents went to lodge the report. A written report which was told by prosecutix to Ram Swaroop was submitted in the police station and on the basis of the said report, a case was registered against the appellant. The prosecutrix was sent for medical examination and after arrest, the appellant was also sent for medical examination. 3. After the investigation was over, a charge sheet was submitted in the Special Court who framed the charge punishable under section 376(2)(f) IPC and also under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short ‘Act’) against the appellant which he denied and requested for the trial. 4. 3. After the investigation was over, a charge sheet was submitted in the Special Court who framed the charge punishable under section 376(2)(f) IPC and also under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short ‘Act’) against the appellant which he denied and requested for the trial. 4. In order to prove the charges, the prosecution examined as many as 14 witnesses and placed Ex. P.1 to P.18 the documents on record. The defence of the appellants is of false implication and the same defence he set forth in his statement recorded under section 313 Cr.P.C. However, in support of his defence, he did not chose to examine any witness. 5. The learned trial Court, on the basis of the evidence placed on record, came to hold that charge under section 3(2) (v) of the Act has not been proved and eventually acquitted him from the said charge. However, on the basis of evidence came on record and particularly on the basis of the testimony of the prosecutrix, it was held that appellant has committed an offence under section 376(2)(f) of the IPC and convicted and sentenced the appellant which I have mentioned herein-above. 6. In this manner, the appellant has filed this appeal assailing his judgment of conviction and order of sentence. 7. The contention of Shri Mukherjee, learned counsel for the appellant is that on bare perusal of the testimony of the prosecutrix it is clear that since no where she has stated that at the time of the commitment of the offence, she ever resisted and restrained the appellant not to commit such an act therefore, it would mean that she was a consenting party. 8. Learned counsel further contended that there is absolutely no evidence of the prosecution in order to hold that prosecutrix was below 16 years and if that would be the position since she was a consenting party no offence was committed by the appellant. 9. On the other hand Shri Akshay Namdeo, learned Public Prosecutor argued in support of the impugned judgment and submitted that cogent reasons have been assigned by the learned Special Court while convicting and sentencing the appellant therefore, this appeal be dismissed. 10. Having heard learned counsel for the parties, I am of the opinion that this appeal deserves to be allowed in part. 11. 10. Having heard learned counsel for the parties, I am of the opinion that this appeal deserves to be allowed in part. 11. So far as the age part of the prosecutrix is concerned, there is overwhelming evidence of the parents of the prosecutrix namely Girani lal (PW.2) and Dammi Bai (PW.3) who have categorically stated that the age of the prosecutrix between 10 to 11 years at the time of the incident and she was a student of 4th standard. On bare perusal of Ex.P/10 which is the admission register of the school where the prosecutrix was undergoing her studies it is gathered that her date of birth 24.4.1998 has been written. Hence on the date of incident, her age was only 11 years and thus, her age was below 16 years, therefore, according to me the consent part is totally immaterial in the present case. 12. I shall now test the testimony of the prosecutrix in order to hold whether appellant has committed the offence under section 376(2) (f) IPC or not. 13. On bare perusal of para 3 of examination-in-chief of the prosecutrix it is gathered that on the fateful day, the appellant carried her to the Parchi where he totally undressed the prosecutrix. Her entire clothes were kept at one corner. The appellant was wearing his clothes and thereafter he lay down over her. By changing her version, she has stated that appellant was not wearing the clothes. However, in the examination-in-chief itself she has specifically stated that appellant could not do anything with her because at that juncture Pappu Bhaiya and Dayaram reached to the spot and on seeing them, appellant fled away from the place of occurrence. The aforesaid statement was given by the prosecutrix in her examination in chief. Despite this statement of prosecutrix was against the prosecution, she was not declared hostile by the prosecution and no cross examination was made over her and if that would be the position, according to me, the prosecution is bound by the statement given by the prosecutrix. In this context, I may profitably rely on two decisions of the Supreme Court. They are Rajaram v. State of Rajasthan 2005 SCC (Cri) 1050 and Mukhtiar Ahmed Ansari v. State (NCT of Delhi) 2005 SCC (Cri) 1037. The Supreme Court in Rajaram (supra), in para 9 has categorically held as under :- “9. In this context, I may profitably rely on two decisions of the Supreme Court. They are Rajaram v. State of Rajasthan 2005 SCC (Cri) 1050 and Mukhtiar Ahmed Ansari v. State (NCT of Delhi) 2005 SCC (Cri) 1037. The Supreme Court in Rajaram (supra), in para 9 has categorically held as under :- “9. But the testimony of PW 8 Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw PW 5 making the deceased believe that unless she puts the blame on the appellant and his parents she would have to face the consequences like prosecution proceedings. It did not occur to the Public Prosecutor in the trial Court to seek permission of the Court to hear (sic declare) PW 8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of PW 8 is binding on the prosecution. Absolutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how PW 8’s testimony can be sidelined.” Similar view has been taken by the Supreme Court in Mukhtiar Ahmed Ansari (Supra). Since the statement of the prosecutrix in her examination-in-chief is that the appellant could not do anything and in absence of any evidence about penetration or sexual intercourse as envisaged under section 375 IPC, I am of the view that offence under section 376 (2)(f) IPC has not been proved, but the appellant has committed an offence under section 376/511 IPC. At this juncture, it would be profitable to go through para 14 of the cross examination of the prosecutrix, wherein she has stated that the appellant did not undress himself and on seeing persons who assembled there, he ran away from the place of occurrence. 14. I do not find any merit in the contention of learned counsel for the appellant that nowhere it has come in the testimony of the prosecutrix that she ever resisted the act of undressing her by the appellant nor she has stated that against her wishes and consent appellant undressed her therefore, no offence has been committed by the appellant. I do not find any merit in the contention of learned counsel for the appellant that nowhere it has come in the testimony of the prosecutrix that she ever resisted the act of undressing her by the appellant nor she has stated that against her wishes and consent appellant undressed her therefore, no offence has been committed by the appellant. I have already held herein above that the prosecutrix was minor at the time of incident and therefore, even if she was a consenting party, it cannot be said that appellant did not commit any offence. 15. Looking to the evidence of the prosecutrix and for the reasons mentioned herein above, the conviction of the appellant is altered from section 376(2)(f) to section 376/511 IPC and since the age of the prosecutrix is found to be below 12 years, on the date of incident, the appellant shall undergo jail sentence of five years rigorous imprisonment, alongwith the amount of fine as imposed by the learned Special Judge in the impugned judgment. 16. Resultantly, this appeal is allowed in part as indicated herein above.