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Madhya Pradesh High Court · body

2012 DIGILAW 643 (MP)

Chunnu @ Sheoprasad Dubey v. State of M. P.

2012-06-29

N.K.GUPTA

body2012
JUDGMENT 1. This criminal appeal is preferred by the appellant being aggrieved by the judgment dated 4.4.2003 passed by the Second Sessions Judge, Chhindwara in Special Case No.15/2011, whereby the appellant was convicted for commission of offence punishable under section 377 of IPC and sentenced for two years’ rigorous imprisonment with fine of Rs.1,000/-. In default of payment of fine amount, an additional RI for three months was directed. 2. Prosecution case, in short, is that on 1.2.1995 at about 7:30 p.m. in the evening victim Omprakash (PW1) a boy aged 15 years went to purchase some grocery from a shop in his village Jatachhapar Outpost Badkuhi Police Station Chandameta District Chhindwara. The appellant met with the complainant in the market and took him in a courtyard to a vacant quarter in front of a bank. The appellant held the neck of the complainant and directed him to remove full-pant and underwear. Thereafter the appellant inserted his penis in the anus of the complainant. After completing the act, the appellant ran away from the spot leaving the complainant there. The complainant went to one Mallu (PW2) and informed about the incident. The complainant was taken to the Outpost Badkuhi Police Station Chandameta at about 9:30 p.m. where he lodged the FIR Ex.P-1. The complainant was sent to the Primary Health Centre, Pagara for his medical examination and treatment. Dr. R.K. Bansod (PW5) examined the complainant and gave a report Ex.P-4. He found that there were abrasions around the anus of the victim. There were some abrasions of both the knees and elbows. Police Chandameta had also arrested the appellant and he was directed for his medico legal examination. Dr. Vilash Pethe examined him and gave a report Ex.P-6. No injury was found on person of the appellant. After due investigation, a challan was filed by the police before the Judicial Magistrate First Class, Chhindwara who committed the case to the Special Judge, SC/ST (Prevention of Atrocities) Act, Chhindwara. 3. The appellant-accused abjured his guilt. He did not take any specific plea in defence but simply stated that he was falsely implicated in the matter. No defence evidence was adduced by the appellant. 4. 3. The appellant-accused abjured his guilt. He did not take any specific plea in defence but simply stated that he was falsely implicated in the matter. No defence evidence was adduced by the appellant. 4. After considering the evidence adduced by the prosecution, the learned Special Judge acquitted the appellant for commission of offence punishable under section 363 of IPC and section 3(2)(v) of SC/ST (Prevention of Atrocities) Act, but convicted him for commission of offence punishable under section 377 of IPC and inflicted the sentence as mentioned above. 5. Heard the learned counsel for the parties. 6. Learned counsel for the appellant-accused has submitted that the appellant was falsely implicated in the matter. The testimony of the victim Omprakash (PW1) cannot be believed. No eye-witness is examined by the prosecution, and therefore the appellant could not be convicted for the offence punishable under section 377 of IPC. In alternate it is submitted that the appellant has undergone in the custody for a longer period of more than one year. He has faced the trial and present appeal since last 11 years. Under such circumstances, he may not be sent to jail again. 7. On the contrary, learned counsel for the State has supported the impugned judgment mainly on the ground that the offence under section 377 of IPC is very well constituted against the present appellant and the sentence directed by the trial Court appears to be proper. 8. Omprakash (PW1) has stated before the trial Court that he was taken by the appellant in a courtyard to a vacant quarter in front of a bank where he held his neck and inserted his penis in his anus in a lying position. Soon after the incident complainant went to one Mallu (PW2) and informed about the incident. Thereafter, Mallu (PW2) took the complainant Omprakash to Outpost Badkuhi Police Station Chandameta where he lodged the FIR Ex.P-1. Mallu (PW2) confirmed the evidence given by the complainant. The FIR was lodged within two hours of the incident whereas Outpost was 5 kms. away from the place of incident. Initially the complainant shifted himself from the place of incident after wearing the clothes and went to contact the witness Mallu (PW2) and thereafter Mallu took the complainant to his house, but Shankar Mehtar father of the victim met in the way and thereafter Omprakash was taken to the Outpost Badkuhi. away from the place of incident. Initially the complainant shifted himself from the place of incident after wearing the clothes and went to contact the witness Mallu (PW2) and thereafter Mallu took the complainant to his house, but Shankar Mehtar father of the victim met in the way and thereafter Omprakash was taken to the Outpost Badkuhi. Looking to the entire situation, time taken in lodging the FIR appears to be reasonable. Two hours could be consumed in doing such activity. 9. No enmity could be proved in between the complainant and the appellant. It was suggested that the complainant was sweeper by caste and it was not possible for the appellant, who was a brahman to do such an act with the complainant. There is no such hard and fast rule to prevent such a crime with a Scheduled Caste complainant. Dr. R.K. Bansod (PW5) has proved his report Ex.P-4 and informed to the Court that there were many abrasions found surrounding the anus of the complainant. Similarly, abrasions were found on both the knees and elbows of the complainant. Looking to the injuries caused to the complainant soon after the incident, his allegation appears to be correct. It was suggested to the doctor that if someone falls upon the pointed strait wood, then such type of injuries could be caused. The suggestion given to the doctor was hypothetical. In such type of event, injury cannot be caused in course of playing. No such strait pointed wood may be found in the ground. If it happens in such a manner as suggested by the defence, then there is no explanation about abrasion caused to the victim on elbows and knees. Under such circumstances, the evidence of the complainant is duly corroborated by witness Mallu (PW2), Shankar (PW3) and timely lodged FIR Ex.P-1 along with medical report proved by Dr. R.K. Bansod (PW5). Under such circumstances, it is apparent that the appellant inserted his penis in the anus of the complainant and completed his act. If such a part was not inserted in the anus, then no such abrasions could be caused surrounding the anus. Since the complainant was 15 years old, and therefore it was possible that there was no bleeding caused because there was no tear of the skins. If such a part was not inserted in the anus, then no such abrasions could be caused surrounding the anus. Since the complainant was 15 years old, and therefore it was possible that there was no bleeding caused because there was no tear of the skins. Under such circumstances, conviction directed by the trial Court for commission of offence punishable under section 377 of IPC appears to be correct, therefore no interference is required to be done in the conviction directed by the trial Court. 10. As far as sentence is concerned, it is true that the appellant was only 23 years old at the time of incident and hence he was not a mature person. According to the certificate given by the trial Court under section 428 of CrPC, the appellant had remained in custody for 412 days i.e. 14 months approximately. The incident took place on 1.2.1995 and the appellant was arrested in the month of March 1995. The case was submitted before the Special Judge directly. Thereafter, it was remanded back to submit before the JMFC and thereafter again it was submitted before that Court and committed in the year 2001. The appellant has not remained in the custody only for 412 days, but also suffered the harassment of the case for last 17 years. Under such circumstances, his custody period appears to be sufficient punishment for the crime, and hence his sentence may be reduced to the period which he has already undergone in the custody but it would be proper to impose some fine amount upon him. 11. On the basis of aforesaid discussion, the instant appeal of the appellant is partly allowed. The conviction directed by the Court below for commission of offence punishable under section 377 of IPC is hereby maintained, but his sentence is reduced to the period which he has already undergone in the custody by enhancing the fine amount from Rs.1,000/- to Rs.10,000/-. The appellant is directed to deposit the remaining fine amount before the trial Court within a period of two months from today, failing which he shall suffer rigorous imprisonment in the custody for six months. It is also directed that if fine amount is deposited, then a sum of Rs.5,000/- may be given to the victim Omprakash s/o Shankar Mehtar, resident of Village Parasiya District Chhindwara by way of a compensation out of that fine amount. 12. It is also directed that if fine amount is deposited, then a sum of Rs.5,000/- may be given to the victim Omprakash s/o Shankar Mehtar, resident of Village Parasiya District Chhindwara by way of a compensation out of that fine amount. 12. Presence of the appellant is no more required, therefore, it is directed that his bail bonds shall stand discharged. 13. A copy of this judgment be sent to the concerned trial Court for information and compliance.