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Madhya Pradesh High Court · body

2014 DIGILAW 1101 (MP)

Savita Bai v. Munna Lal

2014-09-03

S.K.GANGELE, S.K.PALO

body2014
ORDER Palo, J. -- 1. Aggrieved by the judgment of acquittal dated 28.2.2006 passed by the Third Additional Sessions Judge, Guna (FTC), Guna in Sessions Trial No.302/2005, State v. Munna and others, in which the learned trial Court has acquitted the accused/non-applicants No.1 and 2 for the offence under section 376(2)(g) of IPC., the father of the prosecutrix on behalf of the complainant/prosecutrix, has filed this revision under sections 397 read with section 401 of the Code of Criminal Procedure, 1973. 2. It is not disputed that the prosecutrix, a minor, is mentally retarded. The accused persons are known to her. Both PW3, Munnibai, is her mother, PW1 Nathu is her grand father. A report was lodged at Police Station Myana which has been marked as Ex.P-10. Dr. Chhaya Sharma, PW10, the lady medical officer examined the prosecutrix and prepared the report Ex.P-11. Dr. R.K. Jain, PW6 examined the X-ray plates on the reference by Doctor Chhaya Shama, PW10 and submitted the report Ex.P-7 in which he has found the radiological age of the prosecutrix in between 17-18 years. The accused non-applicants 1 and 2 were arrested by Harsh Kumar, A.S.I. (PW9) on 23.8.2005 by arrest memo Ex.P-12 and P-13. Both of them were sent for medical examination by requisition Ex.P-3 and Ex.P-4. 3. Besides, these admitted facts, the prosecution story in brief is that the prosecutrix lodged a report at Police Station Myana on 22.8.2005. It is alleged that at about 7 a.m. she had gone to attend the call of nature behind the School in the fields in her village Behentaghat. The accused persons/non-applicants Sunil and Munnalal caught her. They committed sexual intercourse turn by turn. Her mouth was shut by Sunil when the other accused committed the crime and when Sunil committed the crime, the other accused Munnalal shut her mouth. When she was left, she shouted. Chandu and Sanjay (PW8) climbed to the terrace of the school and saw the accused persons running from the spot. The prosecutrix' clothes were wet due to bleeding. She returned to her home crying and narrated the incident to her mother Munnibai, PW3 and her grand father Nathu, PW1. PW1 Nathu accompanied her to police station which is about a distance of 40 kms. and lodged the report, Ex.P-10. 4. The prosecutrix' clothes were wet due to bleeding. She returned to her home crying and narrated the incident to her mother Munnibai, PW3 and her grand father Nathu, PW1. PW1 Nathu accompanied her to police station which is about a distance of 40 kms. and lodged the report, Ex.P-10. 4. On the basis of the report Ex.P-10, crime was registered under section 376(2)(g) of IPC and after investigation charge-sheet has been filed. 5. The learned trial Court framed charges under section 376(2)(g) of IPC and explained to the accused persons, they abjured guilt. 6. The learned trial Court passed the judgment on 28.2.2006 and acquitted the accused persons for offences under section 376(2)(g) of IPC. 7. The impugned judgment has been assailed by the prosecutrix on the ground that the learned trial Court did not evaluate the evidence properly. Therefore, it has erred in passing the order of acquittal. The prosecutrix, a minor, has given details of the incident. Her statement has been corroborated by the medical evidence and the prosecutrix has specifically named the accused persons. Prosecutrix being minor and mentally retarded has been subjected to such a heineous crime. Therefore, it is been requested that the order of acquittal be set aside and the case be sent back to the trial Court for deciding the same in accordance with law. 8. We have heard the learned counsels for both the parties at length and perused the record. 9. The mother Munnibai (PW3) has clearly stated that her daughter prosecutrix has been mentally retarded right from her birth. Nathu, PW1, the grand father of the prosecutrix also agreed to the same. The Court, while recording the statement of the prosecutrix has also estimated the age of the prosecutrix as 13-14 years. At the same time, the Court observed that her mental state is not sound. She has been answering the question after repeatedly asking her. The manner in which she replies was also not clear and childlike. Lady medical officer Chhaya Sharma, PW10 while examining the prosecutrix has also mentioned in Ex.P-11 that the prosecutrix is a girl appears to be mentally retarded. All these goes to show that the prosecutrix is mentally retarded. The accused persons did not dispute the same. 10. The manner in which she replies was also not clear and childlike. Lady medical officer Chhaya Sharma, PW10 while examining the prosecutrix has also mentioned in Ex.P-11 that the prosecutrix is a girl appears to be mentally retarded. All these goes to show that the prosecutrix is mentally retarded. The accused persons did not dispute the same. 10. Before entering into the question whether the accused persons have committed sexual intercourse with the prosecutrix, it is necessary to give a finding whether the prosecutrix was subjected to sexual intercourse. In this regard, the prosecutrix has narrated that she was subjected to sexual intercourse (Bura kaam). She could not speak very clearly due to her mental retardness. But, she has said that she was caught by the accused Munnalal and accused Sunil. As her understanding was not very clear she was declared hostile and suggestive questions were put to her. Simply because the prosecutrix was declared hostile, her evidence cannot be out rightly rejected. Reference can be made in this regard to Leela Shrinivasa Rao v. State of Andhra Pradesh [AIR 2004 SC 1729], in which it has been held that, “Hostile witness -- Fact that witnesses were declared hostile by prosecution-does not result in automatic rejection of their evidence-even evidence of hostile witness if it finds corroboration from facts of the case may be taken into account while judging guilt of accused.” 11. Apart from the prosecutrix, her mother Munnibai has also corroborated that her daughter who had gone to attend the call of nature returned after some time. When she came back, she was crying and her garments were wet due to bleeding. Nathu PW1, the grand father of the prosecutrix has also supported the statement that her grand daughter was subjected to sexual intercourse and he was the person who accompanied her to the police station to lodge the report. 12. More importantly, the lady Medical Officer Dr. Chhaya Sharma, PW10 has clearly and unambiguously stated that the prosecutrix developed secondary sexual characters. She has no injury in her body but her hymen was ruptured in 9 O’clock position and there was a tear in 6 O’clock and another tear in 4 O’clock position. Both tears were fresh and on touching blood was oozing out. In the posterior forchetty 1 cm. and 4 cm. fresh bleeding, two stitches were done. Fresh bleeding was also observed. Both tears were fresh and on touching blood was oozing out. In the posterior forchetty 1 cm. and 4 cm. fresh bleeding, two stitches were done. Fresh bleeding was also observed. She has opined that the chances of sexual intercourse could not be ruled out. For confirmation she has taken swabs for chemical examination and handed over the slides to the police. In her cross-examination, the medical officer stated that this type of injury caused could be “most probable” at the time of coitus. Thus, examining the evidence we are of the opinion that the prosecutrix was subjected to sexual intercourse. 13. Now the question arises as to who has committed or who have committed the intercourse? Section 118 of Indian Evidence Act, 1972, reads as follows : “Section 118. Who may testify. -- All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of bod or mind, or any other cause of the same kind.” 14. In the present case, the prosecutrix may be mentally retarded but she is not a lunatic. The prosecutrix has not answered irrationally though her answers were incoherent. She has given the names of the accused persons. The accused persons also admit that she know them. In the given circumstances, the statement of the prosecutrix cannot be outrightly rejected, specially when the same has been corroborated by medical evidence. 15. More to that, immediately after the incident, she had gone to her house and narrated the same to her mother PW3 and grand father PW1. 16. Thus, her naming the accused persons has relevant. Hence, in our considered opinion the learned trial Court has committed manifest error of law and procedure. 17. 15. More to that, immediately after the incident, she had gone to her house and narrated the same to her mother PW3 and grand father PW1. 16. Thus, her naming the accused persons has relevant. Hence, in our considered opinion the learned trial Court has committed manifest error of law and procedure. 17. In Ganesha v. Sharanappa and another [ (2014)1 SCC 87 ], it has been held that : “High Court while exercising powers of revision under section 401 CrPC can exercise all powers of appellate Court in section 386 of CrPC, except the power of appellate Court to convert a finding of acquittal into that of conviction -- However, in exceptional cases, High Court in revision can set aside an order of acquittal and direct re-trial of the case -- on direction of re-trial, the trial Court must reappraise the evidence without being influenced by observation made by revisional Court setting aside of order of acquittal and direction as to retrial. In revision is permissible only in case (i) Where acquittal is based on misreading of evidence OR non-consideration of evidence or perverse appreciation of evidence OR where there the trial Court shut out the evidence which otherwise ought to have been considered or overlooked the material evidence clinching the issues or (ii) Where there is manifest error of law or procedure or (iii) Where the order of acquittal suffers from glaring illegality, resulting into miscarriage of Justice.” 18. In Venkatesan v. Rani and another, in Criminal Appeal No.462 of 2008, Hon'ble the Supreme Court has observed that : “Criminal-Revisional jurisdiction of the High Court while examining an order of acquittal -- Nature and exercise thereof -- section 397 read with section 401 of the Code of Criminal Procedure, 1973 -- Held, the Revisional jurisdiction of the High Court is extremely narrow and ought to be exercised only in cases where the trial Court had committed a manifest error of law or procedure or had overlooked and ignored relevant and material evidence thereby causing miscarriage of justice -- Re-appreciation of evidence is an exercise that the High Court must refrain from while examining an order of acquittal in the exercise of its revisional jurisdiction under the Code -- If within the limited parameters, interference of the High Court is justified, the only course of action that can be adopted is to order a re-trial after setting aside the acquittal”. 19. Keeping in mind of the above facts and circumstances of the case we find it difficult to accept the conclusion reached by the learned trial Court, we find it a fit case for exercising the jurisdiction under section 401 of CrPC. We, therefore, allow this revision, set aside the impugned judgment dated 28.2.2006 passed by the learned Third Additional Sessions Judge, Guna and that there is a manifest error of law and procedure and the acquittal suffers from illegality resulting into miscarriage of justice. 20. The case is remanded to the learned trial Court for trial afresh with the direction that : (1) The learned trial Court may decide the matter afresh and may re-examine the witnesses and also examine the witnesses who were not examined earlier; (2) Whatever observations we have made in this revision may not be construed as any finding while deciding the case, in other words, we make it clear that we have not opined anything on the merits of the case. (3) The trial Court shall make every effort to dispose the case at the earliest. (4) The accused persons are directed to remain present before the trial Court on 29.10.2014. (5) Office is directed to send the original record to the trial Court at the earliest. .............