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2014 DIGILAW 1134 (MP)

State of M. P. v. Shantilal

2014-09-10

S.K.GANGELE, S.K.PALO

body2014
JUDGMENT Palo, J. -- 1. The State through Police Station, Aron, District Guna, has filed this Criminal Appeal being aggrieved by the judgment of acquittal dated 1.7.2003 pronounced by the Sessions Judge, Guna, in Sessions Trial No.307/02 by which the learned trial Court has acquitted the accused/respondent in all the charges levelled against them under sections 294, 452, 323 and 506B and under sections 376 read with section 511 of IPC. 2. It is not disputed that the prosecutrix is known to the accused persons who are living nearby their house. 3. Briefly, stated the prosecution story before the learned trial Court is that was on 16.8.2002, the mother of the prosecutrix Savita Bai lodged a report Exhibit P-3 at Police Station Aron stating that respondent/accused No.1 Shantilal is residing nearby their house. It was raining, her children were playing and shouting in front of the house of the accused Shantilal, he scolded the children. On being asked by the complainant Savita Bai, why he is scolding the children. Both the accused persons abused her and came with lathis to beat her. She went inside the home and closed the doors. Shantilal entered inside her house, caused injuries to her. They also threatened her that if the children play and shout in front of his house, he will kill them. On her report, crime was registered under sections 452, 294, 323 and 506B 34 of IPC. 4. During the course of investigation it was stated that the accused Shantilal attempted to rape the five years old daughter of complainant Savita Bai. Fearing that she will be defamed if she disclose this at the time of lodging the report. The minor prosecutrix was examined by lady Medical Officer Dr. Chhaya Sharma and received the report Exhibit P-1. It was suggested for radiological examination to ascertaining her age, Dr. R.K. Jain, PW2 submitted report and opined her radiological age as 7 years. Jay Narayan Sharma, PW6 prepared the spot map Exhibit P-5, arrested the accused and after completion of the investigation submitted the charge-sheet. 5. After the case was committed, the learned Sessions Judge framed charge under section 376 read with sections 511, 294, 452, 323 and 506B of IPC against the accused No.1 Shantilal and under section 294 of IPC against accused No.2 Manmohan. Both the accused persons abjured guilt. 6. 5. After the case was committed, the learned Sessions Judge framed charge under section 376 read with sections 511, 294, 452, 323 and 506B of IPC against the accused No.1 Shantilal and under section 294 of IPC against accused No.2 Manmohan. Both the accused persons abjured guilt. 6. The learned trial Court by the impugned judgment dated 1.7.2013, acquitted the accused respondents holding that the prosecution has failed to prove the case. 7. The appellant/State has assailed the impugned judgment on several grounds. It is contended that Dr. Chhaya Sharma, PW1, in her statement had made it clear that the possibility of attempting rape on the prosecutrix cannot be ruled out. There was redness on the left labia majora of the prosecutrix. No other reason could be there, except the actions of the accused. The minor prosecutrix also stood the test of cross examination and there is nothing on record to show that the accused has been falsely implicated. Therefore, the impugned judgment be set-aside. 8. We have gone through the statement of the witnesses in detail and the judgment pronounced by the trial Court. Dr. Chhaya Sharma, PW1, the medical officer has no doubt stated that there was redness in the right labia majora of the prosecutrix. On the basis of which she says that the possibility of attempt to rape her could not be ruled out. But in her cross examination she has said that there may be many other reasons for the redness on the private part of the prosecutrix. 9. We hasten to mention here that Savita Bai, PW4 is the mother of the prosecutrix, who has lodged the report Exhibit P-3. She has not corroborated the prosecution story due to which she has been declared hostile. She has said that her daughter did not tell anything done by the accused Shantilal to her. She specifically denied the suggestion that accused Shantilal tried to put his private part in to the private part of the prosecutrix. Other witness have not supported the prosecution story, therefore, the statement of prosecutrix PW3 has to be analyzed with great caution. 10. No doubt, the prosecutrix aged six years (apparent age noted by the Court) has stated that accused persons are living around their house. She has gone to accused Shantilal’s house. Accused removed her under garments and tried to place his private part on her private part. 10. No doubt, the prosecutrix aged six years (apparent age noted by the Court) has stated that accused persons are living around their house. She has gone to accused Shantilal’s house. Accused removed her under garments and tried to place his private part on her private part. She came to home and narrated this to her mother. Her mother washed her undergarments. This part of her story is not corroborated by her mother Savita Bai, PW4. Her statement was recorded in the Court on the same day in the trial Court. 11. It would not be out of context to mention here that according to prosecution the prosecutrix was playing in front of the house of accused Shantilal’s shop, at that time, it was raining. She also agreed that because she was playing and shouting in front of the shop of accused Shantilal, there was a quarrel between her mother and Shatilal. This indicates that there had been a quarrel between accused No.1 Shantilal and Savita Bai (PW4) on the said date and time. That being so, the statement of prosecutrix, PW3 could be a result of her annoyance. 12. Hon’ble the Supreme Court in Criminal Appeal No.268 of 2007, reported as Hamza, State of Kerala v. Muhammadkutta @ Mani and ors, 2013 (III) DMC 566 (SC), held that section 118 of Evidence Act, 1872- “Child witness-Requirement of corroboration-As a rule of practical wisdom, evidence of child witness must find adequate corroboration.” 13. In this case, the Hon’ble Supreme Court has placed reliance in an earlier judgment Suresh v. State of M.P. (1981) 2 SCC 569 and observed that “children mix up what they see and what they like to imagine to have seen. We quote from the book “The Proof of Guilt” written by Glanville Williams IIIrd Edition published by Stevens and Sons, in which its mentioned that, “Children are suggestible and sometimes given to living in a world of make-believe. They are egocentric, and only slowly learn the duty of speaking the truth”. 14. We are unable to agree with the learned Panel Lawyer for the following grounds. (1) Why and how did the prosecutrix went to the house of the accused No.1 has not been explained. (2) Her version is not corroborated by her mother Savita Bai, PW4. (3) This incident of attempting to rape has not found place in the FIR. Exhibit P-3. (1) Why and how did the prosecutrix went to the house of the accused No.1 has not been explained. (2) Her version is not corroborated by her mother Savita Bai, PW4. (3) This incident of attempting to rape has not found place in the FIR. Exhibit P-3. (4) The prosecutrix is a child witness. Therefore, her statement without any corroboration is not safe to be given credence. (5) There has been enmity and annoyance between the accused No.1 and the mother of the prosecutrix. (6) There is no evidence about the prosecutrix entering into the house of the complainant, beating, abusing and threatening the complainant. (7) Last but not least, when there are two views possible the view which is favourable to the accused should be adopted as is held by Hon’ble Supreme Court in “Kaliram v. State of H.P., AIR 1973 SC 2773 ”. 15. For the reasons assigned above, we hold that the impugned judgment is not called for interference. As a result we dismiss the appeal.