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Madhya Pradesh High Court · body

2014 DIGILAW 879 (MP)

State of M. P. v. Surendra Singh

2014-07-24

S.K.GANGELE, S.K.PALO

body2014
JUDGMENT Palo, J. -- 1. This Criminal appeal under section 378 of CrPC has been filed by the State of M.P., through Police Station Dabra, District Gwalior, being aggrieved by the judgment dated 8.4.1994 pronounced by the IV ASJ in S.T. No.231/1990 (State of M.P. Through P.S. Dabra, District, Gwalior v. Surendra Singh) by which the learned trial Court has acquitted the respondent-accused under sections 376 read with 511 of IPC. 2. It is not disputed before the learned trial Court that the father of the minor prosecutrix Bhagwan Singh was working as Lance Yanak in the Cenwosto Unit and was alloted Government Quarter No.1 in the ground floor, in which he was residing with his family members. In the Ist Floor of the same building was occupied by accused Surendra Singh who was a Head Constable in the same Unit. 3. The factual matrix of the case is as follows: The incident took place on 8.5.1990 at about 1 O'clock in the night, at that time Bhagwan Singh, the father of the prosecutrix was not present at his home. Urmila Devi, the mother of the prosecutrix and he minor prosecutrix aged about 8 years were present. The family members of the accused Surendra Singh were also not present at that time. Both Bhagwan Singh and accused Surendra Singh are in the same Unit in BSF Takenpur Academy. Both families are acquainted with each other. The prosecutrix was often playing with the children of accused Surendra Singh and used to visit his house, both families were helping each other. 4. On the intervening night of 8th-9th May, 1990, accused Surendra Singh returned to his quarter, he woke up the complainant Urmila Devi and told her that lock of his house is not opening, he wanted her help to open it. She did not got herself. The prosecutrix was a sleep. She awake her and asked her to go and help the accused in opening the lock. From the first floor, the accused told the complainant that the prosecutrix will go back after she serves food to him. On hearing this, the complainant Urmila Devi went inside her quarter and slept. Prosecutrix stayed at the house of the accused. The accused got prepared “Lassi “ (a drink made of curd) by the prosecutrix. He himself had Lassi and offered it to the prosecutrix. On hearing this, the complainant Urmila Devi went inside her quarter and slept. Prosecutrix stayed at the house of the accused. The accused got prepared “Lassi “ (a drink made of curd) by the prosecutrix. He himself had Lassi and offered it to the prosecutrix. He lay on the cot and asked the prosecutrix to sit his side. He caressed his hand on the thighs of the prosecutrix and then removed her underwear got her naked and himself got naked and tried to insert his private part into the private part of the prosecutrix. The prosecutrix shouted for help. The accused discharged his semen on the underwear of the prosecutrix. On hearing the shout of the prosecutrix, complainant rushed towards the room and on hearing her shout the accused went into the bathroom. Getting this opportunity, the prosecutrix opened the door and came down to her house. She narrated the incident to the complainant, Urmila Devi. On hearing the shouts the neighbors of the colony also came to the spot. The persons in-charge of patrolling party Yashpal and Vijay Nayak also came to the scene. Among others Chandrakant Pandey also came to the scene. Complainant narrated the incident to them and the prosecutrix was sent for medical treatment. When her husband arrived they lodged the written report, Ex.P-5. On the basis of report, FIR Ex. P-5 was lodged. Spot map was prepared. The accused was medically examined and it was declared that no symptom was found which indicates that the accused was incapable of performing sexual intercourse. At the BSF Hospital, the prosecutrix was also examined. The accused was arrested and charge sheet was filed under sections 376 read with 511 of IPC. 6. On being explained the charges, the accused abjured guilt. The accused pleaded innocence and in his examination under section 313 of CrPC stated that at the time of incident, his wife and family members were present. Plea was taken by him that the complainant Urmila Devi had a fight with the wife of the accused. Therefore, he has been falsely implicated. The accused examined Chandan Singh DW1 who is also serving in the same Unit. 7. The trial Court after recording the statements of prosecution witnesses and defence witness , pronounced the impugned judgment on 8th April, 1994. On the request of I.O. the accused was re-examined 10.5.1990 by the Medical Officer, Dr. Therefore, he has been falsely implicated. The accused examined Chandan Singh DW1 who is also serving in the same Unit. 7. The trial Court after recording the statements of prosecution witnesses and defence witness , pronounced the impugned judgment on 8th April, 1994. On the request of I.O. the accused was re-examined 10.5.1990 by the Medical Officer, Dr. B.L. Sharma (PW7) and gave a contradictory report and on the basis of which the accused was given the benefit of doubt. The learned trial Court acquitted the accused on the charge of offence under section 376 read with 511 of IPC. 8. Being aggrieved by this, the State has filed this appeal and assailed the impugned judgment on several grounds. It is pleaded that the learned trial Court erred in not to believing the testimony of the prosecutrix and her mother Urmila Devi. The learned trial Court has also erred in not examining Dr. Garg, who medically examined the prosecutrix and erred in acquitting the accused-respondent without any material evidence in his favour. 9. We considered the evidence adduced by both parties. Yashpal PW1, who was in-charge of the patrolling party, has stated that he was patrolling with one O.P. Jain, when we reached near the quarter of Bhagwan Singh, wife of the Bhagwan Singh came to them and stated that she wanted to lodge a report to Commanding Officer. At that time, Kashiram (PW3) reached the spot. After 5 O'clock, he was off from his duty. Yashpal was declared hostile. He did not support the prosecution case. He has narrated that he did not know that the daughter of Bhagwan Singh was molested or was attempted to rape. 10. Kashiram PW3, who is Head Constable in the BSF stated that on 8.5.1990 he was In charge of the Guard. Yashpal PW1 informed him that in the family quarters there was some quarrel and wife of Bhagwan Singh wanted to meet the Commanding Officer to report the matter. At that time, it was 5 O'clock in the morning so he did not go to the place of incident. Kashiram (PW3) has been declared hostile. He denied the statement recorded under section 161 of CrPC Ex.P-1. In his cross-examination he has accepted that on the date of incident he informed Shri L.N. Mina about the incident. In turn Shri L.N. Mina reported this incident to the Commanding Officer. Kashiram (PW3) has been declared hostile. He denied the statement recorded under section 161 of CrPC Ex.P-1. In his cross-examination he has accepted that on the date of incident he informed Shri L.N. Mina about the incident. In turn Shri L.N. Mina reported this incident to the Commanding Officer. After their complaint he has accepted that complainant Urmila Devi and prosecutrix were taken to the hospital. 11. It seems to be unusual, that he did not know anything about the incident where as he has admitted that they were taken to the hospital. A man of prudence can easily decipher that if a person is taken to the hospital at that hour of the night, there must have been some rearing. A person who is Head Constable, did not know about the incident, but only knew that the complainant and the prosecutrix were sent to hospital offends common sense It also indicates deliberately, Kashiram PW3, being a colleague of the accused, do not want to support the prosecution case. 12. Dr. Nirja Chauhan PW4, Medical Officer who examined the minor prosecutrix on 8.5.1990, has not found any injury on the private parts or the body of the prosecutrix. She found white strains on the underwear of the prosecutrix. Hence she handed over it to the S.I. Laxminarayan for chemical examination. 13. As the Investigation Officer has not been examined, it could not be made out whether the strains in the underwear of the prosecutrix was due to discharge of semen of the accused. 14. In this regard, the statement of the minor prosecutrix PW2 is very important. She has clearly stated that she was sleeping with her mother on that night. The accused came to them, her mother asked her and directed her to open the lock. Therefore, she went up stairs to help the accused in opening the lock. The accused requested her to serve food to him. She stayed there. The accused took a glass of “Lassi” and also offered her. The accused made her to sit on the cot. He placed his hand on the thighs of the prosecutrix and caressed. When prosecutrix tried to get up, he made her sit forcibly and removed her underwear and he tried to insert private part into private part of the complainant. She shouted for help. Even then, the accused continued the act. The accused made her to sit on the cot. He placed his hand on the thighs of the prosecutrix and caressed. When prosecutrix tried to get up, he made her sit forcibly and removed her underwear and he tried to insert private part into private part of the complainant. She shouted for help. Even then, the accused continued the act. Accused then discharged and went into the bathroom, the prosecutrix putting her underwear, opened the latch of the door and ran to her house. She narrated the incident to her mother. In her cross-examination she made it clear that, at that time in the house of accused (Baghel Uncle), wife and children were not present, they had gone to their village. 15. Another witness very relevant in this regard is complainant Urmila Devi (PW6). Urmila Devi has corroborated the statement of the prosecutrix and given the details. There are minor omissions and contradictions, but these are of natural. The omissions and contradictions show that the witnesses are not tutored. Keeping in mind that the witnesses are not highly educated, therefore, these contradictions are obvious. 16. Niranjan Singh (PW5) who is a member of the BSF Takenpur and a neighbour of the complainant supported the prosecution case. He has stated that his quarter is near the vicinity. On that night of the incident, he got up at about 2:30 a.m., hearing the noises. When he came out, he saw wife of Bhagwan Singh and her minor daughter. They told him about the criminal activity of the accused. He has further narrated the incident lucidly. He is the after incident witness. This witness has no enmity with the accused. He has admitted that his one leg is lost, therefore, he is using artificial wooden leg. He came to the Court for deposing on scooter. Bhagwan Singh by his scooter brought him to the Court. On the basis of this, we cannot term him as “interested witness”. His evidence can be given credence. There is nothing in the record to discredit his evidence. 17. Chandan Singh, who is also working in BSF Takenpur and resident of that colony has been examined as a defense witness. He stated that on 8.5.1990 there was exchange of dialogue between the wife of Bhagwan Singh and wife of the accused Surendra Singh. There is nothing in the record to discredit his evidence. 17. Chandan Singh, who is also working in BSF Takenpur and resident of that colony has been examined as a defense witness. He stated that on 8.5.1990 there was exchange of dialogue between the wife of Bhagwan Singh and wife of the accused Surendra Singh. This incident took place around 6 to 7 p.m. and the whole dispute arose because of throwing up garbage. On that day the accused Surendra Singh was with him. 18. Version of the defense witness has to be examined on the background that he is having good relation with the accused Surendra Singh and he shows ignorance about the cause of quarrel on 8.5.1990. This witness also expressed ignorance about the so called criminal act of the accused with the prosecutrix. That being so, the statement of Chandan Singh DW1 is of no help to the defense. 19. In this backdrop of the incident, the citation of (1996)2 SCC 384 State of Punjab v. Gurmit Singh, can be referred profitable in which it is held that, “A girl, in a tradition-bound non permissible society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down upon by the Society ... In the normal course of human conduct, an unmarried minor girl would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it other overpowered by a feeling of shame and her natural inclination would be to avoid talking abut it to anyone, lest the family name and honour is brought into controversy.” 20. The lady Doctor Dr. Nirja Chauhan (PW4) in her cross-examination has clearly stated that there was no penetration in the private part of the prosecutrix. Medical Officer, Dr. B.L. Sharma (PW7) found spegma on the private part of the accused and on that basis he has stated that within last 48 hours the accused did not perform sexual intercourse. The incident took place on the night of 8th May, 1990 and accused was examined on 10.5.1990. The time of examination is mentioned as 10:50 a.m. in the report Ex.P-7.In these circumstances, it has no impact in the prosectuion story. 21. The incident took place on the night of 8th May, 1990 and accused was examined on 10.5.1990. The time of examination is mentioned as 10:50 a.m. in the report Ex.P-7.In these circumstances, it has no impact in the prosectuion story. 21. In this backdrop it is evident that the offence committed by the accused does not fall within the category of section 376 read with 511 of IPC. It is case of section 354 of IPC. In Emperor v. Tatia Mahadeo [2013 Cr.LJ 858:17 IC 794, it was held that the accused took a girl aged six years to his room and lay on her. It was held that the accused should be convicted of the offence under section 354 IPC. In another similar case 1987 Cr.LJ 605 State of Orissa v. Sukadev Prodhan, held that it was alleged that the accused stripped off the clothing of nine years old girl made her lie down and inserted penis into her, but no injury on vagina was found, nor any seminal stain on the external genitals and thigh not any mark, or dried up blood on genital, but first part of the story proved. It was held not a charge of rape but offence under section 354 IPC has been proved. 22. Keeping in mind the above facts, we find that the learned trial Court erred in pronouncing the verdict of the simpliciter acquittal under section 376 read with 511 of IPC, as it is a clear cut case of outraging modesty of a minor girl. It is not necessary to frame charge of offence under section 354 of IPC which is a cognate offence under section 222 of CrPC. Therefore, we set aside the judgment of acquittal and allow the appeal. We hold the accused-respondent Surendra Singh guilty of offence under section 354 of IPC. 23. Looking to the fact that almost 24 years has been passed in between, interest of justice would meet, if we impose only fine sentence. We impose a fine of Rs.25,000/- on the accused respondent. Failing which he will have to undergo sentence of six months RI. Respondent remained absent, hence, non bailable warrant be issued against him to execute the above order. 24. Accordingly, appeal is allowed and disposed of. .............