Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 507 (MP)

Aamir v. State of M. P.

2016-06-27

RAJENDRA MAHAJAN

body2016
ORDER 1. The applicant, who is juvenile and who is in conflict with law, has filed this criminal revision through his mother under section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short “the Act”) read with section 397 read with 401 of the CrPC being aggrieved by the impugned judgment dated 1.12.2015 passed by the Special Judge, Bhopal in Criminal Appeal No.1049/15, the parties being Aamir v. State of M.P. through Police Station Shahjahanabad Bhopal, affirming the order dated 29.9.2015 passed by the Juvenile Justice Board Bhopal (for short “the Board”) in Criminal Case No.1145/14 titled as State of M.P. v. Aamir, whereby the Board has held the applicant guilty of the offences punishable under sections 376D and 366 of the IPC and made an order under section 15(g) of the Act that he be sent to a special home for a period of three years, and rejecting his appeal under section 52 of the Act. 2. The facts necessary to be exposited for the adjudication of this revision are given below : 2.1 On 5.10.2014 at about 10:40 p.m., the 19 years old prosecutrix (PW2) lodged an oral report in the presence of her mother Mayabai (PW4) at Police Station Shahjahanabad, Bhopal, stating that she is a resident of Mother India Colony, Bhopal, which is a predominantly slum area, and that she is a domestic help by occupation. On 5.10.2014 at about 8:30 p.m., her friend Neha (PW5) and she were proceeding to a nearby clinic for her treatment. When they were going past a nursery, which is by the road side, applicant Aamir, accused persons namely Ansar and Mehboob and one unknown boy, who is identified in the course of investigation as Anand Malviya son of Babulal, suddenly came to near them. They stopped a passing auto rickshaw. Accused Ansar forced her to sit in the auto, brandishing a chhuri (machete). Seeing the incident, her friend Neha fled away. The incident was witnessed by Naseem, Waseem and Mahesh (all are not examined), who are residents of her colony and who were standing a nearby shop at the time of occurrence of the crime. Naseem came to her rescue. He was beaten by accused Ansar and forced him to leave the place. Seeing the incident, her friend Neha fled away. The incident was witnessed by Naseem, Waseem and Mahesh (all are not examined), who are residents of her colony and who were standing a nearby shop at the time of occurrence of the crime. Naseem came to her rescue. He was beaten by accused Ansar and forced him to leave the place. They took her in the auto to a deserted and dilapidated building of Hanumanganj Sabzimandi, where they abused her badly and forced her to undress giving life threats. Thereafter, accused Ansar, applicant Aamir, accused Mahboob and accused Anand raped her one after another respectively. Later, they dumped her near Sanjay Bakery which is adjacent to RTO Office at about 10:15 p.m., wherefrom she reached on foot her resident and narrated the entire incident to her mother Mayabai. 2.2 Upon the oral report of the prosecutrix, Sub-Inspector Rajeshwari (PW3) recorded the FIR Ex.P-6 and registered a case against them under sections 366, 294, 506, 376D and 34 of the IPC at Crime No.485/14. Thereafter, she sent the prosecutrix for medico legal examination to Sultania Janana (women) Hospital, Bhopal with constable Yogita ((PW7). Dr. Pragya Mishra (PW6) examined the prosecutrix and gave her medico legal report Ex.P-9. 2.3 Rajeshwari (PW3) and Sub-Inspector Ambika Singh (PW1) investigated the case. In the course of investigation Ambika Singh (PW1) took the applicant in custody on 9.10.2014 vide arrest memo Ex.P-4. Thereafter, he sent the applicant for ascertainment of his age and medico legal examination. Dr. Kelu Girwal (PW9) measured his weight and ascertained his age. According to her report Ex.P-13, the age of applicant as on 9.10.2014 was 16 years and 6 months with margin of error six months on the lower and the upper side. Dr. Ashok Sharma (PW8) examined the applicant and gave a report Ex.P-11. According to the report, the applicant is capable of performing sexual intercourse. Upon completion of the investigation, the Police filed a charge-sheet against the applicant before the Board as he is juvenile. The police also filed the charge-sheet against the remaining accused persons in the regular Court as they are major, declaring accused Anand absconder. 2.4 The Board framed the charges against the applicant under sections 341, 366, 376D and 506 of the IPC. He denied the charges and claimed to be tried. Thereupon, he was put up for trial. The police also filed the charge-sheet against the remaining accused persons in the regular Court as they are major, declaring accused Anand absconder. 2.4 The Board framed the charges against the applicant under sections 341, 366, 376D and 506 of the IPC. He denied the charges and claimed to be tried. Thereupon, he was put up for trial. After closure of the prosecution evidence, the Board confronted him with the evidence and the circumstances appearing against him under the provisions of section 313 of the CrPC. He simply denied the entire prosecution evidence against him. His defence was that he had been falsely implicated. However, he did not examine any witness in support of his defence. 2.5 The Board after appreciating the entire prosecution evidence held the applicant guilty of the offences punishable under sections 376D and 366 of the IPC, but acquitted him of the remaining charges. After holding him guilty under sections 376D and 366 of the IPC, the Board passed the order under section 15(g) of the Act directing that the applicant be sent to a special home for a period of three years. The Board gave a set off to the applicant against the aforesaid period under the provisions of section 428 of the CrPC. 2.6 Feeling aggrieved by the order of the Board, the applicant filed an appeal. The appellate Court examined the facts and re-appreciated the entire prosecution evidence and recorded an independent findings and affirmed the order passed by the Board. 2.7 Hence, this revision by the applicant. 3. The learned counsel for the applicant submitted that the applicant is held guilty upon the sole evidence of the prosecutrix, whereas there are material contradictions and omissions in her deposition. Thus, the Board and the appellate Court have erred in law and on facts relying upon her deposition. He submitted that Dr. Pragya Mishra (PW6), who medico legally examined the prosecutrix, has not given any definite opinion whether the prosecutrix was subjected to rape? He submitted that Dr. Pragya Mishra (PW6) has stated in para 5 of her evidence that she had not found any kind of injury on the person of the prosecutrix. Since it is a case of gang rape by four persons upon the prosecutrix, in the circumstances she should have sustained injuries at least on her private parts. But no injury on her person belies her deposition. Since it is a case of gang rape by four persons upon the prosecutrix, in the circumstances she should have sustained injuries at least on her private parts. But no injury on her person belies her deposition. As per the evidence on record, the prosecutrix was major at the time of alleged incident, and she is the mother of a two years old child. In view of the above facts, it may be at the most a case of consensual sex. He submitted that as per the FIR and the deposition of the prosecutrix, Neha (PW5), who was with her at the time of the incident, has not supported the prosecutrix’s statement, and she is declared hostile by the prosecution. Hence, the statement of prosecutrix is not supported by her friend. He submitted that as per the evidence on record, Naseem came to her rescue seeing the prosecutrix was being abducted by the applicant and other accused persons. However, the prosecution neither examined him nor offered any explanation for his non-examination, which makes a dent in the prosecution case because he is a material witness. He submitted that neither the Board nor the appellate Court has examined the prosecution case taking into consideration the aforesaid facts. Hence, the recording of conviction by the Board and the appellate Court is erroneous which is essentially based on misappreciation and misreading of evidence. If the Board and the appellate Court had examined the prosecution case taking into consideration the aforesaid facts, the applicant would have been acquitted of the charges framed. On the point of keeping the applicant in a special home, he submitted that the period is excessive and that it is not in proportionate to the applicant’s age and his role in the incident. Upon the aforesaid submissions, he prayed to allow the revision, quashing the impugned judgment. 4. Per contra, the learned Panel Lawyer submitted that the prosecutrix lodged the FIR within two hours and fifteen minutes after the incident. Therefore, there is no possibility of twisting, embellishments and exaggerations of the facts. In other words, the FIR is lodged by the prosecutrix in a spontaneous and natural course. He submitted that there are no major contradictions and omissions among the deposition of the prosecutrix, her case diary statement and the FIR. Therefore, there is no possibility of twisting, embellishments and exaggerations of the facts. In other words, the FIR is lodged by the prosecutrix in a spontaneous and natural course. He submitted that there are no major contradictions and omissions among the deposition of the prosecutrix, her case diary statement and the FIR. True, it is that there are some contradictions and omissions but they are minor in nature and do not affect the credibility of her testimony. He submitted that her evidence is fully corroborated by the statement of her mother whom she narrated the incident reaching her residence after the incident. He submitted that the prosecutrix has stated in the FIR and her deposition that accused Ansar forced her to sit in the auto at knife-point, which is why she had to sit in the auto without putting up resistance. She has further deposed in her evidence and stated in the FIR that accused Ansar squeezed her neck while taking her in the auto to the place of occurrence, on account of which she could not raised alarms while traveling into the auto. He submitted that her above explanation with regard to non-resistance is justifiable hence acceptable. He submitted that the prosecutrix has stated in her evidence and the FIR that the applicant and other accused persons committed gang rape upon her, putting her in fear of death by wielding the chhury. In the circumstances, her non-protest against being gang raped and non-sustaining of injury on her person are justifiable. He submitted that the prosecutrix has deposed that she is a mother of a two year old child. In view of this, no injury on her private parts is also explainable. He submitted that Neha (PW5), who was at the time of incident with the prosecutrix, has supported the statement of the prosecutrix to the extent that Naseem told her on the date of incident that the prosecutrix was forcibly taken by accused Ansar. As per the FIR and the deposition of the prosecutrix, Naseem witnessed the incident. Thus, the above statement of Neha (PW5) lends credence to the evidence of the prosecutrix. Thus, the testimony of the prosecutrix is fully reliable. He submitted that it is not a rule of law that the Court statement of the prosecutrix ought to be corroborated by the medical evidence and the evidence of independent witness(es). Thus, the above statement of Neha (PW5) lends credence to the evidence of the prosecutrix. Thus, the testimony of the prosecutrix is fully reliable. He submitted that it is not a rule of law that the Court statement of the prosecutrix ought to be corroborated by the medical evidence and the evidence of independent witness(es). Hence, the conviction can be based upon the sole evidence of the prosecutrix. Upon the aforesaid submissions, he justified the conviction of the applicant as recorded by the Board and affirmed by the appellate Court under sections 376D and 366 of the IPC. On the period of keeping the applicant in a special home, he submitted that it is a case of gang rape. Hence, the keeping of the applicant for a period of three years in a special home is reasonable. Therefore, there is no need of reduction in the period of detention especially in view of the fact that the Board has given the benefit of set off to the applicant as per the provisions of section 428 of the CrPC. Upon the overall submissions, he prayed for dismissal of the revision. 5. I have considered anxiously the rival submissions, perused the order of the Board and judgment of the appellate Court and entire material on record. 6. The prosecutrix (PW2) has deposed that on the fateful night of 5.10.2014 at about 8:30 p.m., she was with her friend Neha. When they were near a nursery, applicant Aamir, accused persons namely Ansar, Mehboob and a boy, whose name she does not know, came suddenly out of the road-side shrubs. Seeing them, Neha fled away. Thereafter, the applicant and other accused persons took her forcibly in an auto to the ramshackle and dilapidated building of Hanumanganj Sabzimandi, where they committed rape upon her at knife-point. First, accused Ansar committed rape, after that the applicant and two other committed rape upon her one after another. The applicant also committed mapeet with her. After committing rape, they again forced her to sit in an another auto and they dumped her near the RTO Office, wherefrom she reached on foot to her residence and narrated the incident to her mother. Thereafter, she went to police station Shajahanabad with her mother and lodged the FIR Ex.P-6. The applicant also committed mapeet with her. After committing rape, they again forced her to sit in an another auto and they dumped her near the RTO Office, wherefrom she reached on foot to her residence and narrated the incident to her mother. Thereafter, she went to police station Shajahanabad with her mother and lodged the FIR Ex.P-6. In her cross-examination, she has replied to a question put up by the defence that the applicant and other accused persons abducted her and committed gang rape upon her at knife point. Under the fear that they may cause her grievous injuries or murder her, she could not raise alarms while travelling with them in the autos before and after the incident and at the time when she was subjected to gang rape by them. 7. As per the FIR, the date and time of the incident is 5.10.2014 at 8:30 p.m. and the date and time of lodgement of the FIR Ex.P-6 is 5.10.2014 at 10:45 p.m. From these data, it is evident that the prosecutrix lodged the FIR within two hours and fifteen minutes after the incident. Therefore, it can be safely said that the prosecutrix lodged the FIR in a natural course and a spontaneously manner without any kind of embellishments, exaggerations and twisting of the facts. 8. Upon perusal of the evidence of the prosecutrix and the FIR, I have found that there is consistency on the material points. However, there are some minor contradictions which do not strike the substratum of the prosecution case because the prosecutrix is marginally literate. Since the prosecutrix was abducted and subjected to gang rape by the accused persons at knife-point, her non-resistance in the circumstances is quite a natural {See : Lali Ram and another v. State of M.P. [ (2008)10 SCC 69 ]}. Hence, her evidence cannot be disbelieved on the point that she had not put up violent resistance at the time of being abducted and gang-raped. 9. It is true that Dr. Pragya Mishra (PW6), who had medico-legally examined the prosecutrix, has stated that she had not found any injury on her person and that she has not given any definite opinion regarding the rape upon her. The prosecutrix has stated in her cross-examination that the applicant and accused persons took her forcibly and committed gang rape at knife point. Pragya Mishra (PW6), who had medico-legally examined the prosecutrix, has stated that she had not found any injury on her person and that she has not given any definite opinion regarding the rape upon her. The prosecutrix has stated in her cross-examination that the applicant and accused persons took her forcibly and committed gang rape at knife point. In the circumstances, she could not physically resist their criminal acts. As per the record, the prosecutrix was the mother of a child at the time of incident. Under the circumstances, absence of marks of rape upon her private parts are natural. Hence, her evidence cannot be disbelieved on the ground that she had not sustained any injury while she was subjected to gang rape. {See : State of Rajasthan v. N.K. [AIR 2000 SC 182], and Dastagir Sab and another v. State of Karanataka [ AIR 2004 SC 2884 ]}. 10. Upon the aforesaid close scrutiny of evidence of the prosecutrix, I am of the opinion that her evidence inspires full confidence. Therefore, her evidence is wholly reliable and trustworthy. 11. Neha (PW5) has testified that the prosecutrix is her friend and they reside in the same colony. Naseem, whose name finds place in the FIR, told her that accused Ansar had abducted the prosecurix. Thereupon, she intimated the parents of the prosecutrix at about 8-9 p.m. of the fateful night. As per the case diary statement of this witness and the FIR, she was with the prosecutrix at the time when she was being abducted by the accused persons. However, she has not supported the said fact. Thereupon, she is declared hostile and she is put to grueling cross-examination by the prosecution. However, the prosecution has failed to elicit any evidence in its favour on the point. Notwithstanding that, from the aforesaid evidence of this witness, it is at least proved that on the fateful night of incident, the prosecutrix was abducted by the applicant and other accused persons. 12. Maya Bai (PW4), the mother of the prosecutrix, has deposed that on the fateful night of the incident, Neha intimated her that four boys had taken forcibly the prosecutrix in an auto at about 8 p.m. Some time later, the prosecutrix came to her house weeping. At that time, her clothes were badly torn. 12. Maya Bai (PW4), the mother of the prosecutrix, has deposed that on the fateful night of the incident, Neha intimated her that four boys had taken forcibly the prosecutrix in an auto at about 8 p.m. Some time later, the prosecutrix came to her house weeping. At that time, her clothes were badly torn. On being asked by her, she told that the applicant, accused Ansar and two other gang raped her. Thereupon, she took the prosecutrix to Police Station Shahjahanabad, where the prosecutrix lodged the report. A short cross-examination of this witness is done. Nothing has come out in her cross-examination to disbelieve the statement made by her in the examination-in-chief. In Rameshwar v. State of Rajasthan [ AIR 1952 SC 54 ], the Supreme Court has held that the mother of the prosecutrix is an independent witness. From the evidence of this witness, it is crystal clear that the prosecutrix had narrated her the entire incident just after reaching the residence. Hence, her evidence is reliable as per the provisions of section 6 of the Evidence Act being res gestate. As such, the prosecutrix’s testimony is also corroborated by her mother. 13. Upon the aforesaid close analysis of evidence, I arrive at the conclusion that the Board and the appellate Court have rightly held the applicant guilty of committing abduction of the prosecutrix and gang raped upon her. 14. Now, I will dwell upon the point whether the period of sending the applicant in a special home for three years by the Board and affirmed by the appellate Court is excessive as argued by the learned counsel for the applicant? As per the record, the applicant was taken in custody on 10.10.2014. The applicant has been granted set off in terms of section 428 of the CrPC. Till the date of passing this order, the applicant has been in detention for a period of one year, eight months and seventeen days out of the total period of three years. Dr. Kelu Girwal (PW9) has ascertained the age of applicant on the basis of his denture and gave a report Ex.P-13. According to the report, the age of the applicant was sixteen years and six months with margin of error six months on the upper and the lower side as on 9.7.2014, the date of examination of the applicant by her. Kelu Girwal (PW9) has ascertained the age of applicant on the basis of his denture and gave a report Ex.P-13. According to the report, the age of the applicant was sixteen years and six months with margin of error six months on the upper and the lower side as on 9.7.2014, the date of examination of the applicant by her. As per the record, the applicant is an illiterate boy and has come from a very downtrodden family. The remaining three accused of the case are major and in the age group of 22 to 25 years. Upon these facts, it may be said that the applicant had committed the offence having been in the company of other accused persons of the case otherwise he alone would not have dared to commit the offence. In the light of the aforesaid, I am of the opinion that this is a fit case for reduction of period of keeping the applicant in a special home. In my opinion, keeping the applicant in a special home for a period of two years including the set off is just and proper in the fitness of things of the case. 15. In view of the discussion supra, this revision is partly allowed affirming the guilt of the applicant under sections 376D and 366 of the IPC as recorded by the Board and affirmed by the appellate Court with the modification that the applicant be kept in a special home for a period of two years including the period of set off. 16. The Principal Judge Juvenile Justice Board, Bhopal, is directed to send the modified order to the authorities of the concerned special home for keeping the applicant for a period of two years with set off superseding its earlier order. 17. Accordingly, this revision is finally disposed of in aforesaid terms.