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Madhya Pradesh High Court · body

2020 DIGILAW 19 (MP)

Kallu v. State of M. P.

2020-01-07

S.K.AWASTHI

body2020
JUDGMENT 1. Appellant has preferred this criminal appeal under section 374 of the Code of Criminal Procedure, 1973 (for short "The Code") against the judgment dated 27.11.2018 passed by Special/Sessions Judge, District-Jhabua, in Special Sessions Trial No. 123/2016, whereby the appellant has been convicted for offence punishable under section 366 of IPC, 1860 and section 5(l)/6 of Protection of Children from Sexual Offences Act, 2012 (for brevity 'The Act, 2012') read with section 376(2)(n) of IPC, 1860, sentenced to undergo 3 years R.I and 10 years R.I with fine amount of Rs. 1,000/- and Rs. 5,000/- respectively, and usual default stipulation. 2. Brief facts of the case are that complainant is a resident of village Samoyi and he is a labourer having five children. After leaving his second daughter (the victim) with his father in the village, complainant along with his wife went to Gujarat to work. On 6.2.2016 complainant's father called him over mobile and informed that from 7.30 p.m. onwards, the prosecutrix is found missing and the present appellant who is the resident of the same village is also found missing. Complainant went to his village, searched the prosecutrix in the neighbourhood and relatives place, however she was not traceable. Therefore, on 13.2.2016, complainant lodged a report at Police Station Ranapur, District Jhabua. On the basis of which Police registered FIR bearing crime No. 49/2016 against the appellant for offence under section 363 of IPC, 1860. 3. During investigation, police recovered the prosecutrix from the company of the appellant and her statement was recorded in which she stated that appellant took her forcefully and committed rape upon her. The prosecutrix was sent to hospital for medical examination. The statement of other witnesses were also recorded. Police inspected the place of occurrence and prepared the spot map. The appellant/accused was arrested and he was also sent to hospital for medical examination. Police recovered various article received from the hospital in sealed condition and sent them to FSL for chemical analysis. After completion of investigation, Police filed charge-sheet against the appellant for offence under sections 363, 366, 376(2)(n) of IPC, 1860 read with section 5 (l)/6 of 'The Act, 2012'. 4. Appellant abjured his guilt and took a plea that he has been falsely implicated in the present case, however, he has not examined any witnesses in his defence. 5. After completion of investigation, Police filed charge-sheet against the appellant for offence under sections 363, 366, 376(2)(n) of IPC, 1860 read with section 5 (l)/6 of 'The Act, 2012'. 4. Appellant abjured his guilt and took a plea that he has been falsely implicated in the present case, however, he has not examined any witnesses in his defence. 5. Trial Court, after considering the submissions advance by the learned counsel for the parties and scrutinizing the entire evidence on record, convicted the appellant for offence under sections 366 of IPC, 1860 and section 5(l)/6 of 'The Act, 2012' read with section 376(2)(n) of IPC, 1860, sentenced to undergo 3 years R.I and 10 years R.I with fine amount of Rs. 1,000/- and Rs. 5,000/- respectively, and usual default stipulation . 6. Learned counsel for the appellant has submitted that trial Court has committed error in convicting the appellant in absence of any cogent material or evidence on record. There is a delay of six days in filing the FIR and no plausible explanation has been offered regarding the delay. There are material omissions and contradictions in the statement of the prosecutrix and other prosecution witnesses, however, the same has been overlooked by the trial Court, therefore, he prayed that the judgment of conviction and order of sentence impugned in the present appeal are vulnerable and need to be set aside. 7. Learned counsel for the respondent/State while refuting the above submission contends that the trial Court on the basis of settled position of law that the conviction can be solely based on the testimony of the victim in the case of rape in absence of any infirmity in her evidence so as to term it to be untrustworthy, has rightly accepted the same in the instant case for being relied upon and accordingly trial Court is justified in fastening the guilt for offence under section 376 of the IPC upon appellant. It is his submission that there is no inherent infirmity in the evidence of victim (PW 2) which also finds some corroboration from the evidence of Ashok Kumar Jatav (PW 1) and other witnesses, therefore, he contends that their remains no justifiable reason to upset the finding of the trial Court. 8. It is his submission that there is no inherent infirmity in the evidence of victim (PW 2) which also finds some corroboration from the evidence of Ashok Kumar Jatav (PW 1) and other witnesses, therefore, he contends that their remains no justifiable reason to upset the finding of the trial Court. 8. Position of law with regard to the appreciation of evidence of victim in case of rape is too settled that the testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration. Court should find no difficulty in agree on the testimony of the victim of sexual assault alone to convict whenever her testimony inspires confidence and it is found reliable. The corroboration in such a case is not a matter of law but guide of prudence and that corroboration is not always necessary. So, to look for corroboration to the evidence of the victim, the Court must assign the compelling reason as to why it is so required. 9. In the anvil of aforesaid settled principles of law, this Court now is called upon to carefully go through the evidence of victim (PW2) to find out as to how far the same inspires confidence and is trustworthy so as to be wholly relied upon or else for the same corroboration is to be sought for and finally to judge the sustainability of conviction and sentence. 10. In the instant case, the victim (PW2) is the sole eye witness of the case. Accordingly to the victim (PW2), one years ago her parents had gone to Gujrat for labour work and she was living with her grant father-Nahar Singh. During this the appellant took her to village Bochka and kept her there for a period of one month and during this he committed rape upon her. After one month her father came there and took back to village Bochka, thereafter, she went to Police-Station alongwith her father and lodged the FIR ( (Ex. P-3). She further submitted that at the time of alleged incident she has passed her 10th class examination and her date of birth is 10.1.2000. 11. Mahesh (PW3) deposed that in the year 2016, he went to Gujrat with his wife-Balki Bai for earning his livelihood and his daughter (victim) was remained with her grand father-Nahar Singh and grand-mohter-Meta Bai. P-3). She further submitted that at the time of alleged incident she has passed her 10th class examination and her date of birth is 10.1.2000. 11. Mahesh (PW3) deposed that in the year 2016, he went to Gujrat with his wife-Balki Bai for earning his livelihood and his daughter (victim) was remained with her grand father-Nahar Singh and grand-mohter-Meta Bai. On 6.2.2016, his father-Nahar Singh informed him on telephone that his daughter is not in the house, then he came back to village-Samai and lodged the missing report (Ex. P-7) of his daughter at Police-Station-Ranapur and FIR (Ex. P-6). After one month of the incident, his daughter was recovered from the possession of the appellant and she informed him that the appellant took her at Rajkot, where he committed rape upon her. According to Mahesh (PW3), the date of birth of the his daughter is 10.1.2000. 12. Ashok Kumar Jatav (PW1)-Principal of Govt. Higher Secondary School, Jhabua testified that the victim was entered in his school in class 9th and according to the entry made in the scholar register, her date of birth is 10.1.2000. 13. Dr. Hemlata Rawat (PW4), deposed that on 13.3.2016, she was posted as Medical Officer at Community Health Center, Ranapur and on the aforesaid date, she examined the victim (PW2) and found that her secondary sexual characters were not fully developed and her hymen was old torned and she opined that no defined opinion can be given regarding commission of rape with the victim. 14. There is nothing has come in the statement of Ashok Kumar Jatav (PW1), victim (PW2) and Mahesh (PW3) to disbelieve that date of birth of the victim, which is 10.1.2000, therefore, at the time of alleged incident i.e. on 6.2.2016, she was below 18 years of age. 15. The victim (PW2) accepted that her statement under section 164 of the CrPC was recorded before the Court of Judicial Magistrate First Class, in which she stated that the appellant has not committed rape upon her, even he did not touch her. She also accepted that she remained in the company of the appellant for more than one month and she used to cook food for him and she used to do agricultural work on the fields, during which she never told anybody that the appellant took her forcefully. She also accepted that she remained in the company of the appellant for more than one month and she used to cook food for him and she used to do agricultural work on the fields, during which she never told anybody that the appellant took her forcefully. She also admitted that when the appellant took her from Ranapur to village Bochka, so many persons met her but she did not raise any alarm nor made complaint to anyone that the appellant abducted her. According to the MLC report also no external or internal injuries were found on the person of the victim. It is true if the medical report is not found corroborative, then still the testimony of the victim should be examined on its own merits and if the testimony of the victim is examined without corroboration of the medical evidence, then it would be apprehend that there was a possibility of his false implication because of that the prosecutrix belongs to scheduled tribes community and she accepted that there is a custom in their community that boy gives certain amounts to girl's father and in the present case the appellant did not pay this amount to her father. She also accepted in her cross-examination that if the appellant gave this amount to her father, then she does not lodge the FIR against the appellant. The above facts and circumstances of the case look to the corroboration so the same can bring confidence to the evidence of victim (PW2) so as to form the foundation of finding of guilt. 16. Looking to the aforesaid infirmities in the statement of the victim (PW2), it will not be safe to accept her testimony without any corroboration, therefore, the trial Court has committed error in accepting the testimony of the victim (PW2) without any medical corroboration and convicting the appellant for the commission of offence punishable under section 376 of the IPC. 17. For the aforesaid discussion of evidence and reasons the trial Court finding in holding the appellant guilty for offence under section 376 IPC is found to be unsustainable; so also the consequential order of sentence. Resultantly the appeal stands allowed. The impugned judgment of conviction and order of sentence are hereby set aside and the appellant is acquitted for the aforesaid offence. 18. Resultantly the appeal stands allowed. The impugned judgment of conviction and order of sentence are hereby set aside and the appellant is acquitted for the aforesaid offence. 18. The appellant is in jail, therefore, it is directed that the appellant be released forthwith, if he is not required to be detained in any other case. 19. Let a copy of this order alongwith the record be sent to the trial Court for information and necessary compliance. .................