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2023 DIGILAW 60 (MP)

Roopsingh Bheel v. State of Madhya Pradesh

2023-01-11

ATUL SREEDHARAN

body2023
ORDER 1. With consent of the parties this appeal is heard finally. The present criminal appeal under section 374(2) of the Cr.P.C. has been filed by the appellant being aggrieved by the order dated 16.3.2021 passed in Special Case No.09/2019 by the Special Judge (POCSO Act)/Second Additional and Sessions Judge, District Guna. 2. The appellant has been tried and convicted for offence under section 363 of the IPC and sentenced to suffer rigorous imprisonment for five years with fine of Rs.5000/-, section 366-A of the IPC and sentenced to suffer rigorous imprisonment for five year with fine of Rs.5000/- and section 3/4 of the POCSO Act and sentenced to suffer rigorous imprisonment for ten years with fine of Rs.5000/- with default stipulations. 3. The main allegation against him is of having had penetrative sexual intercourse with a minor as defined under section 3 of the Protection of Children from Sexual Offences Act, 2012 and punished under section 4 and sentenced to suffer imprisonment of 10 years as she was found to be 16 years and 9 months of age when the incident had taken place as is reflected in para 9 of the judgment of the trial Court. 4. Learned counsel for the appellant submits that the appellant has falsely been implicated in the aforesaid case and he is an innocent of the offence charged. He further submits that even if the case of the prosecutrix is taken into its entirety and considered to be true, the offence under section 3 of the POCSO or section 376 of the IPC does not stand proved against the appellant as there is no allegation of sexual intercourse by the prosecutrix in her Court testimony. He further submits that if at all anything, the only fact that stands proved is that the prosecutrix went with the appellant to various places. He further submits that even the said journey was undertaken by the prosecutrix with her consent, wilfully in the company of the appellant and therefore, the offences under sections 363 and 366 of the IPC also are not made out. He further submits that the MLC is inconclusive and the age of the prosecutrix has not been proved beyond reasonable doubt. 5. Per contra, learned counsel for the State has submitted that the trial Court's order is well reasoned and need not be interfered by this Court. He further submits that the MLC is inconclusive and the age of the prosecutrix has not been proved beyond reasonable doubt. 5. Per contra, learned counsel for the State has submitted that the trial Court's order is well reasoned and need not be interfered by this Court. He further submits that the statement of the prosecutrix before the trial Court is categorical of rape having been committed upon her after her abduction by the appellant herein. 6. Heard the learned counsel for the parties and perused the record of the trial Court. 7. The case of the prosecution is that on 23.9.2018 around 12 pm, the parents of the prosecutrix were in the field and she was at home. When the parents returned from the field, the prosecutrix was not at home and therefore, on the basis of suspicion, they registered a case against the appellant herein that the appellant brain washed the minor child and took her away from their lawful custody. On the basis of their complaint, a missing person's report being No.19/2018 was registered and crime under section 363 of the IPC was registered against the appellant. The police investigated into the matter and prepared the site map and recorded the statements of the witnesses. The prosecutrix was recovered and her statements under sections 161 and 164 of the Cr.P.C. were recorded. 8. The prosecutrix gave her testimony before the trial Court as PW-3 on 11.4.2019. In her examination-in-chief, she says that she knows the accused. She says that she does not know her age and that at the time of incident she was studying in the 10th standard and that four to five months before her testimony in Court, she had gone to Jamner. The appellant is stated to have offered her work and took her with him. She says that she had in a purse, gold earrings, a Mangalsutra and Rs.15,000/-. She says that she does not know where the appellant took her and that she does not know the name of the appellant also and thereafter, she says that the appellant “spoilt her reputation”. She further states that the appellant Roopsingh had taken a house and in that house “he spoilt her reputation”. 9. She says that she does not know where the appellant took her and that she does not know the name of the appellant also and thereafter, she says that the appellant “spoilt her reputation”. She further states that the appellant Roopsingh had taken a house and in that house “he spoilt her reputation”. 9. It is pertinent to mention here that the learned trial Court has not sought a clarification from the prosecutrix as to what she meant by stating that the appellant spoilt her reputation, which it ought to have. The said allegation does not constitute sexual intercourse until and unless the prosecutrix clarifies that in colloquial language, the same means forcible sexual intercourse/rape. The phrase “spoilt my reputation” cannot be presumed to be sexual intercourse in the absence of a clarification from the prosecutrix. Thereafter, the prosecutrix says that she was recovered by the police who got her medical examination done and also recorded the statement before the Magistrate under section 164 of the Cr.P.C. 10. The MLC of the prosecutrix is Ex.P/8 which proved by PW-3. The doctor records that there are no injury or sign of struggle present on the prosecutrix. On internal examination, the doctor finds that there are no injury or signs of struggle present on the external genitalia. The hymen is shown as ruptured and vaginal slides and samples were taken and sealed and given to the constable. The doctor says that no opinion can be found regarding recent sexual intercourse as the victim seems to be habituated to sex. 11. The statement under section 164 of the Cr.P.C. of the prosecutrix is Ex.P/6 which has been proved by the PW-2 which is the prosecutrix herself where she has admitted her signature on the said document. In the statement under section 164 of the Cr.P.C., she says that she knows the appellant and that he is her neighbour and that the date of the incident is 23.9.2018 on which date she went to Indore to work and from there, she went on a tour with the appellant and that she went on her own will. She further says that the appellant has done no wrong to her. She further says that the appellant has done no wrong to her. In cross-examination before the trial Court, the prosecutrix has been confronted with her statement under section 164 of the Cr.P.C. which is Ex.P/6 where she says that she had given her statement which is portion mark B to B before the Magistrate, thereafter she voluntarily answered at that time she was not in a conscious state and that today, that is the date on which she has testified before the learned trial Court, she is in a conscious state. 12. From the testimony of prosecutrix, it appears that while admitting the fact that she has given her statement before the Magistrate and also admitting the contents therein, she has tried to be evasive by saying that she was not in conscious state while giving the said statement before the Magistrate. Upon perusing the statement u/s. 164 Cr.P.C given by the prosecutrix before the Magistrate, it appears that Magistrate has appended a note at the bottom of 164 statement that the said statement has been recorded in the presence of Magistrate after the Magistrate heard the statement and it has been recorded as stated by the prosecutrix herself. Magistrate has further recorded that the statement of the prosecutrix was read over to her and the prosecutrix has admitted that the statement given by her is complete and correct. Therefore, her testimony in the Court where she stated that she was not in conscious state while giving her statement u/s. 164 Cr.P.C, cannot be believed and same has been stated for the first time before the trial Court in order to nullify the effect of her police statement, which she has admitted as correct even in her Court testimony. Thus, from the evidence of the prosecutrix, it appears that nowhere has she stated that any kind of penetrative sexual intercourse was committed by the appellant upon her. The phrase used by her (spoilt my reputation), cannot be interpreted in the absence of clarification by the prosecutrix herself that same was sexual intercourse. This coupled with the fact that Ex-P/8 (MLC) is inconclusive of recent intercourse, this Court arrives at a finding that the prosecution has been unable to establish beyond reasonable doubt that the appellant committed sexual intercourse with the prosecutrix. 13. This coupled with the fact that Ex-P/8 (MLC) is inconclusive of recent intercourse, this Court arrives at a finding that the prosecution has been unable to establish beyond reasonable doubt that the appellant committed sexual intercourse with the prosecutrix. 13. As regards the age of the prosecutrix, learned trial Court has relied upon the marks-sheet of 10th standard to arrive at a conclusion that she was minor. Even assuming that the same is correct, offences that the appellant can be held guilty of are sections 363 and 366 of IPC for which there is no minimum sentence. For offence under section 363 maximum offence is punishable up to 7 years. However, as regards section 366 IPC, there is no averment in the testimony of the prosecutrix that the appellant had taken her away with the intention of forcing her to marry him, therefore, ingredients of section 366 of IPC are not fulfilled and so no offence is made out under the said section. 14. In view of the discussion and appreciation of the evidence hereinabove, appellant is acquitted of offence under sections 3 and 4 of POCSO Act and section 366 of IPC. His conviction under section 363 of IPC is maintained but the sentence is reduced to the period already undergone by the appellant which is about 2 years including the period of incarceration as an under trial and thereafter the period he has undergone as a convict from the date on which he was convicted by the Ld. trial Court. Appellant shall be released forthwith if he is not wanted in any other case. 15. Appeal is finally disposed of.