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2024 DIGILAW 47 (MP)

Hemraj Chaudhary v. State of Madhya Pradesh

2024-01-09

RAVI MALIMATH, VISHAL MISHRA

body2024
JUDGMENT Mishra, J. -- 1. Being aggrieved by the judgment of conviction and order of sentence dated 24.6.2010 passed by the Special Judge (SC/ST) Jabalpur in Sessions Trial No.193 of 2009 whereby the appellant has been convicted under sections 342 and 376(f) of the Indian Penal Code and sentenced to undergo R.I. for one year and fine of Rs.1000/- and R.I. for Life and fine of Rs.1000/- respectively with default stipulation, the present appeal under section 374(2) of the Code of Criminal Procedure has been preferred. 2. The prosecution story, in nutshell, is that on 18.1.2009 at about 7:00 pm when the victim who was aged about 12 years was going to take water along with her friend Saraswati, the appellant/accused caught hold of her hands, dragged her to his house and committed rape on her. She immediately reported the incident to her mother. An FIR has been registered and the victim was sent for medical examination to the hospital and admitted in the hospital. After investigation, a charge-sheet has been filed before the Court. After trial, the appellant/accused has been convicted and sentenced as indicated hereinabove. 3. This appeal has been filed on the ground that there are material contradictions and omissions in the statements of the prosecution witnesses. It is argued that the learned trial Court has convicted the appellant for the offence under section 376(f) of the Indian Penal Code, which in terms of the previous law provides for a punishment of rigorous imprisonment for a term which shall not be less than ten years but which may be extended for life and shall also be liable to fine. He has drawn attention of this Court to paragraph 9 of the judgment wherein a finding has been recorded that the age of the victim on the date of commission of offence was between 12-14 years. He has further pointed out that in paragraphs No.25 and 27 of the judgment, the learned trial Court has observed that the age of the victim is approximately 12 years. It is argued that once the age of the victim is found to be more than 12 years then conviction under section 376(f) of the Indian Penal Code for life imprisonment will not be maintainable as the case of the appellant does not fall under category 376(f) of the Indian Penal Code. It is argued that once the age of the victim is found to be more than 12 years then conviction under section 376(f) of the Indian Penal Code for life imprisonment will not be maintainable as the case of the appellant does not fall under category 376(f) of the Indian Penal Code. The aforesaid aspect was not properly appreciated by the learned trial Court and a harsh punishment for life imprisonment has been imposed upon the appellant. 4. Learned counsel for the appellant has drawn attention of this Court to the educational document produced by the prosecution, in terms whereof, age of the victim is recorded as 31.3.1996 and if a calculation of age is made from that date, the age of the victim on the date of commission of offence comes to 12 years and 10 months. Therefore, apparently provisions of section 376(f) of the IPC are not attracted in the present case. The prosecution has not produced any other document to substantiate the age of the victim despite of the fact that she has admitted in her statement that she has studied upto Class-IV. Apart from the aforesaid arguments, it is pointed out that the prosecution story appears to be suspicious as place of incident is surrounded by houses and several people are residing there. The incident has occurred in the day light and, therefore, there should be someone available who has seen the appellant taking away the victim forcefully, but no such material was brought on record by the prosecution. Other witnesses Saraswati (PW/3) and Hallu @ Gopal (PW/5) have not supported the prosecution story and turned hostile. Hallu @ Gopal (PW/5) was a witness who went along with the mother of the victim to the police station to lodge the FIR. The factum of previous enmity is also pointed out, which is reflected from the statements of the witnesses. Learned trial Court has failed to consider the statements of the witnesses who have not supported the prosecution case, even the medical evidence is silent regarding commission of rape on the victim. Under these circumstances, he has prayed for setting aside the judgment of conviction. 5. Learned trial Court has failed to consider the statements of the witnesses who have not supported the prosecution case, even the medical evidence is silent regarding commission of rape on the victim. Under these circumstances, he has prayed for setting aside the judgment of conviction. 5. It is further argued that the accused has already undergone the substantial custody period of approximately 14 years and, therefore, looking to the fact that the offence was committed long back in the year 2009 and the fact that his case does not fall under the category of section 376(f) of the IPC and the appellant could not be punished for the same, alternatively a prayer is made to release the appellant by imposing the sentence that he has already undergone. 6. Per contra, learned counsel for the State has vehemently opposed the contentions and supported the impugned order pointing out the fact that the age of the victim was 12 years on the date of commission of offence, which is mentioned by the learned trial Court in paragraphs 25 & 27 of the judgment. The age is recorded based upon the mark-sheet of Class-I. It is argued that the FIR is prompt. Within a short duration from the time of commission of offence, the victim has reported the entire incident to her mother Laxmibai (PW/2) and thereafter the matter was reported to the police authorities. She was medically examined. The medical report supports the case of the prosecution. Merely slight contradiction and omission in the statements of the witnesses does not constitute a case for acquittal. The argument that the victim was more than 12 years of age is of no help to the appellant as the trial Court has categorically observed that the age of the victim to be approximately 12 years based upon the documents available on record. FSL reports (Ex.P/13) has been produced by the prosecution which discloses the presence of blood on article 'A'. The statements of victim (PW/1) as well as her mother Laxmibai (PW/2) are fully supporting the case of the prosecution. In absence of any material contradiction in the statements of the victim as well as her mother, no case for interference is made out. He has prayed for dismissal of the appeal. 7. Heard learned counsels for the parties and perused the record. 8. In absence of any material contradiction in the statements of the victim as well as her mother, no case for interference is made out. He has prayed for dismissal of the appeal. 7. Heard learned counsels for the parties and perused the record. 8. The allegation against the appellant is that he has committed rape with a 12 years old minor (victim). The statement of the victim recorded as PW/1 supports the prosecution story. She has categorically stated regarding the act being committed by the appellant. Immediately after commission of offence, she ran to her home and narrated the entire incident to her mother and without any delay the mother went to the police station to lodge a complaint. She was sent for medical examination and Dr. Bhavna Mishra (PW/7) who has done the medical examination of the victim has found injuries on the private part of the victim. She has reported that the victim was complaining of pain in stomach, the blood stains were found on both thigh, the hymen was torn and sides of the vagina were also torn and redness were found. She was in terrible pain and continuous blood was oozing out. Owing to the pain, she was not permitting for medical examination. She was taken to the operation theater to the next day and anesthesia was administered to her and thereafter her medical examination was done. She has stated in her statement that slide could not be prepared because there was excessive bleeding. Ex.P.7 is the report which was given by her. The victim remained in hospital for two days and was discharged on 20.1.2009. Discharge ticket is Ex.P/8. Document Ex.P/7 which is a medical report discloses that "blood stains on the thighs, hymen ruptured, margin red, examination intensively painful, bleeding from vagina" and the opinion regarding sexual intercourse committed with the victim was given by the doctor. The accused was also medically examined and he was found competent to perform sexual intercourse. His report is Ex.P/4. 9. Now, in the light of the medical report of the victim, if the statement of the victim is taken note of, she has specifically narrated the manner in which the act has been committed by the appellant. The statement of the victim is duly corroborated with the statement of her mother. His report is Ex.P/4. 9. Now, in the light of the medical report of the victim, if the statement of the victim is taken note of, she has specifically narrated the manner in which the act has been committed by the appellant. The statement of the victim is duly corroborated with the statement of her mother. The incident is said to have taken place on 18.01.2009 at 7:00 pm and an FIR was got registered on 18.1.2009 at 7:40 pm. Therefore, within a short period of 40 minutes, the incident was reported to the police authority. The FIR was got registered by the mother of the victim Smt. Laxmibai (PW/2). Under these circumstances, the fact that the offence has been committed by the present appellant could not be disputed. There is no material on record to substantiate the fact that the appellant has not committed any offence. 10. The law with respect to the proposition that conviction in rape cases can be based upon the sole testimony of the victim has been considered by the Hon'ble Supreme Court in the case of Vijay alias Chinee v. State of Madhya Pradesh reported in (2010) 8 SCC 191 and has held as under : "9. In State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under : "16. A prosecutrix of a sex of ence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. She is undoubtedly a competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence." 10. In State of U.P. v. Pappu, (2005) 3 SCC 594 this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the Court to absolve the accused. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the Court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the Court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: "12. It is well settled that a prosecutrix complaining of having been a victim of the of ence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the Court of facts finds it dif icult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do." 11. In State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 , this Court held that in cases involving sexual harassment, molestation, etc. the Court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The Court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual of ence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under : "8. ... The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual of ence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under : "8. ... The Court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating of icer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating of icer could not af ect the credibility of the statement of the prosecutrix. ... The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material ef ect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. ... Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. ... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. ... 21. ... The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it dif icult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." 12. In State of Orissa v. Thakara Besra, (2002) 9 SCC 86 , this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the of ence. 13. In State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. (2010) 2 SCC 9 placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan, AIR 1952 SC 54 . 14. Thus, the law that emerges on the issue is to the ef ect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix." 11. 14. Thus, the law that emerges on the issue is to the ef ect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix." 11. Taking into considerations the aforesaid judgments, the Hon'ble Supreme Court recently in the case of Ganesan vs. State Represented by its Inspector of Police, reported in (2020) 10 SCC 573 has held as under : "On evaluating the deposition of PW3 – victim on the touchstone of the law laid down by this Court in the aforesaid decisions, we are of the opinion that the sole testimony of the PW3 – victim is absolutely trustworthy and unblemished and her evidence is of sterling quality. Therefore, in the facts and circumstances of the case, the learned trial Court has not committed any error in convicting the accused, relying upon the deposition of PW3 – victim." 12. The sole requirement before this Court is to see as to whether the statement given by the victim inspires confidence, trustworthy and unblemished and should be of sterling quality. Interpretation of words 'sterling witness' was considered by the Hon'ble Supreme Court in the case of Rai Sandeep alias Deepu vs. State (NCT of Delhi) reported in (2012) 8 SCC 21 , wherein, the Hon'ble Supreme Court has held as under : "22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-- relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of of ence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the of ence alleged against him. Only if the version of such a witness qualifies the above test as well as all 12 other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the of ence to rely on the core version to sieve the other supporting materials for holding the of ender guilty of the charge alleged.” On evaluating the deposition of PW3 – victim on the touchstone of the law laid down by this Court in the aforesaid decisions, we are of the opinion that the sole testimony of the PW3 – victim is absolutely trustworthy and unblemished and her evidence is of sterling quality." 13. In the present case, the victim was examined as PW/1. She has immediately narrated the incident to her mother. She remained consistent with her statement. Her statement covered corroboration from the medical report given by Dr. Bhavna Mishra (PW/7). In the present case, the victim was examined as PW/1. She has immediately narrated the incident to her mother. She remained consistent with her statement. Her statement covered corroboration from the medical report given by Dr. Bhavna Mishra (PW/7). The statement of the mother gathered confidence as it is fully corroborating with the statement of the victim as well as the medical report. Under these circumstances, there is no doubt that the victim is a sterling witness. Merely the fact that other witnesses i.e. Sarswati (PW/3) and Hallu @ Gopal (PW/5) have turned hostile and not supported the prosecution story, cannot be a ground to disbelieve the prosecution story and the statement of the victim. 14. The Hon'ble Supreme Court in the case of State of Punjab v. Gurmit Singh reported in (1996) 2 SCC 384 has gone to the extent that evidence of the victim of sexual assault does not require any corroboration and is sufficient for convicting accused unless there are compelling circumstances which require corroboration. 15. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. She stands at a higher pedestal than an injured witness. In the case of injured witness, the injury is caused in the physical form while in the cases involving sexual assault, the injury is both physical as well as psychological and emotional. Under these circumstances and looking to the overall facts of the case and evidence available on record, it can safely be said that the accused is the person who has committed the offence upon the victim who was aged about 12 years at the time of commission of offence. The learned trial Court has not committed any error in holding the guilt of the appellant for commission of offence. 16. The learned trial Court has not committed any error in holding the guilt of the appellant for commission of offence. 16. If the other argument advanced that the offence being committed in the year 2009 and at the relevant point of time, the provisions of POCSO Act were not in existence and even in the terms of unamended provisions of the Indian Penal Code, the conviction of the appellant under section 376(f) of the IPC is not made out as the trial Court has opined the age of the victim 12-14 years, but the same falls under section 376 of the IPC for which punishment shall not be less than seven years which may extend for life and shall also be liable for fine, is accepted, then also under the previous Act, a punishment for a period of seven years is provided which is extendable upto life. This is a case wherein the rape has been committed with a minor aged about 12 years. As per the medical report, the victim of the present case has not even attained the age of puberty. She was unable to understand the consequences of the act. Therefore, it can safely be said that she was not in a position to give a consent. Rather the entire statement of the victim shows that she was forcefully taken into the house and thereafter sexual assault was done. Rape with a minor is not only an offence against a particular individual but it is an offence against the entire society at large. Such sexual assault even on a minor aged about 12 years or below shocks conscience of the Court. 17. Under these circumstances, this Court does not deem it appropriate to consider the alternative prayer of the appellant to reduce the sentence to the period that he has already undergone as he has already undergone substantial part of the sentence. Rather, the fact remains that for such a heinous offence, life imprisonment is the appropriate punishment for such an offender. Commission of rape on a child aged about12 years speaks about the mental status of the accused. Just to satisfy his lust, the children are being targeted and offences are being committed. Rather, the fact remains that for such a heinous offence, life imprisonment is the appropriate punishment for such an offender. Commission of rape on a child aged about12 years speaks about the mental status of the accused. Just to satisfy his lust, the children are being targeted and offences are being committed. Looking to the increasing tendency of such offences in the society, this Court does not deem it appropriate to consider the prayer for releasing the appellant by reducing the sentence to the period that he has already undergone. 18. The appeal being devoid of merit, is dismissed. 19. Pending interlocutory application stands disposed off.