Vinod @ Arvind Vs. the State of Madhya Pradesh - Court Judgment

AFR JUDGE HIGH COURT OF MADHYA PRADESH JABALPUR Criminal Appeal No.530/2001 ViNo.@ Arvind Vs. State of M.P. ---------------------------------------------------------------------------------- Present : Hon'ble Shri Justice N.K. Gupta. ---------------------------------------------------------------------------------- Name of counsel for the parties: Shri Imtiaz Husain, counsel for the appellant. Shri G.S. Thakur, Panel Lawyer for the respondent/State. ----------------------------------------------------------------------------------------------------- JUDGMENT

(Delivered on 30th day of October, 2012) The appellant has preferred this appeal against the judgment dated 28.3.2001 passed by the Special Judge under SC/ST Prevention of Atrocities Act (hereinafter referred to as 'the Special Act'), Jabalpur in Special Case No.708/2000, whereby the appellant was convicted for the offences punishable under Sections 376(1)/511 of IPC and sentenced for five year's R.I. with fine of `5,000/- and one year's R.I. in default of payment of fine.

2. The prosecution’s case in short is that on 27.8.2000 the prosecutrix (PW-3) a girl aged about 12-14 years was going to answer the call of nature at village Mohaniya (Police Station, Panagar, District Jabalpur). Near the culvert, the appellant met her 2 Criminal Appeal No.530/2001 and requested her to go with him below the culvert. When the prosecutrix refused to go with the appellant, he closed her mouth by a handkerchief and tide her hands with his shirt and took her near the culvert. Thereafter, he removed her garments and undergarment and committed rape upon her. Thereafter, the prosecutrix ran away from the spot, she wore her clothes in the house of a Pandit. Thereafter, she went to her house and told the entire story to her aunt Savitri Bai (PW-5). She told the entire story to her mother on 1.9.2000. The appellant came to the house of mother of the prosecutrix and shouted on her that if they would lodge any FIR against him then, he would kill the prosecutrix and therefore, after sometime the prosecutrix had lodged an FIR Ex.P/1 on 3.9.2000. She was sent for her medico legal examination. Dr. Sulekha Trivedi (PW-2) examined the prosecutrix and gave her report Ex.P/2. No external or internal injury was found on her person. Her hymen was found intact. She also found the pubic hairs of the prosecutrix to be scanty and non-matted. However, two slides of her vaginal swab were prepared and handed over for forensic analysis to the concerned constable after their sealing. The appellant was arrested and sent for his medico legal examination also. Dr. R.S. Mishra (PW-6) examined the appellant and gave his report Ex.P/7. Nothing abnormal was found with the appellant. Dr. Mishra prepared two slides of his semen and handed over to the concerned constable for their forensic analysis after 3 Criminal Appeal No.530/2001 sealing them. A birth certificate of the prosecutrix was also obtained from the concerned Police Station. After due investigation, a charge sheet was filed before the J.M.F.C. Jabalpur, who committed the case to the Sessions Court, Jabalpur and ultimately it was transferred to the Special Judge under the Special Act for the disposal.

3. The appellant abjured his guilt. He did not take any specific plea in the matter, but he has stated that he was innocent. In defence, Hukumchandra (DW-1) of Gram Panchayat, Kushner was examined.

4. The learned Special Judge, after considering the evidence adduced by both the parties, acquitted the appellant for the offence punishable under Section 376(1) of IPC, but convicted him for the offences punishable under Sections 376(1)/511 of IPC and Section 3(1)(xi) of the Special Act but sentence was passed for the offence punishable under Section 376(1)/511 of IPC only. No separate sentence was passed for the offence punishable under Section 3(1)(xi) of the Special Act 5. I have heard the learned counsel for the parties.

6. The learned counsel for the appellant has submitted that the FIR was delayed by five days and MLC report of the prosecutrix was negative. It was stated by the prosecutrix that soon after the incident, she went to the house of Pandit, but alleged Pandit was not examined by the prosecution. Similarly, it 4 Criminal Appeal No.530/2001 was accepted by the prosecutrix and her aunt that the Sarpanchas of the village Mohaniya and Kushner were present in Panchayat between the prosecutrix and the appellant, but they were not examined by the prosecution. The entire story appears to be doubtful and a fake case was prepared against the appellant. In support to his contention, a reliance was placed on the judgment passed by the Hon'ble Apex Court in the case of “Bibhishan Vs. State of Maharashtra”. (2008 Cri.L.J.721) and it is prayed that the appellant may be acquitted as he is entitled to get the benefit of doubt. In the alternate, it is submitted that the appellant remained in the custody for approximately 205 days and therefore, it is also prayed that the appellant may not be sent to the jail again.

7. On the other hand, the learned Panel Lawyer has submitted that the conviction as well as the sentence directed by the trial Court appears to be correct and therefore, no interference may be drawn in the appeal.

8. After considering the submissions made by the learned counsel for the parties and looking at the facts and circumstances of the case, it is to be considered as to whether the appeal filed by the appellant can be accepted?. And whether the sentence directed against him can be reduced?.

9. First of all, it is necessary to assess the age of the prosecutrix. The learned counsel for the appellant has submitted that the prosecutrix could not tell about her date of birth and 5 Criminal Appeal No.530/2001 therefore according to her ossification test, she was found to be 14-16 years of age and therefore, two years may be added on the upper side. It is true that no educational record is submitted in the present case to assess the age of the prosecutrix. The prosecutrix could not tell about her age, but in the present case, the entry of Kotwari Book Ex.P/12 is produced and Kotwar Chhotelal (PW-9) was also examined, who had entered the date of birth of the prosecutrix in his Kotwari Book and transmitted to the Police Station, Panagar. Thereafter, a copy of birth register of the prosecutrix is submitted from the side of the Police as Ex.P/11 and at serial 1050, the date of birth of the prosecutrix was mentioned to be 8.9.1986. The entry of Kotwari Book is a conclusive proof of the date of birth of a particular child, because the entry was made soon after the birth of the child and therefore, there is no possibility of any interpolation in that entry. It was an official duty of the concerned Kotwar to maintain day to day record. Some questions were asked to the Kotwar as to whether he took any thumb impression or signature of the person, who gave the information of birth but such type of techniclities are not required to fill up the Kotwari Book and therefore, it is proved beyond doubt that the date of birth of the prosecutrix was 8.9.1986. The concerned Kotwar has dispatched his Kotwari Book to the concerned Police Station and entry was made in the birth register. When the entry of the birth register is submitted then, it is a 6 Criminal Appeal No.530/2001 conclusive proof in the eye of law and no further evidence is required to believe or disbelieve that entry. Only one doubt can be raised in that entry that whether the entry was related to the concerned child or it was related to her younger sister but according to the prosecutrix, she was an only female child in her family and therefore, the aforesaid doubt does not arise. Under such circumstances, it is clear that when the incident took place on 27.8.2000, the prosecutrix was 14 years of age approximately i.e. below 16 years of her age.

10. Dr. Sulekha Trivedi (PW-2) had examined the prosecutrix and she found that the her secondary sex characteristics were not fully developed. Similarly, pubic hair were scanty and her other organs were not fully developed. Under such circumstances, if in the ossification test, it was found that the prosecutrix was in between 14-16 years of age then, looking to the physical appearance of the prosecutrix, two years cannot be added on the upper side. In this context, the judgment of the Hon'ble Apex in the case of “Bishnudayal Vs. State of Bihar”. (AIR 198.SC 39.may be referred, in which the Hon'ble Apex Court relied upon the observations made by the concerned doctor relating to the development of secondary sex characteristics and found that the prosecutrix was only 14 years of age. In the light of the aforesaid judgment and opinion of Dr. Sulekha Trivedi relating to the secondary sex characteristics of the prosecutrix, the 7 Criminal Appeal No.530/2001 prosecutrix was below 16 years of age at the time of the incident.

11. The prosecutrix (PW-3) has stated about the entire intercourse done by the appellant. However, it is apparent from her statement that she was interrogated by her aunt Savitri Bai (PW-5), her mother and two Sarpanchas and therefore, a possibility cannot be ruled out that she was well tutored to tell the entire procedure of the intercourse against the appellant. She has admitted in her cross-examination that she did not say anything about the indecent incident before both the Sarpanchas and it was told by the appellant as well as by the prosecutrix that they were simply talking with each other. However, the prosecutrix has stated that such statement was given by her due to threat given by the appellant.

12. The testimony of the prosecutrix was not corroborated by the medical evidence given by Dr. Sulekha Trivedi (PW-2). If a forceful intercourse was committed by the appellant with a girl aged about 14 years where her organs were not developed and only one finger could be inserted in the vagina with difficulty, then she must have sustained some injuries not only on her private part but also some external injury should have been caused. On the contrary, no such injury was found on either external or internal part of the body of the prosecutrix and her hymen was found intact and therefore, it is apparent that no penetration was done by the appellant. The learned Special Judge has acquitted the appellant 8 Criminal Appeal No.530/2001 from the charge of offence punishable under Section 376 of IPC. The learned counsel for the appellant has placed his reliance upon the judgment passed by the Hon'ble Apex Court in the case of Bibhishan (supra) but, since the appellant is convicted for the offence punishable under Section 376 read with Section 511 of IPC therefore due to variance of the factual aspects, the aforesaid judgment passed by the Hon'ble Apex Court cannot be applied in the present case.

13. So far as the attempt is concerned, it is clear from the evidence of the prosecutrix that she did not make any hue and cry, though the place of the incident was very much near to the public road. The garments and undergarments were removed but she did not shout and also nobody came to the spot. The prosecutrix has stated that after the incident, she went to the house of a Pandit and thereafter, she was searched by her aunt Savitri Bai. Looking at the evidence given by the prosecutrix, there was nobody to stop the appellant, if he had intended to do the intercourse with the prosecutrix and when there was no hurdle before the appellant in doing the intercourse, then he could do it anyway. Therefore, when no intercourse was found done by the appellant, it would be clear that he was not intended to do the intercourse with the prosecutrix and therefore, his overt act does not fall within the purview of attempt to commit rape.

14. Hukumchandra (DW-1) Sarpanch of village Kushner has 9 Criminal Appeal No.530/2001 admitted that some persons brought a boy and and girl before him. The prosecutrix told him that she was a guest to the house of her aunt and she was missing for the entire night and the appellant was also missing for the entire night. Under such circumstances, it would be clear as the defence witnesses himself told that the appellant was present with the prosecutrix in that night.

15. The prosecutrix had lodged an FIR with the delay of at least seven days. She has given the reason for that delay that she was taken by her aunt from the house of Pandit and thereafter, her mother was called on the next day, who referred the matter to the Sarpanch of village Mahoniya. Thereafter, the Sarpanch of village Kushner was also called but both of the Sarpanchas did not take any action then, due to advice of her maternal uncle, she had lodged an FIR. Though, the FIR is delayed but the delay is properly explained by the prosecutrix. There was no enmity between the parents of the prosecutrix and the appellant and therefore, it cannot be said that the a delayed FIR was lodged against the appellant to implicate him falsely. Under such circumstances, the delay in lodging the FIR has no consequence and FIR can be considered as a supporting evidence.

16. The maxim falsus in uno and falsus in omnibus is not applicable in the country. The Hon'ble Apex Court has laid in so many cases that it is the duty of the Court to pick up the grains of truth from the chasm of the falsehood. In the present case, if the 10 Criminal Appeal No.530/2001 testimony of the prosecutrix is assessed then, it appears that a small portion of her version appears to be correct because it was the appellant, who detained her when she went to answer the call of nature and thereafter, she was released after sometime and she went to the house of a Pandit and thereafter, her aunt could trace her. The appellant was an unknown person to the prosecutrix and therefore, detaining a minot girl indicates the intention of the appellant. Though, it was not proved beyond doubt that the appellant committed any intercourse with the prosecutrix or he intended to do any intercourse with the prosecutrix, however the prosecutrix was detained by the appellant and therefore, some indecent act like removal of her clothes must have been done by the appellant and hence, the overt act of the appellant, which could be observed from the testimony of the prosecutrix is that he outraged the modesty of the prosecutrix by using a criminal force and therefore, he was the culprit of the offence punishable under Section 354 of IPC.

17. As discussed above, it was not proved beyond doubt that the appellant intended to do any intercourse with the prosecutrix and therefore, he cannot be held guilty for attempting to commit rape but he is the guilty for the offence punishable under Section 354 of IPC. The learned Special Judge has erred in convicting the appellant for the offence punishable under Section 376(1)/511 of IPC. 11 Criminal Appeal No.530/2001 18. The caste certificate EX.P/1 is proved by Sushma Patel (PW-1) Sarpanch of the Gram Panchayat Mohaniya by which it would be clear the prosecutrix was a Koal by caste and therefore, she was a member of Scheduled Tribe. No challenge was given to the witness Sushma on this context and therefore, her certificate is believable. Since the prosecutrix was found to be a member of Scheduled Tribe then, the offence of Section 354 of IPC committed by the appellant falls within the purview of Section 3(1)(xi) of the Special Act. In this context, a judgment passed by the Hon'ble Apex Court in the case of “Vidyadharan Vs. State of Kerala”. [2004(2) MPLJ 251 . may be referred in which it is laid that the difference between the offence punishable under Section 354 of IPC and Section 3(1)(xi) of the Special Act is that; for the offence punishable under Section 354 of IPC, the prosecutrix may be any woman, whereas in case of Section 3(1)(xi) of the Special Act, the prosecutrix should be a member either Scheduled Caste or Scheduled Tribe. Under such circumstances, it is apparent that the appellant was guilty for the offence punishable under Section 3(1) (xi) of the Special Act. The learned Special Judge has rightly convicted the appellant for the offence punishable under Section 3(1)(xi) of the Special Act. Though, no separate sentence was passed for that offence.

19. So far as the sentence is concerned, it is apparent that the appellant was a youth of 25 years of age at the time of the 12 Criminal Appeal No.530/2001 incident and when he found that the prosecutrix was lonely, he tried to take the advantage of that situation. He has faced the trial and appeal for last ten years. Under such circumstances, looking to the age of and overt act of the appellant, he can be sentenced with the minimum sentence of six months' R.I. in the present case. Since the appellant has already undergone in the custody for 205 days,which is more than six months, therefore, his sentence may be reduced to the period, which he has already undergone in the custody. Since the prosecutrix must have received some compensation from the government itself, therefore, no huge fine is required to be imposed upon the appellant. However, a token fine of `500/- may be imposed upon the appellant.

20. On the basis of aforesaid discussion, the appeal filed by the appellant appears to be acceptable and hence, it is hereby partly accepted. The conviction as well as the sentence directed by the trial Court for the offence punishable under Section 376(1)/511 of IPC is hereby set aside but the conviction drawn for the offence punishable under Section 3(1)(xi) of the SC/ST (Prevention of Atrocities) Act is hereby maintained but the sentence for that offence is reduced to the period, which he has already undergone in the custody, whereas a fine of `500/- is also imposed and in default of payment of fine, he shall undergo for six months' R.I. The appellant would be entitled to get the remaining fine amount back, which he has deposited before the trial Court for the offence 13 Criminal Appeal No.530/2001 punishable under Section 376(1)/511 of IPC. The entire amount of fine i.e. a sum of `500/- may be given to the prosecutrix by way of a compensation 21. The appellant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds etc. shall stand discharged.

22. A copy of the judgment be sent to the trial Court alongwith its record for information and compliance. (N.K. GUPTA) JUDGE 30 10.2012 pnkj