Chaitu Singh Gond Vs. State of Madhya Pradesh - Court Judgment

C.V. Sirpurkar, J.

1. This Criminal Appeal under section 374 (2) of the Code of Criminal Procedure, 1973 has been preferred against the judgment dated 31.12.2013 passed by Shri R.G.Singh, Additional Sessions Judge, Dindori, in Sessions Trial No.89 of 2013, whereby the learned Additional Sessions Judge has convicted appellant Chaitu Singh under section 376(2)(f) of the Indian Penal Code and section 4 of the Protection of Children from Sexual Offences Act, 2012 and for each offence has imposed imprisonment for life and a fine in the sum of Rs.2000/-. The appellant was also directed to undergo rigorous imprisonment for a period of two months in default of payment of fine for each offence.

2. The facts giving rise to this appeal may be summarized as hereunder:

Prosecutrix was a 5 or 6 year old girl.

Complainant Bhagwati Bai (PW-1) is her grandmother, Savita (PW-5) is her mother and Manoj (PW-4) is her father. She lived with her parents grandmother and siblings in village Gorakhpur, P.S. Bajag, District Dindori. Her grandmother Bhagwati Bai worked as a peon in Gorakhpur branch of Central Bank of India. Appellant Chaitu Singh is their neighbour.

At around 2:00 p.m. on 24 th of May, 2013, Bhagwati Bai was on her duty in the Bank. Manoj being ill, was relaxing in his house. Prosecutrix, her brother Kuldeep and sister Somiya were playing besides their house. At that time, appellant Chaitu Singh took the prosecutrix inside his home on the pretext of giving her money. He shut the door and removed her panty and slacks. The appellant tried to make her lie on the cot. The frightened prosecutrix cried out. Hearing her cries, Savita rushed inside and asked the prosecutrix as to what happened. Appellant Chaitu Singh ran away from the room and lay in other room. Savita took the prosecutrix to her house and informed Manoj regar ding the incident. She also informed her mother-in-law Bhagwati on telephone, who came back and inquired about the incident from Savita and the prosecutrix. Thereafter, she rejoined her duty in the Bank and returned at about 5:00 p.m. Thereafter, Bhagwati took the prosecutrix to police outpost Gadasarai and lodged the report of the incident at about 6:00 p.m., the same day. Subsequently, the prosecutrix was sent to Dindori for medical examination. The medical report indicated redness and swelling around vagina. Consequently, a case under section 376 read with section 511 of the Indian Penal Code and section 8 of the Protection of Children from Sexual Offences Act was registered.

3. Learned trial Court framed a charge under section 376 of the Indian Penal Code and section 4 of the Protection of Children from Sexual Offences Act. Appellant abjured the guilt and claimed to be tried. In his examination under section 313 of the Code of Criminal Procedure, he stated that witnesses are telling a lie due to enmity and he has been falsely implicated.

4. After trial, learned Additional Sessions Judge concluded that the prosecution was able to prove the guilt of the appellant beyond reasonable doubt and convicted the appellant as stated above.

5. The sum and substance of the prosecution evidence is that the prosecutrix was playing with her siblings besides the road near her home. Appellant Chaitu Singh took her inside his house on the pretext that he wanted the prosecutrix to fetch bidis from nearby shop. Once inside the house, the appellant removed her panty and slacks and made her lie on the cot and mounted her. The appellant inserted his finger in her private part. At that time, her mother Savita was informed by her sister Somiya that accused had taken the prosecutrix inside his house and was doing something. Savita twice called out for the prosecutrix but she did not respond; whereupon, she entered house of the appellant. Seeing her the appellant put the prosecutrix down. She was trying to put her clothes back and was weeping. Savita slapped her daughter. The prosecutrix told her that appellant had mounted her and was inserting his finger into her vagina. At that time, her panty was wet and there was redness on both of her thighs. Appellant Chaitu Singh covered himself with a sheet and slept. Thereafter, she informed her mother- in-law Bhagwati Bai and husband Manoj as also their neighbours Ramvati (PW-2), Durga Bai (PW-6) and Urmila (PW-7).

6. Legality and propriety of the finding of guilt and the sentence imposed by the learned trial Court has been assailed in this appeal on the grounds hereinafter adverted to:

7. The first ground taken by the appellant is that no statement of the prosecutrix either under section 161 or 164 of the Code of Criminal Procedure was recorded; therefore, no credence can be lent to her statement before the Court.

8. It is true that no statement of the prosecutrix during investigation was recorded. As such, the first official statement she made regarding the incident, was in the Court. In this regard, the Investigating officer Assistant Sub Inspector Ramesh Singh (PW-9) has explained in paragraph 4 of his cross-examination that prosecutrix was unable to speak. She was telling as to where she was sitting and where the appellant took her, only by nodding her head. However, the fact remains that the prosecutrix has given statement in the Court about 6 months after the incident and has stated in paragraph 6 of her cross-examination that she could speak as much at the time of incident as she was doing at the time of statement in the Court.

9. Now the question arise whether the statement of the prosecutrix should be disbelieved solely on the ground that her statement during investigation was not recorded ? The Apex Court in the case of Ram Lakhan vs. State of U.P.-AIR 1977 SC 1936 has held that it would be difficult to give credence to a statement which was given for the first time in the Court after about a year of the occurrence because the accused was entitled to know his earlier version to the police and was naturally deprived of an opportunity of effective cross-examination. However, in that case, the witness was not named in the charge sheet which is not the case here. In the case of Dayal Singh Vs. State of Maharashtra (2007 Cr.L.J. 3265), the Supreme Court ignored the fact that investigating officer did not record the statement of a witness who was merely present during recording of dying declaration. A Division Bench of this Court in the case of Gabbu B Lodhi vs. State of Madhya Pradesh (2004 Cr.L.J. 2001) observed that though it is not mandatory to record statement of witnesses during the course of investigation, however, where the witness was available and cited in the charge sheet, the prosecution has to explain as to why his statement was not recorded.

10. In the instant case, the Court can take notice of the fact that at the time of incident the witness was merely 5 or 6 year old girl and was studying in Class III. She came from a rustic background and must have been under a great deal of mental trauma during the course of investigation. That apart, it has come on record that immediately after the incident, she was scolded and slapped by her mother for accompanying the appellant inside his house. She was subjected to sexual assault and was seen by her mother in that condition. In such circumstances, even an outspoken woman would be tongue tight due to embarrassment.

11. Other than that in this case, the entire prosecution story was based upon the statements of Savita and Bhagwati Bai. Savita was also eyewitness to a part the incident. Statement of Bhagwati Bai was based upon the information supplied by the prosecutrix and her mother Savita. In these circumstances, the appellant cannot claim that he was not aware of the version of the prosecutrix and was taken by surprise. In aforementioned backdrop, in the opinion of this Court, the appellant cannot be said to have been deprived of the opportunity to effectively cross-examine the prosecutrix and was thereby prejudiced in any manner.

12. In any case, even if assuming for the sake of argument that the Investigating Officer was negligent or was not tactful enough in eliciting a statement from the prosecutrix, the benefit of such negligence or ineptitude on his part in the facts and circumstances of the case, cannot be extended to the appellant.

13. The second point raised on behalf of the appellant is that father of the prosecutrix Manoj (PW-4) has admitted in paragraph 7 of his cross-examination that house of the appellant comprises two rooms, where he lived along with his wife Rajeshwari, brother Panku, kids Aman and Khushi and father Jagat. He has further stated that elder brother Panku lived in one room along with his father. The prosecutrix has admitted in paragraphs 3 and 5 of her statement that when she had gone to appellant Chaitu Singh's house, Aman and Khushi were already there and she has also admitted that when appellant made her lie on the cot; Aman, Khushi and Jagat were also there. It has been argued on behalf of the appellant that it is highly inconceivable that a person would try to rape a minor in the presence of his father, nephew and niece. However, the prosecutrix herself in paragraph 3 of her cross-examination has explained that there are two cots in appellant Chaitu Singh's house. On one of them, his father Jagat was sleeping. She has also stated in paragraph 5 that Aman and Khushi are younger than her, which means that these kids were below 5 years of age. Moreover, Savita (PW 5) in her paragraph 7 of her deposition has stated that the appellant's father was no inside the room in which the incident took place. He was sleeping in the Parchhi (veranda) outside. It does not sound improbable for man to sexually assault a child of tender age with his father sleeping in the next room and two small children moving around in a mid-summer afternoon. As such, this argument is not sustainable either.

14. The next argument advanced on behalf of the appellant is that the prosecutrix has admitted in paragraphs 3 and 4 of her cross-examination that no sooner she entered the house of the appellant her mother followed and slapped her, so she could not bring bidis for the appellant. On the basis of this admission, it has been contended that there was no opportunity for the appellant to commit any sexual assault upon the prosecutrix. It may be noted that the prosecutrix was a girl barely 5 year old. She could not be expected to be precise with regard to timing of the sequence of events. What she probably meant was that her mother entered after a short while. Therefore, this admission on her part is inconsequential.

15. The next contention advanced by the learned counsel for the appellant is that mother of prosecutrix, Savita (PW-5) has stated in paragraph 5 of her cross-examination that at the behest of her neighbour Ramvati (PW-2) she had bathed the prosecutrix and had also washed and dried her panty and slacks as they had got soiled. It is true that Savita had stated in her examination-in-chief that panty of the prosecutrix had got wet after the incident but the fact that panty and slacks were not produced before the investigating officer or were not seized during the investigation does not benefit the defence in the least, since it is not the case of the prosecution that the accused had ejaculated during the incident; therefore, no forensic evidence was sought to be adduced. The prosecution case is based entirely on the oral evidence supported by medical evidence. Thus, even this argument does not in any manner dent the prosecution case.

16. One more point raised by the learned counsel for the appellant is that grandmother of the prosecutrix, Bhagwati Bai (PW-1), has admitted in paragraph 7 of her statement that after the incident, she had returned back to her Bank and stayed there till 5:30 p.m. but she did not narrate the incident to any of the employees of the Bank nor did she tell it to any customer, though hundreds of customers visited the Bank and some of them were her acquaintances. In the opinion of this Court, the nature of incident was such that no prudent grandmother would like to publicize it. Thus, this omission on the part of Bhagwati Bai does not make her statement any less believable.

17. Though, the prosecutrix is a child witness being only 5 or 6 years of age, she has asserted at more places than one during her cross-examination that she was not tutored by her grandmother or her parents to implicate the accused. Throughout her cross-examination she remained faithful to her version of the incident. Her version has been corroborated by mother Savita, who was eyewitness to a part of the incident. Her grandmother Bhagwati Bai has also supported the prosecution case to the fullest extent. The prosecution story has also got some support from Ramvati (PW-2), Manoj (PW-4) and Durga Bai (PW-6).

The appellant had stated in his examination under section 313 of the Code of Criminal Procedure that he has been falsely implicated in this case due to previous enmity. In this regard suggestion had been made to Bhagwati (PW1) that the relations between the two families were inimical due to illicit relations between appellant's wife and her son Manoj. However, it has been suggested to Manoj (PW-4) in his cross-examination that there was no ill-feeling between the two families prior to incident. Manoj has also stated that there were family relations between the two sides. Savita (PW-5) has also deposed in paragraph 4 of her cross- examination that her children and those of the appellant used to visit the house of each other unannounced. It shows that there was no previous enmity between the two families, which could prompt the family members of the prosecutrix to falsely implicate the appellant in a grave case like the present one. Thus, the Court concludes that the core of the prosecution story has remained unscathed and there is no reason to believe that the appellant has been falsely implicated in this case. The prosecution case is also fortified by the presumption available to it under section 29 of the Protection of Children from Sexual Assault Act, as the appellant has advanced no credible defence.

18. Now we come to the crucial point in this appeal. Prosecutrix (PW-10) has stated in paragraph No.1 of her examination-in-chief that appellant mounted her and was inserting his finger in her vagina. Her mother Savita Bai (PW-5) has deposed that the prosecutrix told her that the appellant had mounted her and was inserting finger in her vagina. Savita has also stated that there was redness on bother of her thighs and her panty was wet. Bhagwati Bai (PW-1) has stated that she was informed both by the prosecutrix and her mother that appellant was inserting finger in the private part of the prosecutrix. Dr. Manglesh Paraste (PW-8) has stated that he had found slight swelling and redness on external examination of the vagina, which was indicative of an attempt at sexual assault. However, it has never been the prosecution case that any penetrative sexual assault was made upon the prosecutrix. There is no mention of penetration of any part of appellant's body in the vagina of the prosecutrix, either in the first information report or in the police statements of Bhagwati Bai or Savita. Even the fact that the appellant had mounted the prosecutrix is conspicuous by its absence in aforementioned documents. This part of the story has been revealed for the first time in the Court. It may be noted that Bhagwati Bai (PW-1) has stated in paragraph No.8 of her deposition that prosecutrix had informed her about insertion of finger at home and she had told the police regarding the same at the time of lodging the report. She specifically denied the suggestion that this fact was disclosed by the prosecutrix for the first time at the time of medical examination, after lodging of the first information report, the next day. On the contrary Savita (PW-5) has stated the fact regarding insertion of finger was to her by the prosecutrix 3 days after the incident at the time of medical examination. Dr. Manglesh Paraste (PW-8) has also stated that there was no bleeding from the vagina. In these circumstances, the part of the prosecution evidence regarding insertion of finger in the vagina does not appear to be credible and is consequently disbelieved. It also appears to be improbable that the accused had actually mounted the prosecutrix.

19. On the basis of aforesaid discussion, this Court is of the view that the prosecution has been able to prove only the following facts beyond reasonable doubt:

(i) The accused took the prosecutrix inside his house.

(ii) He removed her slacks and panty.

(iii) He lifted her onto the cot.

(iv) At that point of time, Savita made her entry, prompting the appellant to put her down.

(v) By virtue of section 30 of the Protection of Children from Sexual Offences Act, it may be presumed that the assault was made with a sexual intent.

20. On the foundation of aforesaid facts, no offence punishable either under section 376 of the Indian Penal Code [rape] or under section 4 of the Protection of Children from Sexual Offences Act [Penetrative Sexual Assault] or an attempt at any of those offences is made out. Thus, learned trial Court erred in convicting the appellant Chaitu Singh under section 376(2)(f) of the Indian Penal Code and section 4 of the Protection of Children from Sexual Offences Act, 2012. However, the prosecution has been able to prove the offence of sexual assault defined under section 7 of the Protection of Children from Sexual Offences Act, which is punishable under section 8 thereof, beyond reasonable doubt.

21. Consequently, this appeal is partly allowed. Conviction of the appellant is altered from one under sections 376(2)(f) of the Indian Penal Code and 4 of the Protection of Children from Sexual Offences Act, 2012 to one under section 8 of Protection of Children from Sexual Offences Act, 2012.

22. His sentence of rigorous imprisonment for life on two counts is reduced to rigorous imprisonment for a period of 4 (Four) years and the fine amount is enhanced from Rs.4000/- (in all) to Rs.10,000/- (Rs. Ten Thousand), payable for the benefit of the prosecutrix in accordance with the provisions of section 357 (1) of the Code of Criminal Procedure. In default of payment of fine, the appellant shall undergo further rigorous imprisonment for a period of 6 (Six) months.