Madhya Pradesh High Court
State Of Madhya Pradesh vs Udhe Lal S/O Khema on 7 April, 1995
Equivalent citations: 1996(0)MPLJ719
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari
JUDGMENT Fakhruddin, J.
1. State has preferred this appeal against the Order of acquittal of the respondent for offence punishable under Section 376/511, Indian Penal Code, recorded by Shri R. K. Bajpai, Sessions Judge, Shivpuri.
2. Prosecution story, in brief, is that on 8-3-1980, Kammod Singh (PW-1) resident of Gram Narvar had gone to his well along with his wife Jamuna Bai (PW-3) since earlier a theft had taken place in his house, he left his daughter Harkunwar (PW-2) in the house. Harkunwar was then aged about 8-10 years. At 1 O'clock during the day when his wife "Jamuna Bai came to the house for taking food, she saw that accused Udhe had overpowered her daughter. She was lying down and accused was over her in a position preparatory to sexual assault. As soon as Jamuna Bai entered the house, seeing her the accused ran away and in so doing only pushed her. Jamuna Bai enquired from her daughter, who told her that she was preparing meal then accused came in the house and brought her to this place, undressed himself and undressed her as well and tried to insert his male organ into her private part. She shouted but accused slapped her and also shut her mouth. Jamuna Bai told this incident to Pandit Ramcharan (PW-8) and Laxman (PW-4) and also to her husband who was called. Kammod Singh along with his daughter went to the police station Narvar, lodged a report Ex. P-8, on the same day at about 1.30 p.m. S. O., P. S. Narvar, G. D. Dubey (PW-10) registered an offence under Section 376/511 vide Crime No. 22/80. During the investigation G. D. Dubey (PW-10) reached the spot and prepared spot map (Ex. P-2), recorded statement of Kammod Singh (PW-1), Harkunwar (PW-2), Jamuna Bai (PW-3), Laxman Singh (PW-4) and Ramcharan (PW-8). Harkunwar (PW-2) was sent to hospital at Shivpuri for medical examination. Further investigation in the case was carried on by Hakim Singh Yadav (PW-11) who sent accused for medical examination to Dr. M. P. Barua as per memo Ex. P-9 who gave the medical report Ex.P-10. Accused was arrested and challan was filed against him in the Court of JMFC, Ist Class, Karera. The case was committed to the Sessions Court, who charged him for the offence. The accused abjured the guilt and contended that he has been falsely implicated due to enmity.
3. Prosecution examined witnesses Kammod Singh (PW-1), Harkunwar (PW-2), Jamuna Bai (PW-3), Laxman (PW-4), Bholaram (PW-5), Dr. Mrs. Chopra (PW-6), Dharnidhar (PW-7), Ramcharan (PW-8), D. S. Hardikar (PW-9), G. D. Dubey (PW-10) and Hakim Singh (PW-11).
4. The trial Court in para 6 of his judgment held that Harkunwar was aged between 8-12 years. Even from the material on record, it is clear that at the time of incident Harkunwar (PW-2) was aged between 8-12 years.
5. Learned Trial Court in paragraph 7 considered as to whether the accused attempted to commit rape on Harkunwar (PW-2) and held it not proved. The learned Sessions Judge discarded the evidence of Harkunwar (PW-2), on the ground that in paragraph 10 she had stated "He tried to insert his male organ into her private part", whereas in the Court she stated that "The accused Udhe had penetrated his male organ into her private part". Another factor weighed heavily was the evidence of Dr. Mrs. Chopra (PW-6) who gave statement in paragraph 8 that:-
"If a fully grown man like accused Udhe aged about 25 years (present in Court) thrusts his penis even a little into the vagina of a girl aged about 8 to 10 years like Mst. Harkunwar then there will be present inflammation, slight redness and if the force is more it may also rupture the hymen".
6. The Trial Judge found the evidence not sufficient and thus acquitted the accused and recorded finding of acquittal on the ground that there are contradictions in the evidence of prosecutrix.
7. The State has challenged the acquittal on the ground that there is overwhelming legal and reliable evidence on record. It is contended by the State that minor variation here and there make the prosecution version more reliable.
8. We have gone through the evidence adduced by the prosecution closely and minutely along with the counsel for the respective parties. Evidence of Harkunwar (PW-2) prosecutrix, in our opinion inspires confidence. At the time of incident she was 8-10 years of age. Prosecution has not come with the case of rape but a case of attempt to commit rape. PW-2 Harkunwar has no axe to grind against the accused, she is just a child, she is victim of the assault. She will not have courage to struggle or resist while she is alone in the house. The accused had no business to enter while she was alone. The accused took full advantage of the situation. It is in this background that the evidence in this case has to be appreciated. The learned Sessions Judge has noted the demeanour of PW-2 Harkunwar and found that she is capable of giving evidence. She was administered oath. She has stated in paragraphs 1 and 2 of her statement that while she was alone in the house and was doing the household works, accused came, took her to a corner, undressed himself and tried to insert his male organ, she was slapped and then her mouth was shut and it is on that moment, her mother came and on seeing her the accused fled away by pushing her mother. Some fluid like water had pippd out. She narrated this to her mother and the mother told to the father and thereafter when the father asked she told it to her father.
9. She has been cross-examined at length and even in the Court question No. 12, as to whether there was complete penetration of the private part of the accused in her private part, she replied : "No" there was slight penetration. The defence had put the suggestion that father of prosecutrix Kammod Singh (PW-1) and accused were not in talking term which she admitted. It was also suggested that there was land dispute which was denied. In paragraph 13, she was questioned about fluid water and she stated that in hospital, nurse had washed that thing which was like white water. Her attention was drawn to the case diary statement where she had stated that it was on her mother's advice, she washed off white fluid. These are very minor variations. In paragraph 17 again she was thoroughly cross-examined and her attention was drawn to the case diary statement where she had stated that accused had tried to insert his male organ into her private part, where in the Court she said that accused Udhe had penetrated his male organ into her private part. The evidence of Harkunwar (PW-2) is natural and trustworthy and we see no reason why a small girl of 8-10 years would make such false allegations? Though the evidence of prosecutrix alone is sufficient, yet there is evidence of Jamuna Bai (PW-3) also who has fully corroborated her version. She reached the spot immediately and found the accused in such circumstances and in such state of affairs, when she tried to caught hold the accused, he pushed her and fled away. Kammod Singh (PW-1) had also corroborated the above version. Report Ex. P-10 was immediately lodged. Evidence of PW-4 Laxman has been completely lost sight of, by the trial Court. Laxman (PW-4) in para 2 had stated that prosecutrix Harkunwar (PW-2) was keeping her underwear in her hand and her lower part was naked. She had tears in her eyes and Kammod Singh (PW-1) told him that accused Udhe had inserted his male organ into her daughter's private part. The statement of PW-4 Laxman that prosecutrix had tears in her eyes had totally lost sight of. There is no challenge of PW-4's testimony.
10. Dr. Chopra (PW-6) did not find any positive sign of intercourse and it is this evidence which is relied upon by the trial Court. In our opinion, the Trial Court failed to consider that it is not a case or rape but a case of attempt to commit rape that too with the minor girl of tender age.
11. Having considered the evidence of Kammod Singh (PW-1), Harkunwar (PW-2), Jamuna Bai (PW-3) and Laxman (PW-4) and other evidence on record, we are of the opinion that the trial Judge committed grave illegality in discarding the prosecution version. The prosecution had proved the case beyond reasonable doubt.
12. We are conscious of the fact that this is an appeal against acquittal. It is a case where trial Judge had wholly ignored the facts and circumstances as well as the prosecution evidence. The findings recorded by the trial Judge are wholly perverse and unreasonable. The finding recorded by learned Sessions Judge is set aside. Instead, the accused is held guilty for the offence under Section 376/511.
13. On the question of sentence, accused has committed the offence of attempt to commit rape with a minor girl of aged 8-10 years, while she was alone in the house and, if the prosecutrix's mother Jamuna Bai (PW-3) would not have come on the spot, he would have ravished the prosecutrix. It is a serious offence. However, the matter is pending since 1980, much time has elapsed. Accordingly, the accused is sentenced to undergo 2 years R.I. and a fine of Rs. 5,000/- which shall be paid as compensation to the prosecutrix. Failure to deposit the fine, he shall further undergo 18 months imprisonment. The accused shall surrender himself on or before 9th May, 1995 for undergoing the sentence, before the Chief Judicial Magistrate, Shivpuri.