Madhya Pradesh High Court
Mansingh @ Kanha vs The State Of Madhya Pradesh on 28 June, 2017
Cr.A.No.385/2016
4.5.2017
Shri R.L.Patidar, learned counsel for the appellant.
Shri Himanshu Joshi, learned Panel Lawyer for the
respondent/State.
Arguments heard. Reserved for orders.
(Rajeev Kumar Dubey)
Judge
Patil
28.6.2017
Judgment passed separately, signed and dated.
(Rajeev Kumar Dubey)
Judge
Patil
Cr.A.No.385/2016
HIGH COURT OF MADHYA PRADESH
BENCH INDORE
SINGLE BENCH: HON'BLE SHRI JUSTICE RAJEEV KUMAR DUBEY, J.
Cr.A.No.385/2016
Mansingh @ Kanha S/o Bharatsingh
Versus
State of M.P.
JUDGMENT
Post for 28/06/2017.
(Rajeev Kumar Dubey) Judge.
28/06/2017.
Cr.A.No.385/2016HIGH COURT OF MADHYA PRADESH BENCH AT INDORE SINGLE BENCH: HON. JUSTICE SHRI RAJEEV KUMAR DUBEY, J.
Cr.A.No.385/2016Mansingh @ Kanha S/o Bharatsingh Versus State of M.P.
------------------------------------------------------------------------------------------- Shri Ramlal Patidar, learned counsel for the appellant. Shri Himanshu Joshi, learned Panel Lawyer for the respondent/State.
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JUDGMENT (Delivered on 28/06/2017) This criminal appeal has been filed under Section 374 of Cr.P.C. against the judgment of conviction dated 20.10.2015 passed by 2nd Addl.Sessions Judge, Dhar in Special Case No.50/2015, whereby learned ASJ found appellant guilty for the offence punishable under Section 363 of IPC and sentenced him to undergo five years RI with fine of Rs.1,000/-, under Section 376(2)(i) of IPC and sentenced him to undergo Ten years RI with fine of Rs.1,000/- under Section 323 of IPC and Six month RI and under Section 5(M)/6 of the Protection of Children from Sexual Offences Act and Ten years RI with fine of Rs.1,000/- with default stipulation.
2. Brief facts of the prosecution case are that on 5.1.2015 Gullubai (PW-3) lodged a report at Police Chowki, Dehri Sarai, Police Station Pithampur, District Dhar averring that on 4.1.2015 at about 5.00 - 6.00 PM her granddaughter (prosecutrix PW-4), who was minor at the time of incident, (name and identity of prosecutrix impressed by law contained in section 228 of IPC is not disclosed) was playing with her younger sister Amisha near Mataji Ka Otla Cr.A.No.385/2016 situated at near Mandav Liquor Factory, Labad District Dhar. After a while when Amisha Came home alone she inquired about prosecutrix to Amisha, who informed her that appellant Man Singh had taken prosecutrix. On that she narrated the incident to her grand son Ajay (PW-6) that appellant Mansingh had taken prosecutrix from somewhere. Thereafter, they searched for prosecutrix nearby, but of no avail. At 7.00 PM two unknown persons brought the prosecutrix on bicycle. They informed her that prosecutrix was weeping near national factory. When she gave her address, they brought her. When she asked prosecutrix she told her that appellant/accused Mansingh took her and pushed into the pit on the edge of the road and set on her and pressed her throat and committed dirty work (rape) with her. Prosecutrix was scared. At that time Sohan(PW-5), father of the prosecutrix was not at home. He had gone to Rajod. When he returned from Rajod at 3.00 PM in the evening, Gullubai went to Police Chowki Dehri Sarai with her granddaughter and lodged a report Ex.P/3. That report was written by Laxmi Verma, Head Constable. After writing the report Laxmi Verma sent that report for registration to P.S., Pithampur. On that report Crime No.9/2015 was registered against the appellant for the offence punishable under Section 363, 376(2)(i) of IPC and matter was investigated. During investigation prosecutrix was medically examined by Dr.Nikunja Sule (PW-1), who gave medical report Ex.P/
5. Doctor also prepared slide of vaginal discharge of prosecutrix and also took her cloths sent it to Police Station in a sealed packet alongwith seal impression, which was then seized by Sub-Inspector R.S.Baghel and seizure memo Ex.P/4 was prepared. The statement of prosecutrix (PW-4), her grand mother Smt.Gullubai (PW-3), her father Sohan (PW-5), her brother Ajay (PW-6) were recorded and appellant/accused Man Singh was arrested on 6.1.2015 and was also medically examined, where he was found capable of doing Cr.A.No.385/2016 intercourse. Doctor also seized underwear and pubic hairs and also prepared slide of his semen and after packing it sent that article to Police Station, Pithampur, District Dhar. On Seizure of that article seizure memo Ex.P/3 was prepared by R.S.Baghel. The seized articles were sent for examination to Regional Forensic Science laboratory, Jhumaghat, Rau, Indore and after investigation Police filed charge sheet against the appellant before JMFC, Dhar, who committed the case to the Court of Sessions. On that charge sheet Special S.T.No.50/2015 was registered. Learned 2nd Addl.Sessions Judge, Dhar framed charge against the appellant for the offence punishable under Section 363, 376(2)(i,) 323of IPC and under Section 5(M)/6 of the Protection of Children from Sexual Offences Act and tried the case. Although, appellant abjured his guilt and took the defence that he has been falsely implicated in the case. However, after trial learned ASJ found the appellant guilty for the aforesaid offence and sentenced him as aforesaid. Being aggrieved by the same appellant filed this criminal appeal.
3. Learned counsel for the appellant submitted that learned trial Court only on the basis of statement of the prosecutrix and her grandmother Gullubai found the appellant guilty while there are many contradictions and omissions in their statements. From their statements it is also proved that Gullubai lodged false report against the appellant at the instance of Mangilal, Sarpanch. Learned trial Court without appreciating the evidence found appellant guilty for the offence punishable under Section 363, 376(2)(i),323 of IPC and 5(M)/6 of the Protection of Children from Sexual Offences Act.
4. On the other hand learned counsel for the State submitted that from the statement of prosecutrix, which is also corroborated from the statement of Gullubai (PW-3) and other evidence it is clearly proved that appellant abducted the prosecutrix, who was minor (eight years) at the time of incident and committed rape with her. So Cr.A.No.385/2016 learned trial Court rightly found appellant guilty for the offence punishable under Section 363, 376(2)(i),323 of IPC and 5(M)/6 of the Protection of Children from Sexual Offences Act.
5. The point for determination in this appeal is whether conviction and sentence awarded by the trial Court to the appellant for the offence punishable under Section 363, 376(2)(i), 323 of IPC and 5(M)/6 of the Protection of Children from Sexual Offences Act are liable to be set aside for the reasons stated in the memo of appeal and rising during arguments.
6. As regards the age of prosecutrix at the time of incident Gullubai (PW-3), grandmother of prosecutrix, clearly deposed that she was eight years of age when the incident took place . Learned trial Court at the time of recording statement of prosecutrix also estimated the age of prosecutrix as eight years. This fact is also corroborated from the scholar entry register Ex.P/6, which was proved by Kamal Singh Verma (PW-2), Assistant Teacher, Govt. Primary School, Mandav Distillery, Dhar, in which date of birth of the prosecutrix was mentioned as 10.10.2007. From there age of prosecutrix on the date of incident i.e. 5.1.2015 appeared around eight years. So from the prosecution evidence it is clearly proved that prosecutrix was minor (only eight years of age) at the time of incident.
7. As regards the point whether appellant abducted the prosecutrix and committed rape with her and assaulted her prosecutrix (PW-4) clearly deposed that she studied in Class III in Govt.School and had known the appellant. At the time of incident she was playing at Mataji Ka Otla along with her younger sister Amisha when appellant came there and sent Amisha to home and took her to nearby pit situated near bushes and pushed her on land and wore nails on her throat and put up her underwear and slept over her.
Cr.A.No.385/2016Appellant also entered finger like object in her vagina, due to which blood oozed out from her urethra. When appellant went for urination she ran away from the spot. On the way two persons met her and brought her to home on bicycle where she narrated incident to her grand mother Gullubai. Her statement reads as thus :-
"¼1½ eSa ljdkjh Ldwy esa i<+rh gwWA eSa d{kk 3 jha esa i<+rh gwWA eSa vfHk;qDr ekuflax dks igpkurh gwW og iYyoh dks igpkurh gwWA ? kVuk ds le; eSa ekrkth ds vksVys ij [ksy jgh FkhA esjs lkFk esjh NksVh cgu vfu'kk Hkh [ksy jgh FkhA vfHk;qDr eq>s VwVh gqbZ daiuh ds ikl dkaVs okys >kM+ gS ogka ij ,d xM~Mk gS ogka ysdj x;k FkkA vfu'kk dks vfHk;qDr ls lsao ijey fnykdj ?kj Hkst fn;k FkkA ¼2½ vfHk;qDr us esjh pM~Mh fudkyh Fkh vkSj vaxyh tSlk fudkyk FkkA vfHk;qDr us eq>s iVd fn;k Fkk vkSj esjs mij lkS x;k Fkk vkSj esjk xyk nck fn;k Fkk vkSj cksyk Fkk fd iqfyl okyk vk jgk gS] pqi jgks vkSj xys ij uk[kwu x<+k fn;s FksA vfHk;qDr us vius diM+s Hkh fudkys FksA vfHk;qDr esjs mij lkS x;k FkkA eq>s is'kkc dh txg [kwu fudyk FkkA vfHk;qDr is'kkc djus x;k rks eSa Hkkxdj vk xbZA eq>s nks O;fDr feys Fks vkSj cksyk fd :d rks eSaus mu O;fDr;ksa ls cksyk Fkk fd eq>s cpkvksA eq>s ml O;fDr dk uke ugha ekywe og daiuh ds xsV okyk FkkA og lkbZfdy ij fcBkdj eq>s esjs ?kj NksM+ x;k FkkA esjh pM~Mh Hkh [kjkc gks xbZ FkhA ?kj vkdj eSaus esjh nknh dks ?kVuk ds ckjs esa crk;k FkkA nwljs fnu ge fjiksVZ djus Fkkus x;s FksA ogka eSaus iqfyl dks lc crk fn;k FkkA nwljs fnu ge fjiksVZ djus Fkkus x;s FksA ogka eSaus iqfyl dks lc crk fn;k FkkA iqfyl us eq>s esfMdy ds fy, vLirky Hkstk FkkA MkDVj dks Hkh eSaus lc crk fn;k FkkA lk{kh ls iwNs tkus ij mlus crk;k fd vfHk;qDr us tks maxyh tSlk fudkyk Fkk mls esjh is'kkc dh txg Mkyk Fkk] ,slk lk{kh us viuh is'kkc dh txg b'kkjk djds crk;k gSaA izfrijh{k.k vfHk;qDr dh vksj ls Jh jktsUnz j?kqoa'kh vf/koDrk %& ¼3½ eSa vfu'kk ds lkFk eafnj ij [ksy jgh Fkh ml le; FkksM+k FkksM+k mtkyk FkkA vkSj cPps lkFk esa ugha [ksy jgs Fks ge nksuksa gh FkhA eafnj ds FkksMs ls vkxs esjk ?kj gSA ;g dguk lgh gS fd esjs ? kj ds vkl ikl cgqr ls yksxksa ds ?kj cus gSA ;g dguk lgh gS fd gekjs ?kj ds vkxs cgqr cM+k [kyh eSnku gSA ;g dguk lgh gS fd ml [kkyh eSnku esa brokj dks gkV cktkj Hkjrk gSA ;g dguk lgh gS fd gkV Hkjus ls ogka brokj dks dkQh HkhM+ jgrh gSA ;g dguk lgh gS fd tgka gkV cktkj Hkjkrk gS nks&pkj dne vkxs iDdk jksM+ gSA ;g dguk lgh gS fd jksM+ ij cgqr lkjh nqdkus gS vkSj HkhM+ jgrh gSA ;g dguk lgh gS fd jksM+ ds nwljh vksj iqfyl pkSdh cuh gSA ¼4½ ;g dguk lgh gS fd vfHk;qDr tgka xM~Ms esa ys x;k Fkk ogka jksM+ cuh gqbZ gSA ;g lgh gS fd ogka cgqr ls yksx vk tk jgs FksA ;g dguk lgh gS fd ?kVukLFky ds ikl esa cgqr cM+h QsDVªh Cr.A.No.385/2016 cuh gSA ;g dguk lgh gS fd QSDVªh esa cgqr ls yksx dke djrs gSA ;g dguk lgh gS fd QSDVªh dk xsV jksM+ ds ikl gSA ;g dguk lgh gS fd QSDVªh ds xsV ls yksx vkrs tkrs gSA eSaus ?kVuk ds ckn xsV okys ftlus eq>s ?kj igqapk;k Fkk mls ?kVuk ds ckjs esa ugh crk;k FkkA ;g dguk lgh gS fd ?kVukLFky ls esjk ?kj FkksM+h nwjh ij gSA ;g dguk lgh gS fd ekrkth ds eafnj ds vksVys tgka eSa [ksy jgh Fkh ogka cM+h cM+h eqje iM+h gSA ;g dguk xyr gS fd eSa eafnj ij [ksyrs [ksyrs iFkjhyh txg ij fxj xbZ FkhA ;g dguk xyr gS fd eSa eafnj ds ogka [ksyrs [ksyrs fxj xbZ Fkh blfy, eq>s is'kkc dh txg pksaV vkbZ FkhA ;g dguk xyr gS fd ?kVuk ds ckjs esa eSa esjh nknh ds crk;s vuqlkj crk jgh gwW] Lor% dgk esjs lkFk gqvk ogha crk jgh gwWA""
8. Her statement is also corroborated by the statement of her grand mother Gullubai (PW-3) to whom she had narrated the incident. Gullubai (PW-3) also deposed that at the time of incident her granddaughter prosecutrix was playing at Mataji Ka Otla located near Mandav Liquor Factory, Labad along with her younger sister Amisha. When Amisha returned home alone she asked her regarding prosecutrix who told her that appellant Man Singh took her. Then she searched for the prosecutrix along with her grandsons Ajay and Ajit but of no avail. At 6.00 PM in the evening two unknown persons brought prosecutrix at home. They told her that they found prosecutrix on the way. They asked her address and when she told them they took her to home. At that time prosecutrix told that appellant took her in a pit and committed rape with her. She also saw that blood was oozing out on the genital of prosecutrix and swelling was also present there. Later when Shohan (PW-5) came home she lodged FIR Ex.P/7. Her statement was also corroborated from the FIR Ex.P/7.
9. The statement of prosecutrix (PW-4) was also corroborated from the statement of Dr.Ku.Nikunja Sule(PW-1), who examined the prosecutrix after the incident and gave medical examination report Ex.P/5. She also deposed that on 5.1.2015 she was posted as Medical Officer at Primary Health Centre, Ghata Billod. On that day at 5.00 PM Head Constable Laxmi Verma brought prosecutrix for Cr.A.No.385/2016 medical examination and she examined the prosecutrix. On examination she found two abrasions on her neck (nail mark on the right side of neck) and blood was also present on her under garment. She was frightened. On the examination of her genital she found that some dry and sticky substances were present on her labia majora, which smelled poorly. The hymen was ruptured at 5 O'clock position and There was a little bleeding from there. She further deposed opined that girl child has been physically assaulted and she also prepared to slides of her vaginal discharge and also seized her cloths. Her statement is also corroborated from the medical examination report Ex.P/5 given by her. She is an independent witness. There is no contradiction in her cross examination in this regard. So there is no reason to disbelieve her statement.
10. Learned counsel for the appellant submitted that Dr.Nikunja Sule (PW-1) in her cross-examination deposed that no definite opinion regarding rape with prosecutrix could be given. So it cannot be assumed that appellant committed rape with prosecutrix. But this statement of Dr.Nikunja Sule (PW-1) do not help the accused as she in her examination in chief clearly deposed that on examination of prosecutrix she found two abrasions on her neck (nail mark on the right side of neck) and blood was also present on her under garment. On the examination of her genital she found that her hymen was ruptured at 5 O'clock position and there was a little bleeding from there and that in her opinion the girl child had been physically assaulted. So only on the ground that she deposed in her cross- examination that final conclusion cannot be given regarding rape it cannot be said that no rape was committed with prosecutrix in the incident.
11. Learned counsel for the appellant also submitted that adverse inference be drawn against the prosecution since they did not produce FSL report. But this argument also has no force. The FSL Cr.A.No.385/2016 report is only a corroborative piece of evidence where statement of prosecutrix is trustworthy and reliable. There is no effect of not producing FSL report and only on that ground prosecutrix's statement cannot be discarded.
12. Learned counsel for the appellant also submitted that there is no eye-witness of the incident. Learned trial Court only on the statement of prosecutrix, who was minor and only eight years of age found that appellant committed rape with her, while her uncorroborated testimony cannot be relied in the circumstances. But this argument has also no force. There is no rule or law that evidence of prosecutrix cannot be relied unless corroborated, so there is no reason to disbelieve prosecutrix's statement which is also corroborated by the statement of her mother and medical evidence also. Prosecutrix is a eight years old innocent girl. Had the appellant not committed rape with prosecutrix (PW-4) why she would give false statement against him.
13. Learned counsel for the appellant also submitted that appellant took loan from Sarpanch Mangilal and at the instance of Mangilal, Gullubai lodged false report against the appellant. But Gullubai in her cross-examination clearly denied from the suggestion that she had lodged false report at the instance of Mangilal. There is no evidence on record that Gullubai has any relation with Mangilal then why she would lodge false report against appellant at the instance of Mangilal. Generally no person would like to put the prestige and reputation of her grand daughter by making false allegation of rape. Regarding rape there is no important contradiction and omission in prosecutrix's statement on the basis of which her statement could be disbelieved.
14. There is no evidence on record showing that prosecutrix (PW-4) Gullubai (PW-3) or Sohan (PW/5) father of the prosecutrix Cr.A.No.385/2016 has any enimity with the appellant. Had appellant not committed rape with prosecutrix why Gullubai (PW-3) and prosecutrix (PW-4) would give false statements against him. So there is no reason to disbelieve the statement of prosecutrix which is also corroborated from the statement of Gullubai (PW-3) and from the medical evidence. From the statement of prosecutrix it is clearly proved that in the incident appellant abducted her and committed rape with her.
15. So in the considered opinion of this Court from the prosecution evidence it is clearly proved that on 4.1.2015 at around 6.00 PM appellant Man Singh abducted the prosecutrix, who was minor at the time of incident and committed rape with her and also assaulted her. So learned trial Court did not commit any mistake in finding the appellant guilty for the offences punishable under section 363, 376(2)(i,) 323 of IPC and under Section 5(M)/6 of the Protection of Children from Sexual Offences Act .
16. As far as sentence is concerned the learned trial Judge sentenced appellant under section 363 IPC five years RI with fine of Rs.1,000/-, under Section 376(2)(i) of IPC Ten years RI with fine of Rs.1,000/- under Section 323 of IPC Six month RI and under Section 5(M)/6 of the Protection of Children from Sexual Offences Act Ten years RI with fine of Rs.1,000/- with default stipulation respectively.
17. From the above mentioned sentences it appears that Learned ASJ sentenced appellant under Both the sections. Under Section 376 (2)(i,) of the IPC as well as under section 5(M) r/w 6 of the POCSO Act Taking into consideration the provisions of the amended Section 42 of the POCSO Act, which is given below, this court holds that the learned A.S.J., has committed an error in law by convicting the accused- appellant under both the aforesaid sections. While Section 42 of the POCSO Act reads as thus:-
Cr.A.No.385/2016"Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or section 509 of the Indian Penal Code, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree".
18. Hence, this Court set aside the sentence awarded to the accused-appellant by learned ASJ under section 5(M) r/w 6 of the POCSO Act. As far as other sentences are concerned, looking to the act of the appellant seem quite adequate and this Court does not find any reason to interfere with the other sentences given by the trial court. Accordingly, the appeal is partly allowed up to the extent that sentence awarded by the trial court to appellant under section section 5(M) r/w 6 of the POCSO Act is set aside. Remaining sentences are affirmed. Appellant, who is in jail, shall undergo remaining part of sentence. All jail sentences shall run concurrently.
Accordingly, appeal stands disposed of.
(Rajeev Kumar Dubey) Judge 28/06/2017 Patil