Madhya Pradesh High Court
Vinod vs The State Of Madhya Pradesh on 15 March, 2023
Author: Vivek Rusia
Bench: Vivek Rusia, Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 15th OF MARCH, 2023
CRIMINAL APPEAL No. 1519 of 2013
BETWEEN:-
VINOD S/O MADANLAL, AGED ABOUT 22
YEARS, VILLAGE DABDI, POLICE STATION
RAOTI, DISTRICT RATLAM (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI BRIJENDRA GUPTA - ADVOCATE) (L.A.)
AND
THE STATE OF MADHYA PRADESH,
THROUGH POLICE STATION RAOTI,
DISTRICT RATLAM (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI AMIT SINGH SISODIA - GOVT. ADVOCATE)
This appeal coming on for hearing this day, the JUSTICE ANIL
VERMA passed the following:
JUDGMENT
The appellant has preferred present criminal appeal under Section 374(2) of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') against the impugned judgment dated 05/04/2013 passed by II Additional Sessions Judge, Ratlam (M.P.) in Sessions Trial No.291/2012, whereby the appellant has been convicted for the offence under Section 363, 376(2)(f), 377 and 506 of Indian Penal Code, 1860 (in short 'IPC') and sentenced to undergo 05 years RI with fine of Rs.500/-, undergo Life Imprisonment Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 3/17/2023 6:58:23 PM 2 with fine of Rs.1,000/-, 10 years RI with fine of Rs.1,000/- and 02 years RI with fine of Rs.500/- with usual default stipulation.
2. The facts of the case in brief are that on 27/09/2012 complainant Kalu along with his wife Santosh went to their agriculture field and their 6-7 years old daughter / prosecutrix and other two younger daughters remained at home. At about 08:00 PM, when they returned to home, mother of the prosecutrix saw that prosecutrix was weeping and was suffering from fever and blood stains were found over her frock. Upon asking prosecutrix narrated that accused Vinod came at home and on the pretext of giving chocolate, he took her in a khali and removed her clothes and thereafter, inserted his penis into her mouth. He has also inserted his finger in her vagina and thereafter, he tried to insert penis inside her vagina. When she shouted, he grabbed her mouth. Then after putting some oil on his private part, he again inserted his penis in her private part and thereafter, inserted his penis in her anus also. Due to which, blood was oozing out. Accused has also threatened the prosecutrix that if she will disclose the incident to her parents, he will kill them.
3. Complainant Kalu launched an FIR at Police Station Raoti, Ratlam where Dr. Meena Verma (PW-9) conducted her MLC. As per the MLC report, prosecutrix's vagina and anus appears to be torn and blood was oozing out. During the investigation, Investigating Officer has prepared spot map. Accused was arrested. His MLC was also conducted. At the instance of accused, his blood stain shirt has been seized from his possession and blood stain soil has also been recovered from the spot. Blood stain frock, underwear of the prosecutrix have also been seized during the MLC and her vaginal slide has been prepared. During the investigation, seized articles were sent to the FSL, Sagar for DNA Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 3/17/2023 6:58:23 PM 3 examination and DNA report was found positive.
4. After completion of the investigation, charge sheet has been filed before the Judicial Magistrate First Class, Sailana, who committed the case to the Court of Sessions, Ratlam, which was ultimately transferred to the II Additional Sessions Judge, Ratlam for trial. Thereafter, the trial Court on the basis of the allegation made in the charge-sheet framed the charges under Section 363, 376, 377 and 506 of the IPC against the appellant. The appellant abjured his guilt and took a plea that he is innocent. In order to bring home the charges, the prosecution has examined as many as 11 witnesses, but defence did not examine any witness. After completion of trial, the trial Court on the basis of the evidence available on record, convicted and sentenced the appellant as mentioned hereinabove. Hence, the appellant has preferred this appeal.
5. Learned counsel for the appellant contended that appellant is innocent and he has been falsely implicated in this matter. Statement of the prosecutrix is not supported by any independent witnesses. The trial Court has not framed proper charges. No case is made out against the appellant. Prosecutrix is a child witness and no other eye-witness of the incident is available. Prosecution has examined only interested witnesses. Their testimony cannot be relied upon. It has been prayed that learned trial Court has erred in convicting the appellant and he deserves to be acquitted.
6. Per contra, learned counsel for the respondent / State opposes the prayer by supporting the impugned judgment passed by the trial Court and prays for dismissal of this appeal by submitting that trial Court after appreciating the entire evidence available on record in detail convicted the appellant. Respondent/State has drawn our attention to the statement Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 3/17/2023 6:58:23 PM 4 of prosecutrix (PW-4), her mother Santosh (PW-5), her father Kalulal (PW-6) as well as towards the findings recorded by the trial Court. It is contended that witnesses are trustworthy and creditable, hence, no interference in the impugned judgment is warranted, therefore, present appeal deserves to be dismissed.
7. We have heard learned counsel for both the parties at length and perused the entire record of the trial Court with due care.
8. Prosecutrix (PW-4) in her statement very categorically stated that at the time of incident her father and mother went to the field and she was at home caring with her two younger sisters. At that time, accused Vinod came in her home and said that "I will give you chocolate". Then accused took her in a khali and put off his and her pants. Accused after putting some oil in her private part and also on his penis inserted his private part in her vagina. When she tried to cry, accused grabbed her mouth and thereafter, accused inserted his private part in her anus also. Blood was oozing out. Then accused took her back in her house and threatened her that if she will disclose the incident to anyone, he will kill her. In the evening, while her mother returned home, she was suffering from fever. When her mother asked what happened to her, she narrated the whole incident to her. Thereafter, she along with her parents went to Police Station Raoti and narrated the entire incident to police. Police has also recovered blood stained cloths, when she was admitted in hospital. Her age is 7 years.
9. Santosh (PW-5) and Kalulal (PW-6), who are the mother and father of the prosecutrix also corroborated that at the time of incident when they returned their home, they found that their six years old daughter / prosecutrix was suffering from high fever and upon asking she Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 3/17/2023 6:58:23 PM 5 described that accused Vinod forcefully took her in a khali and inserted his private part in her vagina and also in her anus. Due to which, she was injured and blood was oozing out. Both the witnesses have also corroborated that they have found prosecutrix's blood stained skirt, which was hidden by the accused below the bed. Bherulal (PW-7), Munnalal (PW-8) also corroborated the above statement of witness Kalulal and Santosh. There is no case for the appellant that parents of the prosecutrix had any ground of enmity towards him, so that there is no possibility of her torturing.
10. From the statement of Teacher Nathusingh (PW-2), it is established that as per the Scholar Register (Ex.-P/2), the date of birth of the prosecutrix is 15/01/2006 and she was minor at the time of incident. Prosecutrix was medically examined by Dr. Meena Verma (PW-9). She in her report (Ex.-P/10) as well as in her statement very categorically stated that during the examination of the private parts of the prosecutrix, she found that her vagina appears to be torn and she was bleeding. Her anus was also found ruptured and blood was oozing from there. One finger was not able to insert in her vagina. As per her opinion, penetration was tried with the prosecutrix. She was admitted to the hospital and her vaginal slide was also prepared. She has also seized her undergarment and frock. During the cross-examination of Dr. Meena Verma, nothing has been found to disbelieve her testimony. Dr. B.L. Mangliya (PW-1), who has conducted the MLC of the appellant opined that as per his report Ex.-P/1 appellant is capable to perform intercourse. Accused did not challenge the report submitted by Dr. Mangliya, therefore, there is no reason to disbelieve the medical evidence available on record.
11. Sub Inspector R. S. Bajjaiya (PW-11) deposed that during the Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 3/17/2023 6:58:23 PM 6 investigation he has seized blood stained frock and underwear of the prosecutrix and he has also seized blood stain shirt of the accused through seizure memo (Ex.-P/6), which was duly identified by the witnesses Bherulal and Ramesh as per identification Panchnama (Ex.-P/12). Thereafter, he sent all the seized articles to the FSL, Sagar for chemical analysis and DNA test and the DNA Report is Ex.-P/26. DNA report is found positive regarding the offence of commission of rape and unnatural intercourse also in her anus.
12. Learned counsel for the appellant submitted that prosecutrix (PW-4) being a child witness her testimony could not be relied upon. In this regard it is relevant to note that merely because a witness is a child witness, his evidence cannot be discarded. The evidence of child witness is relevant under Section 118 of the Evidence Act, which provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of same kind. In the present case, on perusal of the deposition-sheet of prosecutrix (PW-
4) it is evident that the learned trial Court has put certain questions and tested her intelligence to answer those questions and has satisfied herself with regard to her competence to depose and therefore, we do not find any force in the said argument raised by the learned counsel for the appellant.
13. The statement of prosecutrix is well supported by testimony of her parents and also corroborated by the medical evidence. Blood stained shirt has also been recovered from the possession of accused and accused has not given any plausible explanation as to why such blood stains were Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 3/17/2023 6:58:23 PM 7 found over his shirt. DNA report (Ex.-P/26) also corroborate the entire prosecution story regarding the aforesaid crime. Kalulal (PW-6) and prosecutrix (PW-4) both have admitted in their cross-examination that accused Vinod relates to the same caste and community that they belongs and they are neighbour also but appellant misused his position of trust.
14. From minute scrutiny of the evidence of the prosecution, learned trial Court has rightly come to the conclusion that prosecutrix witness was cogent, her evidence was clear and specific, it is thus, apparent from the entire reading of the prosecutrix evidence that it is a clear case of rape and sodomy has been made out. Having given our anxious consideration and having scrutinized the evidence of the prosecutrix, we are in agreement with the learned trial Court that evidence of the prosecutrix appears to be trustworthy, which gives on account of the incident that happened to a rustic girl, who as traumatized on account of sexual harassment meted out.
15. Hon'ble the Supreme Court in the case of State of Rajasthan Vs. Om Prakash reported in (2002) 5 SCC 745 has held as under:-
"Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of the sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even brought to light because of social stigma attached thereto. According to some surveys, there has been steep rise in the child rape cases. Children need special care and protection. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country. They are country's future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other mode of sexual abuse. These factors point towards a different approach required to be adopted. The overturning of a well considered and well analyzed judgment of the trial court on the grounds like non- examination of other witnesses, when the case against the respondent otherwise stood established, Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 3/17/2023 6:58:23 PM 8 beyond any reasonable doubt was not called for. The minor contradiction of recovery of one or two underwear was wholly insignificant."
Hon'ble the apex Court again in the case of Mukesh and Another Vs. State of (NCT of Delhi) reported in (2017) 6 SCC 1 has held as under:-
"516. Society's reasonable expectation is that deterrent punishment commensurate with the gravity of the offence be awarded. When the crime is brutal, shocking the collective conscience of the community, sympathy in any form would be misplaced and it would shake the confidence of public in the administration of criminal- justice system. As held in Omprakash Vs. State of Haryana (1999) 3 SCC 19, the Court must respond to the cry of the society and to settle what would be a deterrent punishment for what was an apparently abominable crime."
16. Prosecution has been able to prove the allegation of sexual assault by the appellant on a young girl and there is nothing to take any different view than that the appellant committed the rape and sodomy on an innocent girl of aged about 6-7 years. There is no iota of evidence to the contrary to interfere with the well-reasoned judgment passed by the learned trial Court in convicting and sentencing the appellant. The judgment passed by the trial Court is not suffering from any illegality or infirmity. However, while affirming the judgment of conviction and order of sentence, we are not inclined to interfere with the sentence. Hence, appeal being devoid of any merit substance is hereby dismissed.
17. Let a copy of this judgment be sent along with the copy of this order to the concerned trial Court for information and necessary action.
Certified copy as per rules.
(VIVEK RUSIA) (ANIL VERMA)
J U D G E J U D G E
Tej
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 3/17/2023
6:58:23 PM